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: ...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: ...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: ...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: ...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: ...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: ...§ 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...