Excerpt: ...en 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).) In the SAC, Plaintiff adds several paragraphs including specific factual allegations which could support a finding of “despicable conduct that is carried on with a willful and conscious disregard of the ...

Excerpt: ... (“FAC”). Notice, 2:12-5:3. Pursuant to CCP Section 436, the court may strike out “...any irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court.” Attorneys' fees generally are not recoverable unless specifically provided for by statute or subject to an express agreement between the parties. D'Amico ...

Excerpt: ...efendant's Exhibit B, The Certificate of Formation of Covenant Medical Center (“CMC”) filed with the Texas Secretary of State on September 19, 2017. However, Defendant has not provided a basis under which the court can judicially notice Covenant Health System's Medical Staff Bylaws on demurrer. The Request for Judicial Notice of the Bylaws is denied. Writ of Mandamus “When a hospital excludes or dismisses a doctor from staff privileges purs...

Excerpt: ...ded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 265.) But as to Exhibit 19, a court cannot take judicial notice of the truth of hearsay allegations just because they...

Excerpt: ... truthfulness of the contents remain subject to dispute. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374- 1376. Plaintiff's 23-page opposition violates subdivisions (d) and (g) of Rule 3.1113. Plaintiff did not ask for permission to file an oversized memorandum, nor did he explain why his argument could not be made within the 15-page limit. Thus, the Court exercises its discretion to consider only the first 15 pages....

Excerpt: ...onsider the late filed opposition. Sanctions are awarded against Plaintiff in the sum of $1,500. (2) Defendants' motion for order compelling Plaintiff to appear for an independent neurological examination by Barry Ludwig, M.D. on 12/17/19 at 1:00 p.m. in Santa Monica is granted. The exam may include only the specific diagnostic tests and procedures set forth in the Notice of Motion. The exam may not be videotaped or audiotaped. Defendants are to ...

Excerpt: ...ks summary judgment in its favor on ARI's First Amended Cross-Complaint, or in the alternative, summary adjudication as to the four causes of action therein. “A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Code Civ. Proc., § 437c(a)(1). “A cause of action has no merit if either of the following exists: (1) One or mor...

Excerpt: ...bout the previous order by the Hon. Ronald L. Bauer. Code Civ. Proc. § 1008(b). Further, the supporting declarations by Defendants' attorneys show that default was entered as a result of their neglect, mistake or surprise. Plaintiff's counsel apparently informed Defendants' counsel that Defendants had been served, but defense counsel was not aware of, or did not receive, this email; and, as a result, failed to file answers on behalf of Defendant...

Excerpt: ..., 8.7, 8.8, 10.1, 10.2, 10.3, 12.1, 12.2, 12.3, and 12.4 within 20 days of this ruling. Cross-Defendants' request for judicial notice is DENIED based on relevancy. In this instance, the other ruling has no precedential value. Each answer to an interrogatory 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 answered to t...

Excerpt: ...i v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487. While there does appear to be some delay by Plaintiff in conceiving of the theories of liability he now seeks to impose against the opposing party, Lowe's Home Centers, LLC (“Lowe's”), Lowe's would not suffer any “probable prejudice” if it is provided with adequate time to challenge the pleadings and conduct discovery on Plaintiff's proposed causes of action. Thus, Lowe's appear...

Excerpt: ...to the sale of merchandise that was defective without indicating that the merchandise was defective. [FAC ¶ 20.] Plaintiff's allegations of the advertisement and his injury are without any facts specific to this action. [FAC ¶¶ 20-23.] Business and Professions code Section 17531 provides: “It is unlawful for any person, firm, or corporation ... to advertise, call attention to or give publicity to the sale of any merchandise, which merchandis...

Excerpt: ...overrules the Demurrer as to Plaintiff Jae Ho Kim (Ho). MEPC has 30 days leave to amend. The Court notes that it does not consider “supplemental” briefing that are submitted without leave of court. Thus, the Court has not considered Plaintiff's Supplemental Authority re Standing Issue in Opposition to Defendant's Demurrer to the First Amended Complaint. Notice of Errata The Court rejects the “Notice of Errata” directed to the First Amende...

Excerpt: ...r the UCL is overruled. The demurrers to the fifth through eighth and the tenth causes of action are sustained with 15 days leave to amend. Demurrers for uncertainty are overruled. 9th COA for Unlawful and Unfair Business Practices (B&P Code Section 17200) At the outset, the Court notes that Plaintiff objects to Defendant's memorandum because it violates Rule 3.1113(d) because it is 19 pages long, instead of the maximum 15 pages. CRC 3.1113(d) (�...

Excerpt: ...le and serve a supplemental brief addressing the amount of the reasonable attorney fees it had incurred to obtain the default of the Defendants. Plaintiff did not file any supplemental briefing. Accordingly, there is no proof before the Court of the amount incurred by the Plaintiff to obtain the defaults and the Court deems Plaintiff to have declined to pursue such an award. Accordingly, the Court now rules as follows: The motions of Defendants T...

Excerpt: ...Roldan v. Callahan & Blain (2013) 219 Cal.App.4th 87, in which our Court of Appeals created a procedure to excuse an indigent party from arbitration fees. In Roldan, the Court of Appeals remanded with direction to the trial court to make a determination concerning the plaintiff's ability to pay for arbitration. (Id. at 96.) The Court of Appeals instructed: “If the court determines that any plaintiff is unable to do so, it must issue an order sp...

Excerpt: ...GRANTED. In reaching its decision, the Court applies the law of Utah with respect to the issue of successor liability in Plaintiffs' second cause of action. The laws of Utah and Delaware do not substantively differ from each other as to this particular issue, and therefore if the Court elected to apply the law of Delaware, the outcome would be the same. As both Utah and California have an interest in having their law applied, the question under t...

Excerpt: ... fair and reasonable.” Id. at 2:4-6. Plaintiff's motion asserts (1) the award of damages was inadequate under CCP Section 657(5); (2) the evidence was insufficient to justify the verdict under CCP Section 657(6); and (3) the verdict is contrary to law under CCP Section 657(6). Plaintiff correctly points out that the jury found that (1) both Plaintiff Robert Snell (“Snell” or “Plaintiff”) and Defendant Lance L. Quinn (“Defendant” or�...

Excerpt: ...llegedly breached a Title insurance policy by failing to indemnify her when her neighbor “demolished the existing boundary wall and constructed a new fence 4 feet closer to [Plaintiff's] Property, thereby causing [Plaintiff] loss by depriving her of valuable property.” (FAC at ¶ 12.) Plaintiff submitted a claim to Defendant in September 2017, but Defendant “summarily denied the claim.” Plaintiff resubmitted the claim after she “was for...

Excerpt: ... procedural history of this case. The opposition addresses causes of action that have been dismissed, repeats legal theories the Court has already found unmeritorious, and fails to mention the one new allegation that is at the center of this Demurrer regarding materiality. 1. RJN The Court grants Defendant's Request to judicially notice the Order from the Bankruptcy Court granting Wells Fargo relief from the stay in order to proceed with the fore...

Excerpt: ...of action for “negligent supervision of passengers” and “negligence-respondeat superior” are vulnerable to demurrer because they are not “cognizable cause[s] of action under California law” and are “merely duplicative of the first cause of action for negligence.” (Dem. at 3-5.) The Court agrees that the purported claim for “negligent supervision of passengers” is not a valid cause of action or an alternate theory of recovery; ...

Excerpt: ...n of an arbitration between McNaughton, Copenbarger and NHOM. One of the issues that was being litigated, and was to be decided, in the arbitration was the respective ownership interests in NHOM, as between Copenbarger, McNaughton and West Coast. The arbitration has now been terminated by the AAA, however, because NHOM has taken the position that it no longer can afford to pay the fees/costs associated with the arbitration and, at least as things...

Excerpt: ...dure are limited by the statutes, and these statutes are strictly construed. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) Here, Plaintiff acknowledges issues with her Notice and Application and attempts to correct some of them, while simultaneously arguing that a substantive opposition on the merits waives other defects. Plaintiff also improperly adds significant new facts on Reply. Although Plaintiff “invites” Defendant to file a Su...

Excerpt: ... connection with the project located at 600 S. Jupitar Road Allen, TX 75002.” (Compl. at ¶ 8, Exh. A.) The agreement provides, among other terms, for a monthly payment by Defendant of $970 “for a period of sixty (60) Months from the date the above described work is completed.” (Agmt. at 1, § 2.) The agreement also contains a provision re: the “ownership of system,” below, including that the “entire System” remains the “sole prop...

Excerpt: ...to Plaintiff Hipolito Lopez's Complaint are overruled. All Defendants shall file and serve their Answers to the Complaint within 20 days. Doe Defendants' request that the court take judicial notice of Plaintiff's DFEH complaint (found at Calderaro Decl., Ex. 2) is granted. On its own motion and subject to this notice to the parties, the Court takes judicial notice of Plaintiff's amendment of his DFEH complaint (found at Calderaro Decl., Ex. 11.] ...

Excerpt: ...y favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionat...

Excerpt: ...al elements of a claim for fraud are “(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” In re Estate of Young (2008) 160 Cal. App. 4th 62, 79 (citations omitted]. To plead a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material f...

Excerpt: ...sitive to the Court's ruling. The Court finds that Defendants have met the requirements for relief under CCP section 473(b). Defendants timely moved for relief and demonstrated their default was taken as the result of “mistake.” Code Civ. Proc. § 473(b). Defendants mistakenly believed that their responsive pleadings were not due until 8/19/19. Defendants attempted to file their answers on 8/16/19, but their filings were rejected because thei...

Excerpt: ...ent to show Plaintiff's job description, salary history, pay rate, wage, salary, bonuses and time off. Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. Rutter, CPBT, §8:293, citing inter alia, Britt v. Sup.Ct. (1978) 20 Cal. 3d 844, 855–56, & Pioneer Electronics (USA), Inc. v. Superior Court (2007)...

Excerpt: ...back injuries and later trauma to her kidneys. (SSUF 1) By written Contingent Fee Contract dated April 18, 2013, Cronstedt retained Jones to represent her in prosecuting civil claims arising out of the balloon accident. (SSUF 6.) On January 14, 2014, Jones filed a Complaint on behalf of Cronstedt in the matter styled Sara N. Cronstedt v. City of Irvine, et al. Orange County Superior Court Case No. 30-2014-00698341-CU-PO-CJC (the “underlying lit...

Excerpt: ...ive Order. Plaintiff showed he complied with CRC Rule 2.551(b)(3)(iii). Gordon Decl., ¶¶ 3, 4, 8, and 10. Both the redacted and unredacted versions of the motion were served on all parties. No party has filed a motion to seal. Accordingly, Plaintiff's unredacted motion shall be placed in the public file. 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: ...rally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious c...

Excerpt: ...ractice. None of them is adequately pled. Intentional Misrepresentation “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 & Simon ...

Excerpt: ...nt in 2013 and was denied. He filed another petition for reinstatement on 4/6/17. The Commissioner of the California Department of Business Oversight (Respondent) denied the Petition on 10/8/18, finding that the Supplemental Declaration Petitioner submitted in support of his petition had false or misleading statements of facts, and that Petitioner's employment history since the Order Barring failed to demonstrate his claimed rehabilitation and co...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ... sustained. No acts by the Sailhouse Defendants are alleged in the FAC. The Court will hear from Plaintiffs at the hearing as to what facts, if any, they believe they could allege against these defendants if they were given leave to amend. The Court is inclined to deny U.S. Bank's motion/demurrer if (1) Plaintiffs advise the Court at the hearing that they intend to proceed against U.S. Bank and (2) advise the Court at the hearing specifically wha...

Excerpt: ...n of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) In any event, Defendant's arguments have merit. 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 Trust Co. (2015) 236 Ca...

Excerpt: ...he declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP Section 284(a) is brought, instead of filing a consent under CCP Section 284(1). Counsel's motion does not state – even in general terms that do not compromise the confidentiality of the attorney-client relationship (e.g., the client's failure to communicate with counsel, or a breakdown in the attorn...

Excerpt: ...ant Tam Nguyen for a vertical machining center in defendant's possession – apparently, the same piece of machinery. On 2/25/2019, the Court continued the hearing on both applications and permitted Plaintiff to file and serve supplemental supporting papers to address the deficiencies noted in the Minute Order. Plaintiff timely filed a supplemental declaration on 2/26/2019 and timely served it by personal service on Alva and substitute service on...

Excerpt: ...The Court grants Defendant's unopposed Request for Judicial Notice as to Exhibits 1 through 7. These documents, and their legal effect, may properly be judicially noticed under Evidence Code § 452 (f) as to the existence of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4 th 256, 264). Merits re Negligence Claim Plaintiff's sparse Complaint alleges that Defendant acted negligently whe...

Excerpt: ... that took several months – the parties have advised the Court that they succeeded in narrowing the requests that are in dispute to Request Nos. 6, 7, 13, 14, 16, 17, 18, 21, 22, 24, 25, 28, 29, and 30. 4/8/2019 Final Joint Status Report, 9:10-18:22. Based on the 4/8/2019 Final Joint Status Report, Plaintiff no longer seeks an order compelling Defendant to serve further responses. Plaintiff now seeks an order that: (1) directs Defendant to comp...

Excerpt: ...ncy of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a co...

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

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

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

Excerpt: ...s the second cause of action, the demurrer to that cause of action is moot. First cause of action for tortious breach of insurance contract and third cause of action for breach of the implied covenant of good faith and fair dealing “A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to ...

Excerpt: ...t under CCP Section 2015.5. The Court continued the hearing on the motion, in part because it appeared the opposition and reply briefs submitted by the parties had been delayed in processing in the clerk's office and therefore had not been considered by the Court at the time of the 2/25/2019 hearing. The Court has now considered the moving papers, the opposition and reply papers. On the basis of the record before it, the Motion/Application is den...

Excerpt: ...oth procedurally and substantively to govern the arbitration per the agreement of the parties. The FAA does not include a provision comparable to CCP § 1281.2(c) and therefore requires this court to enforce the written arbitration agreements even if there is pending litigation involving a third party that may result in conflicting rulings. Under the FAA, this court's task on a motion to compel arbitration is limited to answering two questions: (...

Excerpt: ...�� Nos. 37 and 61 – were withdrawn in the reply. The Court addresses the remaining 13 requests below. As an initial matter, a motion to compel further responses to requests for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” Code Civ. Proc., § 2031.310(b)(1). CCP Section 2016.040 requires the meet and confer declaration in support of a motion to “state facts showing a reasonable and good faith a...

Excerpt: ...500 to Susan Vanderpool, payable in monthly installments of $10,000, beginning on December 1st of 2018 and continuing until one final monthly payment is made in the amount of $12,500 to comprise the total $62,500 payment”; “[o]nce those payments have been made, the parties stipulate that judgment quieting title to the subject property in this action, located at 115 Majorca Place, Placentia, will be entered in favor of Carol A. Smith with an e...

Excerpt: ...and her child's social security and bank account numbers is manifest. Plaintiff has proposed a limited redaction to protect this information. The Court thus finds that: (i) an overriding privacy interest exists that overcomes the right of public access to the information; (ii) the overriding interest supports sealing the records; (iii) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (i...

Excerpt: ...vailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032; Charton v. Harkey (4/3 2016) 247 Cal. App. 4 th 730, 737. A “prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief and a defendant as against those plaintiffs who do not recover any relief against that de...

Excerpt: ...t first addresses the arguments that apply to multiple causes of action and then addresses the demurrers to individual causes of action. Defendants demur to all causes of action on the ground Plaintiff Economy Auto Body and Auto Sales, Inc.'s corporate status is suspended. This demurrer is overruled. The corporation is now in good standing. (02/22/2019 RJN of Auto Body's Certificate of Revivor.) Defendants also demur on the ground that Plaintiffs...

Excerpt: ... granted. The Case Management Conference is continued to May 6 2019 at 9:00 a.m. First Cause of Action for Violation of Comm. Code §3301 and B&P Code § 17200 B&P § 17200 et seq. (“UCL”) prohibits unfair competition, including unlawful, unfair or fraudulent business acts. Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal. 4 th 163, 180. A UCL action is equitable in nature and damages cannot be recovered. Id. at 179-80. It...

Excerpt: ...nd Ins. Companies 91988) 46 Cal. 3d 287, 305. Only parties to an insurance contract and those entitled to benefits under the policy, such as an additional insured or express beneficiary, have standing to sue for breach of the contract's express or implied terms. Thus, a third-party claimant has no standing to sue for breach of the implied covenant of good faith and fair dealing without first obtaining an assignment of the insured's rights. Murphy...

Excerpt: ... (4) The reasons why the request for amendment was not made earlier.” Cal. Rules of Ct., Rule 3.1324. The motion must state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are lo...

Excerpt: ...d are not merely correcting a typographical error or making a minor, unsubstantial change. The documents Plaintiff filed on 3/5 include a new separate statement, a declaration from Plaintiff and a revised declaration of Plaintiff's counsel, Mr. Bruchey. The purpose of these documents is to introduce new facts and evidence (i.e., Plaintiff's declaration). This is improper and the Court declines to consider the untimely new documents. Evidentiary O...

Excerpt: ...ant agreed to comply, in full, with requests 18 and 19. To the extent Defendant has responsive emails that it has not produced, Defendant must produce them within 10 days. Code Civ. Proc. § 2031.320. The remainder of the motion is denied. Defendant was ordered to provide a privilege log if it withheld any documents on the basis of privilege. Defendant has confirmed that it did not provide a privilege log, because no documents have been withheld ...

Excerpt: ...rds from Behavioral Health Services - American Recovery Services.” The Separate Statement fails to include the definition provided for the term “YOUR” but for purposes of this motion, the Court assumes that it referred to Plaintiff Ali Moghadam. The requested documents appear to be relevant. According to the Declaration of Grace Park dated 2/8/2019, Plaintiff identified Encino Hospital Medical Center as a facility that provided him treatmen...

Excerpt: ...ust account. For the reasons set forth below, the Motion is denied. The Court grants the request for Judicial Notice of Exhibits 1, 4, 5, 6, 7, 8, 9, and 10 under Evidence Code Section 452(d). The Court cannot accept as true the contents of pleadings or exhibits just because they are part of a court record or file; they constitute inadmissible hearsay in this action. Day v. Sharp (1975) 50 Cal.App.3d 904, 914. But the legal effect of orders in an...

Excerpt: ...thin 15 days. The three causes of action that are at issue on the Demurrer are Shin's claims for (1) intentional misrepresentation, (2) concealment, and (3) promise without intent to perform, i.e., promissory fraud. Cross- Defendants demur to all three causes of action on the ground that the fail to state a claim and are, in any event, uncertain. The remaining claim in the SAXC, for breach of contract, is not the subject of the demurrer. All thre...

Excerpt: ... law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading that are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it r...

Excerpt: ... is denied. (Ibid.) To establish a likelihood of prevailing on the merits, the moving party must present evidence demonstrating a probability of prevailing on the merits. This is customarily done by affidavits or declarations, although a verified complaint and other discovery can be considered. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527; and Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ ...

Excerpt: ...y the dismissal of Hayden's cross-complaint, filed derivatively on Granite's behalf on January 25, 2018. However, nothing in the moving papers addresses the settlement between Free and Raymond Handling or the dismissal of the cross- complaint. There is no authority or explanation provided re how the Court would have jurisdiction or authority to “approve” a settlement with an entity (Raymond Handling) that is not a party to this action. Likewi...

Excerpt: ...ntic 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 plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. It is not pla...

Excerpt: ...jury trial set for 1/28/19 and scheduled an Order to Show Cause re: Dismissal on Settled Case for 1/28/19. (12/14/2018 Minute Order.) On 1/28/19, no parties appeared at the OSC, so the entire action was dismissed without prejudice. (01/28/2019 Minute Order.) Plaintiffs brought the instant motion on 2/4/19. Although Plaintiffs ask the Court to “reconsider” the 1/28/19 order of dismissal, Plaintiffs did not provide the grounds for this relief i...

Excerpt: ...nting Wells Fargo relief from the stay in order to proceed with the foreclosure. [Evid. Code § 452(d).) 2. The claims are not preempted by HOLA. The court finds that the claims alleged are not preempted by the Home Owners' Loan Act because the alleged wrongful conduct occurred after the loan changed hands from the federal savings association of bank to Defendant. HOLA is strictly limited to federal savings institutions, however, and was not inte...

Excerpt: ...ming that it has been appointed as a Referee pursuant to CCP section 638. This is not an appropriate subject for judicial notice. Defendants raise two grounds for their Motions: (1) collateral estoppel and (2) quasi-judicial immunity. The Court finds that collateral estoppel does not bar this action. Defendants have not shown an identical issue was litigated in the Carter v. Carter, 2015-00796360 (“the 2015 Action”). Accordingly, the demurrer...

Excerpt: ...d cause of action, it shall be prepared to discuss at the hearing what specific new facts it can allege to cure the defects in this cause of action. Defendant's request for judicial notice is granted as to the existence of the complaint in another action. Evid. Code § 452(d). Judicial notice is not necessary for the Court's own minute order. First Cause of Action for Violation of Civ. Code § 2923.55 Civil Code Section 2923.55 primarily requires...

Excerpt: ...s based on a forum selection clause in the promissory note at issue that identifies New York as the proper jurisdiction. California (and federal) courts presume the validity of forum-selection clauses. A party seeking to defeat such a clause bears the burden of proving that its enforcement would be unfair or unreasonable under the circumstances of the case. (See Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4 th, 1143 1149; Richtek USA, Inc. v. u...

Excerpt: ...ch 31, 1997), and Bill's Sweeping Service, LLC. The Court strikes the November 5, 2018 entry of default. Defendant shall file his Answer and Cross-Complaint (which were previously rejected for filing by the clerk's office) within ten days. The Court denies the requested sanctions. Plaintiffs filed their Complaint in this case on 12/14/17. The Court sustained Defendant's Demurrer as to the entire Complaint and granted leave to amend. Plaintiffs fi...

Excerpt: ...fendant attached the worksheet to its summary. In the worksheet, Defendant itemizes the dates and amounts of jury fees incurred, the deponents and the transcribing amounts for each, and the dates and amounts for court reporter fees. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim its costs, the prevailing party must file and serve a memorandum of costs within 15 days fro...

Excerpt: ...iff failed to allege whether the contract was oral, written or implied by conduct. Code Civ. Proc. § 430.10(g). Second, the claims for breach of contract and common count appear on the face of the Complaint to be time-barred. The Complaint alleges that the breach occurred between 10/8/12 to 3/15/13. The Complaint was not filed until 11/21/18, more than 5-1/2 years after the latest alleged date of breach. Thus, even under the four-year statute of...

Excerpt: ..., the Court declines to consider the reply papers. Plaintiff contends the petition is defective on procedural grounds. Relying on CCP section 1290.4, Plaintiff contends the petition was not properly served because it was served on her by mail and Panopio is not a party. CCP Section 1290.4(a) provides that a copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based ...

Excerpt: ...a Bolt's ex parte application is denied. OSC is moot. A plaintiff generally has an unfettered right under CCP § 581 to dismiss a cause of action before the commencement of trial. Panakosta Partners, LP v Hammer Lane Mgmt., LLC (2011) 199 CA4th 612, 632–633 (“a substantial and fairly complex body of case law has grown up involving when—and when not—a plaintiff's statutory right to dismiss … is cut off by the presence of some impending �...

Excerpt: ...egations included in Plaintiff's SAC do not sufficiently address the issues raised in the Court's 7/19/2018 and 10/30/2018 rulings sustaining District's demurrers with leave to amend. The Court denies Plaintiff's request for judicial notice. The Board Policy that is the subject of the request is not an appropriate subject of judicial notice. Civil Code section 51.9 provides, in pertinent part: (a) A person is liable in a cause of action for sexua...

Excerpt: ... the first cause of action in moot in light of the ruling on the demurrer. The Court notes, however, that moving defendant Ocean Hills Recovery, Inc. is not named in the fourth cause of action. It appears to be asserted only against Doe I. Request for Judicial Notice (RJN) The Court denies Plaintiff's Request for Judicial notice on two grounds. First, the document for which judicial notice is sought are irrelevant, as they relate to different fac...

Excerpt: ...sustained with 15 days leave to amend as to the third and fourth causes of action. Defendants' motion to strike is granted in part and is denied in part. The motion to strike is granted as to the prayer on the first cause of action, item 2, and the prayer on the second cause of action, items 2 and 3. It is otherwise denied as moot. Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading....

Excerpt: ...hich of the hours expended by the attorneys were “reasonably spent” on the litigation. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) Additionally, a trial court has broad discretion to determine the amount of reasonable attorney's fees, as an experienced trial judge is in the best position to decide [the] value of professional services rendered in court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1...

Excerpt: ...upport the position of the party in question.” (Id. at 851.) A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc.(2010) 189 Cal. App. 4 th 562, 575.) The scope of this burden is determined by...

Excerpt: ...her proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief 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 shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Code Civ. Proc., § 473(...