Excerpt: ...anted. Defendants' request on reply to judicially notice state court orders is granted. Merits The moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all ...

Excerpt: ...Plaintiff's oppositions. Although Plaintiff has elected to proceed in pro per, litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. See Rappleyea v Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v Uba (2004) 122 Cal.App.4th 1229, 1246-1247. A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. Se...

Excerpt: ...sition, which was not served on Defendants. On its own motion, the Court continues the February 21, 2023, trial of this action to October 2, 2023 at 9:00 a.m. in Department C31. 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 (1985) 39 Cal. 3d 311, 3...

Excerpt: ...ading in the court's file for this action. For such a document, the request for judicial notice is unnecessary. “[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 2020) ¶ 9.53.1a.) Under the Civil Authority provision in its insurance policy with Defendant, Plaintiff seeks coverage for lost donations and income sustained as a result of t...

Excerpt: ...for Judicial Notice (ROA No. 47) is GRANTED, pursuant to Evidence Code sections 452(d) and 452(h). Similarly, Plaintiff's Request for Judicial Notice (ROA No. 71) is GRANTED, pursuant to Evidence Code section 452(d); however, the Court takes judicial notice only of the identified documents, not the summary of the documents offered by Plaintiff. First Cause of Action – Breach of Contract To prevail on a breach of contract claim, a plaintiff must...

Excerpt: ... the Custodian of Records for Alaska National to appear for deposition on a mutually agreeable date that is within 20 days of this order. Pursuant to CCP section 1987.1, the Court may, upon motion reasonably made by a party to the action, issue an order compelling compliance with a subpoena. Additionally, pursuant to CCP section 2025.480(a), “[i]f a deponent fails to answer any question or to produce any document…that is specified in the depo...

Excerpt: ...red to water the dirt on the construction site in order to control dust. The water truck overturned when it drove close to the edge of the “haul road” Plaintiff was driving on, and Plaintiff alleges he sustained injuries as the result of the “roll-over.” Plaintiff brought this action against, among others, OHL-USA, Inc., which was the general contractor for the project. Plaintiff alleges a single cause of action for negligence. Plaintiff ...

Excerpt: ... Plaintiff's Motion for Summary Judgment and Summary Adjudication (the “Motion”) is DENIED in its entirety. As an initial matter, the parties appear to agree that Iowa contract law applies by reason of a choice of law provision contained in the agreement at issue. But neither party directly addresses the enforceability of this provision. (Declaration of Stephanie Steele [“Steele Decl.”] ¶8 & Exh. 3.) “California courts enforce contract...

Excerpt: ...be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. C. § 3295(c) (emphasis added); see Kerr v. Rose (1990) 216 CA3d 1551, 1565.) To obtain such an order, plaintiff must file a motion supported by “appropriate affidavits” – i.e., affidavits (or declarations) sufficient to establish “oppression, fraud or malice” under Civil Code sectio...

Excerpt: ...sonable monthly amount. The Court is inclined to make that sum equal to the amount of the Karimis' monthly mortgage, property tax, and insurance payments. The Court will hear argument from the parties at the hearing as to that amount. 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, or may make s...

Excerpt: ...ecord, Randall Koenig, of Koenig Law Firm. As an initial matter, the Court notes that Plaintiff filed an Amended Declaration of Mr. Rossini and Amended Notice of Motion and Motion, which was not served with 16 court days' notice. On Reply, Plaintiff advises that there were no substantive changes to the Amended Motion and it was provided simply to advise the Court of the parties' continued meet and confer efforts. Thus, the Court considers the Ame...

Excerpt: ... denial of the Motion. Plaintiff is a minor student suing defendant SAUSD for an alleged sexual assault that occurred on or about 2/14/19 at SAUSD's Middle College High School (“MCHS”), which is located on the campus of Santa Ana College (“SAC”). One of the college students, Kenji Kina (“Kina”), allegedly sexually assaulted Plaintiff. Plaintiff originally named both SAUSD and the Rancho Santiago Community College District (“RSCCD”...

Excerpt: ... IN PART and, otherwise, is moot. Defendant's Request for Judicial Notice As an initial matter, the Court denies Defendant's request for judicial notice. Defendants ask the Court to take judicial notice of the “Report of Fullerton Police Department dated April 9, 2020,” pursuant Evidence Code sections 450, 451 and 452. The request is denied for two reasons. First, Defendants do not identify the specific subdivision of Evidence Code section 45...

Excerpt: ... 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 defendant of wha...

Excerpt: ...iff is granted 15 days leave to amend. 1st COA – Breach of Contract – SUSTAIN “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307. “A written contract may be pleaded either by its terms—set out verbatim in the ...

Excerpt: .... Facts This action stems from a dispute between a general contractor, Plaintiff Escobar, and its landscaping subcontractor, Defendant Marina, related to payment for work on a construction project. Plaintiff alleges: “In November 2021, Escobar Construction, as the general contractor, entered into a written contract (“the Contract”) with Defendants, who were subcontracors, whereby Marina Landscape Inc. agreed to install landscaping, drains a...

Excerpt: ...laintiffs”) oppose. For the reasons set forth below, the Court GRANTS the Motion. Legal Standards A party moving to compel arbitration under Code of Civil Procedure (“CCP”) section 1281.2 must establish that: 1. the parties entered into a written agreement to arbitrate; 2. one or more of the claims at issue are covered by that agreement; and 3. the responding party refused a prior demand for arbitration under the agreement of the claims at ...

Excerpt: ...t. Specifically, the Court invited briefing on whether Rains v. Superior Court (1984) 150 Cal.App.3d 933 has any impact on the Court's tentative ruling. For the reasons set forth below, the Demurrer is sustained in part and overruled in part, and the Motion to Strike is moot. [1] Defendant Herbert Lee, M.D.'s Demurrer to Plaintiff Rosanna Narvaez's Complaint is sustained in part and overruled in part. Having now reviewed the parties' supplemental...

Excerpt: ...– plus costs and expenses of $22,820.19. The Motion is GRANTED in part. The Court awards Plaintiff attorneys fees of $216,036.50 and costs and expenses of $22,820.19. As explained below, the Court calculated the fees using the lodestar method, but reduced the lodestar amount to account for duplication/inefficiency/overbilling by the nine attorneys and six unidentified (other than by initials) paralegals, law clerks and legal assistants who bill...

Excerpt: ...tion Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2.) "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. (1997) 15 Cal.4 th 951, 972; See also Green Tree F...

Excerpt: ...nd discretion of the trial court.” (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4 th 14, 20.) However, “[t]he greatest liberality is to be encouraged in the allowance of such amendments in order to see that justice is done.” (Id.) As explained by the Court in Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4 th 117, the law is unsettled as to the scope of CCP section 187. As the court explained, section 187 is...

Excerpt: ...sserted to the evidence presented by Plaintiff in support of the Motion. As explained further below, Plaintiff carried its burden of proving each element of each of the causes of action on which summary adjudication is sought. The burden therefore shifts to Defendants to show that a triable issue of one or more material facts exists as to the cause of action. See CCP § 437c(p)(1). Because Defendants did not oppose the Motion, they did not carry ...

Excerpt: ...CP”) section 438(e) provides: “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Civ. Proc. Code § 438.) HOM argues that, because there was no pretrial conference order pursuant to Section 575, the motion is untimely and should be denied for that...

Excerpt: ...s overruled as to the first and second causes of action; it is sustained with 21 days leave to amend as to the third cause of action. The Demurrer of Cross-Defendant BDR, Inc. (“BDR”) to Surterre's Cross-Complaint is SUSTAINED with 21 days leave to amend. Plaintiff James Lemastus alleges in his Complaint that both DLI and Surterre (through Defendant Walsh) knew about serious construction defects in the house he purchased that were hidden by r...

Excerpt: ...trageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community...

Excerpt: ...9], not their service of notice of entry of the minute order granting their motion to dismiss, which order contemplated entry of judgment as the final determination. [ROA #971.] In re Greer's Estate (1968) 261 Cal.App.2d 827, 831. See also Saben, Earlix & Assocs. v. Fillet (2005) 134 Cal.App.4th 1024, 1029-1031 (finding entry of non-appealable order granting summary judgment, or service of notice of entry of same, as opposed to entry of summary j...

Excerpt: .... Plaintiff's First Cause of Action asserts Defendant Bellingar P.A. breached the terms of an Equipment Financing Agreement. (¶13-¶17 of Complaint). The elements of a breach of contract claim are: (1) the existence of the contract; (2) performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant; and (4) damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4 th 731, 745). In this instance, Defendant Belli...

Excerpt: ...and be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310(b).) The moving party must show good cause for the mental examination. (Code Civ. Proc., § 2032.320(a).) If an action involves allegations of sexual abuse of a minor, and the examinee is less than 15 years of age, “the licensed physician or clinical psychologist shall have expertise in child abuse and trauma.” (Code Civ. Proc., § 203...

Excerpt: ...an initial matter, the Motion is properly brought by Defendants Paul and Cathy Schroeder pursuant to Code of Civil Procedure (“CCP”) section 1987.1, which permits a motion to quash by parties to an action. (CCP §1987.1(a) and (b).) However, non-party Schroeder Farms, LLC is not authorized to move under CCP section 1987.1, as it is neither a party, witness, consumer or employee, nor an individual exercising free speech rights, as contemplated...

Excerpt: ...]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960) 363 US 574, 582; Grey v. American Mgmt. Services (2012) 204 Cal.App.4th 803, 805-809.) It is the court's responsibility to determine whether the parties agreed to arbitrate the dispute. (See 9 USC § 4 (“If the making of the arbitr...

Excerpt: ...pher Bright (“Bright”) and Amir Sabetian (“Sabetian”) (collectively, “Defendants”). They include two Motions to Compel Further Responses to Form Interrogatories (Set Two) – one against Bright and the other against Sabetian. There are also two Motions to Compel Production of Documents – one against Bright (on Set Three) and the other against Sabetian (on Set One). Two other motions by Plaintiff against Defendants Bright and Sabetia...

Excerpt: ...el Defendant's further responses to special interrogatories as well as his verifications to same, is also GRANTED. Finally, Plaintiff's unopposed motion to compel Defendant's further responses to requests for production of documents, the production of responsive documents, as well as his verifications to same, is also GRANTED. Defendant is ordered to serve the further responses and verifications as set forth herein, within 30 days of service of t...

Excerpt: ...of Costs filed by Plaintiff Hovik Nazaryan. ROA 866. Plaintiff's Memorandum of Costs seeks costs of $103,788.39. A. The Motion is granted as to Defendants Rolfes and Larzelere in its entirety. The Court GRANTS the Motion to Strike the Memorandum in its entirety as it relates as to Defendants Rolfes and Larzelere. For cost awards under CCP § 1032(a)(4), there is only one prevailing party. (Sharif v Mehusa, Inc. (2015) 241 CA4th 185, 195.) Code of...

Excerpt: ... alleges that Farris is Defendant's employee or agent. Plaintiff has also alleged that all defendants are each other's agents or employees acting within the scope of their agency/employment. [FAC ¶7.] Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by suc...

Excerpt: ...s payable. The offer provided for judgment to be entered. Plaintiff accepted Defendant's 998 offer on 2/8/21. [Mkrdech Decl., ¶¶ 2-3 and Ex. A.] On 3/11/21, Defendant sent the check for $20,000, which Plaintiff deposited. [Mkrdech Decl., ¶ 5.] Plaintiff did not file a notice of the 998 offer and acceptance with the court. [Ayzen Decl., ¶4.] Then Defendants changed counsel. According to current counsel, when the file for this case was sent to ...

Excerpt: .... Legal Standard Punitive damages are not assessed against employers on a pure respondeat superior basis. (Rony v. Costa (2012) 210 Cal. App. 4th 746.) That is, under the respondeat superior doctrine, the employer is not liable for punitive damages absent fault or misconduct on the employer's part. CRST, Inc. v. Superior Court (2017) 11 Cal. App. 5th 1255). Pursuant to statute, in an action for the breach of an obligation not arising from contrac...

Excerpt: ...n: 3:22-4:2; See also ¶4 of Potter Declaration and Exhibit A thereto). In response, Plaintiff correctly points out that Defendant has delayed in seeking this amendment. The Court denied a Motion to Enforce Settlement brought by Defendant on February 1, 2021, noting at that time that the Answer lacked an affirmative defense referencing a settlement. (ROA No. 36). Defendant does not address her delay in seeking leave to amend. However, the Court f...

Excerpt: ...he function of a demurrer is limited to testing the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4 th 968, 994). Consequently, in reviewing a Demurrer, “a court cannot consider…the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Id.). Stated more simply, “[i]t is ‘black-letter law' a demurrer test...

Excerpt: ...legations Plaintiffs propose to add to cure the defects noted below. 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 which are judicially noticeable under Evidence Code...

Excerpt: ...USD”) and Rancho Santiago Community College District (“RSCCD”; together with SAUSD, the “Defendants”) for an alleged sexual assault that occurred on or about 2/14/19 on one of RSCCD's campuses, Middle College High School (“MCHS”), which is on the campus of Santa Ana College (“SAC”). One of the community college students, Cross-Defendant Kenji Kina, allegedly sexually assaulted Plaintiff. Evidentiary Objections The Court declines...

Excerpt: ...f Richard Salinas [“Salinas Decl.”] Exh. A [Settlement Agreement] at §5). In addition, the parties expressly stipulated the Court retains jurisdiction pursuant to CCP section 664.6, “even after dismissal of the action.” (Stipulation dated September 11, 2020 [ROA No. 76]). The Court issued an order consistent with that stipulation on January 29, 2021. (ROA No. 102). Thus, based on the above, the Court concludes it has jurisdiction to hear...

Excerpt: ...le 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).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7...

Excerpt: ...for April 24, 2023 at 9:00 a.m., at which the parties or their counsel shall appear and advise the Court of the status of the arbitration proceedings. The CMC is vacated. Defendants seek judicial notice of 11 declarations and orders filed in other actions in which arbitration was sought and assert these other documents demonstrate their good faith. Plaintiff objects to the request for judicial notice. The Court agrees the documents are not releva...

Excerpt: ...of action. The shareholder is merely a nominal plaintiff in such an action. Even though the corporation is joined as a nominal defendant, it is the real party in interest to which any recovery usually belongs. See Grosset v. Wenaas (2008) 42 C4th 1100, 1108; Schuster v. Gardner (2005) 127 CA4th 305, 312; Vega v. Jones, Day, Reavis & Pogue (2004) 121 CA4th 282, 297.) Section 800 of the Corporations Code generally governs shareholders' derivative a...

Excerpt: ...nder the FEHA, and wrongful termination. Plaintiff filed and served four doe amendments adding as defendants to this action Phillip Bellafaire (Doe 1), Saddleback Electric Cars, Inc. (Doe 2), Bellafaire Enterprises, Inc. (Doe 3), and Semit Properties, LLC (Doe 4) (collectively, the “Doe Defendants”). Plaintiff alleged they are liable as alter egos of Saddleback Golf Cars, Inc. The Court tried the alter ego issue first, leaving liability and d...

Excerpt: ...n 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 compl...

Excerpt: ...the ground that these massive discovery requests are “excessive, irrelevant and/or outside the scope of permissible discover in terms of time and place and are otherwise duplicative and result in unwarranted annoyance, oppression, and undue burden and expense to Plaintiff.” Plaintiff's MPA at 1. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part. Plaintiff argues there is “no justification for such excessive d...

Excerpt: ...t admissible. The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. Code Civ. Proc. § 473(a) (1). The court may likewise, in its discretion, after notice to the adverse party...

Excerpt: ...use of action for breach of contract, second cause of action for implied contractual indemnity, third cause of action for express contractual indemnity and fifth cause of action for equitable contribution in Friendly Center's SACC. Catholic Charities demurs generally and specially to the fourth cause of action for equitable indemnity, sixth cause of action for third party tort of another, and seventh cause of action for declaratory relief alleged...

Excerpt: ...s activity for the purpose of assisting another in performing a wrongful act.” American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1477. Defendants argue Plaintiff's allegations “are made only on ‘information and belief,'” as opposed to allegations that would “establish specifically how [Defendants] had knowledge of any fiduciary duty owed by Mr. Yamakawa to [Plaintiff], especially since the allegations again...

Excerpt: ...ents also seeks an order striking punitive damages allegations and prayer for punitive damages and attorneys' fees from Plaintiffs' TAC. Defendants James Lee (“Lee”), Jeanette Karla Fuentes (“Fuentes”), and Top Producers A & L dba Re/Max Top Producers (“Top Producers”) (collectively, “Plaintiffs' Agents”) seek an order striking certain allegations, attorneys' fees and cost allegations, and prayer for attorneys' fees from Plaintiff...

Excerpt: ...ble issue of material fact and that he is entitled 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.) 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 co...

Excerpt: ...vestment Company Inc. (“Bragg”). Defendant Bragg shall provide verified responses without objections within 20 days of this Order. 1. Legal Standard Where responses have been timely served but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. [CCP § 2033.290; see Wimberly v. Derby Cycle Corp. (1997) 56 CA4th 618, 636, 65 CR2d 532, 5...

Excerpt: ...tion of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition.” Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269. Here, Plaintiff has not alleged facts that support his conclusory allegation that the nurses touched Plaintiff wit...

Excerpt: ...ax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; see, Thon, 29 Cal.App.4th at 1548 (“To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount.”) “[T]he mere filing of a motion to...

Excerpt: ...ection 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Williams v. Superi...

Excerpt: ...a criminal investigation involving two individuals, Grant Robicheaux (“Robicheaux”) and Cerissa Riley (“Riley”). Complaint (“Compl.”) ¶¶ 12-14, 17. Charges ultimately were filed against both individuals by the Orange County District Attorney (“OCDA”) (Compl. ¶23), and in October 2018, a first amended criminal complaint was filed against them naming additional alleged victims. Id. ¶ 28. While the criminal action was pending, a ...

Excerpt: ... 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 complaints, it remains essential that a complaint set forth the actionable fa...

Excerpt: ...efendant for (1) breach of the duty of good faith and fair dealing; and (2) breach of contractual duty to defend. (ROA 2, Complaint at ¶¶11-25 and 26-31, respectively). (All references herein to the “Complaint” or “Compl.” are references to the complaint filed in this action.) In brief, Plaintiffs allege that Defendant denied the request by Plaintiffs, its insureds, to defend Mr. Fasbender in the Underlying Action, which was a lawsuit b...

Excerpt: ...er is sustained with 15 days leave to amend as to Cross-Complainant Martirosyan and Cross-Defendant Granier, and it is overruled as to Cross-Complainant VDM Biochemicals as against Cross-Defendant BioCorRx. Cross-Defendants' motion to strike portions of the Cross-Complaint is DENIED. Cross-Defendants' request for judicial notice is GRANTED. Demurrer First Cause of Action for Breach of NDA/Confidentiality Agreement The elements of breach of contra...

Excerpt: ...rs none of the papers submitted by any of the parties includes a copy of the challenged subpoenas. According to the moving papers, the subpoenas were issued on or about 1/31/22, with a production date of 3/4/22. (Mot. at 2-3.) It appears the subpoenas are deposition subpoenas for production of business records, but without copies of the subpoenas, the Court cannot confirm this. Plaintiff shall be prepared at the hearing to confirm whether is the ...

Excerpt: ...her, Defendant and its attorney of record, Scott Martin, jointly and severally, are ordered to pay Plaintiff $2,160 in sanctions within 30 days of this Order. A. The Amended Motion is timely filed and served. Defendant takes issue with the fact that the original Motion was not timely served. But the Amended Motion – which is what the Court is ruling on – was timely served. On 1/3/22, Plaintiff served the first set for requests for production ...

Excerpt: ...he ground that he prevailed on Plaintiffs' claim against him for breach of contract. For the reasons set forth below, the Court GRANTS the motion in part, but awards far, far less than the exorbitant amount requested by Defendant. As an initial matter, Defendant asks the Court to take judicial notice of its Final Statement of Decision, Judgment, the Memoranda of Costs, and the First Amended Complaint – all of which are documents filed in this c...

Excerpt: ...ffs file an Amended Complaint that includes the referenced exhibits, so that everything is contained in one document. 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 to and incorporated therein) or from matters outside the pleading...

Excerpt: ... is DENIED. As an initial matter, the Court declines to consider the District's response to Plaintiff's separate statement. No such response is permitted under the Code of Civil Procedure or the California Rules of Court. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. ...

Excerpt: ...nswer or demurrer. Code Civ. Proc. § 473(a) (1). The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Code of Civ. Proc. § 473(a) (1). Additionally, any judge, at any time before or after commencement of trial, in the furtherance of...

Excerpt: ...copy of the document must be served on all other parties that already possess copies, along with the redacted version. CRC 2.551(b)(2). The moving party must lodge a complete copy of the document, marked “Conditionally Under Seal,” with a cover sheet stating the case information and that the enclosed record is subject to a pending Motion to Seal. CRC 2.551(d). To grant a motion to seal, the court must expressly find that: (1) an overriding in...

Excerpt: ... motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence creat...

Excerpt: ...iv. Proc., § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Code Civ. Proc. § 2030.300(a). No. 12 and No. 17 These interrogatories ask Defendant to “[d]escribe in detail [its] relationship with 12 Towers Engineering,” and “KNS Steel, Inc.” Defendant responded that 12 Towers and KNS Steel were its subcontractors for the Proje...

Excerpt: ...h is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, Civil Code §3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The court in Lackner v. North (2006) 135 Cal.App.4th 1188 offered further guidance and explained “despicable conduct” is conduct t...

Excerpt: ...subject to the mandatory dismissal statute, Civil Procedure Code (“CCP”) 583.320, for failure to bring the action to trial within three years of the 10/22/18 mistrial. Defendant argues that none of the tolling exceptions in CCP 583.340 apply to this case and that CCP 583.360 mandates dismissal. Alternatively, Defendants request the Court to dismiss the action for failure to prosecute. This argument is supported by the facts that occurred afte...

Excerpt: ...with California Rules of Court, rule 3.1110(f)(4). The failure to comply with rule 3.110(f) (4) caused an unnecessary amount of time to be spent to locate exhibits attached to the declaration, approximately 249 pages. Counsel is admonished to comply fully with the requirement of the California Rules of Court. Failure to comply may result in an OSC re sanctions and/or continuance of the motion. The Court also notes that Defendant's Reply brief exc...

Excerpt: ...f Trust recorded on 2/3/21 as document no. 2021000076841 in the Orange County Recorder's Office, is granted. (Evid. Code §§ 452(c), (h), 453.) By the Complaint, Plaintiff alleges that “each defendant,” including MERS, “claims some right, title, or interest in or to the building parcel, each of which claim is junior and inferior to plaintiff's claim.” (Compl. at ¶ 12.) MERS moves for judgment on the pleadings as to the sole cause of act...

Excerpt: ...ant Charles Reiter (“Reiter”) to appear and take a position on whether he wants the claims against him sent to judicial reference; and (2) Plaintiff to respond to Defendant's equitable estoppel argument, which had been raised for the first time on reply. [ROA #150] Since then, Defendant Charles Reiter has filed his answer to the SAC, in which he asserts an affirmative defense based on judicial reference. [ROA #154, Eighteenth Affirmative Defe...

Excerpt: ...ng Common Interest Development Act does not define “prevailing party,” it is well established that the analysis of who is a prevailing party under the Act focuses on who prevailed on a practical level by achieving its main litigation objections. Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590. The parties do not dispute that Plaintiffs are the prevailing party in this action or that the Court's judgment was based on the C...

Excerpt: ... OVERRULED. Special demurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond— i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties an...

Excerpt: ...emurring Parties did not serve the reply on cross- defendants Donna Marie Grider (“Grider”) or HOM/Sotheby's International Realty (“HOM”). After a defendant appears, that “defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.” Code Civ. Proc., § 1014. The Cou...

Excerpt: ...re Plaintiff's Applications for Right to Attach Orders/Writs of Attachment as to Defendants William T. Leach and Jennifer Wilson-Leach. The case has already been stayed as to the corporate Defendant, Basic Chiropractic & Leach Rehabilitation Inc. as a result of its bankruptcy filing. (See ROA 48.) At the initial hearing on these Applications on 3/28/22, counsel for Plaintiff represented to the Court that Defendant William T. Leach had filed a ban...

Excerpt: ...ney's 4/11/2022 Declaration in support of Plaintiff's Notice of Lodging (ROA No. 115). The Court did not grant leave to submit any additional evidence other than a readable format of the surveillance video. The Court further notes the declaration did not raise any issue that was not identified by the Court. In addition, the Court notes Defendant submitted a response to Plaintiff's separate statement. No such response is permitted under the Code o...

Excerpt: ...gement Conference is continued to August 8, 2022 at 9:00 a.m. Plaintiff worked for Defendant as an “in-plant” ink technician. (FAC, ¶13.) He started as a healthy 32-year-old man. (FAC, ¶12.) Over the span of 4 ½ years, Plaintiff worked in a small, stuffy, stifling, unventilated room in which the stagnant air was filled with various noxious smells and suffocating particulate matter from a variety of unusual inks. (FAC, ¶14.) In August 2020...

Excerpt: ...n for breach of contract and fifth cause of action for Unfair Trade Practices. The remainder of the motion for summary adjudication is DENIED. Procedural Issues The Court declines to rule on Plaintiff's evidentiary objections because they are not properly formatted, not accompanied by the requisite proposed order, and are not material to the Court's disposition of the motion. Cal. R. Ct. Rule 3.1354(b)-(c); Code Civ. Proc. § 437c(q). The Court f...

Excerpt: ...or judicial notice is granted except for item 17; for item, 17 the request is denied on relevance grounds. Defendant's objections to the McCovey Declaration are sustained as to paragraph 19; the objections are otherwise overruled. Defendant's objections to the Holmes Declaration overruled. Defendant's objections to the Olsen Declaration are overruled. The Court considered Plaintiff's entire separate statement. Workers' Compensation Exclusivity (I...

Excerpt: ... unnecessary; the Court can consider motions and papers in the file for this action upon citation to them. Plaintiffs' motion for an order imposing monetary and issue sanctions against Rocamora and her counsel is DENIED. Motion for 128.5 Sanctions against Donovan Code Civ. Proc. §128.5 provides: (a) A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party ...

Excerpt: ... cause of action and is therefore not a proper demurring party. Relevant Facts from the Complaint In January of 2021, Plaintiff was hired by J.D. Packaging and she reported to her supervisor Defendant Orozco. (Compl., ¶8) Plaintiff's husband worked for the same company but at a different warehouse. (Id.) Orozco sexually harassed her. Throughout the work day, Orozco would find ways to brush up against Ms. Rodriguez. When he would do so he would t...

Excerpt: ...duty there can be no breach and no negligence.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267). The instant Complaint arises from Defendants' alleged representation of Plaintiff's now deceased mother, Marcia Kay Schweitzer. (¶5-¶10 of SAC). An attorney-client relationship is not alleged to have existed between Plaintiff and Defendants. “As a general rule, an attorney has no professional obligation to nonclients and thus cannot be held ...

Excerpt: ...�[A]ttachment procedures are solely creatures of statute and ... such statutes must be strictly construed.'” (Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270, citing Arcata Publications Group v. Beverly Hills Publishing Co. (1984) 154 Cal.App.3d 276, 279.) At the hearing on an application for a right to attach order and writ of attachment, the Court “shall consider the showing made by the parties appearing and shall iss...

Excerpt: ...ptcy proceeding (Chapter 7) on 3/13/22. William Leach contends that the case is stayed as to him as well. (ROA 34). The Court finds that it is not. As set forth in the Court's March 23, 2022 Minute Order (ROA#48), the stay is limited to the corporate Defendant. The automatic stay generally protects only the debtor, the debtor's estate and some property of the debtor. It does not prohibit the debtor's creditors from taking actions against nondebto...

Excerpt: ...Court take judicial notice of the fact that Petitioner filed petitions for writs of mandate and declaratory relief in the actions listed in the request for judicial notice. The parties do not dispute that, although the petition was dismissed with prejudice, the Court may still hear this motion for fees under Government Code section 6259. (Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal.App.4th 873, 877.) Petitioner requested the name of a...

Excerpt: ...l notice is denied because Plaintiff did not comply with CRC Rule 3.1113(l). Plaintiff's objection number 8 to Herrera's Declaration is sustained. The remainder of Plaintiff's objections to Herrera's Declaration and to Addington's Declaration are overruled. Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut General Life...

Excerpt: ...8, 2016, the court signed a stipulation and order to retain jurisdiction pursuant to CCP Section 664.6. (ROA 395). The case was subsequently dismissed on 11/28/16 as to the Radco Defendants. (ROA 398) Plaintiff makes his Motion “based [on] Defendant's (sic) failure to comply with the terms of the Settlement Agreement.” (Notice, p. 2:22-23.) Merits The Court has jurisdiction to hear this Motion because the dismissal of the Radco Defendants wer...

Excerpt: ...vernment Code section 1752 and the common law rule against self- appointments, applicable to the Board, provides that “no person elected or appointed to the governing body of any city, county, or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed.” Gov. Code, § 1752. Respondent Orange County Board of Education (the “Board”) ...

Excerpt: ...s 1250 North SD Mezz, LLC, 1250 North Investments, LLC, SD Hotel Investments, LLC (“SDHI”), and Winston Salem RI, LLC (“WSRI”), directly and partly derivatively on behalf of San Diego Hotel Circle Holdings, LLC (“SDHCH”), San Diego Hotel Circle Mezzanine, LLC (“SDHC Mezz”), Winston-Salem Hotel Holdings, LLC (“WSHH”), Winston-Salem Hotel Owner, LLC (“WSHO”), South Bend Hotel Owners, LLC (“SBHO”) (collectively, “Plaint...

Excerpt: ...nd other papers may not be filed under seal merely by stipulation of the parties. A prior court order must be obtained. [CRC 2.551(a); see H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888.] Here, both Defendant and Plaintiffs filed entire documents under seal based on a stipulation of the parties. This is improper and does not comply with California Rule of Court 2.550 et seq. The Court reminds the parties that its Order entering the partie...

Excerpt: ...ause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc. § 2025.420(b). Further, under CCP section 2019.030, the court may restrict discovery where it is “unreasonably cumulative or duplicative.” Code Civ. Proc. §2019.030(a)(1). The SPI is an Agency Head Normally Not Subject to Deposition The law recognizes that civi...

Excerpt: ...wo grounds, as set forth below. A. Defendant argues delay and prejudice First, Defendant argues Plaintiff delayed bringing these new claims and that the claims which should have been asserted in the initial Complaint filed over a year ago on 1/19/21. The Court agrees that there was a delay. Plaintiff's counsel testifies his firm learned of the new facts on October 1, 2021, when Ms. Shawna Ragsdale, the Human Resources administrator for Sourceabil...

Excerpt: ...me barred pursuant to Code of Civil Procedure Section 340(c)(2). A claim for defamation is subject to the 1-year statute of limitation set forth in Code of Civil Procedure section 340, subdivision (c). Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246. The single publication rule, which has been codified as Civil Code section 3425.3, “applies to statements published on Internet Web sites.” Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Ca...

Excerpt: ...) the parties provide no authority to support taking judicial notice of trial exhibits simply because they were admitted in an underlying trial; and (2) in any event, they are not relevant or necessary to the Court's determination of the Motion. Basic Rules for Summary Judgment/Adjudication Under Section 437c of the Code of civil Procedure (“CCP”) a party may move for summary adjudication as to one or more causes of action within an action, o...

Excerpt: ...ause “the discovery seeks information, facts, legal contentions, names of witnesses, and documents that are ‘embraced by' the pending Appeal.” CCP section 916 provides that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter em...

Excerpt: ... Proc. §§ 284- 285. Phillips, Spallas & Angstadt LLP associated in as counsel of record for the Thompsons in their capacity as defendants, but not as cross-complainants. (ROA 180.) Ertz generally and specially demurs to all five causes of action in the FACC. First, Ertz contends all five causes of action are “ambiguous and vague as to time in light of the alleged settlement agreement” mentioned in the FACC. Ertz argues that all the claims f...

Excerpt: ...otice of Errata” filed by Cross-Complainant (ROA #290) and orders Cross-Complainant to cure the error by filing a Corrected Third Amended Cross-Complaint with the exhibits attached. Other than attaching the missing exhibits, no other change to the Third Amended Cross-Complaint may be made. The Corrected Third Amended Cross-Complaint shall be filed and served within ten days of the date of this order. Demurrer Second Cause and Third Causes of Ac...