Excerpt: ...splitting the cost for a mobile copying service is a reasonable compromise and, if not, why not. Basic Law re Post-Judgment Discovery, particularly RFPs, and Motions to Compel Further Responses to RFPs The methods available for post-judgment discovery are not as broad as those for pre- judgment discovery. Post-judgment discovery options are delineated in Code of Civil Procedure (“CCP”) sections 708.010 through 708.030 (in Article 1 of the Enf...

Excerpt: ...laims for conversion, fraud, money had and received, unfair business practices, and declaratory relief. For the reasons set forth below the Demurrer is SUSTAINED IN PART and OVERRULED IN PART. To the extent the Demurrer is sustained, it is sustained with 15 days leave to amend. 2nd Cause of Action for Conversion The elements of a tort claim for conversion are: “(1) the plaintiff's ownership or right to possession of personal property; (2) the d...

Excerpt: ...Gutierrez by and through his guardian ad litem Javier Gutierrez, Fernando Gutierrez, deceased, by and through his successor in interest Javier Gutierrez (collectively, “Plaintiffs”). For the reasons set forth below, the demurrer is overruled. Defendant is ordered to file an answer within 10 days. The parties are ordered to appear for the CMC to set a trial date. In any medical malpractice action, the plaintiff must establish: (1) the duty of ...

Excerpt: ...dicial notice [ROA #133] is granted as to Ex. 1. The request is unnecessary as to Exs. 2-3. Defendant's supplemental request for judicial notice for Ex. 10 [ROA #159] is granted. Demurrer Basic Rules A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1...

Excerpt: ...he instant motion. The agreement at issue states: “Both I and the Company agree that any claim, dispute and/or controversy that I may have against the Company…or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (‘FAA'), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. Sect 1280 et seq….).” (Perez Decl. ¶6 a...

Excerpt: ...uty, negligence, declaratory relief, and injunctive relief. (ROA 2). Just five days later, on 9/19/22, prior to service on Defendant or any appearance by Defendant, Plaintiffs filed a request for dismissal of the entre action with prejudice. (ROA 12). The paralegal for Plaintiffs' counsel, Ms. Jimenez, testifies that she mistakenly filed the case in Orange County and the Clerk told her to dismiss it and refile in Los Angeles. (Jimenez Decl., ¶¶...

Excerpt: ... points out in its reply, a special motion to strike cannot be brought in a limited civil case. (1550 Laurel Owner's Assn., Inc. v. Appellate Division of Superior Court (2018) 28 Cal.App.5th 1146, 1158.) Thus, Defendant could not have brought the motion when it was served with summons, while the case was pending in limited. However, once the Clerk served the Notice of Transfer, Reclassification and/or Consolidation (the “Notice”) on March 23,...

Excerpt: ...ded Complaint (“FAC”). Injunctive relief is not a cause of action; it is a remedy. Although the demurrer is sustained without leave to amend the Third Cause of Action, this does not preclude Plaintiffs from seeking leave to amend to add new or different claims that may warrant injunctive relief. Request for Judicial Notice The Request is GRANTED as to Exhibit 1, the Complaint and exhibits thereto. The Request is DENIED as to Exhibit 2 (Notice...

Excerpt: ...lma Luna (“Plaintiff”) is SUSTAINED in part and OVERRULED in part. The Demurrer is sustained, with leave to amend, as to Plaintiff's first, second, third, and fourth causes of action. The Demurrer is overruled as to Plaintiff's fifth cause of action. If Plaintiff wishes to amend, Plaintiff shall serve and file her Amended Complaint within 15 days. 1st – 3rd Causes of Action Plaintiff alleges Defendant Miguel Zarate came to her apartment on ...

Excerpt: ...§ 452; Stevens v. Superior Court (1999) 75 Cal. App. 4 th 594, 601. All material facts properly pleaded, and reasonable inferences therefrom, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4 th 962, 966-67. A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of t...

Excerpt: ...omplaint is OVERRULED. Defendants shall file and serve their Answer to the Complaint within 15 days. Requests for Judicial Notice Defendants' requests for judicial notice filed with the moving papers and the reply are both denied. Defendants base their requests on Evidence Code section 452 subsection (f) (law of foreign nations) and subsection (h) (facts not reasonably subject to dispute). The documents are Iranian government publications, not ac...

Excerpt: ...objections must follow one of two specified formats and: …Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: (1) Identify the name of the document in which the specific material objected to is located;...

Excerpt: ...”) to be relieved as counsel. Both motions are GRANTED. Plaintiff's Motion to Enforce Settlement The Court GRANTS the Motion by Plaintiff to enter judgment pursuant to CCP §664.6 against Defendant Old American Inc. pursuant to the parties' Settlement Agreement. The Plaintiff in the action originally was Ascentium Capital LLC; however, by order dated 5/12/2023, the Court granted an ex parte application to substitute Regions Bank as the Plaintif...

Excerpt: ...the director of the Old Town Boys Club, which was owned and operated by the Boys & Girls Club of Central New Mexico. Personal Jurisdiction A nonresident defendant may not be called upon to defend in a foreign forum unless he or she has minimal contacts with that state. See Hensa v. Denckla (1958) 357 U.S. 235, 251. The plaintiff bears the burden of proving that a nonresident defendant has sufficient contacts with the forum state to support person...

Excerpt: ... 46 Cal.App.5 th 337, 346-348) – and the parties did so here. The Arbitration Agreement at issue here (the “Agreement”) expressly states it is “governed by the Federal Arbitration Act (the ‘FAA') to the fullest extent permitted by applicable law.” (Farrow Declaration [“Farrow Decl.”] ¶ 4 and Exh. A, subsection A.) Moreover, the undisputed Declaration of Toni Farrow establishes that Defendant offers residential mortgage lending se...

Excerpt: ...l Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Under Civil Procedure Code (“CCP”) section 387(a), the trial court has discretion to permit a nonparty to intervene where: (1) the intervenor has a direct interest in the litigation; (2) intervention will not enlarge the issues raised by the original parties, and (3) the reasons for intervention outweigh any opposition by the existing parties. (Truck Ins. Exch. v. Superior Court (1...

Excerpt: ... Plaintiff's contention, the demurrer is not untimely. Plaintiff filed and electronically served the FAC on 1/9/2023. Defendant timely served and filed Defendant's 2/8/2023 declaration on 2/8/2023. (Code Civ. Proc., § 430.41, subd. (a)(2).) Although Defendant's 2/8/2023 declaration referenced the complaint in the caption and part of the declaration, the declaration also references the FAC. (Valencia 2/8/2023 Decl., ROA No. 46, 1:16 and ¶ 2.) Th...

Excerpt: ...ively, “Plaintiffs”). The Demurrer is SUSTAINED with 20 days leave to amend. The Case Management Conference is continued to 11/6/2023 at 9:00 a.m. in Department C31. “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-821.) “Breach of a real estate agent's fiduciary ...

Excerpt: ...against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (‘FAA'), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. Sect 1280 et seq….).” (Perez Decl. ¶6 and Exh. 1.) The parties to an agreement may incorporate the FAA into its terms. Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5 th 337, 346-348. Moreover, Defendant submits...

Excerpt: ...law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2)...

Excerpt: ...ransparent Container Company (“TCC”). Defendant shall file and serve its supplemental brief of no more than 10 pages no later than August 9, 2023. Plaintiff shall file and serve its responsive supplemental brief of no more than 10 pages no later than August 16, 2023. The Case Management Conference is also continued to August 28, 2023, at 1:30 p.m. in this Department. Discussion The parties agree that the applicable statute of limitations for ...

Excerpt: ... arbitrator,” which was set for hearing on 3/6/23. [ROA #197.] That motion essentially sought to vacate both the interim award and, ultimately, the final award: “Therefore, Plaintiff is petitioning this Court to set aside the preliminary award, which would then allow no prevailing party fees/ costs.” [Plaintiffs' Second Motion to Vacate MPA (ROA #197), at 12:1-2.] The Court dismissed Plaintiff's First Petition to Vacate the interim arbitrat...

Excerpt: ...d “[Plaintiff's] itemized cellular telephone(s) records including, but not limited to, call detail records evidencing or tending to show activity related to telephone calls, text messages, or SMS messages made by or received by [Plaintiff] on [her] cellular phone(s) from June 15, 2020 to the present.” (ROA 90 [Elkrief Decl. at ¶ 3, Exh. B].) The reason for this request is “to assess whether she made personal calls or engaged in personal co...

Excerpt: ...d costs); (2) discharging Chicago Title from any liability relating to the funds upon its deposit of the funds with the Clerk of the Court; (3) restraining and prohibiting the prosecution of any further legal action against Chicago Title in connection with distribution of the funds related to 121 39th Street, Newport Beach, California 92633; (4) dismissing Chicago Title from the action; and (5) granting Chicago Title an award of its attorneys' fe...

Excerpt: ...requests for terminating and monetary sanctions. Code of Civil Procedure (“CCP”) section 2023.030 delineates the various sanctions that may be imposed “against anyone engaging in conduct that is a misuse of the discovery process,” including: monetary sanctions; an issue sanction; an evidence sanction; a terminating sanction; or a contempt sanction. Failure to respond to an authorized method of discovery is a misuse of the discovery proces...