Excerpt: ...egligent misrepresentation only with 15 days leave to amend. The Demurrer is overruled as to the sixth and seventh causes of action, for unfair competition and intentional interference with prospective economic advantage, respectively. Negligent Misrepresentation Defendants do not challenge the elements of this cause of action. Rather, they argue that the claim is not pled with specificity. The Court agrees that the claim is not pled with suffici...

Excerpt: ...use of action separately, allege all elements of each cause of action, and ensure that only the proper Defendants are named in each claim. 1. Breach of contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff's performance of the contract or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 118...

Excerpt: ... Dist.(1992) 2 Cal. 4 th 962, 966- 67. Except allegations contradicted by documents that may be judicially noticed are not taken as true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. In 2017, at the time of Defendant's alleged recording of the notice of trustee's sale in issue, Civ. Code §2923.6(c) provided that a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice ...

Excerpt: ...nt is ordered to pay Plaintiffs' Counsel $850 in sanctions within 30 days. Code Civ. Proc. § 2025.450(a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code Civ. Proc. § 2025.410, the deponent fails to appear for deposition, the party giving notice may move for an order compelling the deponent's attendance and testimony at deposition. Here, Defendant attempted to unilate...

Excerpt: ...fs' request for judicial notice of Exhibits “A” through “C” are granted. Evid. Code §§ 425(c)-(d), 453. The Court declines to take judicial notice of Exhibits “D” through “F,” because it appears they are offered in an attempt to circumvent Rule of Court 8.1115. To state a cause of action for aiding and abetting an intentional tort, a plaintiff must allege actual knowledge that a tort is being or will be committed, that the defen...

Excerpt: ... the costs of the arbitration. These proceedings are stayed pending completion of the arbitration. An ADR Status Review Hearing is scheduled as set forth below. The Court finds that an arbitration agreement encompassing Plaintiff's claims exists. TriNet was an agent of Defendant and the terms of the agreement expressly include Defendant as Plaintiff's employer. Defendant is thus a party to the agreement and/or a third party beneficiary and may en...

Excerpt: ...n effect until the earliest of: dismissal of the case; closing of the case; discharge of the debtor is entered; or entry of an order terminating, vacating, or modifying the automatic stay. (11 U.S.C. § 362, subd. (c).) There is no indication that Defendants' counsel has obtained relief with the bankruptcy court from the automatic stay to pursue these motions. Moving counsel must obtain the bankruptcy court's relief from the automatic stay and ap...

Excerpt: ...eeds of the case, the amount in controversy, and the importance of the issues at stake in the litigation. Code Civ. Proc. § 2019.030(a)(2). The Code permits the Court to make these determinations pursuant to a protective order brought by any party or other affected person. Code Civ. Proc. § 2019.030(b). It also empowers the Court to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, emba...

Excerpt: ... concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787. Although the rule “does not require absolute identity of parties, causes of action...

Excerpt: ...ccessful motion to strike is entitled to mandatory attorney fees”].) But where the “results of the motion were minimal and insignificant,” a trial court is justified in finding the defendant should not recover fees. (Moran v. Endres (2006) 135 Cal.App.4th 952, 955, 37 Cal.Rptr.3d 786; see also Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 [“a party who partially prevails on an anti-SLAPP motion must generally be consid...

Excerpt: ...RANTS as to Exhs. 1-10 and DENIES as to Exh. 11. Finally, as to those documents for which the Court grants judicial notice, judicial notice will not extend to any hearsay allegations contained therein. General Law In cases where a trustee's deed of sale has not yet been recorded, Civil Code section 2924.12, subdivision (a)(1), authorized a borrower to bring an action for injunctive relieve to enjoin material violations of specifically enumerated ...

Excerpt: ... of trade secrets. Rutter, Empl. Litig. §14:81-81.5, citing Civ. Code §§ 3426–3426.10; Cacique, Inc. v. Robert Reiser & Co., Inc. (9th Cir. 1999) 169 F.3d 619, 624 (applying Calif. law); Accuimage Diagnostics Corp. v. Terarecon, Inc.(ND CA 2003) 260 F. Supp. 2d 941, 953–54 (applying Calif. law). The CUTSA, at §3426.7(b), preempts common law claims that are “based on the same nucleus of facts as the misappropriation of trade secrets clai...

Excerpt: ...ny individual actions that could be considered improper,” and their actions therefore are insulated by Corporations Code Sections 309, 7231 and 5047.5. At the outset, the Court notes that the Members have cited to the wrong Corporations Code sections. Woodbridge Village Association (“WVA”) is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under...

Excerpt: ...aintiffs into Caminus Trading, Inc., as represented, and failed to pay the $12,000.00 monthly”. (FAC ¶ 14.) However, Defendant Shin's argument is unclear. While the Statement of Information filed on October 6, 2017, indicates that Plaintiff Byungik David Oh, is the CEO, Secretary, CFO, Director, and agent for service of process for Defendant Caminus Trading, Inc., the Agreement (Ex. A incorporated into the FAC) indicates that Shin was/would be...

Excerpt: ... presumed to be open to the public. (Cal. Rules of Court, rule [“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the o...

Excerpt: ...uired, court records are presumed to be open to the public. (Cal. Rules of Court, rule [“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial proba...

Excerpt: ...owned, leased, or occupied the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed, and (4) the defendant's negligence was a substantial factor in causing the plaintiff's harm. CACI 1000. The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. McIntyre v. Colonies-Pacific, LLC(2014) 228 Cal.Ap...

Excerpt: ...title against mortgagee “without paying the debt secured”; compare Sciarratta v. U.S. Bank Nat'l Ass'n(2016) 247 CA4th 552, 568, (action for quiet title and cancellation of instruments)—tender unnecessary where foreclosure sale void; Fonteno v. Wells Fargo Bank (2014) 228 CA4th 1358, 1360 (quiet title action for equitable cancellation of trustee's deed)—tender unnecessary where trustee's sale void or voidable.] If the foreclosed deed of t...

Excerpt: ...e Civ. Proc. § 426.30(a). A related cause of action “means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Code Civ. Proc. §§ 426.10(c). A liberal construction is given to the application of the compulsory cross-complaint statute. (Align Technology, Inc. v. Bao Tran (2009) 179 Cal. App. 4th 949, 967). “Th...

Excerpt: ...[“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not seal...

Excerpt: ... were reasonably necessary to the prevailing co-parties' conduct of the litigation. The Court may not simply divide the total costs jointly incurred by all co-parties by the number of prevailing co-parties. Charton v. Harkey (2016) 247 Cal. App. 4 th 730, 743-45. Here, except for his answer filing fee, by his memorandum of costs Defendant Fazli asks the Court to award him one-half of the costs of the jointly incurred defense. It appears he has si...

Excerpt: ...pp.4th 793, 809. Specifically, Section 664.6 provides, in pertinent part: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Code Civ. Proc. § 664.6. Section 664.6 provides the court with the authority to interpret settlemen...

Excerpt: ...ED. Even if Plaintiff is correct that there is no proper agreement to accept electronic service, Plaintiff received the opposition and responded to it on the merits; thus, any service defect is waived. Plaintiff has not been prejudiced by any defect. General Law “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or ...

Excerpt: ...n to rule on the Demurrer, future demurrers that violate this rule may be disregarded or overruled. The demurrers to the 6 th (lack of proximate cause), 31st (failure of consideration), 32nd (want of consideration), 34 th (excuse), 36th (lack of mutual consent), 37th (lack of present intent to contract), and 38 th (lack of definite terms of contract) affirmative defenses are overruled. These purported “affirmative defenses” merely negate esse...

Excerpt: ...equest to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file suit for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Code Civ. Proc. § 335.1. The statute of limitations begins to run when the cause of action accrues. Code Civ. Proc. § 312. Under the “delayed disco...

Excerpt: ...t confidential and under seal. (Eyerly Decl., if 6.) As such, a contractual obligation not to disclose constitutes an overriding interest overriding the minimal public interest, which supports partially sealing the record with respect to the settlement amount. (See Universal City Studios, Inc. v. Sup. Ct. (2003) 110 Cal.App.4th 1273, 1283 ("We agree with defendant that its contractual obligation not to disclose can constitute an overriding intere...

Excerpt: ...t or to the Court's conclusion. For the reasons set forth below, the Petition for Writ of Administrative Mandate, or alternatively, Writ of Mandate is DENIED. The parties do not appear to dispute the controlling legal authority. The standard of review on administrative mandamus is independent review. Strumsky v. San Diego County Employees' Retirement Association (1974) 11 Cal.3 rd 28, 32. Under the independent review standard, the trial court det...

Excerpt: ...eposition per the parties' stipulated agreement. Therefore, Plaintiff's Motion to compel Mr. Godsey's deposition is moot. Mr. Godsey is already under a court order to appear for deposition on April 30. Next, the parties dispute whether Defendant must produce documents at the time of his deposition appearance. In this regard, the Court notes that Defendant already represented to the Court that is has agreed or stipulated to produce certain, unspec...

Excerpt: ... Set One 3. Form Interrogatories, Set Two 4. Requests for Production of Documents, Set One The Court also grants Defendant's unopposed motion to deem Requests for Admissions, Set One, admitted. The Court orders Plaintiff to provide verified responses to (a) Form Interrogatories, Set One; (b) Special Interrogatories, Set One; (c) Form Interrogatories, Set Two; and (d) Requests for Production of Documents, Set One, all within 20 days of notice of t...

Excerpt: ...ions Code Sections 309, 7231 and 5047.5. At the outset, it should be noted that the Members have cited to the wrong Corporations Code sections. WVA is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under Title 3 of the Corporations Code, beginning with section 18000. As under common law, a member, director, officer, or agent of an association is not ...

Excerpt: ...llage Association (“WVA”) to Plaintiff John Sanderson's Second Amended Complaint (“SAC”) is overruled. 1st COA - Negligence WVA contends Plaintiff's negligence claim is barred by the two-year statute of limitations because Plaintiff's claim accrued when the board denied his request to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file...

Excerpt: ... admissions by Defendant as to the amounts owed by it under each invoice. Defendant denied the amounts owed. At trial, the jury found for Plaintiff and awarded it the amounts sought under each invoice. If a party “fails to admit” the genuineness of any document or the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party...

Excerpt: ...ed to judgment as a matter of 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. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine I...

Excerpt: ...ons, Set One, against Defendant Uriel Mora. Defendant adequately responded to the Special Interrogatories at issue. The Requests for Admission at issue call for legal conclusions. The Court denies Plaintiff Eladio Mora's Motion to Compel Further responses to Requests for Admissions, Set One, against Defendant Estella Gonzalez. The Requests for Admission at issue call for legal conclusions. The Court grants in their entirety Plaintiff Eladio Mora'...

Excerpt: ...dants' motion regardless of whether Defendants erred in not including a table of contents with their moving papers; the Court chooses to exercise such discretion here, due to the lack of any apparent prejudice to Plaintiff. A “party moving for summary judgment bears 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...

Excerpt: ...urt “shall” make this order unless, before the hearing, a proposed response in substantial compliance with CCP section 2033.220 has been served. See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776 (service of substantially compliant responses prior to the hearing on the “deemed admitted” motion will defeat a propounding party's attempt to have the requests deemed admitted). Plaintiff served Code-complaint responses to the RFA o...

Excerpt: ...llegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was n...

Excerpt: ...m in the Complaint and, in response to representations by Plaintiff' counsel that it could allege additional facts to cure the defect, the Court granted leave to amend. Plaintiff has added only conclusory language that the retention of the $1,070 commercial security deposit was “intentional” and “unlawful” etc. First, damages for failure to return a commercial security deposit are governed by CC § 1950.7. For the “bad faith” retentio...

Excerpt: ... 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. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. If p...

Excerpt: ...itne to produce all records in his possession or control regarding plaintiff Jesse Castillo Ruiz at the same time and place as his deposition.” But the Subpoena, attached as Exhibit A to the Declaration of Kevin R. Jolly, Esq., is not a business records subpoena. It requests no documents; it is for appearance only. There are no categories of documents identified in the Subpoena. In addition, there are no categories of documents identified in th...

Excerpt: ...a proper subject for judicial notice. California Public Policy In California, an employee's covenant not to compete with his or her employer is unenforceable. B&P Code § 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”); Edwards v. Arthur Andersen (2008) 44 Cal.4 th 937, 945. “California has a strong interest in protecting its employees from no...

Excerpt: ...e record reflects -- and it is not disputed -- that both Defendant and Plaintiff have their principal place of business in Los Angeles, they are both headquartered in Los Angeles, and the contract that is the subject of this action was executed in Los Angeles. Additionally, that contract contains a dispute resolution provision stating that “if the mediation is unsuccessful, the matter will be resolved in the appropriate California State Court i...

Excerpt: ...ws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). Plaintiff's Complaint fails to state sufficient facts to support a claim for punitive damag...

Excerpt: ... the burden is on the moving party to show both: • Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and • Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 CA4th 1113, 1117; see also ...

Excerpt: ...ied, it will be necessary to file a new action to enforce the terms of the settlement agreement.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(II)-F at ¶ 12:982 (inner citations omitted). 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 against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Co...

Excerpt: ...se” for the production, Code Civ. Proc. § 2031.310(b), and Defendants did not object to any of the demands. Defendants are ordered to provide further responses and production within 15 days. Defendants are ordered to pay $1,120 in sanctions to the Law Office of Dean P. Sperling within 30 days of the notice of ruling. Code Civ. Proc. §§ 2023.010, 2031.320. Motion to Deem Requests for Admissions and Genuineness of Documents Admitted Plaintiffs...

Excerpt: ...ed orders with corrections to section 8 regarding future hearings. The Court notes that the proposed order does not mention the pending motion to consolidate or motion to strike, and the dates for the CMC and pending demurrer are incorrect. The Court further notes that any order that might be entered relieving counsel would not become effective until counsel filed with the Court proof that it had serve the order relieving it on the clients. ...

Excerpt: ... See Award Metals, Inc. v. Superior Court(1991) 228 Cal.App.3d 1128, 1134-1135 (claims for negligence and intentional tort were merely a “duplication” of the claim for violation of Labor Code section 4558 and should have been sustained); Palm Springs Villas II Homeowners Ass'n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (trial court properly sustained cause of action for breach of governing documents which appeared to be duplicative of bre...

Excerpt: ...ee Agreement with her former attorneys is contradictory and ambiguous and has an unmet contingency that requires dismissal of cause of action. The Court disagrees. Paragraph 6 of the Agreement provides that if there is no recovery (i.e. if Plaintiff gets no money) then she is still responsible for costs incurred by B&B. There is no unmet contingency. Further, paragraph 4 addresses legal fees in the event of a recovery of some kind. The two paragr...

Excerpt: ...s lengthy preamble to the argument, which purports to set forth a number of facts that are extrinsic to the Cross-Complaint. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A. Third Cause of Action for IIED In his Motion, Eladio argues that the third cause of action parrots the eleme...