Excerpt: ... without leave to amend, DENIED, in part, and deemed MOOT, in part, as set forth below. Cross-Defendants are to file and serve an answer to the TACC as modified in accordance with this ruling, within 20 days. Cross-Defendants' request for judicial notice is GRANTED with respect to Exhibits 1-8 and 10-11, as to the existence of and legal effects of said records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fo...

Excerpt: ...at are merely duplicative of one another and which adds nothing to the Complaint by way of fact or theory. (Awards Metals, Inc. v. Superior Court, 228 Cal.App 3d 1128, 1135.) Here, Defendants argue that Plaintiffs' allegations of nuisance mirror their allegations of negligence citing El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349. In Opposition, Plaintiffs argue that causes of action for negligence and nuisanc...

Excerpt: ...o seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The Court finds that Plaintiff has demonstrated good cause for at least some of the discovery sought. At issue here are 150 document requests directed to Defendant. The requests are facially overbroad because they seek all documents related to removal of Plaintiff's sta...

Excerpt: ...Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Here, Cross-Complainants' opposition concedes that they have refused to arbitrate. Cross-Defendants have shown that a valid written agreement to arbitrate exists. The arbitration agreement is contained at attachment A to the Master Sales Agreement (“MSA”), which is attached as Exhibit 1 to the Finkelstein Declaration. In the MSA, Higgins acknowledged that he received the a...

Excerpt: ...Denied as to COA Nos. 1-2. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a...

Excerpt: ...in the Notice of Motion, Defendant asks this court to strike out language which he contends is false based on reference to documents attached to complaint and to the Request for Judicial Notice. The document attached to the complaint does not go to the foundation of any cause of action and is instead attached to illustrate the claim that the document was not valid. The documents attached to the Request for Judicial Notice are not relevant as the ...

Excerpt: ...dant has sufficient “minimum contacts” with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Ibid. In other words, the defendant's contacts with the forum state must be such that the defendant had “fair warning” that its activities might subject it to personal jurisdiction in the state. Id. at pp. 1166-1167. Each defendant's contacts with the forum State must be...

Excerpt: ...al effects of the records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) As a preliminary matter, the Court notes that Defendant failed to file proof of service of the motion and the reply. (CRC 3.1300(c)). Plaintiff opposed the motion on the merits and thus waived th...

Excerpt: ...ired Notice of Right to Arbitrate (“Notice”) regarding a fee dispute in the underlying matter of Merrell v. Ford Motor Company, Orange County Superior Court Case No. 30-2020-01147752-CU-BC-NJC (“Underlying Case” or “UC”). Plaintiff's opposition provided no evidence showing a Notice had ever been served on Defendants as required under Bus. & Prof. Code § 6201(a). Bus. & Prof. Code § 6201 and the Mandatory Fee Arbitration Act (“MFAA...

Excerpt: ...sible for the day to day operations of Doe 2, (3) that between 1997 and 2008 Doe 1 worked at temples owned by Doe 2, (4) that between 1997 and 2008 Doe 1 was in contact with minor children at temples owned by Doe 2, (5) that between 1997 and 2008 Doe 1 sexually molested or otherwise inappropriately touched minor children in or around the temples owned by Doe 2 and (6) that between 1997 and 2008 he worked at temples owned by Doe 2. (ROA #93) On 7/...

Excerpt: ...sam” individually) and Danielle Darwish (“Plaintiffs” together with Hassam). The court finds a preliminary injunction (“PI”) should not be issued in this instance. The Temporary Restraining Order (“TRO”) that was granted on 08/15/22 is also ordered to be terminated. The court notes Plaintiffs have put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of their request for a PI. Instead, ...

Excerpt: ...iled by plaintiff against the two defendants, and both defendants filed a single opposition to all six, which prompted plaintiff to file a single reply. Defendants contend that the vast majority of discovery requests at issue are moot because they served a supplemental response to the discovery, i.e., a “second amended and supplemented omnibus objections and responses of defendants Dyllon and Chase Whitaker to form interrogatories, requests for...

Excerpt: ...2030.290(a).) Motion for Judgment on the Pleadings A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by CCP § 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citing text); Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Templo v. State of Calif. (201...

Excerpt: ...face European Master Distributor Agreement” as the written contract at issue, and attaches it as Exhibit D. It identifies the parties to the agreement, reflects signatures, and states the agreement terms. Performance is also alleged, as is breach, in failing to promote and market RPs' product and in failing to order at least 100 “big brake kits,” and damages for costs incurred for manufacturing the brakes (see ¶¶ 57- 59, 62-66, 73.) Wheth...

Excerpt: ...fendants' evidentiary objections are all overruled. Summary Adjudication Plaintiffs move for summary adjudication in their favor and against Doe 1 on the first four causes of action pled in their complaint which are respectively for: (1) sexual assault, (2) sexual battery, (3) Gender Violence and (4) sexual harassment. Plaintiffs move for summary adjudication against Doe 2 on the fourth cause of action only. Standards A plaintiff moving for summa...

Excerpt: ... itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.” (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169) (emphasis in original.) Here, Plaintiff does not dispute that she signed the “Self-Service Storage Rental Agreement” (“the Agreement”) which contains the arbitration provision at issue. Rather, she contends that because the Agreement was signed...

Excerpt: ...er of RFAS (an additional 132 RFAS bringing the total to 257) was warranted under CCP §2033.040 to establish liability and damages and that the number of SROGS was warranted (an additional 102 SROGS bringing the total number to 371) “because of the complexity of the existing and potential issues of the particular case”. No party may propound more than thirty-five (35) RFAs that do not relate to genuineness of documents. (CCP §2033.030(a).) ...

Excerpt: ...vides that all papers relating to the same motion may be combined, “[i]t should not be read to authorize combining papers relating to separate motions.” (See Weil & Brown (The Rutter Group 2021) Cal. Prac. Guide Civ. Pro. Before Trial, Law and Motion §9:24.3) Procedural Deficiency The motions are denied based on plaintiff's failure to file separate statements for all of the motions or submit a concise outline of the discovery requests and ea...

Excerpt: ...tice of the truth of the hearsay matters stated therein or a particular interpretation of the laws cited therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374-1375) A. Plaintiff's Objection to the Declaration of Mokhtar Ramadan is OVERRULED. (See ROA #138) A. Defendant's Objections to documents Nos. 1-3 below are OVERRULED. 1. Declaration of Laurent Fabre and Exhibits A through E thereto 1. Declaration of Sacha E...

Excerpt: ...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. Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095. Here, the FAC pleads that Nabavian, as an insurance professional, owed a duty to Plaintiff to fulfill promises made and services contracted for by Plaintiff; that Nabavian breached its duty by failing to obtain fire insurance as...

Excerpt: ...9 and served on January 24, 2019 3. Substitution of Attorney filed on July 5, 2019 in the matter of Kamell v. Del Taco, LLC, Court of Appeal for the Fourth District, Case No. G057498 Demurrer Standards While a demurrer admits all material facts properly pleaded (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), the complaint may be read as containing judicially noticeable facts even when the pleading contains express contrary allegations. (Jocer Enterp...

Excerpt: ...0, the time to bring the case to trial would have run, but for any applicable exceptions, by 6/14/21. (See C.C.P. § 12a and 583.310.) However, under Emergency Rule 10 (“ER 10”), that was extended by six months. (See DRJN Ex. 3.) The 5-year deadline for both cases was thus extended to 12/14/21. It is undisputed that Plaintiffs John Duffy and Laura Duffy (“Plaintiffs”) did not bring the cases to trial by that time. Dismissal is thus warran...

Excerpt: ...nt. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) COA 1: Breach of Equipment Financing Agreement The first cause of action asserts a breach of contract claim against MS Physicians. The elements of a breach of contra...

Excerpt: ...rned upon Defendants' demand. (Ernby Decl. ¶ 5, Ex. C at p. 4, instruction No. 10.) Significantly, the Devices were returned after this lawsuit was filed. Nonetheless, Defendants admit to discarding the Devices without any prior notice to Plaintiff. Plaintiff seeks a court order for purpose of restoring data from the Devices it retained from the seizure in which Defendants will bear the costs of the restoration and the cost of a referee to revie...

Excerpt: ...ntiffs and judgment creditors that sought to unwind the assignment, all of which were denied by the Court. Moving party contends that the agreement with the plaintiffs afford them a basis for attorneys' fees, as does Code of Civil Procedure section 128.5. The agreement with the plaintiffs (Exhibit B to moving papers) contains the following provision in paragraph 10: Attorneys' Fees and Costs. In any legal proceeding between the Parties arising ou...

Excerpt: ... Because April does not seek judgment on all causes of action stated in her complaint, this motion is one for summary adjudication. (CCP §437c(f)(1)) April bears the burden of persuasion that there is no triable issue of material fact and that she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) Preliminary Matter – April's RJN April's request for judicial notice, pursuant to Evid. C...

Excerpt: ...lied warranty of merchantability by the manufacturer of consumer goods and, where applicable, an implied warranty of fitness for a particular purpose or need by the manufacturer, distributor, or retailer. (Civ. Code, §§ 1792, 1792.1, 1792.2.) As used in the Act, the term “buyer” is defined as “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.�...

Excerpt: ...ust consider two factors: (1) the likelihood the moving party ultimately will prevail on the merits, and (2) the balance of the interim harm that the moving party is likely to sustain if the injunction is denied and the harm to the opposing party is likely to suffer if the injunction is granted. White, supra, at 554; Teamster Local 856 v. Priceless, LLC, (2003) 112 Cal. App.4th 1500, 1509. “The granting or denial of a preliminary injunction doe...

Excerpt: ...compel compliance. This motion is made pursuant to CCP §2031.320(a). Here, Andersson responded that she would comply with the RFPS at issue. That response was adequate for Razzo. There is no dispute over his right to inspect the responsive documents. The 45-day time limit for motions to compel further discovery responses does not apply to a motion brought pursuant this section. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903). Ande...

Excerpt: ...real property. . .” (Civ. Proc. Code § 405.4.) “The statute provides no further definition of “affect ... title to, or the right to possession of,” specific real property, nor has case law provided any abstract definition. [Citations.] Case law has determined that certain types of actions clearly do, or clearly do not, affect title or possession. [Citations.] At one extreme, “[a] buyer's action for specific performance of a real proper...

Excerpt: ...based upon Civ. Proc. Code § 430.10(e) is overruled. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. ...

Excerpt: ...e multiple procedural defects with the pleadings in this matter. First, although Plaintiffs' pleading is titled a “demurrer,” no actual demurrer was filed, which is in violation of CA ST CIVIL RULES Rule 3.1320 and Civ. Proc. Code § 430.60. Plaintiffs' Notice contains the incorrect time, date, and location (in Dept. 38 of Los Angeles County Superior Court) of the hearing in the body of the Notice, but has the correct department (N17) in the ...

Excerpt: ...Mark D. Homes (“Defendant”) to be appropriate throughout the course of this matter. First, the court ordered the parties to arbitration on 10/21/19. ROA #20. Despite that order, it was represented that parties had agreed to first proceed with mediation. Plaintiff did not appear at three of the four ADR status conferences, did not appear at or oppose the motion to compel arbitration, and never notified the court of any potential issues pertain...

Excerpt: ...irst cause of action alleges that defendant breached the CC&Rs by failing to provide security to its members and residents, including plaintiff. (Complaint, ¶ 13.) It alleges that the CC&Rs require defendant “to provide security to its members and residents, including [plaintiffs], by virtue of the security guards, guard gate guard gate structure, and the surrounding 8-foot-high perimeter walls as described in the CC&Rs, and particularly secti...

Excerpt: ...29 Cal.App.4th at p. 276. The test is whether lack of jurisdiction is clear or virtually unattainable. Id. at p. 277. This standard involves an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and requires a high level of certainty that the damage award will not exceed $25,000. Ibid. A court must deny a motion to reclassify the case as limited and keep the matter in the unlimited civil court unless i...

Excerpt: ...nting a discovery referee for future discovery disputes. Ford's Discovery Verifications Plaintiff contends that Ford's Verifications of its discovery responses are inadequate because Ford has not “sworn to the truth of the response under oath.” Ford counters that because it is a corporation, no one person has knowledge of all of the responses to plaintiff's discovery and that its Verification “is substantively identical to” that suggested...

Excerpt: ...him from important team meetings where his position was required to be present. He reported these acts to Human Resources which failed to investigate. In 2/12/2020, plaintiff suffered some type of accident on the job, which is not disclosed in the complaint, following which MPS failed to provide requested time off and accommodations. On May 11, 2020, he attended a meeting with Human Resources where he was accused of not being injured despite prod...

Excerpt: ...ve, and to reject or execute, requests from abroad for service on its citizens.  Alternatively, Article 8 permits service to be effected through diplomatic or consular agents of the country in which the process originated, unless the country in which the service is to be made has declared its opposition to such service on persons other than nationals of the originating country.  Or, under Article 9, the papers may be forwarded through consu...

Excerpt: ...facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sh...

Excerpt: ... identify any provision of the Master Sales Agreement (“MSA”) that was breached. The MSA is not attached to the TACC; however, a copy of the MSA (the one page that Higgins alleges was shown to him upon signing) is attached to the Second Amended Cross Complaint (“SACC”) as Exhibit 1. (SACC [ROA 196] ¶ 15, Ex. 1.) The Court takes judicial notice of the attachments to the SACC, on its own motion, pursuant to Evidence Code §452(d). The MSA ...

Excerpt: ...al employee, on August 11, 2018. (SSUF No. 1). This date is more than a year prior to the initiation of this action, on October 17, 2019. Notably, while Plaintiff indicates he did not become of aware of his injury and its negligent cause, until April 15, 2019, he does not dispute that a reasonable person under the circumstances would have been on inquiry notice, prior to this date. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111). Inst...

Excerpt: ...v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, “a Plaintiff is required…to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a Defendant with the nature, source and extent of his cause of action.” (Id. at 608.) When the complaint names two or more defendants, the sufficiency of the complaint against one defendant does not immunize the plaintiff against another defendant's ...

Excerpt: ...tice.). CCP §425.16(c)(1) provides that a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's fees and costs. The trial court must first determine if the defendant would have prevailed on the special motion to strike before awarding such fees. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457) Anti-SLAPP Motion – Prong 1 Unlike general motions to strike, there is no requirement that a...

Excerpt: ...e deposition subpoena stating Saghafi was scheduling deposition for September, indicating Saghafi was willing to sit for a deposition, but Defendant was not willing to work on reserving a mutually agreed upon deposition date. Although at the time the motion was filed trial was in early September, on 08/25/21, trial was continued to the present date of 03/14/22. This would have given Defendant almost six-months to work on rescheduling Saghafi's de...

Excerpt: ...defense as to any cause of action…or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” [CCP §437c(f)(1)] “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if tha...

Excerpt: ...d and enforceable, unless they are revocable for reasons under state law that would render any contract revocable. [Citations.] Reasons that would render any contract revocable under state law include fraud, duress, and unconscionability.” Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231, 239. Defendants have put forth evidence that a valid and enforceable written arbitration agreement exists within the signed contract (“Contract”) ...

Excerpt: ... on the grounds that plaintiff noticed the deposition to harass, oppress and cause undue burden and expense to APF and Shapiro. Code of Civil Procedure, §2025.420(b) authorizes the court, for good cause shown, to make any order that justice requires to protect any party or deponent from unwarranted annoyance, embarrassment or oppression or undue burden and expense. The court shall limit the scope of discovery if it determines that the burden, ex...

Excerpt: ...t's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment ...

Excerpt: ...g the management of the company, acquiring the controlling shares to do so, and placing the defendant Margaretis into the role of operating the company. In early 2019, there was also a joint interest of the clients to stave off alleged holders of convertible notes who were seeking to gain a foothold into the company as shareholders. (See Plff's Dec ¶ 6, Obeid Dec. ¶ 4; Opp. Obeid Dec. at exhibits 1 to 3; Def. Suppl. Reply at exhibits A, B at PL...

Excerpt: ... Cal.App.4th 731, 745). Given this Court's October 19, 2020 order granting Motions to Deem Requests Admitted, Defendant Infinity Interests, Inc. has admitted to executing the Lease dated January 11, 2016 as well as the First Amendment to the Lease dated October 24, 2018, which were attached to the Requests for Admission. (See ¶12 of Weinberg Declaration and Exhibit D thereto). Additionally, Defendant Infinity Interests, Inc. has admitted that it...