Excerpt: ...sented Panopio. Counsel for Defendants and Panopio addressed this error by serving and filing of Notice of Errata showing Littler Mendelson is also attorney of record for Panopio. However, Defendants and Panopio have not shown the notice of errata was properly served on Plaintiff Nicole Maiden. The proof of service indicates only that the serving party directed Express Network to personally deliver a copy of the documents to Plaintiff. There is n...

Excerpt: ....1, as well as further responses to Form Interrogatories-Employment Law, Set One, interrogatory numbers 200.3, 200.4, 202.1, 203.1, 204.1, 204.2, 204.3, 204.6, 205.1, 207.2, 208.1, 210.2, 210.3, 210.4, 210.6, 212.3, 212.4. Defendants also seek monetary sanctions against Plaintiff and his attorneys of record. Defendant contends Plaintiff's responses are incomplete and Plaintiff's verification is deficient. A party may move to compel further respon...

Excerpt: ...App. 3d 859, 863-65;Canaan Taiwanese Christian Church v. All World Missions (2012) 211 Cal. App. 4 th 1115, 1127. Nonetheless, the Court notes Plaintiff's complaints about interference with his rights of access and acknowledges both Plaintiff's right to access and the court's and prison's roles in ensuring it. Pen. Code § 2601(e); Jameson v. Desta (2009) 179 Cal. App. 4 th 672, 678; Wantuch v Davis (1995) 32 Cal. App.4th 786. “Prison walls are...

Excerpt: ...dence. (Munro v. Regents of the University of Calif. (1989) 215 Cal. App. 3d 977, 985.) Here, Defendant met his initial burden of establishing his compliance with the requisite standard of care through the expert declaration of Philip Unger, M.D. Dr. Unger opines that the Defendant acted within the standard of care and did nothing to exacerbate Plaintiff's injury. Dr. Unger is a board certified radiologist and has served as the Chairman of St. Ju...

Excerpt: ...as January 7, 2019. Thus, to timely serve her opposition papers, Plaintiff would have had to serve them by overnight delivery on December 21, 2018. She failed to do so. Instead, her proof of service indicates she served them on Friday, December 21, 2018 by mail from Missouri, addressed to Defendants' counsel in California. Defendants clearly did not receive the opposition timely. Indeed, given the timing of the mail service (and the intervening w...

Excerpt: ...cial notice of documents filed with the Secretary of State). The Cross-Complaint contains two causes of action for involuntary dissolution, seeking the dissolution of defendants Ad Exchange Group, LLC and Push Innovation, LLC (collectively, the “LLCs”). The reasons alleged for dissolution are: “management is deadlocked and there is internal dissension in the management” and “dissolution is reasonably necessary to protect the rights of C...

Excerpt: ...or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 638. Every element of fraud must be pleaded with specificity. The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73. This is to...

Excerpt: ...the right of privacy of the person.” Code Civ. Proc. § 1987.1(a), (b). Subpoenas may be challenged on the basis that the records sought are not within the permissible scope of discovery— i.e., privileged, privacy or attorney. Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-6 at ¶¶ 8:597-8:598. If the information sought would be considered “obvious invasions of interests fundamental to personal autonomy,” then there also must be a showin...

Excerpt: ...sponses to Plaintiff's Demands for Production 4) Motion for Order Compelling Further Responses to Plaintiff's Requests for Admission Plaintiff seeks further responses to the following discovery: form interrogatory numbers 15.1, 16.1-16.3, 16.7, 17.1, and 50.1-50.6; special interrogatory numbers 2-10, 13, and 15-19; request for production numbers 1, and 3-11; request for admission numbers 1- 35. The parties do not dispute that the discovery was se...

Excerpt: ...th parties' unopposed Requests for Judicial Notice of documents filed in the Trust Action and related Conservatorship Action. The person who challenges the validity of the election has the burden of proving any irregularity in the election. (Shamel v. Lite Products Sales (1955) 131 Cal. App. 2d 33.) Plaintiff argues in Opposition that he is alleging that Defendant Rachel Cordova lacked capacity when she utilized her voting rights on May 2, 2018 t...

Excerpt: ...rein, per Sosinsky v. Grant (1992) 6 Cal App 4th 1548, 1564. The request for judicial notice of “the Laffey Matrix” is denied. After prevailing on his anti-SLAPP motion and Plaintiffs' subsequent unsuccessful appeal, Defendant seeks an award of attorney fees and costs incurred in litigating the appeal. Defendant seeks an amount between $532,602 and $789,692 jointly and severally against Plaintiffs. This represents the actual lodestar amount o...

Excerpt: ...ranted (CRC 3.1112(a).). Indeed, the court may treat the failure to provide the memorandum as an admission that the motion is not meritorious and cause for its denial. [CRC 3.1113(a).] A memorandum of points and authorities must accompany every notice of motion except those listed in CRC 3.1114. [CRC 3.1113(a).] The memorandum must be served and filed along with and physically attached to the notice of motion “to the extent practicable.” [CRC...

Excerpt: ...precluding Plaintiff The Learning House (“TLH”) from relying on “marketing spend” documents that were belatedly produced by TLH. In Reply, Defendants advise they no longer seek monetary sanctions but still seek to preclude TLH from using or otherwise relying on the late-produced documents. The Court concludes that granting this Motion would be solely for the purpose of punishment and would therefore be unnecessary and inappropriate. See, ...

Excerpt: ...08) 167 Cal. App. 4 th 1468, 1483-84 (in a civil action, “a prisoner may not compel the trial court to appoint counsel on his or her behalf. [citation] Nor may a prisoner ordinarily compel his or her appearance in court.”). Trial courts have discretion to choose among a variety remedies to ensure indigent prison litigants are afforded meaningful access to the courts, including, e.g., transferring the prisoner to court, holding the trial in th...

Excerpt: ...and reasonably respond in good faith to Defendant's efforts to meet and confer. Dr. Kvitne did not provide the Court a declaration concerning the meet and confer efforts. Accordingly, the Court grants the motion by Defendants Samuel Liu and Jason Liu to Compel third-party treating physician Ronald Kvitne, M.D. to comply with the 5/21/18 deposition subpoena. Dr. Kvitne is ordered to appear for deposition pursuant to the subpoena/deposition notice ...

Excerpt: ...oneously sued as Optum Professional Property Management Inc.) (“OPPM”). In her opposition to the Motion, Plaintiff represents that she “intends to dismiss the other two moving defendants, University Community Insurance Association and Optimum Professional Property management, Inc. and for such reason her opposition will focus solely on the motion as it pertains to PCM.” Pl.Opp. MPA at 5:17- 20. Accordingly, in reliance on Plaintiff's repr...

Excerpt: ...ntiary Sanctions, although improperly titled. Second, the Notice of Motion seeks “compliance” and monetary sanctions. It is only in the Points and Authorities where Plaintiff seeks evidentiary sanctions prohibiting Plaintiff from introducing designated matters in evidence. [Code Civ. Proc. § 2023.030(c)]. Third, if a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just [Code Civ. Proc...

Excerpt: ...) and the parties' protective order by lodging unredacted copies of his declaration with the Court. Pending the determination of the motion or application, the lodged record will be conditionally under seal. Cal. Rules of Ct., Rule 2.551(b)(4). The Court may order that a record be filed under seal only if it expressly finds facts that establish that: • there exists an overriding interest that overcomes the right of public access to the record �...

Excerpt: ...ty) The elements of a negligence cause of action 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. Ha's cross-complaint does not allege what duty Tran owes to her. Demurrer on this ground is sustained with 15 days leave to amend. Claim is premature Tran contends that the action is premature beca...

Excerpt: ...l.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to infor...

Excerpt: ... meet and confer declaration under Section 2016.040." CCP § 2016.040 states that "[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." Here, Defense Counsel received a message from Dr. Kvitne's assistant indicating he was not available on June 8, 2018 as noticed in the deposition subpoena. But there is no indication o...

Excerpt: ... leave to amend a pleading, the moving party must comply with California Rules of Court, Rule 3.1324. California Rules of Court, Rule 3.1324 states in pertinent part: (a) Contents of motion A motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are...

Excerpt: ...2(e).) Mr. Cohen will remain counsel of record for Plaintiff until he files a proof of service indicating that he has served his client with a copy of the signed Order relieving him as counsel. Mr. Cohen will be relieved as counsel of record for Plaintiff effective upon the filing of the proof of service of the signed order upon the client and all parties. (See Cal. Rules of Court, rule 3.1362(e) [“The court may delay the effective date of the ...

Excerpt: ...facts that (1) Defendant's opposition papers indicate that Defendant has by now served responses; and (2) Plaintiff chose not to file a reply either contesting that assertion or asserting that the responses are inadequate. Thus, it appears to the Court that Plaintiff is satisfied that the responses are substantially compliant. The remaining issue is sanctions. The Court was not provided with a Proof of Service showing when the responses were serv...

Excerpt: ...etion of the arbitration. The Court finds there is an agreement to arbitrate between the parties that encompasses Plaintiff's claims. That agreement does not contain a clear and unambiguous delegation to the arbitrator of the gateway issue of enforceability, so the Court will determine whether the agreement is unenforceable for unconscionability. For a gateway delegation clause to be effective, the language of the clause must be clear and unmista...

Excerpt: ...ss-complainant Aerojet Rocketdyne, Inc's unopposed Motion for Protective Order is granted. A person to whom a demand for inspection has been directed “may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration.” Code Civ. Proc. § 2031.060(a). “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassme...

Excerpt: ...tions or tactics in judicial arbitration proceedings (CCP § 128.5(a)). As a practical matter, any conduct in the course of litigation (other than in connection with “disclosures and discovery requests, responses, objections and motions”) may be sanctionable if the court finds it to be “frivolous” or “solely intended to cause unnecessary delay.” [See CCP § 128.5(a); Ellis v. Roshei Corp. (1983) 143 CA3d 642, 649.] Here, Defendant has...

Excerpt: ... action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice.” Code Civ. Proc. § 2025.450(a). Pursuant...

Excerpt: ... it addresses and rules on it as such. Although Defendant refers to lack of subject matter jurisdiction in the title of the motion, it does not make any argument to support this. Nor has Defendant properly brought, or supported, a demurrer. Code Civ. Proc. § 418.10(a) provides that: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice...

Excerpt: ... filed redacted versions of these documents and also unredacted versions conditionally under seal, with a notice of lodging. Pursuant to CRC, Rule 2.550(a)(3), the sealed records rules “do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” See Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 101. The opposition to the motion to quash refers to information obtained duri...

Excerpt: ... from Defendants' tow vehicle, the vehicle was being operated by TIMOTHY P. ABELE, who at the time was acting in the course and scope of his employment with O.C. TOWING." Granted in part and denied in part as to Item 8, which seeks to strike Pages 8 and 9, paragraph 17 In its entirety. Granted as to the first sentence of Paragraph 17: “Once Supervisor Auley learned on December 16, 2016 that the SUBJECT VEHICLE hit the metal tow dolly and there ...

Excerpt: ...in 20 days. Defendant must also pay Plaintiff the sum of $75 (the cost Plaintiff incurred to file this Motion) within 20 days. Defendant argues that Plaintiff failed to meet and confer adequately on any of these three motions. The Court disagrees. The parties exchanged several emails/letters setting forth their positions. At that point, based on the perspective of a reasonable person in the position of the discovering party, additional effort was...

Excerpt: ...on provision is solely a judicial function unless it turns upon the credibility of extrinsic evidence. Gravillis v. Coldwell Banker Residential Brokerage Company (2006) 143 Cal. App. 4 th 761, 771. The basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contracting. Mitri v. Arnel Management Co. (2007) 157 Cal. App. 4 that 1170 (citation omitted). The words of a contract are to be understood in the...

Excerpt: ...urt's ruling. Although the Court recognizes that the Motion is untimely as to some of the defendants, the Court affirmatively exercises its discretion to consider the Motion as to all defendants, given the fact that the individual defendants are similarly situated and distinguishing between the “timely” and “untimely” defendants would serve no purpose. Section 425.16 of the Code of Civil Procedure permits a special motion to strike Strate...

Excerpt: ...swers. Timeliness of Demurrer Plaintiff can demur to defendants' answer(s), but has only 10 days following service of the answer within which to do so, unless extended by stipulation or court order. (CCP § 430.40(b).) Here, even though the Answers were filed on 3/26/18 and 3/28/18, the Proofs of Service for each of them states that both were served on 3/23/18 by mail. If this is true, and is it presumed accurate, then any demurrer to the answer ...

Excerpt: ...endant Plan B Squared LLC or taxing Item 1 and Item 4 The Court GRANTS the Motion as to all costs sought except the initial appearance fee of $435. Except as otherwise expressly provided by statute, a prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. Code Civ. Proc. § 1032(b). A “prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered...

Excerpt: ...attery (an intentional tort). “Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence— arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (S...

Excerpt: ... Defendants Dale Cheema and Robert Woodings, since the instant demurrer and motion to strike by Defendant Katz “assert the same arguments as to the same allegations.” See Statement of Defendant Barry Katz, filed 6/5/2018. Accordingly, the Court rules as follows on Motions #1 and #2: Demurrer to Complaint Defendant demurs to all claims on the ground that “[n]o board members have taken any individual actions that could be considered improper,...

Excerpt: ... the proceeding or if for any reason a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Code Civ. Proc. §§ 170.1(a)(3)(A), (a)(6)(A)(iii) and 170.3(a). To obtain such disqualification, a party may file a written verified statement objecting to the hearing before such judge and setting forth the facts constituting the ground for disqualification. Code Civ. Proc. § 170.3(c)(1). The challe...

Excerpt: ...rzeler, their attorney of record served and filed substitutions of attorney. Moreover, FemtoMetrix improperly submitted new evidence with its reply, which means Plaintiff has not had an opportunity to respond to it. For all these reasons, the hearing on the motion must be continued. FemtoMetrix shall serve a copy of the moving papers and reply papers on all parties and submit a proof of service to the Court showing such service no later than 6/28...

Excerpt: ...ctive Services, Inc. (collectively, “Defendants”) attended a Mandatory Settlement Conference with Honorable Mitchell Samuelson on March 23, 2018 and reached a settlement. The settlement was placed on the record, as evidenced by the Reporter's Transcript attached as Exhibit 1 Moving Papers. The terms of the settlement are as follows:  Defendants/Cross Complaints: Action Contracting Services, Inc.; Dawnette Hanson; Joshua Hanson; and Robert ...

Excerpt: ...egligent misrepresentation only with 15 days leave to amend. The Demurrer is overruled as to the sixth and seventh causes of action, for unfair competition and intentional interference with prospective economic advantage, respectively. Negligent Misrepresentation Defendants do not challenge the elements of this cause of action. Rather, they argue that the claim is not pled with specificity. The Court agrees that the claim is not pled with suffici...

Excerpt: ...sion to advance Crowell's parole suitability hearing, was at the time of the decision a Deputy Commissioner. See Declaration of Jennifer Shaffer. Petitioners do not dispute this evidence or contest that Lam had authority to do whatever a Deputy Commissioner properly could do. But that does not end the inquiry. The question then becomes whether Petitioners have shown they have a likelihood of prevailing on the merits of their claims on the ground ...

Excerpt: ...nt is ordered to pay Plaintiffs' Counsel $850 in sanctions within 30 days. Code Civ. Proc. § 2025.450(a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code Civ. Proc. § 2025.410, the deponent fails to appear for deposition, the party giving notice may move for an order compelling the deponent's attendance and testimony at deposition. Here, Defendant attempted to unilate...

Excerpt: ... Dist.(1992) 2 Cal. 4 th 962, 966- 67. Except allegations contradicted by documents that may be judicially noticed are not taken as true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. In 2017, at the time of Defendant's alleged recording of the notice of trustee's sale in issue, Civ. Code §2923.6(c) provided that a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice ...

Excerpt: ...fs' request for judicial notice of Exhibits “A” through “C” are granted. Evid. Code §§ 425(c)-(d), 453. The Court declines to take judicial notice of Exhibits “D” through “F,” because it appears they are offered in an attempt to circumvent Rule of Court 8.1115. To state a cause of action for aiding and abetting an intentional tort, a plaintiff must allege actual knowledge that a tort is being or will be committed, that the defen...

Excerpt: ... the costs of the arbitration. These proceedings are stayed pending completion of the arbitration. An ADR Status Review Hearing is scheduled as set forth below. The Court finds that an arbitration agreement encompassing Plaintiff's claims exists. TriNet was an agent of Defendant and the terms of the agreement expressly include Defendant as Plaintiff's employer. Defendant is thus a party to the agreement and/or a third party beneficiary and may en...

Excerpt: ...use of action separately, allege all elements of each cause of action, and ensure that only the proper Defendants are named in each claim. 1. Breach of contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff's performance of the contract or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 118...

Excerpt: ...quest for Judicial Notice. (The Court notes, however, that it is unnecessary to take judicial notice of the TAC, the Answer to the TAC, and the Notice of Ruling in this action.) Evidentiary Objections The Court rules as follows on Defendants' objections to Plaintiff's Exhibits: Exhibits 5, 6, 11, 15: Sustained Exhibit 23: Overruled in part and sustained in part. Overruled insofar as there is foundation for Burke's assertion that the letter and th...

Excerpt: ...oncludes this is not a petition “commencing” a proceeding, and thus, Defendant's opposition to the Petition is timely. The Court notes, however, that even if Plaintiff's position were correct – which would mean Defendant's response was not timely filed – that would not mean that Plaintiff's Petition must be or would be granted. Where a response to a petition commencing a proceeding is untimely, the Court deems admitted only the factual al...

Excerpt: ... finding. See Reply Brief at 7 (“There is no evidence on this record showing that defendant lacked the requisite honesty of belief in the dispute between it and plaintiff.”). Patriot contends that uncontroverted evidence shows that its employee, Richard Wolfinger, subjectively held an honest belief, in good faith, that C.L. Concrete owed Patriot a credit. Defendant's Notice of Intent identifies the grounds for the intended motion as follows: ...

Excerpt: ...nts Bay Beach Investments, LLC and Welsh-Jaen Living Trust Dated September 18, 2009, who were never served. When the only basis of jurisdiction over a party in a particular case is the party's appearance, a purported appearance by an unauthorized attorney cannot confer such jurisdiction. Neihaus v. Superior Court (1977) 69 Cal.App.3d 340. Thus, the Court strikes the 12/7/17 Answer and orders Defendants JD Property Management, Inc., Gregory P. Wel...

Excerpt: ...n, the determination of a “ballpark” amount includes consideration of the possibility that the plaintiff will not prevail – that is, consideration of what a reasonable person could believe the plaintiff would recover at trial. Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal. App. 4 th 939, 964-65. In Cahill v. San Diego Gas & Elec. Co.(2011) 194 Cal. App. 4 th 939, 967-68, the court disregarded the plaintiff's likely recovery of $5 milli...

Excerpt: ...suit may be filed on the claim anytime within two years of accrual of the cause of action. Gov. Code § 945.6(a)(2). If notice is given by mail, the notice must be “deposited in the United States post office or a mailbox ... or other similar facility ..., in a sealed envelope, properly addressed, with postage paid. The ... notice shall be deemed to have been presented and received at the time of the deposit.... Proof of mailing may be made in t...

Excerpt: ...s, Inc. (“BSI”) to strike Defendants' memorandum of costs is granted. Plaintiff's objections to the Nguyen Declaration are sustained as to no. 1, otherwise overruled. Motion #1 – Defendants' Motion for Attorneys' Fees under Civil Code § 3426.4 Civil Code § 3426.4 provides: If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exi...

Excerpt: ...f notice of this Order. Finally, Defendant is ordered to pay Plaintiff a monetary sanction in the sum of $760 within 30 days of notice of this Order. A party may move for an order compelling responses to a demand for inspection at any time “[i]f a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response.” Code Civ. Proc. § 2031.300(b). By failing to serve timely responses, Plaintiff wa...

Excerpt: ...RANTS as to Exhs. 1-10 and DENIES as to Exh. 11. Finally, as to those documents for which the Court grants judicial notice, judicial notice will not extend to any hearsay allegations contained therein. General Law In cases where a trustee's deed of sale has not yet been recorded, Civil Code section 2924.12, subdivision (a)(1), authorized a borrower to bring an action for injunctive relieve to enjoin material violations of specifically enumerated ...

Excerpt: ... of trade secrets. Rutter, Empl. Litig. §14:81-81.5, citing Civ. Code §§ 3426–3426.10; Cacique, Inc. v. Robert Reiser & Co., Inc. (9th Cir. 1999) 169 F.3d 619, 624 (applying Calif. law); Accuimage Diagnostics Corp. v. Terarecon, Inc.(ND CA 2003) 260 F. Supp. 2d 941, 953–54 (applying Calif. law). The CUTSA, at §3426.7(b), preempts common law claims that are “based on the same nucleus of facts as the misappropriation of trade secrets clai...

Excerpt: ...eeds of the case, the amount in controversy, and the importance of the issues at stake in the litigation. Code Civ. Proc. § 2019.030(a)(2). The Code permits the Court to make these determinations pursuant to a protective order brought by any party or other affected person. Code Civ. Proc. § 2019.030(b). It also empowers the Court to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, emba...

Excerpt: ...ccessful motion to strike is entitled to mandatory attorney fees”].) But where the “results of the motion were minimal and insignificant,” a trial court is justified in finding the defendant should not recover fees. (Moran v. Endres (2006) 135 Cal.App.4th 952, 955, 37 Cal.Rptr.3d 786; see also Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 [“a party who partially prevails on an anti-SLAPP motion must generally be consid...

Excerpt: ... concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787. Although the rule “does not require absolute identity of parties, causes of action...

Excerpt: ...n effect until the earliest of: dismissal of the case; closing of the case; discharge of the debtor is entered; or entry of an order terminating, vacating, or modifying the automatic stay. (11 U.S.C. § 362, subd. (c).) There is no indication that Defendants' counsel has obtained relief with the bankruptcy court from the automatic stay to pursue these motions. Moving counsel must obtain the bankruptcy court's relief from the automatic stay and ap...

Excerpt: ...title against mortgagee “without paying the debt secured”; compare Sciarratta v. U.S. Bank Nat'l Ass'n(2016) 247 CA4th 552, 568, (action for quiet title and cancellation of instruments)—tender unnecessary where foreclosure sale void; Fonteno v. Wells Fargo Bank (2014) 228 CA4th 1358, 1360 (quiet title action for equitable cancellation of trustee's deed)—tender unnecessary where trustee's sale void or voidable.] If the foreclosed deed of t...

Excerpt: ... presumed to be open to the public. (Cal. Rules of Court, rule [“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the o...

Excerpt: ...uired, court records are presumed to be open to the public. (Cal. Rules of Court, rule [“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial proba...

Excerpt: ...ny individual actions that could be considered improper,” and their actions therefore are insulated by Corporations Code Sections 309, 7231 and 5047.5. At the outset, the Court notes that the Members have cited to the wrong Corporations Code sections. Woodbridge Village Association (“WVA”) is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under...

Excerpt: ...aintiffs into Caminus Trading, Inc., as represented, and failed to pay the $12,000.00 monthly”. (FAC ¶ 14.) However, Defendant Shin's argument is unclear. While the Statement of Information filed on October 6, 2017, indicates that Plaintiff Byungik David Oh, is the CEO, Secretary, CFO, Director, and agent for service of process for Defendant Caminus Trading, Inc., the Agreement (Ex. A incorporated into the FAC) indicates that Shin was/would be...

Excerpt: ...e Civ. Proc. § 426.30(a). A related cause of action “means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Code Civ. Proc. §§ 426.10(c). A liberal construction is given to the application of the compulsory cross-complaint statute. (Align Technology, Inc. v. Bao Tran (2009) 179 Cal. App. 4th 949, 967). “Th...

Excerpt: ...[“Rule”] 2.550(c).) “A record must not be filed under seal without a court order.” (Rule 2.551(a).) In order to seal records, the court must expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not seal...

Excerpt: ...pp.4th 793, 809. Specifically, Section 664.6 provides, in pertinent part: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Code Civ. Proc. § 664.6. Section 664.6 provides the court with the authority to interpret settlemen...

Excerpt: ... were reasonably necessary to the prevailing co-parties' conduct of the litigation. The Court may not simply divide the total costs jointly incurred by all co-parties by the number of prevailing co-parties. Charton v. Harkey (2016) 247 Cal. App. 4 th 730, 743-45. Here, except for his answer filing fee, by his memorandum of costs Defendant Fazli asks the Court to award him one-half of the costs of the jointly incurred defense. It appears he has si...

Excerpt: ...owned, leased, or occupied the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed, and (4) the defendant's negligence was a substantial factor in causing the plaintiff's harm. CACI 1000. The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. McIntyre v. Colonies-Pacific, LLC(2014) 228 Cal.Ap...

Excerpt: ...ED. Even if Plaintiff is correct that there is no proper agreement to accept electronic service, Plaintiff received the opposition and responded to it on the merits; thus, any service defect is waived. Plaintiff has not been prejudiced by any defect. General Law “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or ...

Excerpt: ...n to rule on the Demurrer, future demurrers that violate this rule may be disregarded or overruled. The demurrers to the 6 th (lack of proximate cause), 31st (failure of consideration), 32nd (want of consideration), 34 th (excuse), 36th (lack of mutual consent), 37th (lack of present intent to contract), and 38 th (lack of definite terms of contract) affirmative defenses are overruled. These purported “affirmative defenses” merely negate esse...

Excerpt: ...equest to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file suit for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Code Civ. Proc. § 335.1. The statute of limitations begins to run when the cause of action accrues. Code Civ. Proc. § 312. Under the “delayed disco...

Excerpt: ...t confidential and under seal. (Eyerly Decl., if 6.) As such, a contractual obligation not to disclose constitutes an overriding interest overriding the minimal public interest, which supports partially sealing the record with respect to the settlement amount. (See Universal City Studios, Inc. v. Sup. Ct. (2003) 110 Cal.App.4th 1273, 1283 ("We agree with defendant that its contractual obligation not to disclose can constitute an overriding intere...

Excerpt: ...eposition per the parties' stipulated agreement. Therefore, Plaintiff's Motion to compel Mr. Godsey's deposition is moot. Mr. Godsey is already under a court order to appear for deposition on April 30. Next, the parties dispute whether Defendant must produce documents at the time of his deposition appearance. In this regard, the Court notes that Defendant already represented to the Court that is has agreed or stipulated to produce certain, unspec...

Excerpt: ...t or to the Court's conclusion. For the reasons set forth below, the Petition for Writ of Administrative Mandate, or alternatively, Writ of Mandate is DENIED. The parties do not appear to dispute the controlling legal authority. The standard of review on administrative mandamus is independent review. Strumsky v. San Diego County Employees' Retirement Association (1974) 11 Cal.3 rd 28, 32. Under the independent review standard, the trial court det...

Excerpt: ... Set One 3. Form Interrogatories, Set Two 4. Requests for Production of Documents, Set One The Court also grants Defendant's unopposed motion to deem Requests for Admissions, Set One, admitted. The Court orders Plaintiff to provide verified responses to (a) Form Interrogatories, Set One; (b) Special Interrogatories, Set One; (c) Form Interrogatories, Set Two; and (d) Requests for Production of Documents, Set One, all within 20 days of notice of t...

Excerpt: ...ions Code Sections 309, 7231 and 5047.5. At the outset, it should be noted that the Members have cited to the wrong Corporations Code sections. WVA is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under Title 3 of the Corporations Code, beginning with section 18000. As under common law, a member, director, officer, or agent of an association is not ...

Excerpt: ...llage Association (“WVA”) to Plaintiff John Sanderson's Second Amended Complaint (“SAC”) is overruled. 1st COA - Negligence WVA contends Plaintiff's negligence claim is barred by the two-year statute of limitations because Plaintiff's claim accrued when the board denied his request to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file...

Excerpt: ... admissions by Defendant as to the amounts owed by it under each invoice. Defendant denied the amounts owed. At trial, the jury found for Plaintiff and awarded it the amounts sought under each invoice. If a party “fails to admit” the genuineness of any document or the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party...

Excerpt: ...ed 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. 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 I...

Excerpt: ...dants' motion regardless of whether Defendants erred in not including a table of contents with their moving papers; the Court chooses to exercise such discretion here, due to the lack of any apparent prejudice to Plaintiff. 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...

Excerpt: ...ons, Set One, against Defendant Uriel Mora. Defendant adequately responded to the Special Interrogatories at issue. The Requests for Admission at issue call for legal conclusions. The Court denies Plaintiff Eladio Mora's Motion to Compel Further responses to Requests for Admissions, Set One, against Defendant Estella Gonzalez. The Requests for Admission at issue call for legal conclusions. The Court grants in their entirety Plaintiff Eladio Mora'...

Excerpt: ...urt “shall” make this order unless, before the hearing, a proposed response in substantial compliance with CCP section 2033.220 has been served. See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776 (service of substantially compliant responses prior to the hearing on the “deemed admitted” motion will defeat a propounding party's attempt to have the requests deemed admitted). Plaintiff served Code-complaint responses to the RFA o...

Excerpt: ... 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. 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. If p...

Excerpt: ...a proper subject for judicial notice. California Public Policy In California, an employee's covenant not to compete with his or her employer is unenforceable. B&P Code § 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”); Edwards v. Arthur Andersen (2008) 44 Cal.4 th 937, 945. “California has a strong interest in protecting its employees from no...

Excerpt: ...e record reflects -- and it is not disputed -- that both Defendant and Plaintiff have their principal place of business in Los Angeles, they are both headquartered in Los Angeles, and the contract that is the subject of this action was executed in Los Angeles. Additionally, that contract contains a dispute resolution provision stating that “if the mediation is unsuccessful, the matter will be resolved in the appropriate California State Court i...

Excerpt: ...llegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was n...

Excerpt: ...itne to produce all records in his possession or control regarding plaintiff Jesse Castillo Ruiz at the same time and place as his deposition.” But the Subpoena, attached as Exhibit A to the Declaration of Kevin R. Jolly, Esq., is not a business records subpoena. It requests no documents; it is for appearance only. There are no categories of documents identified in the Subpoena. In addition, there are no categories of documents identified in th...

Excerpt: ...m in the Complaint and, in response to representations by Plaintiff' counsel that it could allege additional facts to cure the defect, the Court granted leave to amend. Plaintiff has added only conclusory language that the retention of the $1,070 commercial security deposit was “intentional” and “unlawful” etc. First, damages for failure to return a commercial security deposit are governed by CC § 1950.7. For the “bad faith” retentio...

Excerpt: ...ws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). Plaintiff's Complaint fails to state sufficient facts to support a claim for punitive damag...

Excerpt: ... the burden is on the moving party to show both: • Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and • Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 CA4th 1113, 1117; see also ...

Excerpt: ...ied, it will be necessary to file a new action to enforce the terms of the settlement agreement.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(II)-F at ¶ 12:982 (inner citations omitted). A court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Co...

Excerpt: ...se” for the production, Code Civ. Proc. § 2031.310(b), and Defendants did not object to any of the demands. Defendants are ordered to provide further responses and production within 15 days. Defendants are ordered to pay $1,120 in sanctions to the Law Office of Dean P. Sperling within 30 days of the notice of ruling. Code Civ. Proc. §§ 2023.010, 2031.320. Motion to Deem Requests for Admissions and Genuineness of Documents Admitted Plaintiffs...

Excerpt: ...ed orders with corrections to section 8 regarding future hearings. The Court notes that the proposed order does not mention the pending motion to consolidate or motion to strike, and the dates for the CMC and pending demurrer are incorrect. The Court further notes that any order that might be entered relieving counsel would not become effective until counsel filed with the Court proof that it had serve the order relieving it on the clients. ...

Excerpt: ... See Award Metals, Inc. v. Superior Court(1991) 228 Cal.App.3d 1128, 1134-1135 (claims for negligence and intentional tort were merely a “duplication” of the claim for violation of Labor Code section 4558 and should have been sustained); Palm Springs Villas II Homeowners Ass'n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (trial court properly sustained cause of action for breach of governing documents which appeared to be duplicative of bre...

Excerpt: ...ee Agreement with her former attorneys is contradictory and ambiguous and has an unmet contingency that requires dismissal of cause of action. The Court disagrees. Paragraph 6 of the Agreement provides that if there is no recovery (i.e. if Plaintiff gets no money) then she is still responsible for costs incurred by B&B. There is no unmet contingency. Further, paragraph 4 addresses legal fees in the event of a recovery of some kind. The two paragr...

Excerpt: ...s lengthy preamble to the argument, which purports to set forth a number of facts that are extrinsic to the Cross-Complaint. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A. Third Cause of Action for IIED In his Motion, Eladio argues that the third cause of action parrots the eleme...