Excerpt: ...ncipal and interest on the note has now been paid. The HWI contends that summary judgment cannot be granted because it is owed attorney fees under the note. But as MPs point out, attorney fees in the present case are awardable as costs, not damages. It should be noted that the Court's dismissal of the Cross-Complaint with prejudice based on mootness does not affect HWI's ability to recover costs or attorney fees as the party prevailing on the con...

Excerpt: ...tural Materials Co. (1981) 123 Cal. App. 3d 593.) Defendants' RJN Nos. 7, 8, 10 and Plaintiff's RJN Nos. 1, 2 are DENIED because they are pleadings filed in this action of which it is unnecessary to seek judicial notice. A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. (Stoops v. Abbassi, supra, 100 Cal. App. 4th at 650; Code Civ. Proc. § 438(c)(1)(B)(ii).) As with a demurrer, the ground...

Excerpt: ...tle to the property (FAC ¶ 33), equity would appear to call for a tender of the debt, and the pleading does not adequately allege a present ability to do so. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053 (“A valid tender of performance must be of the full debt, in good faith, unconditional, and with the ability to perform.”); Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, ...

Excerpt: ...g especially to the extent that communication between counsel is not taking place. Counsel are reminded of the duty to meet and confer which applies not only for the present motion but for others as well. In the future the power to impose appropriate remedies for any failures on the part of counsel may be necessary to consider. Although the RP proposes that the demurrer be overruled for perceived deficiencies, it is clear by the statute that “a...

Excerpt: ...lso notes, that the Complaint is not properly formatted pursuant to CRC Rule 2.112. The Demurrer is sustained with leave to amend as to: ‐ Cause of Action No. 1 – Violation of Civ. Code § 2923.4 – This code section does not mandate or prohibit any action on the part of any party. It therefore does not support a cause of action for violation of said code section; ‐ Cause of Action No. 2 – Violation of Civ. Code § 2924.11 – This code ...

Excerpt: ...d to defendant hospital for evaluation. She was seen and discharged home. Three days later, plaintiff returned to the defendant hospital with unresolved complaints of nausea, vomiting, headaches and elevated blood pressure. Fetal monitoring strips confirmed the presence of contractions. Plaintiff was again sent home. She returned later that evening, and was differentially diagnosed as experiencing deep variable decelerations with the baby display...

Excerpt: ...ree COAs were then dismissed based on a settlement, in exchange for a monetary payment to Plaintiff. (Mirabel Decl. ¶ 2, Ex. 1.) A defendant who prevails on most of the claims asserted, but has paid money to settle the remaining claims in exchange for a dismissal, is not the prevailing party based on that dismissal. (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158.) Jokar thus may not recover costs here based o...

Excerpt: ...vice was not properly effectuated. (C.C.P. §418.10(a)(1) [“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 of motion for one or more of the following purposes: (1) To quash service of the summons on the ground of lack of jurisdiction of the court over him or her ...”].) When a defendant moves to quash service of process on juris...

Excerpt: ...nstruction (i.e. CBI) and was under the care and supervision of Defendant Chancelight Inc. when the incident occurred. Discovery At Issue: The request at issue provides as follows: “12. COPIES of any and all DOCUMENTS that make up the ENTIRE FILE OF STUDENT ANTHONY VICTOR GONZALES.” The response provided by the defendant was as follows: “Objection. Pursuant to the Code of Federal Regulations (CFR) § 164.508, California Education Code § 49...

Excerpt: ...oversy exists, unless it determines that: . . . (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . .” Civ. Proc. Code § 1281.2. Under the relevant terms of the Agreement, TAWA and Plaintiff, “agree that any and all ...

Excerpt: ...dden braking without warning or reason were acts of road rage intended to cause harm to the plaintiff. The plaintiff alleges that the defendant's actions were intended to cause bodily harm to the plaintiff or were done with a willful, deliberate and conscious disregard for the plaintiff's safety. Authorities: In order to award punitive damages, a jury must find “by clear and convincing evidence that the defendant has been guilty of oppression, ...

Excerpt: ...e letters or calls of the defense attorney, attempting to discussing their complaint. This is required by California Code of Civil Procedure sections 430.41(a) and section 435.5(a). Even while Plaintiffs are representing themselves, they are subject to the same restrictions and rules as all civil litigants and attorneys. [See Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–124...

Excerpt: ... to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404....” Under CRC 3.500, the Court must make findings related to certain factors which include whether the actions are complex, whether there are common questions of fact or law, whether those are predominating and significant to the litigation; and the disadvantages of duplicative and inconsistent rulings, orders, or...

Excerpt: ...or a protective order. Third-party information such as social security numbers, bank account information, personal contact information and the like are protected by the Constitutional right to privacy. Williams v. Superior Court (2017) 3 Cal. 5th 531, 552; SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 754–55. Plaintiff has properly asserted a privacy right, which the third-party entities have a reasonable expectation of...

Excerpt: ...en braking caused plaintiff to run into him. According to plaintiff, and one independent eyewitness, it appeared that defendant's actions were deliberate, designed perhaps to teach plaintiff a lesson about civility and patience. Defendant says it was just an accident. Nonetheless, the only the only question that needs to be answered at this juncture is whether pleading a “break check” incident of “road rage” is enough to support punitive ...

Excerpt: ...rior Court (1997) 16 Cal.4 th 1101, 1110; Department of Health Services v. Superior Court (1980) 104 Cal.App.3d 80, 83- 84. Absent a valid objection, service of a notice of deposition is effective to require a party or party-affiliated witness to attend and to testify. CCP §2025.280. Defendant does not want David Wertheim to be deposed. The ostensible grounds for the request are as follows: 1. Wertheim is the Vice President and General Counsel o...

Excerpt: ..., plaintiff and Hood agreed to let the listing agent Surterre Properties act in a dual agent capacity. As expressly set forth in the written dual agency agreement, Surterre owed plaintiff/Hood a “fiduciary duty of utmost care, integrity, honesty and loyalty” when dealing with the seller. On 04/18/17, plaintiff/Hood learned from agent Horton that the seller elected another buyer for the property, even though that other offer was actually less ...

Excerpt: ...seeks to disclose the Confidential Material has obtained the written consent of the person who designated the Material as Confidential to disclose the Material to such experts or consultants, provided that the person who designated the Material as Confidential shall not withhold consent without a good faith belief that serious harm would result from the Disclosure.” [Emphasis added.] According to defendant, this gives plaintiff the unilateral p...

Excerpt: ...the terms of an express warranty she alleges was made by FNB. However, from the evidence and papers submitted, there is no triable issues of material fact as to whether FNB issued an express warranty for the subject vehicle; it did not. Plaintiff has not provided any evidence to the contrary. An ““Express warranty” means: (1) A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, dis...

Excerpt: ...d motion and discovery cutoff dates. Authorities: The Discovery Act imposes two separate “cut-offs” on discovery. Unless otherwise ordered discovery proceedings must be “completed” 30 days before the date initially set for trial and discovery motions must be heard no later than 15 days before the date initially set for trial. CCP § 2024.020(a). A continuance or postponement of the trial does not operate to reopen discovery proceedings. C...

Excerpt: ...EHA, against these individual defendants or derivatively as to the union. (See FAC ¶¶ 29, 35, 38 41-42; Govt. Code § 12940(b),(a); see Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 (reciting elements); see also Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; Greene v. Pomona Unified School Dist. (1995) 32 Cal.App.4th 1216, 1222.) Although the FEHA is construed liberally, more facts are due to plead the statutory element...

Excerpt: ...on (“DMC Decision”). Anthem cites a few of federal cases that cite Rule 12(b)(6), which are not applicable to the present matter. It also cites Joslin v. HA.S. Ins. Brokerage, 184 Cal. App. 3d 369 (Ct. App. 1986), which is also inapplicable as that matter cites to judicial notice of documents already within the Court's files, which is not the case in the present matter. Anthem does not allege the Court's ability to take judicial notice of the...

Excerpt: ...strative remedies as to the timely filing of a sufficient complaint with the DFEH and obtaining a right-to-sue letter. (Holland v. Union Pac. R. Co. (2007) 154 Cal.App.4 th 940, 945; Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1342, 1345- 46; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724; Gov't Code §§ 12960(b),(d), 12965(b).) Further, on a demurrer, all material facts properly pleaded are accepte...

Excerpt: ... totally and completely without merit. CCP §128.5(b)(2). A motion is totally and completely without merit for these purposes, only if any reasonable attorney would agree that the motion is totally devoid of merit. This is an objective standard. Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 879. Under CCP § 425.16(e)(4), the anti-SLAPP statute protects “any other conduct in furtherance of the exercise of the constitutional right of petition or ...

Excerpt: ...n for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading … [if] the plaintiff has established that there is a substantial probability that the plaintiff will prevail on...

Excerpt: ... documents related to third party affiliate companies Waterworks Aquatics Beverly Hills, Inc., Waterworks Aquatics Denver, Inc., Waterworks Aquatics Siena Madre, Inc., and Waterworks Aquatics HB, Inc. which are owned entirely by defendant Jon Alpert. Requested Order: The defendants' seek a protective order limiting the scope of request number 6 in the Deposition Subpoenas for Production of Business Records served by Plaintiff on third patty affil...

Excerpt: ...P § 583.360(b). The three statutory exceptions to the mandatory dismissal rule are as follows: (1) written stipulations or oral agreements made in open court extending the five-year time period; (2) exclusion from the computation of five years any time period during which the jurisdiction of the court was suspended or the prosecution of the action was stayed; and (3) the bringing action to trial was impossible, impractical, or futile. CCP §§ 5...

Excerpt: ...ed Complaint. Plaintiff may file a second amended complaint within 10 days. Defendant to give notice unless notice is waived. Judicial notice is granted as to the real property records in the Defendant's request for judicial notice. (See Evid. Code § 452(h); Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 924 n.1; Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1054-55.) The real property records raise many questi...

Excerpt: ...without objections to sets one of the Form Interrogatories, Special Interrogatories, Requests for Production, and Requests for Admission within 30 days of the hearing on these motions. Additionally, HB Worldwide Enterprises is to pay monetary sanctions in the amount of $1,400.00 to Plaintiff, within 10 days of the hearing. Although Defendants attempt to categorize the present matter as a “My Way of the Highway” regarding a previously discusse...

Excerpt: ...ere filed. To the extent they have not already done so, the defendants are ordered to supplement any requests which they have not already. The plaintiffs' requests for $2,500 in monetary sanctions against each defendant is GRANTED. The Defendant Dual Diagnosis is ordered to pay the plaintiffs $2,500 within 20 days of the order. The Defendant Tonmoy Sharma is ordered to pay $2,500 to the plaintiffs within 20 days of the order. The defendant served...

Excerpt: ...nd Iris Van Der Meer. No. 20 is for the personnel file of “Wood” but the parties in this motion treat it as seeking the files of Melanie Brown. The Plaintiff states these are former assistants of defendant Moon. Personnel records are generally protected by the employee's right of privacy. (Rutter Guide, Civil Procedure Before Trial (¶ 8:308) (Rutter Group 2017) (citing Board of Trustees of Leland Stanford Jr. Univ. v. Sup.Ct. (Dong) (1981) 1...

Excerpt: ...estion now become what is a reasonable amount of attorney fees? In PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, the court explained that: “The reasonable hourly rate is that prevailing in the community for similar work. Id., at 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value f...

Excerpt: ...aint, they are “statements of [a] new matter constituting a defense” under C.C.P. § 431.30(b)(2). As such, they also need to include more than just conclusory statements of the law, and it the burden is on Defendants to properly plead each defense. Cahill Bros. v. Clementina Co., 208 Cal. App. 2d 367, 385 (Ct. App. 1962); Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 239 [“It has long been held that ‘if the onus of proof is thro...

Excerpt: ... because of his protected status and that the harassing conduct was severe OR pervasive. (See CACI No. 2522A.) a. What is Severe or Pervasive “Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment. In determining whether conduct was severe or pervasive all the circumstances are considered including (a) The nature of the conduct (its severity); (b) How often, and over what...

Excerpt: ...d until the issue of his appointment is finally resolved in C8 (hearing set for 08/16/18). Both are correct. Demurrer CONTINUED to 09/10/18. Bifurcating Causes of Action to Set Aside Instruments Plaintiffs' first three causes of action all seek to set aside instruments executed by their brother Fred at a time when he was allegedly incompetent to understand/appreciate what he was doing. Many of the other causes of action also turn on Fred's compet...

Excerpt: ...rmers Group, Inc. (1996) 48 Cal.App.4 th 471, 488.) Here, the Court finds that there has been inexcusable delay in seeking leave to assert the new claims at issue. Plaintiff's counsel asserts that “new facts were revealed” while she was preparing her opposition to the prior MSJ/MSAI, through certain depositions. (Mirabel Decl. ¶¶ 4, 8 & 9.) But Plaintiff's depositions concluded in late February 2018. (Robertson Decl. ¶ 3.) Yet Plaintiff fa...

Excerpt: ...CHUNG CAUSES A COPY OF THE SIGNED ORDER GRANTING THE MOTION TO BE SERVED UPON THE CLIENT PROMPTLY, AND FILES A PROOF OF SERVICE WITH THE COURT. Kring & Chung shall also give notice. Order to Show Cause Hearing --- Kring & Chung LLP Shall Give Separate Notice The Court is now scheduling an Order to Show Cause (“OSC”) hearing, regarding Dream Home Estate Inc.'s retaining counsel. The hearing is scheduled for Friday, July 27, 2018 at 9:30 am in ...

Excerpt: ...on is proper only if apparent from the complaint, or if the matter will necessarily result in a verdict below the limited civil jurisdictional amount. (Ytuarte v. Superior Court (2005) 129 Cal.App.4 th 266, 276; Walker v. Superior Court (1991) 53 Cal.3d 257, 269.) Unlikeliness is not the test: the trial court looks to the possibility of a jurisdictionally appropriate verdict. (Maldonado v. Superior Court (1996) 45 Cal.App.4th 397, 402.) Plaintiff...

Excerpt: ...rt to that judge's court for coordination with an action involving a common question of fact or law. . .” [Emphasis added.] C.C.P. § 403. An analysis of the factors laid out in C.C.P. § 404.1, weigh in favor of not transferring and consolidating the matters. As noted by Coachella, there are “entirely different plaintiffs, public works contracts, projects, locations, performance bonds, witnesses, and timeframes, and . . . potentially differe...

Excerpt: ...8 Order ¶ 8.) A court retains limited power “when the judicial action is stayed and the case is referred to binding arbitration pursuant to the parties' agreement.” “[I]f a lawsuit is stayed pending a decision through binding arbitration, ‘the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration.” (Optimal Markets, Inc. v. Salant (2013)...

Excerpt: ..., “If the notice is served on the client by electronic service ... it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address”, as confirmed within last 30 days. The Court does not have a declaration stating the email address where the client was served and its currentness. In the moving declaration filed 6/8/18 (at ¶ 3(b)), attorney Booth seems to describe that the ...

Excerpt: ...mitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. [citation] The running of the statute must appear ‘clearly and affirmatively' from the dates alleged. It is not sufficient that the complaint might be barred.” Roman v. County of Los Angeles (2000) 85 CA4th 316, 324-325. “The statute of limitations accrues when a plaintiff has the right to sue on a cause of ac...

Excerpt: ...e any default provisions, or demand requirements when a payment is missed. Thus, no impediment to enforcement is evident. The agreement, however, does provide that disputes relating to the settlement agreement are to be heard in Los Angeles County (see Para 6.4), not Orange County where this action is venued. Forum selection clauses, however, can be waived, so this Court will proceed to the merits. Pursuant to CCP §664.6, if parties to pending l...

Excerpt: ...presentation and a common claim as to representations made concerning fees. (See FAC ¶¶ 8-12, 14, 18, 21, 22, 30 and 39.) As Mr. Tayebi has asserted nonarbitrable claims, and there is a risk of conflicting rulings on common issues of law or fact if arbitration is ordered as to Ms. Goudarzi alone, the Court will exercise its discretion under C.C.P. § 1281.2 to deny the motion to compel arbitration at this time. However, this ruling is without p...

Excerpt: ... from a name), customer contact information, or customer buying patterns. Further, Defendants have not cited any case law that supports that the name(s) of 1-3 clients, without any additional personally identifying information or private financial information, is enough to be considered a “trade secret.” Moving party to give notice. ...

Excerpt: ..., the moving attorneys must submit a revised Proposed Order form. In Section 6, it should list the names of contact persons or appropriate representatives of the Plaintiff, to whom notices may be served in the future. The Suite number seems to be missing in the address provided (Section 6). Section 3 was completed to reflect personal service of the papers but there is not a proof of service filed to that effect. The document must be corrected and...

Excerpt: ...time wages and the amount of wages owed. As to the 3 rd cause of action for wage statement penalty (Labor Code § 226(a)), plaintiffs failed to plead supporting facts to show that defendant knowingly and intentionally failed to provide plaintiffs with accurate wage statements or sustained a resulting injury (i.e., that plaintiffs were unable to readily ascertain the required information from their wage statements alone.) In addition, this cause o...

Excerpt: ... summary adjudication of issues, it fails. Under C.C.P. § 437c(f)(1), a party may move for summary adjudication as to one or more causes of action (“COAs”), affirmative defenses, claims for damages, or issues of duty. But summary adjudication shall be granted only if it completely disposes of a COA, affirmative defense, claim for damages, or issue of duty. (McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 975.) None of th...

Excerpt: ...er to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract. . .shall be entitled to reasonable attorney's fees in addition to other costs. . . . The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party ...

Excerpt: ...31.300(a), (b).) Plaintiff here has demonstrated that Form Interrogatories, Set One, and RFPs, Set One were both propounded to Brigley on 3/15/18. (Porter Decl. ¶ 2, Ex. 1.) No responses have been provided. (Id.) A “meet and confer” letter followed, asking for the missing responses, but Plaintiff received no response. (Id. at ¶ 4 Ex. 2.) The Motions are therefore GRANTED. Ms. Brigley is to provide verified responses, without objections, and...

Excerpt: ...v. Superior Court (2017) 3 Cal.5th 531, 537, 556 n.8, disapproving of Board of Trustees v. Superior Court, 119 Cal.App.3d 516 and Lantz v. Superior Court, 28 Cal.App.4th 1839) (“[these cases] stand for the proposition that whenever discovery of facially private information is sought, the party seeking discovery must demonstrate a ‘compelling state interest' … or ‘compelling need' … they nevertheless are incorrect”).) “[C]orporations...

Excerpt: ...tion' of a narrow issue: whether a public agency has an obligation to disclose the records that the petitioner has requested … when a party does seek to compel discovery (or seeks a protective order from a discovery request), the trial court must determine whether the discovery sought is necessary to resolve whether the agency has a duty to disclose, and to additionally consider whether the request is justified given the need for an expeditious...

Excerpt: ...the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (CRC 2.550(d).) The Court finds that the papers are not sufficient to support the sealing of the complaint. Also, it is unclear if or how the Rules of Court would authorize the Court to “amend” por...

Excerpt: ...how a probability his case will be successful on the merits. Plaintiff, as he was in the very least drawn into a public controversy, is a limited purpose public figure. As such, he needed to demonstrate malice on the part of Defendant, in that defendant “either knew his statement was false or subjectively entertained serious doubt his statement was truthful,” or “with reckless disregard for [the] truth.”” Wynn v. Chanos (N.D. Cal. 2014)...

Excerpt: ...torney to do his job, including when there is a breakdown in the attorney-client relationship. California Rules of Professional Conduct, Rule 3-700(c); Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014. If withdrawal is by client consent, the attorney need only submit Judicial Council form MC-050: Substitution of Counsel – Civil. See CCP §284(1). If the attorney does not have the client's consent, he or she must proceed by way of noti...

Excerpt: ...tion, with knowledge that the secret was acquired by improper means, constitutes misappropriation under Civil Code §3426.1. (PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1383.) The Complaint alleges that Alignment was part of a conspiracy to divert patients to Alignment plans, and that each of the Defendants had actual or constructive knowledge of wrongful use. (Complaint ¶¶ 31-39, 42, 45, and Ex. D.) These allegations, taken together, ade...

Excerpt: ...y plaintiff. The shortcoming by defendants here is unfortunate, but for the last time this Court will overlook the matter and proceed to the merits. 3rd COA: Intentional Interference With Prospective Economic Advantage – Sustained, 20 days leave to amend To properly plead a cause of action for intentional interference with prospective economic advantage, the pleader must include facts demonstrating: 1. an economic relationship between the plain...

Excerpt: ...):  a resident of California;  regularly employed in California;  engaged in substantial business, professional, or other activities in California. 2. Applicant is associated with a licensed California attorney; 3. Application is verified, and includes (9.40(d)):  applicant's residence and office addresses;  courts to which applicant has been admitted (and when);  evidence that applicant is in good standing, and not currently su...

Excerpt: ...ims is discovered, SUSTAINED on COAs 5 and 9 without leave to amend, and for COAs 6 and 7 is MOOT, as both COAs were abandoned in the SAC. For COA 1, the SAC now asserts that the condition precedent was met. (See SAC at ¶¶ 9 & 13.) Defendants argue that the COA nonetheless fails as the employment offer specifically stated that her employment would be at will. But Plaintiff's employment had not commenced, and Defendants have not established that...

Excerpt: ...y with all applicable requirements in the future. On the merits, the motion is well-taken. A claim for punitive damages must be supported by specific factual allegations: conclusory characterization of conduct as “intentional, willful and fraudulent” is insufficient to state the claim. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Civ. Code § 3294.) Here, Plaintiff argues that this standard is met, as the FAC alleges that Defendants k...

Excerpt: ...defense of the statute of limitations or an equitable defense that a plaintiff is estopped to raise his claims, has the potential to eliminate any jury trial altogether. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156–157) (Internal citations omitted). Here, it is not shown to be the case and the circumstances don't appear to warrant the same treatment as above. “C & K Engineering's references to the ‘gist' of the action merely express the...

Excerpt: ...ilings were rejected by the clerk's office on procedural grounds. On 09/25/17, plaintiffs secured entry of default against Byers, with an amount listed on the default form far in excess of the claimed damages. Default was entered; judgment was not. The Request was mailed to defendant at his putative address. On 10/03/17, defendant Byers again attempted to appear by way of a motion to dismiss. That filing was again rejected by the clerk's office �...

Excerpt: ...1) and 576. This discretion, however, is to be exercised liberally in favor of allowing amendments. Howard v. County of San Diego (2010) 184 Cal.App.4 th 1422, 1428; Central Concrete Supply Co v. Bursak (2010) 182 Cal.App.4 th 1092, 1101-1102. Courts may permit amendments at any stage in the proceedings, up to an including trial, so long there is no prejudice to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4 th 739, 761. To amend a...

Excerpt: ...ode § 815.2(a). The defendant has established that the cause of action fails as a matter of law because it is based on a duty to require a permit and the defendant has presented uncontroverted evidence that the County required a permit and did not permit the subject event from occurring on County property. The Defendant County of Orange's unopposed request for judicial notice of the following fact and document is granted pursuant to California E...

Excerpt: ...wing: 6 hours at $295/hour for the motion, 4 hours to review the opposition and prepare a reply, 3 hours to appear at the hearing and the $60.00 filing fee. Terminating Sanctions If plaintiff has served responses to the outstanding discovery or at the very least appears at the hearing of this motion and provides a specific viable explanation and assurance to the court that he will provide the responses, this motion will be denied. However, if he ...

Excerpt: ...due to the inadvertence, mistake and/or neglect of defense counsel, and as the Cross-Complaint, “asserts a claim. right, or interest in the property. . . which is the subject of the cause brought against [Defendant],” the Court must grant the Motion. There is also no evidence that Defendant did not act in good faith regarding his failure to file the Cross-Complaint. Moving party to give notice. ...

Excerpt: ...correct this in any amended pleading. Turning to the merits of the demurrer, the Court agrees with argument of Plaintiff that the element of falsity is sufficiently alleged at this time, especially with the addition of the allegation that Plaintiff was not paid the alleged extra compensation that was promised for taking on additional responsibilities and roles. (SAC ¶ 30.) As stated in Tenzer v. Superscope (1985) 39 Cal.3d 18, “...fraudulent i...

Excerpt: ... 2. Defendants Farah Modarres and Mission Hills Opportunity Fund, LLC's motion for an order striking punitive damages allegations from Plaintiff Amezcua-Moll & Associates PC's First Amended Complaint paragraphs 56, 57, 69, 70, 76, 84, 95, 104 and the Prayer for Relief, paragraph 3 is DENIED. The Defendants' motion to strike the entire Eighth Cause of Action for Intentional Interference with Contractual Relations against Defendant Modarres is GRAN...

Excerpt: ...its, defendants Luigi (the restaurant) and Napiorkowska (business partner) separately demur to the causes of action for assault and battery on the ground that Dahabreh's aberrant behavior was not within the course and scope of any work he might have been performing for the restaurant. Defendants correctly point out that the operative pleading is devoid of any real facts establishing a basis for respondeat superior – particularity because Dahabr...

Excerpt: ...rt (1999) 69 Cal. App. 4th 577, 580, citing Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1786–1789. The named plaintiff in the present lawsuit is The People of The State Of California (“The People”). Although the lawsuit was “filed by” the Orange County District Attorney and his Office (“OCDA” together), it is brought on behalf of The People of The State of California. Neither the County of Orange, the OCDA, or any other “...

Excerpt: ...ept related to that account, that she incurred charges on the account which have not been paid, and that the sum now owing is $32,648.70. (UF 1-16; Toomey Decl. ¶¶ 1, 5-11.) The burden thus shifts to Defendant to produce admissible evidence showing a triable issue of fact exists. (C.C.P. § 437c(p)(1).) Defendant failed to file any opposition to the motion, and thus has failed to meet that burden. The motion is therefore granted, in the amount ...

Excerpt: ...”), the claim fails as it is not based on any “protected activity” under FEHA. Under Gov. Code §12940(h), it is unlawful to terminate an employee for opposing any practices forbidden under FEHA. (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5 th 368, 380-381.) But Plaintiff here is not claiming that any adverse action was taken based on any such conduct. Plaintiff argues that asserting a wage and hour basis for her conduct...

Excerpt: ...th 572, 577.) The burden thus shifts to Plaintiff to prove a defense to the arbitration agreement. (Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633; Rosenthal v. Great Western Fin. Securities Corp.(1996) 14 Cal.4 th 394, 413.) A defense is not sufficiently established on this record. The arbitration provision was not hidden in a small font here, was not highly technical, was not in a language that the Plaintiff states she could not read, and...

Excerpt: ...fs' requests for monetary sanctions is GRANTED. The Defendant Dual Diagnosis Treatment Center, Inc., dba Sovereign Health of California is ordered to pay $1,000 to the plaintiff within 20 days. Authorities: Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party. CCP § 2030.260 (a). If a party fails to serve a timely response t...

Excerpt: ...ff's use of the police report is OVERRULLED. Defendant's objection is based solely on Vehicle Code § 20013, which precludes the use of traffic reports as evidence “in any trial . . . .” Nothing in § 20013 precludes the use of the report in connection with a motion to amend. Defendant to give notice. ...

Excerpt: ...4th 12, 21.) If the defendant satisfies the first prong, the burden shifts to the plaintiff to establish a probability of prevailing on the claim (“Prong 2”). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Only a claim that satisfies both prongs of the statute - i.e., that arises from protected speech or petitioning and lacks even minimal merit - can be stricken under the anti-SLAPP statute. (Id. at 88-89.) Here, Defendants argue that the n...

Excerpt: ...965. However, Defendant issued meaningful 998 offers which the Plaintiffs rejected and the Plaintiffs failed to do better than the offers at the trial. Thus, the issue is whether Defendant may be awarded costs pursuant to CCP §998. The Courts of Appeal are in not in agreement about whether §998 applies in FEHA cases. After reviewing the authorities, this Court finds persuasive the reasoning and rationale of the following cases: (i) Holman v. Al...

Excerpt: ... of those claims include failure to repay loans, fraud, defamation, misappropriation, and theft. Labor Code §2802(a) provides that “an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” This is not a basis for advancing legal fees, but rather a basis to be reim...

Excerpt: ...k, Lee Riley, Jerry Lee Merry, and Chris Ngai (together as “Individual Defendants”), it is uncertain as to the Individual Defendants, and from the facts pled, there appears to be a defect in joining the Individual Defendants to this action generally. C.C.P. § 430.10(d)-(f). a) Contract Between Plaintiff and Black Dot A contract, either express or implied, must first exist before it can be breach. “A contract is an agreement to do or not to...

Excerpt: ...berly J. Manning ¶ 3. No responses have been served. Decl. of Kimberly J. Manning ¶ 4. As such, the defendant is ordered to serve the plaintiff with full and complete responses without objection within 20 days of service of this order. The court finds that the plaintiff reasonably incurred two hours preparing this motion and meeting and conferring regarding the subject discovery. There is no opposition so no review of it or reply brief is neede...

Excerpt: ...mended complaint. Code of Civil Procedure section 391.7, subdivision (a) prohibits a vexatious litigant from filing “new litigation in the courts of this state in propria persona without first obtaining leave of the . . . presiding judge of the court where the litigation is proposed to be filed.” There is currently no published decision addressing this specific question. Indeed, the Supreme Court in Shalant v. Girardi (2011) 51 Cal.4th 1164, ...

Excerpt: ...olutions changed its name to Accelerated Payment Technologies (and later to OpenEdge Payments, LLC) On 03/06/12, Vegas Holding and Accelerated Payment Technologies (hereinafter “VH/APT”) joined forces and filed suit against Knapp for fraud and breach of contract. That lawsuit (2012-551681) alleges that Knapp failed to honor his duty of loyalty to the company and made material misrepresentations regarding the financial strength of the company ...

Excerpt: ...Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. . .” C.C.P. § 2017.010. “Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35) Hill. . . established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interes...

Excerpt: ... by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.' . . . Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390. Application: On 1/22/18, the Defendant...

Excerpt: ...D with 10 days leave to amend. On demurrer, a court will consider properly-pleaded material facts but tends to disregard the contentions, deductions, speculation, or conclusions of law or fact. (WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151.) Based on the facts, the Court agrees that in essence, the Complaint is describing a claim that the union and union representatives did not properly represent P...

Excerpt: ...laintiff to show a triable issue of material fact exists as to either the particular cause of action or the proffered defense thereto. (Id. at 468.) County has met its burden here, as County has presented evidence demonstrating that it did not own or control the property at issue at the time of the alleged incident. (UF 1-4, 13 and 15.) Nor could County be liable on the common law negligence claim. (See Gov. Code §810 et seq.) The burden thus sh...

Excerpt: ...454, 459.) If plaintiff fails to establish either element, a preliminary injunction should be denied. (Id.) To establish a likelihood of prevailing on the merits, the moving party must present evidence demonstrating a probability of prevailing on the merits. This is customarily done by affidavits or declarations, although a verified complaint and other discovery can be considered. (See Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 527, an...

Excerpt: ...uty of the professional to use such skill, prudence, and diligence as other members of his profession 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. Only the phar...

Excerpt: ...on has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c (a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) ...

Excerpt: ...meaningful forum for litigants.” Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105. The case at this point is approximately one year old, and there has been no prior continuance of trial. Plaintiff shows good cause to continue trial due to ongoing medical treatment, and Defendant will suffer little prejudice from granting the motion. Motion to continue is GRANTED Parties are to discuss at the hearing a mutually convenient date for the continued...

Excerpt: ...fied that no amendments to the contract exist during that that 12/1/14 -12/1/15 treatment period. Defendant is ordered to produce any amendments during this time-frame. Additionally, contracts between 2012 and the present are relevant to GPA's handling of the claims for reimbursement that occurred after the one year contract period. The Hospital continued to send appeals to GPA through April 2016. Also, changes to the contract may show whether De...

Excerpt: ...a Sovereign Health Of California to provide Further Responses to Plaintiffs' Requests for Production for Documents Set One is GRANTED. Defendant to provide further responses, with verifications, within 15 days. The Plaintiff's requests for monetary sanctions are GRANTED. The Defendant Tony Sharma is ordered to pay $2,000 total in monetary sanctions to the Plaintiff within 15 days of this order. The Defendant Dual Diagnosis Treatment, Inc., dba So...

Excerpt: ...ns at issue are Nos. 62-67, 70 and 71. SROGs 62-65 and 70-71 concern communications “to YOU” – which was defined to include defendant Jokar Enterprises Inc. (“Jokar”), “including its managers, employees, and agents.” SROGs 66 and 67 seek identification of documents related to Plaintiffs health issues during her employment. Plaintiff had agreed to somewhat limit the scope in the meet and confer process, but Jokar responded only as to...

Excerpt: ...described as “give us everything you have on plaintiff.” Plaintiff moved to “quash” the subpoenas – but in truth was really just asking for a protective order narrowing the scope of said subpoenas. The parties were ordered to meet and confer. They have done so. At the heart of the concern lies plaintiff's putative “bad habits.” According to plaintiff, performance evaluations (category 8), investigations (category 9), disciplinary ac...

Excerpt: ...rt of and in Opposition to defendants' Christopher K. Jafari and Law Offices of Christopher K. Jafari, Motion to Strike [Anti-SLAPP motion], and arguments contained in the Motion. After full consideration, defendants' Motion to Strike the Complaint pursuant to CCP §425.16 is DENIED. Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or clai...

Excerpt: ...pany suffered no prejudice due to the one day delay of Plaintiff's filing and serving its Opposition to the Motion; 4) The Demurrer and Motion to Strike attached to Sprint United Management Company's Motion shall be separately filed as its responsive pleadings to plaintiff's Complaint within 3 days. The hearing on these pleadings will be at the Case Management Conference on 05-14-18, along with the hearing on the Demurrers from co-defendants Sams...

Excerpt: ...erriding interest in enforcing the confidentiality clause at paragraph 5 in the settlement agreement. (NBC Subsidiary Inc. v. Superior Court (20 Cal.4 th 1178, 1222, fn. 46, dictum citing Publicker Industries Inc.v. Cohen (3 rd Cir. 1984) 733 F.2d 1059, 1073 [“where there is a binding contractual obligation not to disclose certain information . . . unbridled disclosure of the nature of the controversy would deprive the litigant of his right to ...

Excerpt: ...geable about (1) where and how the responsive electronic documents are stored; (2) how much time, effort, and cost would be required to produce the documents in their native format; (3) whether or not a third-party vendor is required to comply with Defendants' demand. Similarly, Defendants are ordered to appear with a computer expert who can speak authoritatively on the issues set forth above. Defendants shall make best efforts to have a represen...

Excerpt: ...s order. On November 15, 2017, plaintiff propounded the subject discovery discovery requests on Defendants Dual Diagnosis. Defendant obtained an extension of time until January 10, 2018. The Defendant requested another extension but the plaintiff denied the request. On January 17, 2018, Plaintiffs received Defendant's response to Plaintiff's discovery requests which indicated they were served on January 10, 2018. In response to every single disco...

Excerpt: .../Newport Care Medical Group; Medical records of Newport Beach Surgery Center; Medical records of Menaka DeSilva, M.D.; Medical records of Ryan S. Labovitch, M.D.; and Medical records of David A. Gehret, M.D. relating to Plaintiff Liana Lytal and opined that Defendant Newport Care Medical Group, Inc. complied with the applicable standard of care at all times and no act or omission on the part of Defendant Newport Care Medical Group, Inc. caused or...