Excerpt: ...erruled. 2nd COA for Intentional Misrepresentation and 3rd COA for Negligent Misrepresentation These claims are premised on the same two “categories” of misrepresentations. The first is that “Cross-Defendants” made a false representation in applications for payments, stating that: “The undersigned Contractor certifies that to the best of the Contractor's knowledge, information, and belief the Work covered by this Application for Payment...

Excerpt: .... They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.'” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (citation omitted) (original emphasis). “Whether a duty of care exists is a question of law for the court, not the jury.” Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515. “In order to determine the boundaries of the duty...

Excerpt: ...cil. (Code Civ. Proc., § 1034, subd. (a), CRC, rule 3.1700.) The relevant Rule reads in pertinent part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment...

Excerpt: ...) the current TCUV Regional Manager for Los Angeles; (2) the current San Francisco TCUV manager; and (3) the San Francisco Region TCUV Manager while Mr. Lee was the Los Angeles Regional TCUV Manager. The specific questions are stated verbatim in the Plaintiff's Separate Statement in support of this Motion. See ROA #116. For the reasons set forth below, the Motion is GRANTED. The deponent is ordered to answer each of the following three questions,...

Excerpt: ...ter the discovery cutoff date. Moving Parties also seek monetary sanctions against Plaintiff and his counsel. As an initial matter, the Court notes that Moving Parties cite only to Code of Civil Procedure section 2030.090 in support of their motion for a protective order. Section 2030.090 only applies to interrogatories and the discovery at issue also includes requests for admission (section 2033.080) and requests for production (section 2031.060...

Excerpt: ...e Civ. Proc., §§ 473(b) (A motion for relief from default under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted...”) and 473.5(b) (The party seeking to set aside default under this section “shall serve and file with the notice a copy of the answer, motion or other pleading proposed to be filed in the action.”) Chu did not submit a c...

Excerpt: ...arbor provision had been complied with – a question raised by the Court in its tentative ruling issued prior to the 6/29/20 hearing. Accordingly, the Court continued the hearing and now proceeds to rule on the merits, as follows: National's motion for monetary sanctions under CCP Section 128.7 is denied. Based on the totality of the file and record in this case, the Court does not find monetary sanctions appropriate and exercises its discretion...

Excerpt: ...ending Motion to Amend. It does not appear that Plaintiff ever filed any Third Amended Complaint in response to the Court's 2/3/2020 Minute Order, much less one that attempts to address and remedy the defects in the pleading that were noted by the Court in its 2/3/2020 Minute Order. Nor did she provide a copy of a proposed Third Amended Complaint with this Motion. It is not clear to the Court why Plaintiff opted to file this Motion to Amend, rath...

Excerpt: ...continuance to Plaintiff, the Court was unable to provide notice to Defendant because Defendant had not yet appeared. On 6/17/2020, the Court issued a Minute Order ordering Plaintiff to promptly give notice of continuance of the hearing to Defendant and to promptly file a proof of service. 6/17/2020 Minute Order. Plaintiff has not filed any proof of service showing a notice of continuance was properly served. However, on 6/18/2020, default was en...

Excerpt: ...cil. (Code Civ. Proc., § 1034, subd. (a), CRC, rule 3.1700.) The relevant Rule reads in pertinent part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment...

Excerpt: ...040. Id. The court, for good cause 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 Code Civ. Proc. § 2019.030, the court may restrict discovery where it is “unreasonably cumulative or duplicative.” Code Civ. Proc. §2019.030(a)(1). Generally, a party seeking a protective order will b...

Excerpt: ...ed are premised on its contention that under the written terms of the retainer agreement it is entitled to 33.3% of $250,000. But the facts established by Plaintiff's own evidence is that Rawag discharged Plaintiff before the settlement was agreed to and before the settlements were paid. [Smaili Decl, ¶¶ 12- 16.] By the terms of the retainer agreement – which on the face of the agreement appear to survive the handwritten emendations – as th...

Excerpt: .... Specifically, the parties may file a Supplemental MPA (and declaration(s)) in support of the Motion, a Supplemental Opposition (and declaration(s)), and a Supplemental Reply – all within the time periods prescribed by the Code based on the new hearing date. However, any supplemental MPA and opposition shall not exceed 7 pages, and the supplemental reply shall not exceed 4 pages. There is no precise yardstick for measuring “good faith” of ...

Excerpt: ...ons. Section 877.6 applies to a settlement between a plaintiff and an alleged tortfeasor or obligor under a contract in an action in which the tortfeasor is an alleged joint tortfeasor with another or the obligor is a co-obligor under the same contract with another. Cal. Code Civ. Proc. § 877.6(a)(1). Section 877.6 allows a settling defendant to obtain a determination that his settlement is in good faith, and thus to bar an action for equitable ...

Excerpt: ...d Gonzalez and Good Affair's reply may not have been properly served on The Irvine Company, LLC. Unless the Irvine Company objects to improper service of the Reply and seeks to continue the hearing for that reason, the Court denies the motion for the reasons set forth below. Anthony and Jamie (collectively, “The Romeos”) commenced this action on 10/5/2018 (“Romeo Action”). The Romeos' complaint alleges three causes of action against Good ...

Excerpt: ...ichfield 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 complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is...

Excerpt: .... 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 should consider the nature of the ...

Excerpt: ...e Civ. Proc. § 1281.2 provides, inter alia: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitr...

Excerpt: ...ch addresses the issues within the exclusive jurisdiction of the Probate Department. (Probate Code §17000 and Probate Code §17200(b)). Plaintiff shall inform the Court in writing, no later than April 6, 2020, whether such an action has been commenced. Pursuant to Probate Code §17000(a), “[t]he superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of t...

Excerpt: ... 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 compl...

Excerpt: ...ought, including any agreements to narrow the requests set forth in the subpoena. The parties have now advised the Court that Defendant has agreed to provide further discovery responses regarding ASAS Group's corporate structure (including the identity of its shareholders, directors and officers) and regarding Defendant Sadruddin's involvement in the company as the only shareholder, director and officer. SO ORDERED. For its part, Plaintiff has cl...

Excerpt: ... and 17. The Court finds that Plaintiff's testimony as to what the assailant said to him just before the attack is admissible under Evidence Code §1237. Merits 1. Negligence and Premises Liability As an initial matter, Defendant inserts in its separate statement that it did not own, lease, occupy, or control the premises. But this is properly disputed by employee Mr. Benitez' testimony, the same employee who provides a declaration in support of ...

Excerpt: ... other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” (Emphasis added.) The court also may, sua sponte, order bifurcation or severance of an issue at any time, including after the trial has commenced. See Buran Equip. Co. v. H & C Invest. Co. (1983) 142 Cal. App. 3d 338, 343. Beyond Section 598, CCP Section 10...

Excerpt: ...notes that Grosch objected to the motion as being untimely, and he also argued that Newman “waived” the right to the protection of the anti-SLAPP statute. As to the former, the Court finds the motion was not untimely because the cross-complaint was served, by mail, on 10/22/19. (ROA 11.) Thus, Newman had through 12/26/19 to bring this motion. (Code Civ. Proc. §§ 425.16(f). 1013(a).) Newman timely filed this motion on 12/20/19. (ROA 19.) As ...

Excerpt: ...ith. Plaintiff's request to strike/tax $16,500 for expert witness fees is denied. Plaintiff has shown that Defendant's CourtCall fees were not reasonably necessary to the conduct of litigation. Plaintiff's request to strike/tax $266 for CourtCall fees is granted. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim costs, the prevailing party must file and serve a memorandum ...

Excerpt: ...ot accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.” Assuming a valid Section 998 offer, it...

Excerpt: ...at Tesla. (¶2 of Kim Declaration). Mr. Kim attaches the Sales Contract executed by Plaintiffs and “stored by Defendant in an electronic file containing all documents related to the subject transaction.” (¶3 of Kim Declaration). Mr. Kim declares the document was kept in the ordinary course of business. (Id.). In Opposition to the Motion, Plaintiffs challenge this showing, asserting “Tesla has failed to submit admissible evidence demonstrat...

Excerpt: ...he three causes of action asserted in Plaintiff's SAC. The SAC alleges the Bank failed to properly issue Plaintiff voting common stock, pursuant to written stock warrants the Bank had issued and that Plaintiff had acquired from the prior warrant holder – and that, instead, the Bank issued non-voting stock. More specifically, Plaintiff alleges that on or about November 1, 2010, the Bank issued a warrant for 1,395,000 shares of its common stock t...

Excerpt: ...ing filed by Plaintiff and Defendants, the Court declines to permit the filing of the proposed supplemental complaint, because the proposed causes of action are not “supplemental” within the meaning of CCP section 464(a). “It is the function of a supplemental complaint to set up facts material to the case occurring after the filing of the former complaint. It is not allowable to substitute a new and distinct cause of action by way of supple...

Excerpt: ...ion of her deposition by The First Christian Church of Mission Viejo (the “Church”) was properly served. The Church opposed Plaintiff's motions and did not object to the motions on the ground of improper service. The Court will address all motions on the merits. However, the Court orders all parties, at or before the hearing, to file Code- compliance proofs of service for all papers they have filed in connection with these motions. The Court ...

Excerpt: ...ories. Cross-Complainant's motion to compel compliance with RFP responses and for further responses to RFPs is granted. Cross-Complainant's motion to compel further responses to RFAs is granted. Cross-Complainant is awarded total sanctions of $2,500 against Cross-Defendant. Service of the Motions Cross-Defendant objects that he was not timely served with the motions as he only received by them by email on 1/21/20. But, in addition to the proofs o...

Excerpt: ...se of action is for premises liability; the third is for negligence. The Motion is DENIED. Plaintiff's evidentiary objections are all overruled. Downtown Anaheim's evidentiary objections are sustained as to Nos. 33, 34, 40, 41, and 43 and overruled as to the remainder. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled t...

Excerpt: ...Kim, Rebekah Rhyoo (“Rhyoo”), and Tracy Shin (“Tracy”) (collectively, “Demurring Defendants”) demur generally and specially to the fourth cause of action for breach of fiduciary duty and sixth cause of action for unfair business practice in violation of Business & Professions Code section 17200. The Court notes that judgment has already been entered against defendant Jung Hun Kim (erroneously sued as Jung Hoon Kim), pursuant to the pa...

Excerpt: ...overruled. Defendants requested judicial notice of a “Property Information Sheet” and an “Amendment to Escrow Instructions and/or Purchase Contract” in connection with its moving papers. While courts may take judicial notice of “the existence of a document,” it is well-settled that “the truthfulness and proper interpretation of the document are disputable.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, ...

Excerpt: ...f contract. The demurrer to the first cause of action for fraud is overruled. “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816; CACI 1900.) Fraud must be pled with specificity. (Philipson & ...

Excerpt: ...t of the deed of trust by MERS to The Bank of New York Trust Company was “void” because it was not signed by a MERS employee with authority. The California Supreme Court recently held a plaintiff may challenge an assignment of a deed of trust when the allegations, if true, would render the assignment “void, and not merely voidable at the behest of the parties to the assignment ....” Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 9...

Excerpt: ...to oppose the demurrer can be treated as an implied concession to the merits of the same. Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a). Thus, the court can and does sustain the demurrer on these grounds. In addition, the Court sustains the demurrer on the additional ground that it has merit. A public entity is not l...

Excerpt: ...ressed by the Family Law court in April 2020). This leads this Court to pose the question whether any of Plaintiff's claims in this action involve community property or potential breaches of fiduciary duties with respect to community property. The parties shall appear at the hearing to address this preliminary issue. The demurrer by Defendant Kristi Sar (“Defendant”) to the second and fifth causes of action in the First Amended Complaint of P...

Excerpt: ...r Code Civ. Proc. § 425.16(c)(1) after Dismissal Section 425.16 of the Code of Civil Procedure (“CCP”) provides that a prevailing defendant on a special motion to strike is entitled to 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 tri...

Excerpt: ... overbroad, vague and ambiguous, seeks information outside the scope of discovery, and violates the privacy rights of both ASAS and Sadruddin; (2) the subpoena is overbroad, vague and ambiguous because it refers to “any named parties or entities” without defining who those named parties or entities are; (3) the subpoena is premature because it seeks Defendants' financial information in violation of Civil Code section 3295(c) and because there...

Excerpt: ...e interrogatories to request the identity and location of those with knowledge of discoverable matters.”). The party responding to interrogatories must answer in a manner as “complete and straightforward as the information reasonably available” permits; if the interrogatory cannot be answered completely, then it must be answered to the extent possible. Code Civ. Proc. § 2030.220(b). A party may file a motion to compel further responses to ...

Excerpt: ...o arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement--either fraud in the execution...

Excerpt: ...ff, within 30 days, the sum of $1,225, which is the amount the Court finds reasonable. The Request for Judicial Notice is denied as unnecessary. (See Cal. Prac. Guide, Civil Procedure before Trial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case”; all that is necessary is to call the court's attention to such papers. Such papers however, are not necessarily admissible evidence....

Excerpt: ...t; 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 any time before or a...

Excerpt: ...ief discussion of the pertinent case history is helpful. The case began with the Complaint filed by Plaintiff Golden Rain Foundation of Laguna Woods (“Golden Rain”) against Dickinson. Golden Rain ultimately dismissed its Complaint with prejudice on 12/27/2018. In the meantime, however, Dickinson had filed a Cross-Complaint against Plaintiff on 11/14/2018. Shortly after, Dickinson filed a First Amended Cross-Complaint (“FACC”) on 12/12/201...

Excerpt: ...acts that could allege in good faith to cure the defects noted below. The Insurer Defendants demur to Plaintiffs' first cause of action for reformation, second cause of action for declaratory relief, and third cause of action for breach of contract. In their FAC, Plaintiffs allege that the Insurer Defendants were the insurer for Defendants Ryan and Katherine Schierberl (the “Schierberls” or the “Schierberl Defendants”) and, as such, they ...

Excerpt: ...led together and noticed for the same hearing. Filing a motion to strike does not extend the time within which to demur. [CCP § 435(b)(3), (d).] If both a demurrer and motion to strike are filed, they must be filed at the same time and noticed for hearing at the same time. [CRC 3.1322(b)]. Here, Defendant did not ensure that its Motion to Strike was concurrently set with the Demurrer. Further, failure to state facts sufficient to state a cause o...

Excerpt: ...s that the assignment of the deed of trust by MERS to The Bank of New York Trust Company was invalid because it was not signed by a MERS employee with authority. The California Supreme Court recently held a plaintiff may challenge an assignment of a deed of trust when the allegations, if true, would render the assignment “void, and not merely voidable at the behest of the parties to the assignment ....” Yvanova v. New Century Mortg. Corp. (20...

Excerpt: ...ourt's ruling on the Demurrer. Demurrer The Demurrer is unopposed. Plaintiff's failure to oppose the demurrer can be treated as an implied concession to the merits of the demurrer. See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a). Thus, the Court can and does sustain the demurrer on these grounds. In any event, the ...

Excerpt: ...cipal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” Defendant argues that the proper venue for this matter is in San Bernardino because that is where its principle place of business is located, where the contract was executed and to be performed, and where the alleged breach occurred. (See Martin Decl., ¶¶ 2- 5.) Defendant also states that the equipment an...

Excerpt: ...ment 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.” The elements that must be met pursuant to Code of Civil Procedure Section 664.6 are as follows: (1) there is a valid and binding settlement agreement of all or part of the case; (2) the parties agreed to all material settlement terms; (3...

Excerpt: ...sues raised by the original parties, and 3) the reasons for intervention outweigh any opposition by the existing parties. Code Civ. Proc. § 387(a); Truck Ins. Exch. v. Superior Court (1997) 60 Cal. App. 4th 342, 346. Section 387 provides in relevant part that: (b) An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following: (1) Joining a plainti...

Excerpt: ... Plaintiff did not file a motion to seal, however. Nor did Plaintiff show compliance with CRC Rule 2.551(b)(3)(iii), which requires Plaintiff to give written notice to the party that produced the records that the records and the other documents lodged under subdivision (i) will be placed in the public court file unless that party files a timely motion or application to seal the records under this rule. Both the redacted and unredacted versions of...

Excerpt: ... the objecting party “[q]uote or set forth the objectionable statement or material.” Plaintiffs' evidentiary objections are SUSTAINED as to nos. 1, 2, 4, 5, 6, 8, 9, and 10, and OVERRULED as to nos. 3 and 7. Where plaintiff (or cross-complainant) seeks summary judgment/adjudication, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacifi...

Excerpt: ...amine Novini about the documents, and (3) imposing monetary sanctions against Novini and his attorneys of record. Defendant Novini's Opposition to the Motion was not filed until September 25, 2019, which is long after the deadline for opposition papers to be filed. Defendant's Opposition asserts that the motion to compel was served on it via email even though Plaintiff “kn[ew] that counsel for opposing party had recently declined to accept serv...

Excerpt: ...and bring a courtesy copy of the Proof of Service to the hearing. Motions to seal in both civil and criminal cases are governed by California Rules of Court, Rules 2.550 et seq. Under California law, unless confidentiality is required, court records are presumed to be open to the public. (Cal. Rules of Court, Rule 2.550(c).) To seal records, the court must “expressly find facts that establish: (1) There exists an overriding interest that overco...

Excerpt: ...nted in part and denied in part Plaintiff's ex parte application to extend the stay on execution of the judgment against her. The Court extended the stay to 6/30/2019, but denied Plaintiff's request to extend the stay to 10/7/2019. On 6/27/2019, Plaintiff filed a notice of appeal of the Court's order denying her application to extend the stay of execution of the judgment to October 7, 2019. “As a general rule, ‘the perfecting of an appeal sta...

Excerpt: ...e of Plaintiff's deposition. A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. The motion or application “must” be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. Cal. Rules of Ct., Rule 2.551(b)(1). The Court may order that a record be filed under seal only if it expressly finds facts that establish that: • there exists a...

Excerpt: ... 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 such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Code Civ. Proc. § 1048(a). The purpose of consolidation is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial ...

Excerpt: ...btor has not filed a formal substitution of attorney, his failure to do so does not necessarily render his opposition a “nullity.” See Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1310 (amended complaint filed by new attorney without formal substitution of attorney having been filed was not a “nullity”). Nevertheless, it appears Judgment Debtor is no longer represented by counsel, and, if so, he must immediately file a Substitution of Attorn...

Excerpt: ...r judicial notice. It is unnecessary to ask the court to take 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.) 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 strikin...

Excerpt: ...ian ad litem, Linda Johnson), Brooklynne Groves (by and through her guardian ad litem, Linda Johnson), Kurt Johnson, Jarah Johnson (by and through her guardian ad litem, Kurt Johnson), and Joshua Johnson (by and through his guardian ad litem, Kurt Johnson) against Defendants Stephen Xu, Marin Express, Inc., Bar Bakers, LLC, Kind LLC dba Kind Foods, LLC, C.H. Robinson Company, Inc. dba C.H. Robinson Transportation Company, Inc., and Fedex Supply C...

Excerpt: ... second, third, and fourth causes of action are sustained without leave to amend. On 06/24/2019, this court sustained with leave to amend Defendants' demurrer to Plaintiff's First Amended Complaint. That order expressly limited leave to amend to the causes of action pled in Plaintiff's FAC—cancelation of instruments, wrongful foreclosure, and defamation of title. Plaintiff's Second Amended Complaint (“SAC”) exceeds the scope of leave grante...

Excerpt: ...part with 15 days leave to amend. (Code Civ. Proc., §§ 430.10(e), 430.10(f).) Second Cause of Action (Intentional Interference with Contract Against Individual Cicerone). The demurrer to the second cause of action for intentional interference is overruled. The elements of a claim for intentional interference with contract are: (i) Existence of a valid contract; (ii) Defendant's knowledge of the contact and intent to induce its breach; (iii) Bre...

Excerpt: ...he relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) A claim has probable validity if it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) Moving Plaintiff's claims for breach of contract and common counts do not ...

Excerpt: ...on to Seal does not seek to seal Exhibits C, F, L, N and O or the deposition transcript excerpts submitted by Plaintiff in support of its motion for summary judgment/adjudication. The Motion is GRANTED. A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. The motion or application “must” be accompanied by a memorandum and a declaration containing facts sufficient to justify th...

Excerpt: ...attorneys. Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247 (internal citations and quotation marks omitted).) Defendant's motion seeks order dismissing Plaintiff's Complaint, an order that Defendants stop harassing Defendant and her tenant, and an award of reasonable compensation. Defendant does not provide any authority, statutory or otherw...

Excerpt: ...consider Plaintiff's untimely reply briefs on these motions. Although the Court has discretion to consider late-filed briefs, it declines to exercise that discretion here. The filing deadlines for briefs in support of and in opposition to law and motion matters are not suggestions or optional guidelines. Given the number of motions (and, therefore, the number of late reply briefs), it would impose an unfair burden on the Court and its staff if th...

Excerpt: ...sts production of documents specified in the deposition notice at deposition, the motion is denied. Defendant has not addressed the good cause requirement for production of documents. (Code Civ. Proc., § 2025.450(b)(1).) Defendant's request for evidentiary sanction is denied. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [the discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sancti...

Excerpt: ...articular, the Defendants provided Plaintiff with a ladder/Step stool as a seat that broke while Plaintiff was sitting on it.” Complaint, page 4. 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. The scope of this burden is determined by the allegations of t...

Excerpt: ...end. Defendants' requests for judicial notice are granted. 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 pleadin...

Excerpt: ... the complaint, and Plaintiff did not oppose. By Minute Order dated 4/29/2019, the Court sustained Defendant's demurrer to all three causes of action, with leave to amend. The Minute Order found that Defendant's demurrer had merit, stating: “Plaintiff fails to allege whether the alleged contract was written, oral, or implied; nor does she allege the terms of the contract or the legal effect of the contract. (See Miles v. Deutsche Bank National ...

Excerpt: ...o the common area is granted. Plaintiff Penny Patino, who owns the unit in question, filed two documents in opposition to the motion. Both “opposition” papers are untimely, and the Court declines to consider either of them. 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 (2...

Excerpt: ...mains at issue is a series of redactions (all on the basis of attorney work product), which are reflected on a one-page, revised privilege log, Exhibit 2 to the Declaration of Robert Hubbell. Plaintiff's motion initially contended that KPMG, the former independent auditor for Defendant Banc of California, Inc. (the “Banc”), improperly redacted and withheld documents pursuant to Defendant's instructions, failed to produce subpoenaed communicat...

Excerpt: ...learly allege facts regarding Defendants' conduct that would support a claim for punitive damages. For example, Plaintiff alleges Defendants, knowing risks existed to Plaintiff, “denied or withheld services to LEONARDI” which would have protected him. See FAC ¶32. However, the FAC does not alleges what services were denied or withheld that would have protected him from the harm he allegedly suffered. Similarly, while Plaintiff alleges Defend...

Excerpt: ...ermissively used, entrusted, or maintained the Yukon. (UMF 13.) Further, Plaintiff acknowledges that direct liability is not an issue in this case. An offshoot of the doctrine of respondeat superior is the so-called “going and coming rule.” Under this rule, the employment relationship is suspended from the time employees leave their jobs until they return, on the theory that during normal commutes, employees are not rendering services directl...

Excerpt: ...y on the seventh cause of action. The demurrer is sustained with 15 days leave to amend as to the first, second, third, fourth, eighth, ninth, and tenth causes of action – and as to Fay Servicing on the seventh cause of action. First Cause of Action for Negligent Misrepresentation The elements of negligent misrepresentation are: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be t...

Excerpt: ...19 Minute Order.) The Court has now considered both Plaintiff's opposition and Defendant's further reply. Defendant moves for an order striking paragraphs 11-16, 19, 20, 22- 28, 30, and 31, and portions of paragraphs 18, 21, and 74, on the ground they contain “irrelevant and improper matters.” Code Civ. Proc. § 436. Defendant contends, to the extent these matters are the basis for Plaintiff's FEHA claims, they are time-barred due to the one-...

Excerpt: ...vincing evidence that the defendant has been guilty of oppression, fraud, or malice. Malice is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superio...

Excerpt: ...e Civ. Proc. § 1008(a).) Specifically, the Court finds good cause exists to reconsider the order denying the previous motion on the grounds that Plaintiff's counsel, through inadvertence, failed to appear at the hearing, resulting in its denial. Moreover, since that time, the parties have met and conferred and Defendant has confirmed it does not oppose the sealing and joins in the instant motion. Unless confidentiality is required by statute or ...

Excerpt: ...ment bears the burden of persuasion that there is no triable 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 ca...

Excerpt: ... Request/Demand for Production Nos. 3, 7-12, 15, 17, 22, 26- 29. Plaintiff also seeks sanctions relating to each motion. For the reasons set forth below, Plaintiff's motion to compel further responses to form interrogatories is DENIED as to No. 15.1 but GRANTED as to Nos. 16.1-16.7, 16.9, and 16.10. The motion to compel further responses to special interrogatories nos. 6, 7, and 8 is GRANTED, subject to the limitations detailed below. The motion ...

Excerpt: ...an ad litem, is sustained with 15 days leave to amend. AFH's motion to strike is granted with 15 days leave to amend except as to the 10 th cause of action. As to the 10 th cause of action, the motion to strike is granted without prejudice to Plaintiffs bringing a motion for leave to amend or supplement. The Demurrer by Defendants Cinnamon Creek Westminster Associates L.P. and Arker, Inc.'s to Plaintiffs' SAC is sustained with 15 days leave to am...

Excerpt: ...e are not described. 2. There is insufficient information to evaluate whether there were substantial common questions for class certification. The alleged non-compliant policies are not described (see above) nor is the manner of defendant's allegedly illegal conduct described. 3. The class release appears to be extremely broad, releasing claims that go beyond those alleged in this case. While the named plaintiff may freely release her own claims,...

Excerpt: ...he punitive damages alleged as to both causes of action. For the reasons set forth below, the Demurrer is OVERRULED and the Motion to Strike is DENIED. Michael is ordered to answer the FAXC within ten days. The Court grants Michael's unopposed Request for Judicial Notice of court documents pursuant to Evidence Code §452(d). 1. Breach of Fiduciary Duty and Punitive Damages Mark's FAXC alleges that Michael breached fiduciary duties owed to him by ...

Excerpt: ...32 et seq. Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. Code Civ. Proc. § 1032(b). The Court finds that Moorefield is the prevailing party on Simon's Cross-Complaint. There is no dispute Moorefield was dismissed from the Cross-Complaint by Simon. The plain language of Code Civ. Proc., § 1032 applies: “'Prevailing party' includes…a defendant in whose favor a dismissal...

Excerpt: ...tion and sustained with leave to amend as to the fourth and seventh causes of action. Wells Fargo's request for judicial notice is granted. Wells Fargo's unopposed motion to strike is granted. Defendant Fay Servicing LLC and U.S. Bank NA's joinder in Wells Fargo's demurrer is permitted but the demurrer to Plaintiff seventh action for violation of B&P Code § 17200 is overruled as to U.S. Bank. Plaintiffs' motion for an order consolidating this ac...

Excerpt: ...n 17200. Plaintiff alleges Defendant owns, controls and maintains wood burning fire pits on its properties, known as North Lake Beach Club and South Lake Beach Club, and that the “burning of firewood” in these fire pits “results in exposures to a number of chemicals . . . which are included on the Proposition 65 List”; however, “Defendant has failed to provide clear and reasonable warnings regarding the risk of exposure.” (Compl. at �...

Excerpt: ...19. On 6/19/19, however, the Grigoryan Law Firm timely filed a First Amended Cross- Complaint. Consequently, the Demurrer is moot. B. Motion for Leave to Amend The Court grants the Motion by Allstate for Leave to file the Proposed First Amended Cross-Complaint. The Court's file does not appear to contain a Proof of Service for Cross- Defendant Grigoryan Blum & Grigoryan's opposition papers. The Court admonishes parties to file their Proofs of Ser...

Excerpt: ...� Because Plaintiff responded to the supplemental briefing, it appears that it was served, and the Court therefore considers Defendant's motion on the merits. However, in the future, Defendant is ordered to comply with CRC Rule 3.1300, as failure to file the requisite proofs of service may be cause for denial of a motion. In a Minute Order dated 6/6/19, the Court continued Defendant's motion for leave to file a Second Amended Cross-Complaint due ...

Excerpt: ...D. Plaintiffs' request for judicial notice is GRANTED. The Court SUSTAINS Plaintiffs' objection Nos. 4, 5, 6, and 7. The Court declines to rule on the remainder of the objections as they are not material to its ruling. (See Code Civ. Proc., § 437c(q).) Defendant moves for summary judgment, arguing that Plaintiffs' claims are barred because they did not file this action within 6 months of the rejection of their tort claims per Gov. Code, § 945.6...

Excerpt: ...rough 12.7, 15.1, 16.1, 16.2, 16.7, 16.8 and 50.1. It is denied as to nos. 13.1, 13.2, and 50.2. Code of Civil Procedure section 2030.220 requires a party responding to interrogatories to answer in a manner as “complete and straightforward as the information reasonably available” permits. If the interrogatory cannot be answered completely, then it must be answered to the extent possible. Code Civ. Proc. § 2030.220(b). “If a timely motion t...

Excerpt: ... Plaintiff is awarded sanctions of $1,000. Where there has been a response to RFPs that the propounding party finds inadequate, then the Code provides for a motion and order compelling production upon a showing of good cause, prior meeting and conferring, and the filing of a separate statement. Code Civ. Proc. § 2031.310(b)(1) and (2); CRC 3.1345; TRG, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1. A motion to compel further response...

Excerpt: ...n motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasona...

Excerpt: ...ected in the Court's records. However, Plaintiff opposed the demurrer and motion to strike without objecting to service. For purposes of this demurrer and motion to strike, the Court therefore assumes service at the P.O. Box was proper. Plaintiff shall confirm for the Court at the hearing the correct address for service and ensure that the Court's records are up to date. Demurrer to FAC Trustee demurs generally to the three causes of action for d...

Excerpt: ... the trial court limited jurisdiction to decide whether to award attorney fees and costs to defendant. Id. at 879. Defendant is entitled to its fees and costs if plaintiff's case is shown to be a “pure SLAPP suit.” Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918. To make this determination, the trial court must consider the merits of defendant's anti-SLAPP motion even though it has no jurisdiction to grant or deny the motion. Moore v. Liu(1999)...

Excerpt: ...ion alleged in the SAC are beyond the scope of the Court's order sustaining Brokers' demurrer to the FAC with leave to amend and (2) in any event, all claims are barred by the applicable statute of limitations. Brokers' request the Court to take judicial notice of the notice of ruling on their demurrer to the FACT and their meet and confer declaration filed in this action. This request is denied because it is unnecessary to ask the court to take ...

Excerpt: ...nce; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402.) In its SAC, Plaintiff alleges that after receiving medical services in Mexico, third-party Howard Hamilton assigned to Plaintiff his right to payment under his health insurance policy with Defendant. However, the insurance plan prohibits assignments of the type pleaded. Specifical...

Excerpt: ...in violation 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. Sup...

Excerpt: .../2019, Defendants to submit a declaration showing a notice to employee was properly served and the subpoena was properly issued and served on the custodian of records. Hearing on this Motion continued to 7/22/2019 at 1:30 p.m. AFTER THE CONTINUANCE AND ASSUMING THE SUBPOENA WAS PROPERLY ISSUED AND SERVED Plaintiff Maria Arrieta seeks an order quashing the subpoena defendant ASAS Group, Inc. issued to SWH Mimi's Café, LLC, Plaintiff's current emp...