Excerpt: ...ir reply declaration under seal, but failed to file a motion to seal. To promote the policy of maintaining the openness of public proceedings, the Court declines to consider the lodged unredacted exhibit in making its determination. General legal authority regarding preliminary injunctions The court may grant an injunction in the following cases: “(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and th...

Excerpt: ...mers v. McClanahan (2006) 140 Cal. App. 4 th 403, 413; Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1439-40. Plaintiff has not met this burden. Purported service on each of them by way of an asserted agent who in fact was not authorized to accept service on their behalf was defective. Nor did Plaintiff personally serve Defendants or their agent or comply with the requirements for substitute service. Code Civ. Proc. § 415.20. Plaintiff filed a ...

Excerpt: ...heir merits. IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461. Because the policy favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530 (internal quotations omitted). This is particularly true for amendment of answers, as a defendant denied l...

Excerpt: ...nt creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of para...

Excerpt: ...mers v. McClanahan (2006) 140 Cal. App. 4 th 403, 413; Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1439-40. Plaintiff has not met this burden. Purported service on each of them by way of an asserted agent who in fact was not authorized to accept service on their behalf was defective. Nor did Plaintiff personally serve Defendants or their agent or comply with the requirements for substitute service. Code Civ. Proc. § 415.20. Plaintiff filed a ...

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

Excerpt: ...y duty, constructive fraud, conversion, and breach of contract, Defendant chose to demur to these claims. Plaintiff pointed out in opposition that Defendant was not a party to these claims, based on Complaint. The Court overrules the Demurrer to these causes of action because these claims are not brought against this Defendant. A. Dissolution Defendant argues that insufficient facts are alleged to state a claim. The Court disagrees. Any sharehold...

Excerpt: ...ruled as to the fifth cause of action. As a result of the Court's ruling on the demurrer, Defendants' motion to strike is moot. Fourth Cause of Action for Negligent Infliction of Emotional Distress Courts analyze this claim under a direct victim theory vs. a bystander. In their opposition, Plaintiffs claim to be asserting to be both direct victims and bystanders – at least at to Paredes and Cannon – to Melody's injury. In direct victim cases,...

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

Excerpt: ...n of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court...

Excerpt: ... typographical error or makes a minor, unsubstantial change. See Viriyapanthu v. State of CA (C.D. Cal., Oct. 26, 2018) 2018 WL 6136148, at *1 (striking portion of Notice of Errata because “proposed changes do not correct merely typographical errors”); Vigers v. Emergency Services Restoration, Inc. (C.D. Cal., June 21, 2018) 2018 WL 6930885, at *3 (“As the Ninth Circuit has held, carelessness does not form the basis of relief. Moreover, des...

Excerpt: ...mination of the rights of the parties in an action or proceeding.” Plaintiff has not shown that the 3/28/2019 judgment is not final. The 3/28/2019 disposed of the entire action as to all parties. Pursuant to CCP section 1294, subdivision d, Plaintiff “may appeal from…[a] judgment entered pursuant to this title.” The judgment was entered pursuant to CCP section 1287.4, after the Court granted the motion to confirm the arbitration award. Pl...

Excerpt: .../retention, and negligent failure to warn, train or educate. Defendants allegedly allowed an assistant baseball coach, defendant Carlos Sales, Jr., to sexually abuse and harass the plaintiff minors. The instant discovery dispute concerns SAUSD's responses to moving Plaintiff's first set of requests for production of documents, Nos. 6 and 40. With respect to inadequate responses to a request for production, the Code provides for a motion and order...

Excerpt: ...sary is to call the court's attention to such papers.” Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a. Civil Code section 1717(a) provides that: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is deter...

Excerpt: ...c). Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. Ketchum v. Moses (2001) 24 Cal. 4 th1122, 1131. The attorney's fees awarded must be reasonable. Ketchum v. Moses, supra, 24 Cal. 4 th at 1133. It is such defendant's burden of proof to show the fees it incurred and that the fees were reasonably incurred. Christian Research Institute v. Alno, supra, 165 Cal. App. 4 th at 1...

Excerpt: ...nt's motion to strike is therefore moot. Sham Pleading The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory explanation for the change. See Hahn v. Mirda (2007) 147 Cal. App. 4 th 740, 751; State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4 th 402, 412. Generally, after an amended pleading has been filed, courts will disregard the original pleading. B...

Excerpt: ...he Motion to Strike punitive damages as to the first cause of action. The MTS is moot as to the remainder of the claims. The Court grants Michael's unopposed Request for Judicial Notice pursuant to Evidence Code §452(d). 1. Breach of Fiduciary Duty In this new Cross-Complaint, Mark first alleges that his brother, Michael, breached his fiduciary duty to him when he shredded Mark's mail notifying him about various tax issues, with the result that ...

Excerpt: ...17200. The Demurrer is sustained without leave to amend as to claims for cancellation of instruments, wrongful foreclosure and quiet title. Wells Fargo's request for judicial notice of exhibits “A” through “G” is granted. Evid. Code §§ 452(c), (d), (h), 453. 1st COA – Negligent Misrepresentation The premise of this claim is “Defendants misrepresented to Plaintiffs [] that Plaintiffs had a qualified hardship, and that Plaintiffs woul...

Excerpt: ...plaint is for rescission “due to misrepresentation.” The new Defendant has been intimately involved in this litigation, is the person who signed the discovery verifications on behalf of Khoshbin Properties, and is the person who made the alleged misrepresentation. Further, Defendant does not dispute that the FAC has not run on these claims. Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus...

Excerpt: ...tive order proposed by Plaintiff, which mirrors the LASC Form Protective Order, with the Court's own modifications thereto. The Court finds Defendant's proposed protective order is unreasonably one- sided. Furthermore, Defendant has not demonstrated why Plaintiff's proposed protective order is deficient in any respect. Because Defendant responded to each of Plaintiff's requests at issue, stating that it would produce responsive documents, and in ...

Excerpt: ...d. Evid. Code, § 452(d); Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117. Pursuant to CCP section 436 the court may strike out “...any irrelevant, false, or improper matter inserted in any pleading.” “Courts have inherent authority to strike scandalous and abusive statements in pleadings.” Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070. “An ‘immaterial allegation' means ‘irrelevant matter' a...

Excerpt: ...f action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed broadly. Code Civ. ...

Excerpt: ...y be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality in permitting amendments applies only where no prejudice is shown to the adverse party. An opposing party that can show inexcusable delay and probable prejudice ...

Excerpt: ...ncy 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 complaints, it remains essential that a co...