Excerpt: ... (“FAC”). Notice, 2:12-5:3. Pursuant to CCP Section 436, the court may strike out “...any irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court.” Attorneys' fees generally are not recoverable unless specifically provided for by statute or subject to an express agreement between the parties. D'Amico ...

Excerpt: ... truthfulness of the contents remain subject to dispute. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374- 1376. Plaintiff's 23-page opposition violates subdivisions (d) and (g) of Rule 3.1113. Plaintiff did not ask for permission to file an oversized memorandum, nor did he explain why his argument could not be made within the 15-page limit. Thus, the Court exercises its discretion to consider only the first 15 pages....

Excerpt: ...ded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 265.) But as to Exhibit 19, a court cannot take judicial notice of the truth of hearsay allegations just because they...

Excerpt: ...efendant's Exhibit B, The Certificate of Formation of Covenant Medical Center (“CMC”) filed with the Texas Secretary of State on September 19, 2017. However, Defendant has not provided a basis under which the court can judicially notice Covenant Health System's Medical Staff Bylaws on demurrer. The Request for Judicial Notice of the Bylaws is denied. Writ of Mandamus “When a hospital excludes or dismisses a doctor from staff privileges purs...

Excerpt: ...en guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code § 3294(c)(1).) In the SAC, Plaintiff adds several paragraphs including specific factual allegations which could support a finding of “despicable conduct that is carried on with a willful and conscious disregard of the ...

Excerpt: ...ks summary judgment in its favor on ARI's First Amended Cross-Complaint, or in the alternative, summary adjudication as to the four causes of action therein. “A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Code Civ. Proc., § 437c(a)(1). “A cause of action has no merit if either of the following exists: (1) One or mor...

Excerpt: ...onsider the late filed opposition. Sanctions are awarded against Plaintiff in the sum of $1,500. (2) Defendants' motion for order compelling Plaintiff to appear for an independent neurological examination by Barry Ludwig, M.D. on 12/17/19 at 1:00 p.m. in Santa Monica is granted. The exam may include only the specific diagnostic tests and procedures set forth in the Notice of Motion. The exam may not be videotaped or audiotaped. Defendants are to ...

Excerpt: ...overrules the Demurrer as to Plaintiff Jae Ho Kim (Ho). MEPC has 30 days leave to amend. The Court notes that it does not consider “supplemental” briefing that are submitted without leave of court. Thus, the Court has not considered Plaintiff's Supplemental Authority re Standing Issue in Opposition to Defendant's Demurrer to the First Amended Complaint. Notice of Errata The Court rejects the “Notice of Errata” directed to the First Amende...

Excerpt: ...to the sale of merchandise that was defective without indicating that the merchandise was defective. [FAC ¶ 20.] Plaintiff's allegations of the advertisement and his injury are without any facts specific to this action. [FAC ¶¶ 20-23.] Business and Professions code Section 17531 provides: “It is unlawful for any person, firm, or corporation ... to advertise, call attention to or give publicity to the sale of any merchandise, which merchandis...

Excerpt: ...i v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487. While there does appear to be some delay by Plaintiff in conceiving of the theories of liability he now seeks to impose against the opposing party, Lowe's Home Centers, LLC (“Lowe's”), Lowe's would not suffer any “probable prejudice” if it is provided with adequate time to challenge the pleadings and conduct discovery on Plaintiff's proposed causes of action. Thus, Lowe's appear...

Excerpt: ..., 8.7, 8.8, 10.1, 10.2, 10.3, 12.1, 12.2, 12.3, and 12.4 within 20 days of this ruling. Cross-Defendants' request for judicial notice is DENIED based on relevancy. In this instance, the other ruling has no precedential value. Each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to t...

Excerpt: ...bout the previous order by the Hon. Ronald L. Bauer. Code Civ. Proc. § 1008(b). Further, the supporting declarations by Defendants' attorneys show that default was entered as a result of their neglect, mistake or surprise. Plaintiff's counsel apparently informed Defendants' counsel that Defendants had been served, but defense counsel was not aware of, or did not receive, this email; and, as a result, failed to file answers on behalf of Defendant...

Excerpt: ...Roldan v. Callahan & Blain (2013) 219 Cal.App.4th 87, in which our Court of Appeals created a procedure to excuse an indigent party from arbitration fees. In Roldan, the Court of Appeals remanded with direction to the trial court to make a determination concerning the plaintiff's ability to pay for arbitration. (Id. at 96.) The Court of Appeals instructed: “If the court determines that any plaintiff is unable to do so, it must issue an order sp...

Excerpt: ...le and serve a supplemental brief addressing the amount of the reasonable attorney fees it had incurred to obtain the default of the Defendants. Plaintiff did not file any supplemental briefing. Accordingly, there is no proof before the Court of the amount incurred by the Plaintiff to obtain the defaults and the Court deems Plaintiff to have declined to pursue such an award. Accordingly, the Court now rules as follows: The motions of Defendants T...

Excerpt: ...r the UCL is overruled. The demurrers to the fifth through eighth and the tenth causes of action are sustained with 15 days leave to amend. Demurrers for uncertainty are overruled. 9th COA for Unlawful and Unfair Business Practices (B&P Code Section 17200) At the outset, the Court notes that Plaintiff objects to Defendant's memorandum because it violates Rule 3.1113(d) because it is 19 pages long, instead of the maximum 15 pages. CRC 3.1113(d) (�...

Excerpt: ...GRANTED. In reaching its decision, the Court applies the law of Utah with respect to the issue of successor liability in Plaintiffs' second cause of action. The laws of Utah and Delaware do not substantively differ from each other as to this particular issue, and therefore if the Court elected to apply the law of Delaware, the outcome would be the same. As both Utah and California have an interest in having their law applied, the question under t...

Excerpt: ... fair and reasonable.” Id. at 2:4-6. Plaintiff's motion asserts (1) the award of damages was inadequate under CCP Section 657(5); (2) the evidence was insufficient to justify the verdict under CCP Section 657(6); and (3) the verdict is contrary to law under CCP Section 657(6). Plaintiff correctly points out that the jury found that (1) both Plaintiff Robert Snell (“Snell” or “Plaintiff”) and Defendant Lance L. Quinn (“Defendant” or�...

Excerpt: ...llegedly breached a Title insurance policy by failing to indemnify her when her neighbor “demolished the existing boundary wall and constructed a new fence 4 feet closer to [Plaintiff's] Property, thereby causing [Plaintiff] loss by depriving her of valuable property.” (FAC at ¶ 12.) Plaintiff submitted a claim to Defendant in September 2017, but Defendant “summarily denied the claim.” Plaintiff resubmitted the claim after she “was for...

Excerpt: ... procedural history of this case. The opposition addresses causes of action that have been dismissed, repeats legal theories the Court has already found unmeritorious, and fails to mention the one new allegation that is at the center of this Demurrer regarding materiality. 1. RJN The Court grants Defendant's Request to judicially notice the Order from the Bankruptcy Court granting Wells Fargo relief from the stay in order to proceed with the fore...

Excerpt: ...n of an arbitration between McNaughton, Copenbarger and NHOM. One of the issues that was being litigated, and was to be decided, in the arbitration was the respective ownership interests in NHOM, as between Copenbarger, McNaughton and West Coast. The arbitration has now been terminated by the AAA, however, because NHOM has taken the position that it no longer can afford to pay the fees/costs associated with the arbitration and, at least as things...

Excerpt: ...of action for “negligent supervision of passengers” and “negligence-respondeat superior” are vulnerable to demurrer because they are not “cognizable cause[s] of action under California law” and are “merely duplicative of the first cause of action for negligence.” (Dem. at 3-5.) The Court agrees that the purported claim for “negligent supervision of passengers” is not a valid cause of action or an alternate theory of recovery; ...

Excerpt: ...sitive to the Court's ruling. The Court finds that Defendants have met the requirements for relief under CCP section 473(b). Defendants timely moved for relief and demonstrated their default was taken as the result of “mistake.” Code Civ. Proc. § 473(b). Defendants mistakenly believed that their responsive pleadings were not due until 8/19/19. Defendants attempted to file their answers on 8/16/19, but their filings were rejected because thei...

Excerpt: ...y favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionat...

Excerpt: ...al elements of a claim for fraud are “(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” In re Estate of Young (2008) 160 Cal. App. 4th 62, 79 (citations omitted]. To plead a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material f...

Excerpt: ...to Plaintiff Hipolito Lopez's Complaint are overruled. All Defendants shall file and serve their Answers to the Complaint within 20 days. Doe Defendants' request that the court take judicial notice of Plaintiff's DFEH complaint (found at Calderaro Decl., Ex. 2) is granted. On its own motion and subject to this notice to the parties, the Court takes judicial notice of Plaintiff's amendment of his DFEH complaint (found at Calderaro Decl., Ex. 11.] ...

Excerpt: ... connection with the project located at 600 S. Jupitar Road Allen, TX 75002.” (Compl. at ¶ 8, Exh. A.) The agreement provides, among other terms, for a monthly payment by Defendant of $970 “for a period of sixty (60) Months from the date the above described work is completed.” (Agmt. at 1, § 2.) The agreement also contains a provision re: the “ownership of system,” below, including that the “entire System” remains the “sole prop...

Excerpt: ...dure are limited by the statutes, and these statutes are strictly construed. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) Here, Plaintiff acknowledges issues with her Notice and Application and attempts to correct some of them, while simultaneously arguing that a substantive opposition on the merits waives other defects. Plaintiff also improperly adds significant new facts on Reply. Although Plaintiff “invites” Defendant to file a Su...

Excerpt: ...ent to show Plaintiff's job description, salary history, pay rate, wage, salary, bonuses and time off. Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. Rutter, CPBT, §8:293, citing inter alia, Britt v. Sup.Ct. (1978) 20 Cal. 3d 844, 855–56, & Pioneer Electronics (USA), Inc. v. Superior Court (2007)...

Excerpt: ...back injuries and later trauma to her kidneys. (SSUF 1) By written Contingent Fee Contract dated April 18, 2013, Cronstedt retained Jones to represent her in prosecuting civil claims arising out of the balloon accident. (SSUF 6.) On January 14, 2014, Jones filed a Complaint on behalf of Cronstedt in the matter styled Sara N. Cronstedt v. City of Irvine, et al. Orange County Superior Court Case No. 30-2014-00698341-CU-PO-CJC (the “underlying lit...

Excerpt: ...ive Order. Plaintiff showed he complied with CRC Rule 2.551(b)(3)(iii). Gordon Decl., ¶¶ 3, 4, 8, and 10. Both the redacted and unredacted versions of the motion were served on all parties. No party has filed a motion to seal. Accordingly, Plaintiff's unredacted motion shall be placed in the public file. By presenting a pleading to the court, an attorney or unrepresented party is certifying that, to the best of the person's knowledge, informati...

Excerpt: ...rally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious c...

Excerpt: ...ractice. None of them is adequately pled. Intentional Misrepresentation “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816; CACI 1900.) Fraud must be pled with specificity. (Philipson & Simon ...

Excerpt: ...nt in 2013 and was denied. He filed another petition for reinstatement on 4/6/17. The Commissioner of the California Department of Business Oversight (Respondent) denied the Petition on 10/8/18, finding that the Supplemental Declaration Petitioner submitted in support of his petition had false or misleading statements of facts, and that Petitioner's employment history since the Order Barring failed to demonstrate his claimed rehabilitation and co...

Excerpt: ... granted. The Case Management Conference is continued to May 6 2019 at 9:00 a.m. First Cause of Action for Violation of Comm. Code §3301 and B&P Code § 17200 B&P § 17200 et seq. (“UCL”) prohibits unfair competition, including unlawful, unfair or fraudulent business acts. Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal. 4 th 163, 180. A UCL action is equitable in nature and damages cannot be recovered. Id. at 179-80. It...

Excerpt: ...t first addresses the arguments that apply to multiple causes of action and then addresses the demurrers to individual causes of action. Defendants demur to all causes of action on the ground Plaintiff Economy Auto Body and Auto Sales, Inc.'s corporate status is suspended. This demurrer is overruled. The corporation is now in good standing. (02/22/2019 RJN of Auto Body's Certificate of Revivor.) Defendants also demur on the ground that Plaintiffs...

Excerpt: ...thin 15 days. The three causes of action that are at issue on the Demurrer are Shin's claims for (1) intentional misrepresentation, (2) concealment, and (3) promise without intent to perform, i.e., promissory fraud. Cross- Defendants demur to all three causes of action on the ground that the fail to state a claim and are, in any event, uncertain. The remaining claim in the SAXC, for breach of contract, is not the subject of the demurrer. All thre...

Excerpt: ...s based on a forum selection clause in the promissory note at issue that identifies New York as the proper jurisdiction. California (and federal) courts presume the validity of forum-selection clauses. A party seeking to defeat such a clause bears the burden of proving that its enforcement would be unfair or unreasonable under the circumstances of the case. (See Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4 th, 1143 1149; Richtek USA, Inc. v. u...

Excerpt: ...ch 31, 1997), and Bill's Sweeping Service, LLC. The Court strikes the November 5, 2018 entry of default. Defendant shall file his Answer and Cross-Complaint (which were previously rejected for filing by the clerk's office) within ten days. The Court denies the requested sanctions. Plaintiffs filed their Complaint in this case on 12/14/17. The Court sustained Defendant's Demurrer as to the entire Complaint and granted leave to amend. Plaintiffs fi...

Excerpt: ...d cause of action, it shall be prepared to discuss at the hearing what specific new facts it can allege to cure the defects in this cause of action. Defendant's request for judicial notice is granted as to the existence of the complaint in another action. Evid. Code § 452(d). Judicial notice is not necessary for the Court's own minute order. First Cause of Action for Violation of Civ. Code § 2923.55 Civil Code Section 2923.55 primarily requires...

Excerpt: ...fendant attached the worksheet to its summary. In the worksheet, Defendant itemizes the dates and amounts of jury fees incurred, the deponents and the transcribing amounts for each, and the dates and amounts for court reporter fees. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim its costs, the prevailing party must file and serve a memorandum of costs within 15 days fro...

Excerpt: ..., the Court declines to consider the reply papers. Plaintiff contends the petition is defective on procedural grounds. Relying on CCP section 1290.4, Plaintiff contends the petition was not properly served because it was served on her by mail and Panopio is not a party. CCP Section 1290.4(a) provides that a copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based ...

Excerpt: ...iff failed to allege whether the contract was oral, written or implied by conduct. Code Civ. Proc. § 430.10(g). Second, the claims for breach of contract and common count appear on the face of the Complaint to be time-barred. The Complaint alleges that the breach occurred between 10/8/12 to 3/15/13. The Complaint was not filed until 11/21/18, more than 5-1/2 years after the latest alleged date of breach. Thus, even under the four-year statute of...

Excerpt: ...ming that it has been appointed as a Referee pursuant to CCP section 638. This is not an appropriate subject for judicial notice. Defendants raise two grounds for their Motions: (1) collateral estoppel and (2) quasi-judicial immunity. The Court finds that collateral estoppel does not bar this action. Defendants have not shown an identical issue was litigated in the Carter v. Carter, 2015-00796360 (“the 2015 Action”). Accordingly, the demurrer...

Excerpt: ...egations included in Plaintiff's SAC do not sufficiently address the issues raised in the Court's 7/19/2018 and 10/30/2018 rulings sustaining District's demurrers with leave to amend. The Court denies Plaintiff's request for judicial notice. The Board Policy that is the subject of the request is not an appropriate subject of judicial notice. Civil Code section 51.9 provides, in pertinent part: (a) A person is liable in a cause of action for sexua...

Excerpt: ... the first cause of action in moot in light of the ruling on the demurrer. The Court notes, however, that moving defendant Ocean Hills Recovery, Inc. is not named in the fourth cause of action. It appears to be asserted only against Doe I. Request for Judicial Notice (RJN) The Court denies Plaintiff's Request for Judicial notice on two grounds. First, the document for which judicial notice is sought are irrelevant, as they relate to different fac...

Excerpt: ...sustained with 15 days leave to amend as to the third and fourth causes of action. Defendants' motion to strike is granted in part and is denied in part. The motion to strike is granted as to the prayer on the first cause of action, item 2, and the prayer on the second cause of action, items 2 and 3. It is otherwise denied as moot. Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading....

Excerpt: ...hich of the hours expended by the attorneys were “reasonably spent” on the litigation. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) Additionally, a trial court has broad discretion to determine the amount of reasonable attorney's fees, as an experienced trial judge is in the best position to decide [the] value of professional services rendered in court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1...

Excerpt: ...upport 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 of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc.(2010) 189 Cal. App. 4 th 562, 575.) The scope of this burden is determined by...

Excerpt: ...her proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Code Civ. Proc., § 473(...

Excerpt: ...a Bolt's ex parte application is denied. OSC is moot. A plaintiff generally has an unfettered right under CCP § 581 to dismiss a cause of action before the commencement of trial. Panakosta Partners, LP v Hammer Lane Mgmt., LLC (2011) 199 CA4th 612, 632–633 (“a substantial and fairly complex body of case law has grown up involving when—and when not—a plaintiff's statutory right to dismiss … is cut off by the presence of some impending �...