Excerpt: ...e 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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code Civ. Proc., § 664.6 (effective 1/1/21). Subsection (b) of the statute provides that “For purposes of this sect...

Excerpt: ...uous. (Dem. at 3, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Defendant Timmes makes the additional argument that the claim fails against him because he is not a party to the construction agreements. “Every contract imposes on each party an implied duty of good faith and fair dealing. Simply stated, the burden imposed is ‘that neither party will do anything which will injure the right of th...

Excerpt: ...ability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevant to the subject matter (e.g., how the information in the document would te...

Excerpt: ...ively, “Cross-Complainants”) and the first three causes alleged therein. Demurring Parties also seek an order striking the punitive damages allegations and prayer for punitive damages from the FACC. Demurrer Demurring Parties demur to the FACC on the grounds that ZXRV lacks capacity to bring this action and Burns lacks standing. Demurring Parties also contend the FACC does not state sufficient facts to support the first, second, and third cau...

Excerpt: ... injuries she allegedly suffered while a passenger on one of Defendant's buses. (SAC at ¶ 6.) “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.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. Where a ...

Excerpt: ... Defendant Haddadin) and DENIED IN PART (as to Defendants Radii and Arisohn). As an initial matter, the Court notes that Plaintiff's Complaint originally alleged three causes of action, for breach of express contract, money lent, and account stated. On 12/22/2020, however, Plaintiff dismissed the Doe defendants and also dismissed its causes of action for money lent and account stated. Request for Dismissal, ROA No. 40. Thus, there is only one cau...

Excerpt: ...hey also allege that “Defendants” hired moving party Defendant Bowers Termite. [Complaint, ¶ 20 and Ex. 3.] Plaintiffs attach Defendant Bower Termite's inspection report – titled Standard Notice of Work Completed and Not Completed – and allege that it was incorporated “into the agreement.” [Complaint, ¶ 21.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached t...

Excerpt: ...o be entitled to relief, the defendant has the burden of showing the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. [Jackson v. Bank of America (1983) 141 CA3d 55, 58—“the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances”]. The party moving for relief on the basis of “mistake, inadvertence, surprise, or...

Excerpt: ...respond.” (Code Civ. Proc., § 2031.280, subd. (a).) It is insufficient to merely label the documents by Bates number in response to separately propounded interrogatories. (See van Loben Sels decl., Ex. B.) Plaintiff shall pay $2340 in discovery sanctions to defendant. (See Code Civ. Proc., § 2031.310, subd. (h); see also Amaro decl. ¶ 22.) The motion was timely filed and served within 45 days after plaintiff provided verifications on 10/5/20...

Excerpt: ...al Notice is denied as irrelevant. On August 13, 2020, Plaintiff served her Notice of Taking Defendant Yong Hans' Deposition, for Defendant's deposition to be continued to October 28, 2020. (Ma Decl., ¶19). Defendant failed to appear for his deposition. (Ma Decl., ¶ 22). On November 13, 2020, Plaintiff sent out another deposition notice for a December 2, 2020 deposition. (Ma Decl., ¶ 23). Again, Plaintiff did not appear for his deposition. (Ma...

Excerpt: ...eld; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) there is a suggestion of discriminatory motive. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 130; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; see also CACI 2500. Defendant contends Plaintiff has not alleged an adverse action as he has not been demoted or terminated, or something equally definitive. CACI ...

Excerpt: ...otes Medical Center did not show the moving papers were properly served on Defendant Sevak H. Darbinian, M.D. (“Dr. Darbinian”). 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 Clerk of the Cour...

Excerpt: ...an 10 days late. Code Civ. Proc., § 1005(b). Plaintiff explains he intended to request a continuance at the 2/8/21 hearing and hoped Defendants would stipulate to a continuance, but these explanations do not demonstrate “good cause” for his tardiness or disregard of procedural rules. Although Plaintiff is representing himself, his pro per status does not entitle him to any special treatment. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–...

Excerpt: ... absence of an agreement for recovery of fees or specific statutory provision, attorneys' fees generally are not recoverable by the prevailing party in a lawsuit. Trope v. Katz (1995) 11 Cal. 4 th 274, 278-79. Accordingly, in the absence of a basis for recovery, Plaintiff's prayer for attorneys' fees is subject to being stricken. Such basis must appear on the face of the pleading or by matters that may properly be judicially noticed. Code Civ. Pr...

Excerpt: ...iled the following motions against Defendant Conny Bergstrom as a result of her failure to serve discovery responses: (1) Motion to Compel Responses to Form Interrogatories; (2) Motion to Compel Responses to Special Interrogatories; (3) Motion to Compel Production; and (4) Motion to Deem Facts Admitted. After the motions were filed, responses were ultimately served, rendering the motions largely moot. However, Plaintiff has requested sanctions ag...

Excerpt: ...tthew Timmes (collectively, “Defendants”) oppose the motion. Plaintiff contends their dispute is subject to binding arbitration under identical “Dispute Resolution” provisions in the two subject construction contracts—one relating to construction work at Mr. Glasser's residence (the “Residential Agreement”) and the other relating to construction work at a restaurant (the “Restaurant Agreement”). The provisions state: “DISPUTE ...

Excerpt: ...uction, nos. 34-45; and (iv) Requests for admission, nos. 26-28. The Court rules as follows: (i) Motion denied as to nos. 77 and 78; otherwise granted. (ii) Motion granted. (iii) Motion granted. (iv) Motion granted. Sanctions of $11,550 are awarded to Defendant against Plaintiff. Motion to Compel Further Responses to Special Interrogatories A party may move to compel further responses to interrogatories on the grounds that the answer is evasive o...

Excerpt: ...rocedure section 1008. In addition, Plaintiff does not show new or different facts, circumstances, or law to support a motion for reconsideration. Code Civ. Proc., § 1008. In addition, the relief Plaintiff seeks cannot be addressed with a nunc pro tunc order. A nunc pro tunc correction is proper if it reflects the court's intention in entering the original order and does not “alter the meaning or legal effect of the original decree.” Estate ...

Excerpt: ...r Breach of Implied and Express Warranty Defendants contend the breach of warranty claims are subject to demurrer because there is no privity between Defendants and Plaintiffs. (Dem. at 2.) There generally is no question that privity is required for a breach of implied warranty claim. U.S. Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 (citing Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695–696; Osborne v. Subaru...

Excerpt: ..., subd. (a)(1).) “Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdictio...

Excerpt: ...oes not list the opposition as one of the documents served. In addition, Artedi Cortez did not state his email address on the proof of service. Code Civ. Proc., § 1013b, subd. (b)(1). Furthermore, a party cannot serve documents by mail. Code Civ. Proc., § 1013a, subd. (1). Because the Association did not file any reply, it is unclear whether the Association received the opposition. Subject to any objection by the Association regarding service, ...

Excerpt: ...the demurrer. This dispute arises out of an option to lease the premises on which an restaurant is operated. Plaintiff alleges he and his former business partner, Abed Elhaj, purchased the business from the previous tenants, the Chaos, in 1994. In connection with the acquisition, a total of five agreements were executed, “none of which would have occurred without the others[.]” (FAC at ¶ 16.) Included in the five agreements was an “Option ...

Excerpt: ...tiff must allege facts establishing that defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was...

Excerpt: ...late reasonable attorneys' fees. Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-49. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court's discretion. PLCM Group v. Drexler (2000) 22 Cal. 4 th 1084. To determine reasonable attorneys' fees, the court sho...

Excerpt: ...cause Instant Tuck USA LLC did not propound the discovery, it is not entitled to seek further responses, and the motions as to it are denied. As to the proper moving party, Plaintiff Instant Tuck, Inc. (“Plaintiff”), the Court rules as follows: (1) The motion to compel further responses to special interrogatory nos. 1 and 2 is denied; (2) The motion to compel further responses to document requests nos. 8 (erroneously identified as 1 in the Mo...

Excerpt: ...are procedurally flawed in that (1) they do not provide a legal basis for the motion, (2) Defendant did not plead any settlement in its answer, and (3) there was no settlement between the parties. “A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice o...

Excerpt: ... for which notice is requested. Furthermore, based on the Court's review of the documents included with the requests, it does not appear that any of them is a proper subject of which to take judicial notice under Evidence Code Sections 451 or 452. Cross-Complainant's evidentiary objections are all overruled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of...

Excerpt: ...s of action in the Complaint. Defendants have met their burden to show a valid written arbitration agreement that covers the disputes asserted in the Complaint. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The Court finds that the Federal Arbitration Act applies to the arbitration and the California Arbitration Act applies procedurally per the terms of the parties' arbitration agreement (“Agreement”...

Excerpt: ...s, no. 17.1; (iii) Requests for production, nos. 34-45; and (iv) Requests for admission, nos. 26-28. An opposition separate statement was filed only as to the motion to compel further responses to special interrogatories. But that separate statement was filed three times. [See ROA ## 482-84.] If this was an error, counsel may address with the Court at the hearing whether a continuance of the remaining motions is appropriate to enable Plaintiff to...

Excerpt: ...Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Plaintiff's two evidentiary objections are overruled. Ben's Asphalt's evidentiary objection nos. 1-9 are all overruled. Defendants Crystal Cay Condominium Association's and Amber Property Management's joinder to the opposition filed by Plaintiff is moot. In any event, it was untimely. “[F]rom commencement to conclusion, the party moving for summ...

Excerpt: ...fer obligation. Butler Decl., ¶ 2a. First cause of action for fraud intentional misrepresentation The essential elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231. Every element of fraud must be pleaded with specificity, which requires the pleading o...

Excerpt: ... causes of action. Except for items 1 and 7 in its first request for judicial notice, the City's requests for judicial notice are granted. As to Nos. 1 and 7, these are orders in the pending action so no request for Judicial notice is required. The Court can consider anything in the file of the action before it. First Cause of Action for Violation of 42 U.S.C. §1983/Equal Protection 14 th Amendment Although Cross-Complainants now identify this c...

Excerpt: ...fer obligation. Butler Decl., ¶ 2a. First cause of action for fraud intentional misrepresentation The essential elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231. Every element of fraud must be pleaded with specificity, which requires the pleading o...

Excerpt: ... causes of action. Except for items 1 and 7 in its first request for judicial notice, the City's requests for judicial notice are granted. As to Nos. 1 and 7, these are orders in the pending action so no request for Judicial notice is required. The Court can consider anything in the file of the action before it. First Cause of Action for Violation of 42 U.S.C. §1983/Equal Protection 14 th Amendment Although Cross-Complainants now identify this c...

Excerpt: ...Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Plaintiff's two evidentiary objections are overruled. Ben's Asphalt's evidentiary objection nos. 1-9 are all overruled. Defendants Crystal Cay Condominium Association's and Amber Property Management's joinder to the opposition filed by Plaintiff is moot. In any event, it was untimely. “[F]rom commencement to conclusion, the party moving for summ...

Excerpt: ... California. The Motion is DENIED. As an initial matter, the Court notes that it appears the moving party filed this motion three times, on 1/22/2019, 10/23/2019 and 10/29/2019. See ROA Nos. 30, 35, and 40. It appears to the Court that all three motions and their proofs of service are identical. See ROA Nos. 30, 31, 35, 36, 40, and 41. Plaintiff filed one opposition and did not raise any issue with the multiple filings. Similarly, Staffing Soluti...

Excerpt: ...s, no. 17.1; (iii) Requests for production, nos. 34-45; and (iv) Requests for admission, nos. 26-28. An opposition separate statement was filed only as to the motion to compel further responses to special interrogatories. But that separate statement was filed three times. [See ROA ## 482-84.] If this was an error, counsel may address with the Court at the hearing whether a continuance of the remaining motions is appropriate to enable Plaintiff to...

Excerpt: ...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, 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 a...

Excerpt: ...e 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 facts relied upon with sufficient precision to inform the defendant of what plaintiff i...

Excerpt: ...d warranty of merchantability and fraud, respectively. The Court overrules the Demurrer to the third and fourth causes of action. (1) The Demurrer is overruled as to the third cause of action for violation of Song- Beverly Consumer Warranty Act under Civil Code §1793.2(A)(3). Defendant contends Plaintiffs' claim for violation of Civil Code Section 1793.2(a)(3) is subject to demurrer because it is predicated on nothing more than the conclusory al...

Excerpt: ...��) provides: “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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement....

Excerpt: ...f 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 “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.4th 826, 850.) “A prima facie showing is one that is sufficient to support the positi...

Excerpt: ...the plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of the University of Calif. (1989), 215 Cal. App. 3d 977, 985.) A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. ...

Excerpt: ...e to mistake under CCP section 473(b). On 11/23/2020, the Court found a waiver of the 45-day cutoff, although jurisdictional, may be subject to relief under Code of Civil Procedure section 473, subdivision (b). Plaintiff contends the 45-day deadline is mandatory and jurisdictional, relying on Sexton v. Superior Court (1997) 58 Cal.App.4th 1403. However, in Sexton, the Court noted that it did not believe “the 45-day limitation is ‘jurisdiction...

Excerpt: ...or to matters outside the pleading that 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 what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, ...

Excerpt: ...ill not constitute a waiver of the taxpayer privilege. The Court finds this to be a reasonable compromise. Tax returns, and the information contained in them, are privileged. Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6-7. The California Supreme Court has made clear that the privilege is not absolute and can be waived. Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721. There are three situations where the privilege does not apply...

Excerpt: ... of Record are jointly and severally ordered to pay Plaintiff a monetary sanction in the amount of $2,100 to Plaintiff. Such sanction shall be paid by delivering a check in the sum of $2,100 to Plaintiff's counsel within 30 days. Each answer in an interrogatory response 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 ...

Excerpt: ...anctions; Memorandum of Points and Authorities; Pursuant to 18 U.S. Code s/s 1621 Title 18 and California Penal Code 118 PC.” However, in his Reply Brief, Cross-Complainant clarifies that “Cross-complainant's Original Notice of and Motion for ‘Perjury' should have apply [sic] been named, ‘Motion for Sanctions' against cross-defendants and/or their opposing counsel” Reply, ROA #488, at 7:21-22) and asserts that “Cross-complainant attem...

Excerpt: ...'s August 12, 2019 discovery order (the “Discovery Order”). For the reasons set forth below, the Motion is granted in part and denied in part. Plaintiff's Objections to the Declaration of Kellian Summers are overruled. Pursuant to CCP Section 2023.030, a court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party that has engaged in conduct that is a misuse of the discovery process. Misuse of the discovery proce...

Excerpt: ...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 facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek...

Excerpt: ...been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (d) There is a defect or misjoinder of parties.”); see also Cal. Judges Benchbook Civ. Proc. Before Trial § 12.18 (“A special demurrer to a complaint or cross-complaint may be filed on the ground of improper joinder of parties.”) The failure to raise the objection, either by demurrer or answer, is d...

Excerpt: ...F CYPRESS, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 0235, PAGE(S) 42 TO 45 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. The court grants Defendants' Request for Judicial Notice as to the Order granting summary judgment and the Lis Pendens. At any time after a notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected b...

Excerpt: ...the plaintiff proves by clear and convincing evidence that the defendant has been 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). Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that p...

Excerpt: ...led Opposition. Defendant's objection to the late Opposition is overruled. Under applicable law, individual defendants are served by delivering copies of the summons and complaint to them personally or to someone else authorized by law to accept summons on their behalf. (CCP § 415.10 et seq.) The filing of a proof of service that complies with the statutory requirements of CCP § 417.10 creates a rebuttable presumption that the service was prope...

Excerpt: ...filed a motion to compel Defendant Yong Han (“Defendant”) to provide further responses to Plaintiff's Request for Production of Documents, Set One (“RFPs”) and for monetary sanctions in the amount of $1,810 against Defendant, all pursuant to CCP Section 2031.310 (the “Motion”). See Notice of Motion and Motion at 2. As set forth below, the request for sanctions is GRANTED. While the Motion was pending, Defendant served supplemental res...

Excerpt: ... “1/28/2020 AT 12:14:00 PM.” The service was completed by “Charles Edward Wallace,” a “registered California process server.” (ROA 9 [Proof of Service of Summons].) Defendant's default was entered on or about 5/26/20. (ROA 18 [Request for Entry of Default].) Defendant contends the default is void, because service of the Summons and Complaint did not result in actual notice to her. CCP Section 473.5 sets forth the requirements for disc...

Excerpt: ...r on a demurrer in another unrelated case as irrelevant. The Court sustains Plaintiffs' objection nos. 1-13 to the Declaration of Shannon Ernster. The Court overrules objection nos. 14-17 to the Declaration of Cara Johnson. Finally, the Court overrules Plaintiffs' objection nos. 18-25 to the Declaration of Robbie Zibilski and sustains objection no. 26. The Court rules as follows on Defendants' evidentiary objections, served with their reply: As t...

Excerpt: ...risdiction over nonresidents who have “minimum contacts” with the forum state. “Minimum contacts” means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice” under the U.S. Constitution's Fourteenth Amendment Due Process Clause. International Shoe Co. v. Washington (1945) 326 US 310, 316; Burger King Corp. v. Rud...

Excerpt: ...evised or further declarations to be filed. Minute Order dated 9/28/2020. As of 10/21/2020, however, nothing has been filed. As the applicant has now had ample opportunity to cure the defects and failed to do so, the Court orders that the Motion for Appointment as Guardian Ad Litem is denied without prejudice. Pursuant to CCP Section 372.(a)(1), when a party to an action “lacks legal capacity to make decisions” they “shall appear either by ...

Excerpt: ...ses liability. Defendant's first motion, filed August 11, 2020 (ROA #220), seeks an order compelling Plaintiff to appear for his deposition and an award of monetary sanctions of $1,130 against Plaintiff and his attorney for misuse of the discovery process. Notice of Motion and Motion at 2. Plaintiff opposed the Motion and sought monetary sanctions of $1,200 against Defendant and its counsel. For the reasons set forth below, the Court GRANTS Defen...

Excerpt: ...o recover reasonable attorney fees and costs. Code Civ. Proc. § 425.16(c); City of Los Angeles v. Animal Defense League (2006) 135 Cal. App. 4th 606, 627. When a plaintiff voluntarily dismisses the action after the SLAPP motion has been filed and before the trial court hears or rules on the motion, the court continues to have jurisdiction over the case for the limited purpose of ruling on a defendants' motion for attorney fees and costs. Law Off...

Excerpt: ... action, with 20 days leave to amend. The Motion to Strike is GRANTED with 20 days leave to amend. Plaintiff's FAC alleges five causes of action for (1) Violation of California Government Code § 12940(n), Failure to Engage in a Timely, Good Faith Interactive Process to Determine Effective Reasonable Accommodation; (2) Violation of California Government Code §12940(m)(l), Failure to Make a Reasonable Accommodation; (3) Violation of California Go...

Excerpt: ... th causes of action in Irvine Company's Cross-Complaint is DENIED. The Court begins by addressing some preliminary issues: First, the Court declines to rule on Cross-Complainant's objections to portions of Cross- Defendants' separate statement. There is nothing that provides a mechanism for “objecting” to one party's alleged undisputed “facts” (as opposed to objecting to the evidence cited in support of the facts). The objections do not ...

Excerpt: ...ndum. CRC 3.1300(d); 3.1113(g). Those 20 pages did not provide any supporting argument for Defendants' motion for summary adjudication. The Court therefore considers and rules on only the Motion for Summary Judgment. Defendants' evidentiary objections are sustained as to Objection Nos. 1, 2, 10, and 13; all remaining objections are overruled. Defendants are alleged to own and/or operate a sober living home on La Paz in the City of Dana Point (the...

Excerpt: ...), when a party to an action “lacks legal capacity to make decisions” they “shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending…” Pursuant to CCP Section 373(c), a guardian ad litem is appointed “[i]f the person lacking legal competence to make decisions is a party to an action or proceeding, upon the application of a relative or f...

Excerpt: ...ake judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Legal Standard The Court's sole function on a motion for summary judgment is issue-finding, not issue- determination. The judge must simply determine from the evidence submitted whether there is a “triab...

Excerpt: ...etary Sanctions of $4,182.00 against Cross-Petitioner, Alan Dale Dickinson, For Failure to Participate in Discovery, Failure to Appear for Deposition on Five Occasions and Failure to Comply with Prior Court Orders.” Cross-Defendants request “that the terminating sanction specifically be an entry of dismissal of Alan Dickinson's cross- complaint with prejudice as to all cross-respondents with an award of costs in their favor.” Notice of Moti...

Excerpt: ... in connection with the Motion and the Court's further consideration of the issues, the Motion is DENIED. The Sanctions Motion originally was set for hearing on 8/24/2020 and, for the reasons set forth in the Court's Minute Order dated 8/28/2020, it was continued to September 21, 2020 for further briefing. 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: ... elements of quantum meruit are (1) the plaintiff acted pursuant to ‘an explicit or implicit request for the services' by the defendant, and (2) the services conferred a benefit on the defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company (2018) 24 Cal.App.5th 153, 180). “However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have a...

Excerpt: ...MPA at 5-6. Accordingly, the demurrer is sustained without leave as to Defendant Daoud. First Cause of Action for Fraudulent Misrepresentation The essential elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231. Every element of fraud must be pleaded wit...

Excerpt: ...ound that Defendant's responses were without substantial justification. Generally, Plaintiff argues that Defendant's responses to the document requests at issue are not Code-compliant; its statements of compliance are incomplete; its statements of inability to comply are incomplete; and its objections are “without merit or too general.” Notice of Motion and Motion at 2:16-22. Defendant filed an Opposition Brief, along with a Declaration of Tr...

Excerpt: ... leave to amend; the Demurrer to the Third Cause of Action is overruled; and the Motion to Strike is granted in part and denied in part. Although a proof of service was not filed with the Opposition papers, Plaintiff subsequently filed a proof of service showing that it had served the Opposition on moving party. The District chose not to file a reply. Defendant's Demurrer Plaintiff asserts his Second Cause of Action pursuant to Education Code §2...

Excerpt: ...ial matter that Plaintiffs' opposition was not timely filed. Plaintiffs contend they were unaware of the hearing date for this demurrer. Chwialkowski Decl. Although Brokers object to the opposition on the ground that it is untimely, Brokers were able to serve and file a timely reply that addressed the merits of Plaintiffs' opposition. The Court exercises its discretion to consider Plaintiffs' opposition. Demurrer to the fourth cause of action for...

Excerpt: ... existence of a contract, (2) plaintiff's performance or excuse from non-performance, (3) breach by defendant, and (4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal. App. 4 th 731, 745 (2001). A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. Holcomb v. Wells Fargo Bank, NA (2007) 15...

Excerpt: ...e moving papers all indicate on their face that they were filed “conditionally under seal.” However, the Court finds no motion to actually SEAL the moving papers, as required by CRC 2.550 et seq. Among other things, those rules provide that “[a] record must not be filed under seal without a court order” and that a record cannot be sealed “based solely on the agreement or stipulation of the parties.” Thus, if Plaintiff wishes to have t...

Excerpt: ...Plaintiff's Complaint, shows the street name as “Alona.” Throughout this Order, the Court uses the name shown on the Deed of Trust. CCP Section 526(a)(3) provides that an injunction may be granted “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of th...

Excerpt: ...r production of documents; and, (4) requests for admissions have been narrowed – and in the case of the motion to compel production of documents, resolved – by the parties' meet and confer efforts. Based on the Stipulation and Order filed 7/29/2020 (ROA #313), the Court understands that only the following discovery requests now remain in dispute and require a ruling by the Court: Form Interrogatories – nos. 6.3 and 17.1 (as to RFAs 2, 7, an...

Excerpt: ...nt. 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. The pleadings determine what issues are material in a summary judgment motion. Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67. If Plaintiff meets this initial burden, the burden then shifts to Defendant “to show that a triable issue of one or more material facts exists as to that cause of action” based upon admissib...

Excerpt: ... leave to amend; the Demurrer to the Third Cause of Action is overruled; and the Motion to Strike is granted in part and denied in part. Although a proof of service was not filed with the Opposition papers, Plaintiff subsequently filed a proof of service showing that it had served the Opposition on moving party. The District chose not to file a reply. Defendant's Demurrer Plaintiff asserts his Second Cause of Action pursuant to Education Code §2...

Excerpt: ...06) 140 Cal. App. 4th 1395, 1404-05. Where money, rather than an item of property, is involved, a cause of action for conversion can be stated only where the defendant is alleged to have interfered with the plaintiff's possessory interest in a specific, identifiable sum. Kim v. Westmoore Partners, Inc. (2011) 201 Cal. App. 4 th 267, 284. This generally occurs where an agent accepts a sum of money to be paid to another and fails to make the paymen...

Excerpt: ...urt OVERRULES the Demurrer. Defendant is ordered to file and serve its Answer to the SAC within 20 days. 1. The demurrer to the first cause of action for fraud is overruled. The Court previously overruled Defendant's Demurrer to this cause of action in the First Amended Complaint (“FAC”). Plaintiff has not added any new facts to this cause of action. As the Court previously held in its 2/10/20 Order overruling the Demurrer to this cause of ac...

Excerpt: ...quests for Admission (Set One). Before addressing the specifics of the motion, the Court sets forth the general legal principles governing these motions. General scope of discovery Code Civ. Proc., § 2017.010 provides: Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the det...

Excerpt: ...otion. The City is awarded sanctions of $12,000 against RAW, which the Court concludes is an appropriate and sufficient sum to promote compliance with the statute and to deter frivolous filings. The $12,000 sanction shall be paid within 60 days. By presenting a pleading to the court, an attorney or unrepresented party is certifying that, to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the ci...

Excerpt: ...e court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (emphasis added) “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorne...

Excerpt: ...”). The second is an application by Plaintiff H.K., a minor, by and through her Guardian ad Litem, Lois K. (“Plaintiff”) for an order sealing certain documents the Plaintiff filed in connection with her opposition to the District's MSJ/MSA. The third is the District's MSJ/MSA. For the reasons set forth below, the Court denies without prejudice the two applications to seal documents and continues the hearing on the District's MSJ/MSA. In add...

Excerpt: ... (“OCM”) is DENIED in its entirety. Moorefield's request for judicial notice is granted. OCM's request for judicial notice is also granted. OCM's evidentiary objections are all overruled. 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 th 826, 850.) “A prima facie show...

Excerpt: ...mplaint as to National Therapeutic, so the Motion is moot as to that entity. As to the other Defendants – RAW, Allenthorpe, and Loyer (collectively, the “Remaining Defendants” or “Defendants”) – the Motion is GRANTED to the extent set forth herein. The Court concludes, however, that the injunction sought by the City is far too broad; it exceeds the scope of the Complaint and also is not supported by the evidence presented. Accordingly...

Excerpt: ...her meet and confer to see if, with the benefit of the Court's informal guidance on the discovery disputes, they could resolve or narrow any of the discovery disputes; and (2) submit a Joint Report to the court identifying which (if any) of the disputed discovery requests they were able to resolve (and therefore would NOT need a further ruling from the Court), and which remained in dispute and thus do require a ruling by the Court. See 7/23/2020 ...

Excerpt: ...sses below only the three remaining Requests, Nos. 6, 12, and 46. Defendant is ordered to serve its agreed-upon supplemental responses to 5 and 42 within ten days, if it has not already done so. At issue are only two documents: Defendant's “fall logs” for a 16-month period and an “incident report” regarding the Plaintiff's November 2018 fall. RFP No. 6 In this Request, Plaintiff requests fall logs for the period of 1/1/18-5/1/19. Given th...

Excerpt: ...lley Costco. The case originally was set for trial on 3/30/2020. The Court later granted an ex parte application to continue trial to 6/29/2020, but did not continue the pre-trial discovery or motion deadlines. Then, as a result of the pandemic, the Court continued the trial date again to 12/21/2020. In sum, Defendant's Motion asks the Court to do four things: (1) “reopen discovery” to allow Costco to complete discovery that was noticed befor...

Excerpt: ...issue on Defendant's motion. The Court overrules Defendant's objection to, and request to strike, Plaintiff Joseph Wucherpfenning's Separate Statement of Disputed Facts. Defendant cites Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 826 for the proposition that the court should strike all of Plaintiff's additional facts because the facts are not linked to specific issues. This case is plainly distinguishable....

Excerpt: ... contractual right to arbitrate his dispute with NHOM only. In Weiler v. Marcus Millichap Real Estates Investment Serv., Inc. (2018) 22 Cal.App.5 th 970, 981 (Weiler), the Court of Appeal held that “[w]hen a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court. If sufficient evidence is presented on these issues, and the court concludes the party's...

Excerpt: ...t opposition. The Court also exercises its discretion to consider the separate opposition filed by Mr. Dickinson himself, as no objection was made to the filing of that document. The Court notes that Mr. Dickinson's counsel is separately seeking to be relieved as counsel. A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. Stoops v. Abbassi (2002) 100 Cal. App. 4 th 644, 650; Code Civ. Proc....

Excerpt: ...d 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, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may ...

Excerpt: ... not state facts sufficient to constitute a cause of action against that defendant. Code Civ. Proc., § 438(c)(1)(B)(ii). “A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the complaint or cross-complaint, supplemented by any matter of which the trial court takes judicial notice, to determine whether plaintiff or cross-complainant has stated a cause of action.” Angelucci v. Century Supper Club (2007) 4...

Excerpt: ...nts of causation and damages. For the reasons set forth below, the Court concludes Plaintiff has still not alleged facts sufficient to state a negligence cause of action. Plaintiff argues that her negligence tort is based on a breach of duty independent of the contract for sale of the vehicle and is based on the failure to provide adequate services under the agreement to repair the vehicle. The economic loss rule does not apply to an action for n...

Excerpt: ... BB, portions of Gates' declaration in support of the MSJ, portions of Defendants' separate statement in support of the MSJ, and portions of the memorandum of points and authorities in support of the MSJ. Notice, 2:21-5:7; Kutlay Decl., ¶ 2. For the reasons explained below, the Motion is DENIED. The requirements for sealing court records are stringent. A party requesting that a record be filed under seal must file a motion or application for an ...

Excerpt: ...sts the Court to order Universal to provide copies of the two deposition transcripts at Universal's cost. Plaintiff's motion originally was heard on June 22, 2020 and was continued to permit Plaintiff's counsel, Mr. Gordon, to file a further supporting declaration addressing his inability to attend the depositions on the day they were set to go forward, and to permit Defendants to file brief responses/oppositions to Mr. Gordon's supplemental decl...

Excerpt: ...). But judicial notice is limited to documents relevant to the issue at hand. Aquila, Inc. v. Superior Court (2007) 148 Cal. App. 4th 556, 569. The existence and legal effect of documents recorded with the county recorder are judicially noticeable. Evid. Code § 452(c), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4 th 256, 264-65. The court considers pleadings or documents in the file of the pending action upon citation; no reque...

Excerpt: ... for approximately two and one-half years. Trial was set for 4/6/2020 but was vacated due to the court closure, to be rescheduled after the court reopened. As an initial matter, the Motion is denied because it is procedurally defective. In relevant part, Rule 3.1324 of the California Rules of Court (“CRC”) provides that a separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is...