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: ...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: ...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: ...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: ...§ 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: ...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: ...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: ...on the third cause of action for declaratory relief in its Cross-Complaint (“XC”) against Tromp. Plaintiff Tromp sues Defendants Pacific College, Sarge, and Garcia for: 1. Retaliation under FEHA 2. Wrongful termination in violation of public policy 3. Breach of oral contract 4. Hostile work environment 5. Declaratory relief The FAC is the operative pleading. (ROA 9) In addition, Defendant Pacific College filed a Cross-Complaint. (ROA 25). It ...

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...

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: ...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: ... 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: ...der (“RTAO”). Strausser also seeks an order compelling Sheppard Mullin to pay to Sweetwater Canyon Development, LLC the amount of $121,153.42, an award of attorneys' fees in the amount of $20,000, and monetary sanctions against Sheppard Mullin payable to the Court pursuant to section 177.5 of the Code of Civil Procedure. For the reasons set forth below, the Motion is DENIED. As an initial matter, the Court notes both Strausser and Sheppard Mu...

Excerpt: ...Plaintiff currently has additional facts to allege to state a claim for punitive damages against any of the Knode Defendants, he has leave to do so within 15 days. If he does not now have such additional facts to allege and discovery later reveals facts that Plaintiff believes are sufficient to support his claim(s) for punitive damages, he may then seek timely leave from the Court (after first meeting and conferring, of course, with Defendants' c...

Excerpt: ...er of moving Defendant, the Boys & Girls Club of Central New Mexico (“Defendant”). This matter originally was heard on June 5, 2023, and it was continued for supplemental briefing per the Court's 6/12/23 Minute Order. The Court has now considered the additional briefs. Service of Process Defendant moves to quash service of summons first by arguing that it was never properly served with the summons and complaint. However, after the motion was ...

Excerpt: ...Contract – Simple Finance Charge (With Arbitration Provisions),” (the “RISC”), between Plaintiff and non-dismissed party dealership, Jim Manning Dodge Inc. RJN Defendant's request to judicially notice a state court case is denied. Plaintiffs' request to judicially notice Federal authority is granted. Lower federal court decisions may be treated as persuasive. (Guarantee Forklift, Inc. v. Capacity of Texas Inc. (2017) 11 Cal.App.5th 1066, ...

Excerpt: ...intervene as a matter of right or, in the alternative, for permissive intervention. Plaintiff Pacific Airshow, LLC (“Airshow”) is suing Defendants City of Huntington Beach (the “City”) and Kim Carr for claims arising from the cancellation of the third day of a three-day air show in 2021, after an oil spill occurred. (FAC at ¶¶ 6-19.) As an initial matter, the Court does not find that this motion is untimely. Although there is evidence I...

Excerpt: ...031.310(b)(1) of the Code of Civil Procedure (“CCP”) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e...

Excerpt: ... no. 3 is sustained; the remaining objections are overruled. As an initial matter, the Court notes Kharrat paid only one filing fee, even though he effectively filed two motions in a single document: his motion seeks both summary judgment/adjudication on Plaintiff's Complaint and summary judgment/adjudication on Market's Cross-Complaint. Accordingly, Kharrat is ordered to pay an additional filing fee of $500 within 15 days. “[F]rom commencement...

Excerpt: ...to Complaint and Answer. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. "[A)ll that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) 9.53. la.) The Request is also denied as to the Promissory Note, which is not recorded. It is just a private contract. (Gould v. Maryland Sound Indus. , Inc. ...

Excerpt: ... 1281.2 states in pertinent part: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has bee...

Excerpt: ...ano") — pending the conclusion of the arbitration proceedings. The Court vacates the Case Management Conference. A. There is an Agreement to arbitrate that covers the claims in this case. This is an employment case. Plaintiff Martha Sandoval ("Plaintiff") sues Defendants Pridestaff, Caggiano, and The Regents for: . Sexual harassment in violation of FEHA Sex discrimination in violation of FEHA 2. Retaliation in violation of FHA 3. Failure to pre...

Excerpt: ...omplaint. Other than the RFA seeking admission of Michael's death, Defendant objected to the RFAs: Responding Party incorporates by this reference her General Responses and Continuing Objections set forth above. Furthermore, Responding Party objects to this Request on the following grounds: This Request seeks information not relevant to the subject matter of this action, not admissible in evidence and not reasonably calculated to lead to the disc...

Excerpt: ...the Boys & Girls Club of Central New Mexico. Service of Process Defendant moves to quash service of summons by arguing, first, that it was never properly served with the summons and complaint. However, since the time the motion was filed, Plaintiff filed a proof of personal service of the Summons and Complaint on Defendant. Defendant does not argue in Reply that the personal service is defective. As a result, it appears proper service has now bee...

Excerpt: ...ther, the Court finds Defendant is not entitled to enforce the arbitration agreement as a third-party beneficiary. As an initial matter, it is undisputed the Federal Arbitration Act ("FAA") applies to the instant motion. (Marden Decl., Ex. B); see also Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 cal.App.5th 337, 346-348 and comley v. Giant Inland Empire RV center, Inc. (C.D. Cal. 2013) 2013 WL 12131180 at 3.) The FAA requires the existen...

Excerpt: ...econd is a Motion to Strike by Defendants, which asks the Court to strike some or all of the FAC. A. Late-Filed Opposition Papers Before turning to its analysis of the Demurrer and Motion to Strike, the Court notes that Plaintiff filed her Opposition papers on May 11, 2023, in violation of CCP 51005(b). (ROA 116, 117). Moreover, Plaintiff served the Opposition papers by mail, which also violates the CCP 51005(b) requirement for next day delivery....

Excerpt: ...t appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual." The purpose of CCP S 526(a)(3) is to preserve the status quo pending litigation. See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563. First, for an ...

Excerpt: ...rovision that "covers only default judgments and defaults that will result in the entry of judgments" and a discretionary provision that is broader in scope. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) Under the discretionary provision, a "court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken...

Excerpt: ...subpoena is hereby limited to documents reflecting or relating to work done by Plaintiff and money paid to Plaintiff for that work, for the period of 1/1/19 through 1/31/22. If Plaintiff contends that any such documents are protected by his tax return privilege, counsel should be prepared to specifically identify such documents at the hearing. No sanctions are awarded. Motion *2 — re Subpoena to BLS Limousine As explained further below, Plainti...

Excerpt: ...M.D. F.A.C.S is DENIED subject to the caveats that (1) the Court orders that the subpoena is modified — and narrowed — as set forth below; and (2) the subpoenaed documents shall not be produced until a confidentiality protective order has been entered into the case. The subpoenas directed to these entities are identical and ask for all medical records and billing records related to Plaintiff. In her Complaint, Plaintiff alleges Defendants' co...

Excerpt: ...ty beneficiary or pursuant to agency principles. Initially, it is undisputed the Federal Arbitration Act ("FAA") applies to the instant motion. (Lambert Decl. 112 and Exh. A); see also Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346-348 and Com/ey v. Giant Inland Empire RV Center, Inc. (C.D. Cal. 2013) 2013 WL 12131180 at 3.) The Federal Arbitration Act requires the existence of a valid arbitration agreement before arbit...

Excerpt: ...ber 4, 2023, at 9:00 a.m. in Department C31. Defendant's request that the court appoint an arbitrator is, at minimum, premature. There has been no showing that the AAA arbitration rules — which the parties' agreement provides will govern the arbitration - do not include a mechanism for the selection of an arbitrator or that, despite following the rules, the parties have been unable to select an arbitrator, so as to require the Court to do so. A...

Excerpt: ...ths, to even agree upon an arbitral forum, much less a specific arbitrator. (2) The OSC entered by the Court, on its own motion, ordering the parties to show cause why — given the lack of any progress in moving the arbitration proceeding forward the Court should not reconsider its October 31, 2022 order compelling arbitration in light of the recent opinion in Ford Warranty Cases (Ochoa) (2023) 306 Cal.Rptr.3d 611. (3) The Court's previously-set...

Excerpt: ...leading a cause of action in a complaint. Thus, the defendant must plead ultimate facts, and when the facts must be pleaded with particularity in a complaint, it is equally necessary to plead them with particularity in an affirmative defense involving the issue. (5 Witkin, California Procedure (6th ed.), Pleading 5 1122; see also FPI Development, Inc. v. Nakashima (1991 231 cal. App. 3d 367, 384.) There are three grounds for a demurrer to an answ...

Excerpt: ...lison, Brandi Lee Callison, Jennifer Negrete, and Levi Sterling Callison, a minor, by and through his Guardian ad Litem, Caleb Callison CROA *23] is SUSTAINED with 15 days leave to amend. (2)Defendant Elizabeth Gothard's demurrer to the fifth cause of action for negligent misrepresentation in Plaintiffs' complaint [ROA #77] is SUSTAINED with 15 days leave to amend. (3)Defendant Jeffrey Gothard's demurrer to the fifth cause of action for negligent...

Excerpt: ...sana L. White (collectively, the "Moving Defendants") to Plaintiffs' First Cause of Action for breach of contract and their Second Cause of Action for fraud. For the reasons set forth below, the Demurrer is SUSTAINED with 15 days leave to amend. Initially, the Court notes that Plaintiffs' opposition was due to be filed on 4/21/23. (Code Civ. Proc., 1005(b).) It was not filed until 4/25/23. (ROA 42.) In addition, the proof of service is deficient ...

Excerpt: ...scovery. CCP section 425.16(g) provides that once an anti-SLAPP motion is filed, there is a stay of all discovery "in the action." The purpose of the discovery stav is to protect the defendant from being dragged into further litigation until the plaintiff makes a prima facie showing of the probable validity of its claim. Paterno v. Superior Court (2008) 163 Cal. App. 4th 1342, 1348; Cal. Prac. Guide Civ. Pro. Before Trial S 7:1096.5 (Rutter Group...

Excerpt: ...mainder of the objections because they are not material to the Court's disposition of the motion. (Code Civ. Proc. S 437c, subd. (q). ) Defendant moves for summary judgment on the sole cause of action asserted against it for dangerous condition of public property. Summary Judgment Standard "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and th...

Excerpt: ...ical expenses of at least $25,000, unspecified future medical expenses, unspecified loss of income, and unspecified special damages. Mandalia Declaration (ROA #113) Ex. 1. Motion #1 — Defendant's Motion to compel Plaintiff to provide further responses to RFPs (ROA #166) Defendant is moving to compel as to its RFP No. 30, which seeks documentation of Plaintiff's income from MGA Group, Plaintiff's business entity, and RFP No. 31, which seeks any ...

Excerpt: ... party who conducted the examination deliver a copy of the written report, the examinations, the findings and results of all tests, any diagnoses, prognoses, and conclusions of the examiner. (Code Civ. Proc., S 2032.610.) These reports are to be delivered within 30 days service of the demand, or within 15 days of trial, whichever is earlier. (Code Civ. Proc., S 2032.610(b).) If the party who examined the plaintiff fails to make a timely delivery ...

Excerpt: ...y judgment on Plaintiff's Complaint and summary judgment on Kharrat's Cross- Complaint. Accordingly, Market is ordered to pay an additional filing fee of $500 within 15 days. Market's Objections Nos. 5 and 6 to Balian's declaration are sustained. "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of...

Excerpt: ...the Song-Beverly Act may also recover reasonable attorney fees. Section 1794, subdivision (d) provides: "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commen...

Excerpt: ...ce may not be taken of any matter unless authorized by law." (ld. at 835.) The Court in Tenet noted that although letters were "referred to in the third amended complaint," judicial notice was nonetheless improper, as the letters did not qualify for judicial notice pursuant to Evidence Code 5451 or Evidence Code 5452. (ld. at 833 and 835.) "A matter ordinarily is subject to judicial notice only if the matter is reasonable beyond dispute." (ld. at...

Excerpt: ...anctions under CCP section 177.5. (Plaintiff's Notice of Motion also seeks some form of relief under CCP "section 1778," but the Court is unaware of any such statute.) More specifically, Plaintiff's Motion asks the Court to set an OSC re Contempt of the Temporary Restraining Order entered by the Court on January 12, 2023. Thus, the 4/24/2023 hearing on this Motion addresses only Plaintiffs' request for the Court to issue an OSC re Contempt; it is...

Excerpt: ...able Family Trust dated December 2, 1 ggl, as amended and completely restated April 6, Trustee"), moves for an order granting his motion for summary judgment on his Complaint, or, in the alternative, summary adjudication on his first cause of action for breach of note his and second cause of action for breach of guaranty. Legal Standard "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that t...

Excerpt: ... • the Fourth Cause of Action for violation of Bus. And Prof. Code 17200. For the reasons set forth below, the Motion for Judgment on the Pleadings (the "Motion") is DENIED as to the First Cause of Action and GRANTED as to the Second, Third, and Fourth Causes of Action. Request for Judicial Notice The Court GRANTS Defendant's request for judicial notice of Exhibits 1 and 4-9 pursuant to Evidence Code sections 452(c) and 452(h). Although the Cou...

Excerpt: ...h Demurrer To state a cause of action against a public entity, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measu...

Excerpt: ...ourt denies Defendant's request to judicially notice the Court's prior order granting Defendants Motion for Judgment on the Pleadings in this case. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. "CA]II that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) 'l g.53.1a.) The Court can consider...

Excerpt: ... the Unruh Act. "[W]here, as here, statutory remedies are invoked, the facts 'must be pleaded with particularity.' (Covenant Care, supra, 32 Cal.4th at p. 790, 11 Cal. Rptr.3d 222, 86 P.3d 290.)" Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 cal.App.4th 396, 410. Civil Code section 51, the Unruh Act, provides that "all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion...

Excerpt: ...urrer is OVERRULED. Third Cause of Action for Marital Status Discrimination under FEHA "To succeed on a disparate treatment claim at trial, the plaintiff has the initial burden of establishing a prima facie case of discrimination, to wit, a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds. Based on the inh...

Excerpt: ...y Braking System. Complaint, II 59. In connection with that purchase, Plaintiff alleges he entered into a warranty contract with Nissan. ld. 8. Plaintiff alleges the Vehicle constitutes consumer goods under the Song-Beverly Consumer Warranty Act (the "Act"); Plaintiff is a buyer of consumer goods under the Act; and Defendant Nissan is a manufacturer and/or distributor under the Act. Complaint 64-67. Plaintiff further alleges the Vehicle has defec...

Excerpt: ... The Court notes that Plaintiff filed two Oppositions to the Motion to Stay but no Opposition to Motion to Strike. From this, it appears Plaintiff may have intended to — but inadvertently did not — file and serve his Opposition to the Motion to Strike. Plaintiff shall file and serve his opposition no later than April 7. Defendant's reply shall be filed and served pursuant to the Code of Civil Procedure ("CCP") section 10050). Motion to Stay P...

Excerpt: ...express agreement between the parties. (D'Amico v. Board of Medical Examiners (1974) 11 cal.3d 1, 25; code Civ. Proc., SS 1021 and 1717.) Plaintiffs contend they are entitled to fees under the tort of another doctrine. The Court disagrees. The damages recoverable through "tort of another" are often referred to as an exception to the "American Rule," under which litigants are required to pay their own legal fees, absent an agreement to the contrar...

Excerpt: ...eard and disposed of on their merits"; and because Defendant contends both agreements are unconscionable, oppressive and unlawful. For the reasons set forth below, the Motion is DENIED. As an initial matter, the Court notes that judgment in this case has not yet been entered in favor of Plaintiff Ryan Kim. On 6/29/22, the Court granted Plaintiff's Motion to enter judgment against Defendant under CCP section 664.6 based on the Stipulated Judgment....

Excerpt: ..., the Motion is GRANTED; the action is stayed pending conclusion of the arbitration proceedings; and an ADR Review hearing is set for October 30, 2023, at 9:00 a.m. in Department C31. Section 1281.2 of the Code of Civil Procedure CCCP") provides, inter alia: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, th...

Excerpt: ...rety. B. Demurrer The Court sustains Defendants' Demurrer to the first and third causes of action — for negligence and false imprisonment - in Plaintiff's Complaint. The Demurrer is overruled as to the second cause of action for battery. As an initial matter, Plaintiff filed her Opposition brief just four court days before the hearing. This violates Code of Civil Procedure CCCP") section1005(b), which provides that all opposition papers "shall ...

Excerpt: ...ing six causes of action against Defendant: 1) Breach of Declaration, 2) Violation of Civil Code S4775(a), 3) Violation of the covenant of good faith and fair dealing, 4) Breach of fiduciary duty, 5) Negligence, and 6) Declaratory relief. At issue on this Demurrer are the Third through Sixth causes of action. Plaintiff alleges she owns property within the Association. Complaint YIYI, 2. Defendant and Plaintiff "are subject to a certain First Amen...

Excerpt: ...he demurrer for uncertainty is overruled. First Cause of Action for breach of partnership aqreement The elements of a cause of action for breach of a partnership agreement are: (1) the partnership agreement; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) the resulting damages to plaintiff. (Jones v. Goodman (2020) 57 cal.App.5th 521, 527, fn. 2.) In general, "the association of two or more persons to car...

Excerpt: ... re Preliminary Injunction and Temporary Restraining order. ROA # 22. The Court GRANTS Plaintiffs' Motion for Preliminary Injunction to the extent set forth below. Plaintiffs' unnumbered evidentiary objections are all overruled. Legal Standard Code of Civil Procedure ("CCP") section 526(a)(3) provides that an injunction may be granted "Cw]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, ...

Excerpt: ...tains Defendants' Demurrer to the first and third causes of action — for negligence and false imprisonment - in Plaintiff's Complaint. The Demurrer is overruled as to the second cause of action for battery. As an initial matter, Plaintiff filed her Opposition brief just four court days before the hearing. This violates Code of Civil Procedure CCCP") section1005(b), which provides that all opposition papers "shall be filed with the court and a c...

Excerpt: ...r presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code 451 or 452. Although California courts take a liberal view of inartfully drawn co...

Excerpt: ...mproper. Written objections must be served and filed separately from papers supporting or opposing the motion. (CRC 3.1354(b). Accordingly, the Court declines to consider any of Plaintiffs' purported objections. Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8-9, (court did not abuse its discretion in refusing to consider objections not filed separately as required by rule.) Defendant filed evidentiary objections with its Repl...

Excerpt: ...keeping services (Comp., ¶21); (2) Crowell Industries, Inc. invested $4,000,000 in Tritec Americas (Comp., ¶ 21); (3) the Crowell Entities (or one/some of them) obtained $55,000,000 in loans from TriState Capital Bank (Comp., ¶ 21); and (4) Plaintiff sought to review the Crowell Entities books, records and documents, but they were withheld from Plaintiff (Comp., ¶¶ 22, 24). On or about 10/21/22, Plaintiff served a business records subpoena o...

Excerpt: ...Arbitration and Stay Action is granted. This is a “lemon law” case arising out of Plaintiff's purchase, on or about February 15, 2014, of a 2014 Dodge Ram 3500 Chrysler Pacifica, vehicle identification number 3C63R3JL5EG108931 (the “Vehicle”). Plaintiff alleges his Vehicle was “manufactured and or distributed by Defendant FCA.” Complaint ¶ 10. In connection with that purchase, Plaintiff alleges he entered into a warranty contract wit...

Excerpt: ...intiffs allege they entered into a warranty contract with FCA. Id. Plaintiffs allege the Vehicle constitutes consumer goods under the Song-Beverly Consumer Warranty Act (the “Act”); Plaintiffs are buyers of consumer goods under the Act; and Defendant FCA is a manufacturer and/or distributor under the Act. Complaint ¶ 10. Plaintiffs allege the Vehicle has defects and nonconformities to warranty, which manifested during the warranty period; th...

Excerpt: ... to Confirm the final arbitration award issued by the arbitrator on 10/7/22. [ROA #160, referred to hereafter as “Petition to Confirm”]. However, it appears Defendants' Petition to Confirm may have been filed prematurely, fewer than 10 days after the final award was served. Code Civ. Proc. § 1288.4. The Court will hear from Defendants at the hearing regarding the date on which the final arbitration award was served, and whether Defendants' P...

Excerpt: ...ULED. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading that are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view...

Excerpt: ...o. 2: Defendant's response is not Code Compliant. Defendant shall provide a further, fully-Code compliant response within 20 days. If Defendant is attempting to convey that it has no documents supporting any of its affirmative defenses, it must say so; it may not avoid responding as the Code requires by suggesting that its assertion of defenses was just “a precaution.” Request No. 3: Motion denied. Defendant's response says it will “comply ...

Excerpt: ...st that Harry Crowell filed in Orange County Superior Court, probate division, case no. 2022-01279223. [ROA #54, Ex. A.] Both requests are granted. The Court takes judicial notice of the existence and legal effect of these documents. However, judicial notice does not include taking the contents of the documents as true. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4 th 987, 881-87 (and cases cited there) (ov...

Excerpt: ...tiffs Michael Doutt and Amber Kriens-Doutt (collectively, “Plaintiffs”). Seller's Agents also move to strike the punitive damages allegations and the prayer for punitive damages and attorneys' fees from Plaintiffs' Fourth Amended Complaint (“4thAC”). As an initial matter, the Court notes that Plaintiffs untimely served (on 2/13/2023) and filed (on 2/14/2023) their oppositions to Seller's Agents' demurrer and motion to strike. (Code Civ. P...

Excerpt: ...TED; TRF's Motion is DENIED. Before turning to the merits of the Motion, the Court notes that Plaintiffs' opposition to the Motion was extremely untimely. It was filed on January 23, 2023 – the date on which the Motion originally was scheduled to be heard (although Defendants state it was not served until the next day, January 24, 2023). The Opposition makes no effort to explain the lateness of the filing or seek relief from the tardy filing. O...

Excerpt: ...his case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) The request is granted as to the Notice of Entry of Dismissal filed in Sacramento Superior Court on 2/11/16 in the matter of Dina C. Felisilda, et al, v. FCA US LLC, et al. (34-2015-00183668. Plaintiff filed this “lemon law” action against Defendant alleg...

Excerpt: ...cally, the Court asked for further briefing on: (1) Defendant's argument that the FERPA provision allowing records to be disclosed “to comply with a judicial order” applies only to a judicial order issued by a federal court, not a state court; and (2) Defendant's argument that redacting records subject to FERPA to eliminate all students' personally-identifying information is not feasible because, to comply with FERPA, literally all of the inf...

Excerpt: ... to “Felicia Macyyszyn: Innovus Consulting Group.” For the reasons set forth below, the Motion is GRANTED as to both subpoenas. The recipient of both subpoenas is Felicia Macyszyn (“Mrs. Macyszyn”). She is not a party to the action, a percipient witness, or a retained expert. She is the wife of Defendant's retained medical expert, Dr. Luke Macyszyn (“Dr. Macyszyn”). Dr. Macyszyn was retained by Defendant to review Plaintiff's medical ...

Excerpt: ... properly served. Defendant only served Plaintiffs' counsel and one Co-Defendant, Ali Tabatabai, with this Motion. Defendant The Covington was required serve all parties that have appeared in this action at the time of the filing of the Motion. (CCP §1010.) Defendant Nimish R. Kadakia, MD (Doe 1) first appeared in this case on 5/18/23, well before this Motion to Seal was filed. Kenneth Lynn, MD (Doe 2) first appeared in this case on 5/31/22, wel...

Excerpt: ...r originally was heard on January 30, 2023, but based on the parties' stipulation at the hearing – and their agreement that the TRO would continue to remain in effect until the Court ruled on the OSC re preliminary injunction) – the Court continued the hearing to February 27, 2023. See ROA #67. The Court grants the Motion to the extent set forth below. Plaintiffs' unnumbered evidentiary objections are all overruled. Legal Standard Code of Civ...

Excerpt: ...order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exist…” "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc...

Excerpt: ...upervise compliance with the statutory mandates.” For the reason set forth below, the Motion for Preliminary Injunction is denied. Requests for Judicial Notice Petitioner's Requests for Judicial Notice: The Court denies Petitioners' request for judicial notice in support of the moving papers. None of these documents are relevant based on the allegations of the Petition, which puts at issue post-2020 conduct, a change of administration at the OC...

Excerpt: ...ursuant to CCP section 426.50 and 428.50(c). Defendants are ordered to separately file and serve their Proposed Cross-Complaint within 10 days-notice of this order. Additionally, the parties are ordered to appear at this hearing prepared to discuss the upcoming trial date and whether a continuance is necessary or appropriate. As an initial mater, review of the relevant complaints demonstrates that the cross-claims asserted against Plaintiff Wenqi...

Excerpt: ...'s Complaint [ROA #28] is SUSTAINED with 21 days leave to amend. The unopposed general and special Demurrer of Defendants Erik Messinger and Golden Ticket Real Estate, Inc. dba. Keller Williams Realty to Plaintiff's Complaint [ROA #35] is SUSTAINED with 21 days leave to amend. The demurrers and supporting briefs are essentially the same. Each of the demurring Defendants argues that Plaintiff fails to state a quiet title claim against him/her/it b...

Excerpt: ... 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defen...

Excerpt: ...grants the Motion to the extent set forth below. Plaintiffs' unnumbered evidentiary objections are all overruled. Legal Standard Code of Civil Procedure (“CCP”) section 526(a)(3) provides that an injunction may be granted “[w]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action r...

Excerpt: ...rder. Defendants' request for sanctions is DENIED. Initially, the instant motion cites only to CCP §2031 and CCP §2023, statutes which were repealed nearly 20 years ago, on July 1, 2005. Given the inclusion of only outdated citations, Defendants' intentions are less than crystal clear. The Court was initially inclined to interpret this motion as a motion to compel compliance, brought pursuant to CCP §2031.320, given the notice of motion seeks ...

Excerpt: ... an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4 th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements o...

Excerpt: ...efendants later attempt to remedy this defect in their reply. Additionally, the opposition filed and served by Plaintiff, on 1/18/23, (ROA 57), was untimely. (Code Civ. Proc., § 1005, subd. (b).) There is also nothing in the record that confirms Defendants, as self-represented litigants, may be served by electronic means. (Cal. R. Ct. Rule 2.251, subd. (c)(3)(B).) Further, Defendants deny that any such documents were received by electronic servi...

Excerpt: ...of each month, and will continue until the conclusion of the action. This action (Case No. 2022- 01275636) shall be designated the lead case. Additionally, pursuant to CRC 3.350(c), Plaintiff is ordered to file this order in Case No. 2022- 01274239. When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated...