Excerpt: ... causing the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 262, 225 Cal. Rptr. 3d 305, 317 (Ct. App. 2017), as modified (Nov. 6, 2017). Here, the Complaint is devoid of any facts supporting any of the elements of trespass, other than plaintiff La Floresta Regency, LLC's, (“Plaintiff”) ownership of the Village at La Floresta, located in Brea, California. Facts supporting a cause of action for trespass should i...

Excerpt: ...s 998 Offer The Supreme Court has not expressed whether section 998 has an implied term that an offer must be reasonable and in good faith. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531 (“Assuming without deciding that … section 998 entails such a requirement, we conclude that the trial court did not abuse its discretion in awarding fees and costs”); and id. at 531 (“the City satisfied whatever g...

Excerpt: ...hall or shall not operate as a general or special appearance.” (Slaybaugh v. Superior Court (1977) 70 Cal.App. 628, 632.) If a party seeks relief on any basis other than lack of personal jurisdiction, it is a general appearance. “One cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent.” (Szynalski v. Superior Court (2009) 172 Cal.App.4 th 1, 10.) CCP § 418.10 authorizes a motion to quash service s...

Excerpt: ...ers and (2) plaintiff's former and current employers. As such, plaintiff is seeking relief on two separate issues and is required to pay, at least, two separate filing fees, and has only filed one. Kashini Decl., at ¶7. The Court's order will not be effective until the additional filing fee is paid. Although a separate statement is required for this motion (CRC Rule 3.1345) and plaintiff failed to file any, the Court may exercise its discretion ...

Excerpt: ...the inducement is a subset of the tort of fraud. It ‘occurs when ‘ “the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294–295.) The Supreme Court has expressed, “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff t...

Excerpt: ...ead of filing and serving the opposition nine court days prior to the hearing (12/03/19), Plaintiff allegedly served the opposition five court days before the hearing (12/09/19) and filed it four court days before the hearing (12/10/19), both of which are improper. Id. Additionally, it was not properly served as Plaintiff states she was the serving agent, which, as a party to the lawsuit, is not permitted. CCP § 414.10. The proof of service stat...

Excerpt: ... least some information and facts supporting his defenses, including in the least his own name and contact information, if he is the one alleging those defenses. As there were no objection to FROG No. 15.1, and as Defendant did not provide a proper response, a further substantive response is necessary. As to FROG 17.1, many of Defendant's objections to the RFAs are unmerited (see ruling on Motion to Compel Further Responses to Requests for Admiss...

Excerpt: ...5:1). Defendant asserts the Complaint includes insufficient facts and is uncertain, “[e]specially given the context set forth above.” (See Demurrer: 5:2). The context referenced by Defendant and heavily relied on in this Demurrer, are factual allegations included within Defendant's Texas Petition; however, while the Court may take judicial notice of the fact such a petition has been filed, the Court cannot take judicial notice of the truth of...

Excerpt: ...f a receiver is a drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the propriety of such appointment in exercising their discretion to appoint a receiver particularly if there is an alternative remedy.”]) When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should carefully weigh the propriety of appointing a receiver. (C...

Excerpt: ...mma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. Plaintiffs are entitled to an expeditious and...

Excerpt: ...atutes, case law, and facts, the Court will give a combined analysis. Defendant All Pro (“All Pro”) has failed to abide by the Court's 09/23/19 order to provide responses to sets one of Form Interrogatories and Requests for Production propounded by Plaintiff within 10-days of service of the Notice of Ruling (“Notice”) and to pay combined monetary sanctions in the amount of $1,121.25 within 60-days of service of the Notice. Additional sanc...

Excerpt: ...grant the present Motion. To the extent that this Court has the jurisdiction to grant the Motion under a different code section, Defendant's failure to cite to such a code section prohibits granting the Motion. In addition to not citing to a statute that permits the Court jurisdiction to grant the Motion, the Court finds that in reviewing the arguments by the parties, that it is not convinced the jury should have reached a different verdict or de...

Excerpt: ...on itself, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” CCP § 435(b)(1). “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems roper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436(a). Regarding punitive damages under Civ. Code...

Excerpt: ...tiff resides out of state or is a foreign corporation, and (2) there is a “reasonable possibility” the moving defendant will prevail. (CCP § 1030(a).) A “reasonable possibility” does not require defendant to show that there was no possibility that plaintiff could win at trial, but only that it was reasonably possible that defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [“reasonable possibility” s...

Excerpt: ...ed materials. The “taxpayer” privilege is thus directly at issue here. (See Webb v. Standard Oil Co. of Calif. (1957) 49 Cal.2d 509, 513-514.) But that privilege is not absolute. (Schnabel v. Sup.Ct. (Schnabel) (1993) 5 Cal.4th 704, 721.) Plaintiffs' Complaint puts the financial performance of Griffin's Grill (“Grill”) during the 2017- 2018 period directly at issue. (Complaint ¶¶ 9-17.) For example, Plaintiffs claim that they were damag...

Excerpt: ...CP § 2031.220 or § 2031.230 as applicable. In addition, Plaintiff must produce its responsive documents to the Defendant within 10 days. Defendant is awarded sanctions of $3,512, payable by Plaintiff within 45 days. Defendant shall give notice of this ruling. Motion to Compel Compliance or Further Responses Plaintiff has waived the ability to object to Defendant Wright Finlay's' RFPs 66 and 67 in RFPD Set Two. As such, Plaintiff is not in a pos...

Excerpt: ...nce or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, CCP § 598 provides that, within the same trial, the court may, “when the convenience of witnesses, the ends of just...

Excerpt: ...y Larwin, the court must accept that construction on demurrer. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) The Demurrer as those COAs is therefore overruled. For COAs 9 and 10, the XDs assert that the names of the individual tenants and the terms of the contracts with each must be alleged, citing The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, and Westside Center Associates v. Safeway Stores 23...

Excerpt: ...lectively Plaintiffs”) on 8/22/18, and (b) on the First Amended Cross-Complaint (the “FAXC”) filed by Advance on 2/25/19. For the reasons discussed below, Advance's Motion is GRANTED IN PART. Summary adjudication in favor of Advance on Issues 1-3 is GRANTED, which results in judgment on the Complaint in favor of Advance, and renders Issue 4 moot. However, summary adjudication on Issues 5-9 is DENIED, as Advance has not met its burden on the...

Excerpt: ...rial to consider. The court will, inter alia, take judicial notice of the records of the case. (Evid. Code § 452(d).) A motion cannot be granted, on the grounds made, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (CCP §657; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-2...

Excerpt: ...e review a ruling on a demurrer, we do not assume the truth of contentions or conclusions of fact or law, such as those contained in plaintiffs' pleadings. . .. ‘Facts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In California, all liability against a public entity must be based on a statute creating liability. (Govt. Code §815; Searcy v. Hemet Unified School Dist. (198...

Excerpt: ...fficient to support a prayer for punitive damages: “There are no specific allegations as to what the defendant did that would justify the imposition of punitive damages … plaintiff is basically summarily concluding that the alleged acts were … intended to harm plaintiff.” Based on just the four corners of the operative pleading, it is clear that plaintiff has alleged malice. Malice means “despicable conduct which is carried on by the de...

Excerpt: ...llowing costs are in dispute: $2,245 for costs already incurred; $500 for future motion and filing fees; $2,500 for future daily jury fees; and $400 for future record subpoenas. Defendant Saez has shown that although the costs per day for a court reporter is $700, that amount does not include fees for transcript preparation, charges for computer assistance, and other charges, nor does it include the need for interpreters and translators. Defendan...

Excerpt: ... producing the documents would cause unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2031.060(b). Plaintiff has also not shown that the “burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP ¶ 2017.020(a). Although Plaintiff's arguments regarding “vouching in” and collateral attacks on t...

Excerpt: ... Casualty Co. (1987) 189 Cal. App. 3d 1102, 1110.) The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact an...

Excerpt: ...papers with the Court on August 6th but there is no proof of service of those documents. The Court is therefore continuing the hearing of the Motion with the following directions to counsel. Failure to adhere to these directions may result in the Court's denial of this Motion without prejudice. The hearing is CONTINUED to September 30, 2019 at 2:00 pm in this department. By Friday August 30, attorney Greer shall send (or re-send) to Mr. Darling c...

Excerpt: ...ution or the recording of an assignment of the deed of trust, “that gap does not alter the legal fact that the deed of trust and the right to foreclose [is], as a matter of law, transferred along with the note”. (Yudhai v. IMPAC Funding Corp.(2016) 1 Cal.App.5th 1252, 1260 n.6.) In addition, an assignment of a deed of trust does not have to be recorded. (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122; see also Haynes v. EMC Mort...

Excerpt: ...ion commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Barris v. County of Los Angeles (1999) 20 Cal.4 th 101, 108; Tortorella v. Castro (2006) 140 Cal.App.4 th 1, 3. As this Court previously pointed out, pharmacies have a duty to reject facially non-compliant prescriptions, a...

Excerpt: ...(“HSBC” together). Although the OSC directs the responding party to show cause why the preliminary injunction should not issue, the burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481. The moving party has the burden to show that it is reasonably probable it will prevail on the merits. San Francisco Newspaper Printing Co. v...

Excerpt: ...ally, as conceded by Defendant within this Motion, the instant Complaint sought recovery of “attorneys' fees and investigation costs, and/or penalties from Defendants, their successors, and assigns, as provided by California Civil Code Section 3496, and/or as otherwise permitted by law.” (See §4 of Prayer of Complaint; See also Motion: 4: 17- 19). While Counsel declares that Defendant Ohio House voluntarily vacated the subject premises in Au...

Excerpt: ...bout deterioration in his vision subsequent to obtaining his license. But that still does not suffice to demonstrate willful and despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable' and ‘willful.'”].) The FAC also cites to Veh. Code §21954(b). But that provision pertains to pedestrian ri...

Excerpt: ...d both such submissions. To compel arbitration, the moving party must prove by a preponderance of the evidence that a written agreement to arbitrate a controversy exists and that a party thereto refuses to arbitrate such controversy. (C.C.P. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) RPs assert...

Excerpt: .... The Court concludes that an overriding interest is shown that would overcome the right of public access to the record at this time; the overriding interest supports sealing the record in the present circumstances; in the given circumstances, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and a less restrictive means exist to achieve the ove...

Excerpt: ...ed upon an evidentiary conclusion that service of the summons was bad and that this Court never properly acquired personal jurisdiction over the defendant. The absence of personal jurisdiction renders the default judgment void ab initio, so on what basis is there to permit plaintiff to still use a void judgment? The first question this Court has, which was not addressed in the papers, is what impact does this Court's 11/09/18 order setting aside ...

Excerpt: ...sts between himself and Beltran. Civ. Code § 1550. Plaintiff has also failed to allege any facts sufficient to show how, when, or why any such contract might have been breached. Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. As such, the Demurrer is sustained as to the cause of action for Breach of Contract. Plaintiff has also failed to pled facts sufficient to show that the cause of action for Bad Faith applies to Beltran. The Bad Fait...

Excerpt: ...ng same must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would dimi...

Excerpt: ...7.1 was defective, as the answers were as to a different party's responses to a different set of RFAs. (Howard Decl. Exs. 1-4.) The Opposition attaches a revised response, with a POS showing a 5/14 service date. However, Advance claims that those responses were never received, and were first seen when reviewing the Opposition. In either event, the revised responses are also defective, as they are not properly verified, and the POS fails to comply...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ... identification of witnesses to “the incident.” But that term here is quite broad, as MP stayed at Hospital for 10 days. Hospital responded under C.C.P. § 2030.230, which allows records to be produced where a compilation would otherwise be required. Hospital has also shown that it produced roughly 1300 pages reflecting the entire record, offered to assist in identifying any personnel identified therein, and agreed to provide addresses and ph...

Excerpt: ... must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. Of course, the scope o...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...o. (2012) 207 Cal.App.4th 124, 130–132.) There must also be a causal relationship to the third party conduct that injured the plaintiff, and a feature of the public property that “increased or intensified” the danger from that third party conduct. (Id.) Liability may not be based on the mere failure to provide a warning sign or traffic signal. (Gov. Code §§ 830.4, 830.8; Mixon, supra, 207 Cal.App.4th at 136; Cerna v. City of Oakland (2008...

Excerpt: ... US District Federal Court is GRANTED. Authorities: The Lodestar method, which entails multiplying a reasonable hourly rate by the number of hours the prevailing party reasonably expended on the litigation, is generally used to calculate reasonable attorneys fees. 569 East County Blvd, LLC v. Backcountry (2016) 6 Cal.App.5th 426, 432. The party requesting fees bears the burden of establishing that the requested rates comport with those prevailing...

Excerpt: ...cts and that it is therefore entitled to an award of attorneys' fees in the amount of $ 227,840 and for expert witness fees in the amount of $28,000. But that argument fails, as CCSI is the sole prevailing party on the integrated contracts at issue here. Salsbury argues that under Civil Code §1717, the three JOST contracts should be treated separately, and that it won on two of them and so should be able to recover its fees re same, citing Arntz...

Excerpt: ...be granted. (See Alcal Roofing & Insulation v. Sup. Court (1992) 8 Cal.App.4th 1121, 1127 [in contested case, a “party may not both seek confirmation of a settlement agreement and withhold it from nonsettling defendants on grounds of confidentiality.”], and J. Allen Radford Co. v. Sup. Court(1989) 216 Cal.App.3d 1418, 1423–1424 [while parties were free to maintain confidentiality of sliding scale recovery agreement, they could not claim a p...

Excerpt: ...ly been declared vexatious litigants by the U.S. Bankruptcy Court, the U.S. 9 th Cir. Court of Appeals, and the U.S.D.C. for Central Dist. of California. Plaintiff more than meet the minimum for being declared vexatious litigants pursuant to CCP §§ 391(a)(1), (2), and (4). Plaintiff Yang shall be deemed a vexatious litigant pursuant to this motion. Although Plaintiff Sui was already determined to be a vexatious litigant in OCSC Case No. 30-2012...

Excerpt: ...ed or until such earlier time as the court deems appropriate. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. However, during the stay, the court retains vestigial powers over the matters submitted to arbitration. Finley v. Saturn of Roseville (2004) 117 Cal.App.4th 1253, 1258. The court may refuse to enforce a valid arbitration agreement if it determines that the party asserting the right to arbitrate has wai...

Excerpt: ...Memorandum of Costs seeking $ 66,218.74 in costs. See, Memo of Costs. If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or unnecessary. Benach v. County of Los Angeles (2007) 149 Ca...

Excerpt: ...bbins (2010) 182 Cal.App.4 th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facieevidence of their propriety. The burden then rests with the party seeking to tax c...

Excerpt: ...lation are generally disregarded. (See WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In the next round of pleading, Plaintiff should give attention to setting forth a set of concrete facts to support each of the causes of action. Demurrers are sustained to the 1 st cause of action for quiet title. This is a statutory a...

Excerpt: ...Superior Court (1988) 67 CalApp4th 1253, 1255 ("In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing entitlement to such relief must be pled by a plaintiff."). Malice in particular can be inferred by a trier of fact from the surrounding circumstances. Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 67; The Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 502-3; ...

Excerpt: ... justifying the exercise of jurisdiction by a preponderance of evidence. (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221–222.) The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. (Id.) Parsons argues that jurisdiction cannot be found here, as his role was mere...

Excerpt: ...large the issues in the case; and (3) the reasons for intervention outweigh any opposition by the existing parties. Whether the interest is sufficiently “direct” and “substantial” must be decided on the facts of each case, with a liberal construction in favor of intervention. CCP § 387(a); Gray v. Begley (2010) 182 Cal.App.4 th 1509, 1521; City & County of San Francisco v. State of Calif. (2005) 128 Cal.App.4 th1030, 1037. Permissive int...

Excerpt: ... Cal.3d 780, 795; Piccinini v. California Emergency Management Agency (2014) 226 Cal.App.4th 685, 688.) Plaintiff has failed to do so here. To state a disparate treatment claim, Plaintiff must allege facts to show that he was subjected to an adverse employment action and that his protected status “was a substantial motivating reason” for same. (See CACI 2500, and Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) The complaint must p...

Excerpt: ...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.”].) And the Demurrer has merit. COAs 2-4 assert essentially identical claims for fraud, intentional misrepresentation, and negligent misrepresentation. But every element of a fraud claim must be alleged in full, factually and specifically. General and conclusory allegations do not suffice. (Lazar v....

Excerpt: ...equested a stay on the execution of said judgment. The motion was granted upon counsel's admission of fault under the mandatory mea culpa provision. Defendant did thereafter answer, but has yet to participate in the discovery process. This Court has not heard from defense counsel since the new year. On 03/11/19, this Court granted plaintiff's three motions seeking initial responses to written discovery (FRogs, SRogs, RPD), and one motion seeking ...

Excerpt: ...onfidant Marinescu, and Vincent's personal attorney attorney Skaist/SYCR (hereinafter “defendants”). Plaintiffs allege that defendants embezzled substantial monies from the company, and are attempting to lock then out of management control. Defendants lob similar allegations back at plaintiffs. On 04/15/19, this Court ordered the entire action to arbitration. At the hearing, a request was made to keep on-calendar the motion for preliminary in...

Excerpt: ...��); Clausen v. Superior Court (1988) 67 CalApp4th 1253, 1255 ("In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing entitlement to such relief must be pled by a plaintiff."). In his complaint, Plaintiff alleged he was subjected to profanities and racial slurs as he was beaten in the head with closed fists, kicked, put in a choke hold, and had a ring forcibly pulled from his finger. It is difficult ...

Excerpt: ...resented here as to that defect is improper. And no such procedural defect was at issue for the subpoenas addressed on 3/4/19. The dispute as to the 6 th subpoena was deemed moot, and no argument for reconsideration as to that portion of the ruling is presented here. For the last subpoena at issue in the 2/27/19 ruling (No. 7), the Motion was granted because the subpoena was overbroad, sought private records, and Plaintiff had not shown that ther...

Excerpt: ...om claims from non-settling parties for equitable indemnity or contribution. CCP §877.6(c). There is no precise yardstick for measuring “good faith” of a settlement, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors or co-obligors. At a minimum, the settlement must be within the reasonable range (aka “ballpark”) of the settling party's share...

Excerpt: ...es Amendment”). The Defendant argues that it is entitled to summary judgment because it, as a vehicle rental and leasing company, owned and rented the vehicle that defendant was driving when the accident that is the subject of this case occurred. 49 USC § 30106(a). Pleadings: The Plaintiffs allege General Negligence, Motor Vehicle and Loss of Consortium causes of action against all defendants including the moving defendant Enterprise Fleet Man...

Excerpt: ... and include such things as the 10-day notice and 75/150 mile requirements. See CCP §§ 2025.210 - 2025.280. Unavailability for a date unilaterally selected is not one of the enumerated grounds for objecting to a deposition notice, but more importantly service of an objection does not stay the deposition. Article 2 (§ 2025.210 - 2025.280) does not contain any requirement that a deposition be scheduled after agreement is reached on the date. Eve...

Excerpt: ...en defendant and the forum state to justify personal jurisdiction, but the plaintiff has the right to conduct jurisdictional discovery to develop the facts necessary to sustain this burden. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) A court may nonetheless deny a requested continuance for this purpose if there is no showing that such discovery would likely produce evidence to demonstrate jurisdiction. (Beckman v. Thompson (1992) 4...

Excerpt: ...the parties' respective motions. A) Motion for Sanctions Plaintiffs Yan Sui and Pei-Yu Yang's (“Plaintiffs” together) Motion for Sanctions (“Motion”) is DENIED. Once again Plaintiffs filed an overly lengthy pleading, this time one of approximately 44-pages. This is well above the 15-page maximum permitted in filing a motion pursuant to CRC Rule 3.1113(d). The Court will not consider any portion of the Motion in excess of the 15-page limit...

Excerpt: ... not base this ruling upon Mission Hill's corporate status or suspension of such status. The court finds that Mission Hill lacks standing to bring any of the pled causes of action against the cross defendant. Therefore, a determination regarding the suspension argument is not relevant. First, Third and Fourth Causes of Action - Statute of Limitations: Cross-Defendant demurs to the First, Third and Fourth Causes of Action of the First Amended Cros...

Excerpt: ...h inherent and statutory. For example, CCP § 1048(b) authorizes a trial court to try separately proceedings to avoid prejudice, for convenience, or to permit greater expedience and economy: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separ...

Excerpt: ... B. As such, the defendants' motion to compel arbitration as to the plaintiff's claims against Defendants is granted. The arbitration clause may be enforced by non-signatory party defendant Tanya Eisenman because the facts alleged against her are intertwined with the allegations made by and against signatory parties Plaintiff and Defendant Brighton Management LLC and the obligations imposed and contemplated by the Employee Handbook. General Autho...

Excerpt: ...ting injury; and (3) actual loss or damage resulting from the negligence. [Citation omitted.]. . . Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his attorney's negligence, he cannot establish a cause of action for malpractice. Breach of duty causing only speculative harm is insufficient to create such a cause of action. [Citation omitted.] “‘[D]amages may not be based upon sheer speculation or surmi...

Excerpt: ...nduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. C.C.P. § 2023.030. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unles...

Excerpt: ... lien. (Id.) Under Civil Code §8488(a), “[t]he claimant has the burden of proof as to the validity of the lien.” Here, Ms. Dalessandro has presented evidence to demonstrate that she had procured financing for some if not all of the construction, through a “HERO” financing program, with the knowledge and assistance of Plaintiff YYB Construction, Inc. (Motion, Ex. 2; Dalessandro Decl. ¶¶ 2-5.) Under Civil Code §8200(a), before recording...

Excerpt: ...l.App.3d 1231, 1235- 1236; Bowden v. Green (1982) 128 Cal.App.3d 65, 73-74; Bice v. Stevens (1958) 160 Cal.App.2d 222, 233.) Here, evidence has been presented by PAR and its former counsel that the dismissal at issue, with prejudice, was unauthorized and the result of an attorney error, and that this motion for relief was brought within a reasonable time after learning of the mistake. (Cabrera Decl. ¶¶ 2-5; Oberbeck Decl. ¶¶ 2-3; Ribiero Decl...

Excerpt: ...s. CCP §§ 2030.300(c) [Interrogatories], 2031.310(c) [Requests for Production] and 2033.290(c) [Requests for Admission.] The demanding party waives the right to compel any further responses if the Motion is not served within 45 days of a verified response. Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745. Application: It is undisputed that the Plaintiffs served their discovery requests on September 20, 2018. It is also undisputed that the Def...

Excerpt: ...e is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564. “[I]t is an abuse of discretion to deny leave to amend where the opposing...

Excerpt: ...ss was conducted by co-defendant Alisson Rosales, and operated out of a gym owned by co-defendant OC All Stars. The class started at 5:30am, and was well-attended. Following a quick warm-up, participants engaged in an exercise called the farmer's carry in which they walked a straight line, arms by their side, holding 20-lb dumbbells. Because participants had to stagger and space themselves, it was common for participants to actually walk right pa...

Excerpt: ...plemental responses. (Moore Decl. ¶ 6; Pick Decl. ¶ 3.) In the opposition, Ms. Gjested states that she did not learn of any issues regarding these supplemental responses until the motion came in. (Gjested Decl. ¶ 7.) However, she does not claim that no discussions occurred with any of her colleagues, and the opposition otherwise demonstrates that there is indeed an impasse as to the responses at issue. The Court thus finds that the meet and co...

Excerpt: ...is adequate need shown for the relief sought, in light of prior discovery delays, including delays in document productions, and Plaintiffs appear to have acted with reasonable diligence. (Weisberg Decl. Exs. 12, 24 -28.) No undue prejudice to the defense is shown, and Plaintiffs have not unduly delayed in seeking this relief. (Weisberg Decl. Ex. 28; Weisberg Reply Decl., ¶¶ 2-6.) The discovery cut-off will thus be continued to correspond to the...

Excerpt: ...ease”) between Plaintiff and Esports Arena Seattle, LLC, contains a choice of law clause requires venue for any action on the Lease to be in King County, Washington (Complaint, Ex. B, p. 31), the present matter is not based upon the Lease, but rather it is based upon the Personal Guaranty of Defendant (“Guaranty”). The Guaranty is a separate contract between Plaintiff and Defendant, and contains a separate choice of law clause that pertains...

Excerpt: ...of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within this court's jurisdiction and (2) prevent out-of-state residents from filing frivolous lawsuits against California residents. Alshafie v. Lallande (2009) 171 Cal.App.4 th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4 th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibilit...

Excerpt: ....) The motion as to this cause of action is DENIED. Defendant argues that the cause of action fails, because Plaintiff did not perform substantially similar work as other directors. The test is “substantially similar work” “when viewed as a composite of skill, effort, and responsibility” (Lab Code §1197.5(a)). This description suggests a pretty factual inquiry to begin with. The Motion itself does not present enough information about the...

Excerpt: ...tals LLC to sit for deposition pursuant to the 11/5/18 deposition notice. The plaintiff shall produce documents at the deposition as well. This plaintiff must appear for its deposition within the next 30 days. The Court awards the Defendant a reasonable monetary sanction of $480 payable by Plaintiff Creative Plant Rentals LLC within 60 days. The movant's additional request for terminating or evidentiary sanctions is DENIED. There has been no cour...

Excerpt: ... without regard to the laws of those particular states. (McKenzie Decl., Exs. A & B.) But a non- party resident of a foreign state can be compelled for deposition only under the law of the place where the deposition is to be taken. (See C.C.P. § 2026.010 et seq., 2029.100 et seq, and Rutter Group, Civil Procedure Before Trial §8:637 – 8:640.) Plaintiff here has failed to show that its subpoenas complied. The Motion is therefore GRANTED as to ...

Excerpt: ... action when it believes that the action may be more appropriately and justly tried elsewhere. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. A trial court considering a forum non conveniens issue engages in a two-step process: First, the court must determine whether a suitable alternative forum exists. An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations. It is ...

Excerpt: ...ion that conforms with the page requirements of the Rules of Court. The amended opposition must be filed and served, pursuant to code, no later than 03/12/19. Defendants will may file and serve their own amended reply brief responding to Plaintiffs' amended opposition, no later than 03/18/19. The amended reply brief must also be filed and served pursuant to code. Finally, the Court notes that Plaintiffs filed what appears to be a Sur-Reply to Def...

Excerpt: ..., 892–893 (the term pain and suffering includes the mental component); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840–842, 847; Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 653; Whitfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 81, 82.) In Capelouto, the Supreme Court said that a child is entitled to recover for pain and suffering on the same basis as an adult. The court recognized that a ...

Excerpt: ..., this Court notes that the opposition papers were late. However, the principal purpose behind the statutory timing requirements is to insure that both sides have adequate time to respond. That purpose is served if the aggrieved party can still prepare a responsive memorandum. See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; Carlton v. Quint (2000) 77 Cal.App.4th 6...

Excerpt: ...al.App.4th 1371, 1378. In deciding whether to issue a preliminary injunction, a court must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one,...

Excerpt: ...r defendant herein. Demurrer SUSTAINED. Plaintiff must provide an offer of proof in order to secure leave to amend. Theresa Van Haeren. There is no mention of this individual anywhere within the operative pleading, save for an averment regarding her county of residence. There is mention of her in the opposition papers as having acted in a fiduciary capacity regarding plaintiff's deceased mother. It is not clear why plaintiff alleges conversion ra...

Excerpt: ...has considered all of the papers submitted in connection with that application, but finds that reconsideration is not warranted here, and that even if the Court were to reconsider the prior ruling, it would reach the same result. Under C.C.P. § 1008, reconsideration may be sought based upon new or different facts, circumstances, or law. The moving party must also provide a satisfactory explanation for failing to produce such evidence for the hea...

Excerpt: ...he Court to set aside judgment under the discretionary basis of CCP § 473(b). Plaintiffs and their daughter actively participated in the mediation process with aid of a Spanish interpreter. Modarelli Decl. ¶¶ 5-15; Nunez Decl. ¶¶ 4-10. The interpreter also verbally translated the settlement agreement to Plaintiffs prior to Plaintiffs signing the agreement. Id. Although Plaintiffs' former attorney attests that Plaintiffs did ask about the aff...

Excerpt: ... Defendants to give notice. Defendant Crescent Moon is not a Proper Party to the Motion Defendant Crescent Moon Foundation Inc. joins in the motion. (See the Notice of Motion p. 1, Fears Dec. ¶ 1.) But this defendant did not serve or propound the discovery here. (See Moving Fears Decl. Ex. B, the RFPs, p. 1.) Under the Code (CCP §§ 2031.310(a) and 2031.010), it is the “demanding party” who can bring the motion to compel the further respons...

Excerpt: ...to Form Interrogatories, Special Interrogatories, and Requests for Production, and to Deem Facts in the Requests for Admission as Admitted is GRANTED IN PART, AND DENIED IN PART. On 11/19/18, Defendant personally served plaintiff Shakeel Ahmed (“Plaintiff”) through his then attorney of record with written discovery requests. Goldstein Decls. Exs. A. Plaintiff's responses to these requests were due to be served no later than 12/19/18. CCP §§...

Excerpt: ...C on the basis that it contains little more than conclusory statements and conjecture. It does not plead specific facts supporting fraud, malice, or oppression as required by Civ. Code § 3294; ‐ TAC ¶¶ 48-50 – These paragraphs merely parrot the law of Civ. Code § 3294(b), and provide no specific facts to support the allegations; ‐ TAC ¶¶ 89, 91, 92, and 97 – As pled, these paragraphs appear to argue a class action, which has not bee...

Excerpt: ...., the pre-printed dates on the Notice and Motion are approximately three months apart, and there is no date on the Korff Decl. It appears that this motion may have been filed in error or may be incomplete. Cross- Complainants may serve and re-file this motion at a later date should they so choose. B) Motion for Leave to File Amended Cross-Complaint Cross-Complainants unopposed Motion to File a First Amended Cross- Complaint (“Motion”) is DEN...

Excerpt: ...ted deposition officer on or before 11/02/18. No response occurred by that date, nor did Epoxy2U object, seek an extension or move for a protective order. The production date passed without so much as a whisper. However, all is not so clear. The individual responsible for making personal service upon Epoxy2U included with the subpoena a “service packet” containing a cover letter from the deposition officer, a letter from plaintiff's counsel, ...

Excerpt: ...es of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and b) Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and ...

Excerpt: ...efendants, Jason Askenaze and Roger Urroz, on the FEHA Discrimination Claims, to the 11 th to 13 th C/A: In prior rulings, it was noted that FEHA does not provide for personal liability of individual supervisors, co-workers, or nonemploying individuals, for discrimination claims. FEHA makes the individual employer, or organizational employer liable. (See Minutes of 4/30/18, p. 2. SeeGovt Code §12940(a), §12926(d); Jones v. Lodge at Torrey Pines...

Excerpt: ...s (1967) 66 Cal.2d 435, 437; Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168); two years for interference with prospective economic advantage (CCP § 339(1); Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 10); also two years for negligence (CCP § 335.1); and four years for a violation of §17200. (B&P § 17208; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1193.) Generally, a cause of action accrues when...

Excerpt: ...act claim. MPs argue that the agreement on its face was to serve solely as a backup for any refusal by the insurer to pay. But that is not self-evident from the face of the agreement. (XC Ex. 1.) And the XC at ¶ 12 specifically asserts that Advance was told not to bill the insurer. Where a pleading is based on an attached written contract, a general demurrer admits not only the contents of the instrument but also any pleaded meaning to which it ...