Excerpt: ... the business Okbingsul. (See ¶13-¶14 and ¶17 of Cross-Complaint). “A promise made without any intention of performing it constitutes fraud.” (Union Flower Market v. Southern Cal. Flower Market (1938) 10 Cal.2d 671, 676). Additionally, pursuant to Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, “the falsity of [a] promise is sufficiently pled with a general allegation the promise was made without intention of performance.” (Id. at 1060)....

Excerpt: ... ¶ 3.) On or about 7/20/20, the Court granted, in part, Plaintiff's motion to compel further SROG responses. (ROA 59.) On or about 9/3/20, Defendant provided supplemental responses to SROGs, Nos. 4-11 and 16-17, which in turn referred to documents produced by Defendant. (Chae Decl., ¶ 11, Ex. 2; C.C.P. § 2030.210.) On or about 9/16/20, the Court granted, in part, Plaintiff's motion to compel further RFP responses. (ROA 74.) On or about 10/21/2...

Excerpt: ...yers, dates of employment, job titles, full or part-time) is protected by a right of privacy. . . [Alch v. Sup.Ct. (Time Warner Entertainment Co.) (2008) 165 CA4th 1412, 1426-1427.” Cal. Prac. Guide Civ. Pro. Before Trial (Rutter Group) 8:307.10. “[D]ocuments and communications [Plaintiff's] personnel, tenure, and promotion files, whether relating only to his initial employment, or also to his ‘promotion, additional compensation, or termina...

Excerpt: ... 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 shall be granted if all the papers submitted show that there is no triable issue as to any material ...

Excerpt: ...reliminary matter, the Court finds that Defendant's demurrer does not constitute a motion for reconsideration of Judge Hunt's ruling on Defendant's demurrer to Plaintiff's First Amended Complaint, in which Judge Hunt overruled Defendant's demurrers to the 2 nd and 3 rd causes of action on essentially the same grounds as in Defendant's current demurrer to the 4AC. “[W]hen a plaintiff files an amended pleading in response to an order sustaining a...

Excerpt: ...s are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with S...

Excerpt: ... party has met its initial burden of proof. Thatcher v. Lucky Stores, Inc. (2000) 79 CA4th 1081, 1085- 1086. These MSJ are essentially identical with the exception of the specifically named defendant and minor fact differences. Defendants have also admitted by way of failure to respond to sets one of Requests for Admission, that they are alter egos of one another. Boss Decls., Exs. C and E. As such, this ruling applies equally to both of the MSJs...

Excerpt: ...n the merits.” “The trial court's discretion in ruling on a motion to withdraw ... must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.) On the ...

Excerpt: ...: Defendants 33 Degrees, Allen and Hamontree demur to all five causes of action in the Complaint on the ground of insufficiently plead facts to support these causes of action, whereas defendant Source Connect only demurs to the 2 nd and 3 rd causes of action on that ground. First Cause of Action – Breach of Contract The Complaint sufficiently alleges the existence of written purchase orders (Complaint, ¶¶ 8-9, 26). With respect to the perform...

Excerpt: ... § 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (See also, C.C.P. § 576.) A court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which d...

Excerpt: ...in error, if in fact the order made was that intended to be made.... ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?' ”...

Excerpt: ...Court has no jurisdiction to hold out-of-state residents in contempt of court or issue other sanctions. Such must be pursued in the witnesses' resident states under their own law. True, there are published cases in which disputes between the parties regarding out of state depositions were litigated in the California action. See International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1370, 1371 (compelling documents held by p...

Excerpt: ...d and response were at issue. (C.R.C. 3.1345(b)(1).) And although the discovery cut-off is now imminent, that is due at least in part to Plaintiff's complete refusal to appear for the subject IMEs. The Court will thus schedule an imminent date for each, but will consider a brief trial continuance if necessary to allow for same. On the merits, MPs are correct that they at least arguably can each demand a separate IME under C.C.P. § 2032.220. But ...

Excerpt: ... rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is commenced by the filing of an affidavit showing the facts satisfying these four requirements (the “charging allegations”). (Code Civ. Proc. § 1211, 2nd para.) The affidavit frames the issues to be tr...

Excerpt: ...ction 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored informa...

Excerpt: ...g (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (L...

Excerpt: ...igin or identity. (See UMF 2, 3, 12, 13, 15 to 17, 21 and Moving Exhibit 3, p. 122-29.) The information that was relayed second-hand to plaintiff concerning the Irish teacher at the church event, “sometime in 2018” is insufficient as a matter of law to establish a hostile work environment. (See UMF 19-20, Moving Ex. 3, p. 120 to 124, 129 and Opp. Exhibit 124.) In addition, this alleged incident does not appear to be identified within the Comp...

Excerpt: ...leading, 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. 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 r...

Excerpt: ... claim of interference would not be proper because the father is a living person who is free to dispose of such interests of his alone, inter vivos. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1057) (“as in other cases involving recovery for loss of expectancies ... there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator ... if there h...

Excerpt: ...430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” Civ. Proc. Code § 430.20(a)-(b). “Numerous defenses were purportedly raised by defendants' allegations of affirmative defense. Most of these allegations fail to state a defense even when lib...

Excerpt: ... seems sound: Plaintiff alleges facing retaliation at work, after obtaining the 2014 judgment, which found discrimination by the City's officers against plaintiff (based on the plaintiff's race). The hiring of the new police chief in 2017 following the apparent completion of the appeals process in 2017, would be relevant to the City's attempt to remediate the discrimination in the workplace. This can be relevant to the claims of failure to preven...

Excerpt: ...700; Daniels v. Robbins (2010) 182 Cal.App.4th 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 facie evidence of their propriety. The burden then rests with the part...

Excerpt: ... fully comply with CRC Rule 3.1324 in either form or substance. The Court nonetheless chooses to exercise its discretion to address the Motion on the merits. Civil Procedure Code § 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (See also, C.C.P. § 576.) A court's discretion will usually be exercised liberally to ...

Excerpt: ...(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 shall be granted if all the papers submitted show that there is ...

Excerpt: .... The Complaint of plaintiff Heather Devon (“Plaintiff”) alleges a single cause of action for negligence, based upon alleged medical negligence. The elements of a medical negligence cause of action are: 1. duty of 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 negligent conduct and resulting injury; and...

Excerpt: ...ph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolve...

Excerpt: ...20. (See ROA 119.) Defendants subsequently filed a Notice of Withdrawal as to the filing (see ROA 122), but the clerk's office rejected all attempts to fine any revised Amended Answer The Court will thus grant the motion as to the unverified 10/15/20 filing, but also grant 10 days leave to amend, to allow the Defendants to file a Verified Amended Answer to the SAC. The Court is not at this time addressing the issues Plaintiff has raised in the un...

Excerpt: ...at supplemental responses would be provided. ROA ## 107 and 109. The Court also required Plaintiff to file copies of the FROGS and all of NHI's responses with the Court for its review. On 12/04/20, Plaintiff filed Amended Separate Statements in support of the motion to compel SPROGS. Plaintiff did not file anything in relation to the motion to compel FROGS and did not specify that he continued to have any issue with those FROGS. As there is nothi...

Excerpt: ...The Court grants the motion pursuant to equity and the theories of equitable estoppel. Initially, the Brons' family mediated and began arbitrating their claims against the moving Defendants, giving effect to the mediation and arbitration provisions in the contract documents. The minor plaintiffs joined the process with the parents. The lawsuit is about the same underlying events, the same alleged wrongs, the same alleged conditions and problems a...

Excerpt: ...The facts as alleged in COA 1 of the FAC, as to all of these moving parties, involve a failure to perform professional duties. Each of the identified nurses allegedly failed to comply with the operative care plan and applicable standard of care, by failing to properly turn Plaintiff every two hours and to adequately inspect his skin, to conduct a structured risk assessment as to his skin, to ensure he received adequate nutrition, and to ensure he...

Excerpt: ...ntial element of the Defendant's acceptance. The Court would like the parties to evaluate the application of the California UCC in the future. Division 2 sets forth the principles on contract formation for commercial parties, assuming that the body of law applies. (See Defendant's cited case, C9 Ventures v. SVC- West, L.P. (2012) 202 Cal.App.4th 1483, 1504 (discussing the UCC); and see Cal. Comm. Code § 2206, 2204, 2201.) Applying a reasonable c...

Excerpt: ...oss-Complaint (“FACC”) is almost identical to the original Cross-Complaint, the same issues with the original pleading continue to exist in the FACC, which call for ruling in favor of CD. 1) Demurrer CD Demurrer is SUSTAINED with leave to file a Second Amended Cross-Complaint within 10-days. Again, the Courts notes that TDH filed a FACC that is essentially the exact same pleading as its initial Cross-Complaint. Most importantly, despite many ...

Excerpt: ...ecognizes and appreciates the statutorily required separate statements laying out the issues, this Court also requires copies of the actual documents to ensure that they state what parties say they state. Plaintiff is ordered to file and serve a supplemental declaration with copies of the requests and all responses received no later than 11/30/20. If Nautilus should serve further verified responses to the requests at issue, as it apparently previ...

Excerpt: ...n the grounds that it fails to comply with Utah Corporations Code section 16-10a-740(3)(b)'s requirements that a derivative complaint must be verified and must allege with particularity the written demand upon the corporation to take action. (Utah Corp. Code § 16-10a-740(3)(b).) Evans contends that only Subsections (3)(a) and 3(b)(ii) are substantive, and thus applicable in this California action, and that Subsection (3)(b)(i) is merely procedur...

Excerpt: ...record does support specific jurisdiction over the Defendants. While Defendant Liu claims she has not engaged in any business dealings in the State of California at any time (see Liu Decl ¶ 9) Plaintiff shows that Defendant Liu is the CEO and CFO of a California corporation (Power Energy), as reported to the California Secretary of State. The business address for the Defendant, within the corporate records, is in Dana Point, California. This see...

Excerpt: ... answer.” CCP § 464(a). “Leave to amend a complaint is entrusted to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.” Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154. “Absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.” [Emphasis added.] Id. “The ba...

Excerpt: ...emurrer lists, among others, the causes of action Life Vessel is demurring to as the “Third Cause of Action for Willful Misconduct,” as well as to the “Fifth Cause of Action for Negligence Per Se,” neither of which exist. The third cause of action in the SAC is for “Abuse/Neglect Of Dependent Adult,” and while the “Negligence Per Se” cause of action was previously demurred to by Life Vessel, which was sustained without leave to am...

Excerpt: ...iscretionary decisions about child abuse allegations. (See Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1285 [immunity applies even to decisions in which worker abuses discretion, including decisions based on woefully inadequate information, “no matter how horrible the outcome”], and Gov. Code § 820.2 [“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission ...

Excerpt: ...nd the entire client files of attorney Keith C. Ciceron regarding his representation of each of the Defendants. The subject deposition subpoena does not appear to exclude any aspect of Mr. Ciceron's representation, communications or documents from its requested scope, and instead seems purposefully tailored to leave no stone unturned regarding every aspect of Mr. Ciceron's representation. Plaintiffs assert that they are entitled to unfettered tes...

Excerpt: ...default against that party.” CCP § 2023.030(d). Misuses of the discovery process that appear relevant to the present matter are: “. . . (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. . . . (g) Disobeying a court order to provide discovery. . .” CCP § 2023.010. Regarding sanctions for failure to obey a court order and respond ...

Excerpt: ...vor until the carry-back note was satisfied. On 03/10/16, defendant breached their agreement by causing a grant deed to be recorded against the property in her favor. On 04/27/16, defendant further breached the agreement by encumbering the subject property with a $390,000.00 note from East West Back, secured by a deed of trust. Plaintiff filed suit for breach of contract, fraud, rescission, financial elder abuse, and quiet title. On 12/21/17, def...

Excerpt: ...criteria used in determining whether an item is privileged may be helpful. 2. If some type of privilege log was prepared by the contract attorney, was a copy given to the defendants to ensure that privileged items were not missed? If it was provided, what items do Defendants contend were missed? Did Defendants notify the District Attorneys' Office of any inadequacy? 3. Did Ms. Ernby or anyone else at the District Attorneys' Office inadvertently r...

Excerpt: ...rt must expressly find facts that establish the following: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. ...

Excerpt: .../23/19, Plaintiff leased Property to Defendants, with lease beginning 04/27/19 and running through 04/30/20. Third Amended Complaint (“TAC”) ¶ 7-8; Cross- Complaint (“CC”) ¶ 4. A copy of the lease was not attached to the TAC or the CC, but it was attached to both the First Amended Complaint and the Second Amended Complaint at Exhibit 1, and will be referenced to as “Contract.” An addendum to the lease states, “Tenant may, at tenan...

Excerpt: ...C Project. Complaint ¶ 21. On 05/30/14, the Iron Workers Union (“IWU”) gave the Orange County District Attorney (“OCDA”) evidence of allegedly forged documents including apprenticeship documents related to the OC Project. MTSE Opp., Cipolletti Decl., Ex. F, ¶ 6; and Ex. G at p. 7. In October 2014, in connection with the Riverside County Regional Medical Center Nursing and Allied Health Education Building (“RCRMC”) project, Chuck Wal...

Excerpt: ...t has not tendered his medical condition in the case to support the inquiry into this generally-protected area of privacy. (See Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1149) ("A defendant… does not tender his or her medical condition by simply denying the plaintiff's allegations regarding the same."). Compare Evid Code § 996 (the privilege for communications between physicians and patients, does not exist if the patient's medical...

Excerpt: ...t (“Agreement”), entered into by the parties on or about 03/10/17, for the sale of Plaintiff's assets to Defendants. Quimby Decl., Ex. 1. The Agreement contains the following mediation prerequisite clause: “18. MEDIATION OF DISPUTES: Except as reasonably necessary for a party to seek equitable relief from a court, such as an injunction or other expedited relief (write of attachment, specific performance, appointment of a receiver or similar...

Excerpt: ...e Demurrers assert many of the same arguments, and are discussed collectively below. Both Demurrers asserted that there was another action pending between essentially the same parties based on overlapping claims. However, as the two cases have since been consolidated, those arguments are now moot. Similarly, the Demurrers argued about TN's standing to assert its claims in the FAC, because TN's claimed rights under the Ground Lease are the subject...

Excerpt: ...0.020(b), and 2031.020(b).) The purpose of the initial hold on discovery is to allow litigants time to find their counsel and orient to the lawsuit. (See Civ. Proc Before Trial ¶ 8:441 Rutter Group 2020; Waters v. Superior Court of Los Angeles County (1962) 58 Cal.2d 885, 892; California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 23.) It appears that that purpose was still being fulfilled here when the discovery was sent. (...

Excerpt: ...r Court (1989) 215 Cal. App. 3d 155, 158 (citation omitted).) Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal. App. 3d 1045, 1048; Cal. Prac. Guide, Civil Procedure Before Trial (The Rutter Group) § 6:644.) It is preferable to permit the amendment and then attack its validity in a subsequent d...