Excerpt: ... monetary sanctions at hearing on the Defendant's Motion for Protective Order is also GRANTED. The defendants are ordered to pay the plaintiffs $1,732.00 in monetary sanctions within 15 days of this order. Plaintiffs' Motion to Compel/Contempt: As indicated in the 3/5/18 Minute Order, Plaintiffs' Deposition Notices included the intent to videotape the depositions but the defendants did not timely object to the videotaping of their depositions. Th...

Excerpt: ... a letter to the CA State Bar with a copy of the $50 application fee made out to the State Bar of California. 2) Attorney Carolyn R. Raines' application for admission pro hac vice is CONDITIONALLY GRANTED if attorney Raines files evidence of proof of service of the Application upon both Broker Solutions, Inc. dba New American Funding and the State Bar of California in compliance with Rule 9.40(c)(1) and Code of Civil Procedure 1013(a), either bef...

Excerpt: ... of limitations here is probably CCP §340.5. This statute applies to all claims – regardless of labels – which relate in any way to the delivery of patient health care. Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4 th 75, 88-89; Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 287. Plaintiffs contend that defendant hospital had an “extra duty” to watch over decedent given his weakened condition, which...

Excerpt: ...e plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Id.) 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. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) Here, Prong 1 is met. A claim arises from protected activity when that activity underlies or forms the basis for the claim. (Area 51 Product...

Excerpt: ...016, and continuing with monthly payments of $300 each, starting in May 2016 and continuing thereafter. A judgment can be entered reflecting the terms of the settlement as provided for in the transcript of the April 15, 2016 proceeding. But the court cannot add to the terms, by having the future payments that Defendants agreed to make, to be advanced and now declared due and owing. The Defendants did not agree to such a term in their settlement. ...

Excerpt: ...ction and venue of such court in Belize as the sole and exclusive forum for the resolution of claims by the parties arising under or relating to this Real Estate Purchase Contract." Declaration of Steven Fales Exhibits A and B. The law in this area is well-established. “In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , but a motion based on a forum selection clause ...

Excerpt: ...e Court encourages a review of the theories of fraud in CACI Nos. 1900-1903. Plaintiff should label the claim by the appropriate theory. It appears to be alleging false promise. In order to plead a claim for false promise, the plaintiff must allege some facts which give rise to a reasonable inference that the defendant lacked intent to perform. The mere breach of a promise is not enough to establish promissory fraud (aka false promise). (Riverisl...

Excerpt: ...y is held at a private place, plaintiff must also establish probable cause to believe that the property is in fact located at the private place. CCP §512.010(b)(4). A claim for possession has probable validity where it is “more likely than not” that the plaintiff will obtain a judgment against the defendant on the possession claim. See Code of Civil Procedure §511.090; People v. Superior Court (2002) 27 Cal.4 th 888, 919. To meet this stand...

Excerpt: ...Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325; Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183. The Court finds that the records supplied by the RJN indicate Plaintiffs filed a proof of claim in connection with the individual defendants' Chapter 11 bankruptcy case, and that the bankruptcy court's “Order On Objections to Claims, entered on July 19, 2017, provides that the claim s disallowed in its entirety. “[T]the allowa...

Excerpt: ...ancial affairs. (Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481.) The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have done so here. (See Alpert Decl. at ¶ 11.) The requests at issue could thus resu...

Excerpt: ...until 2/28 and not served until 3/2/18. As Defendant filed a reply addressing the merits, the Court has elected to consider the Opposition here. However, future failures to comply with the statutory filing and service requirements may prevent consideration of the submission. The Motion also reflects that the OCTA made sufficient efforts to meet and confer, in both letters and an in-person meeting. (Tam Decl. ¶ ¶4-9, Exs. E-K.) OCTA's Separate S...

Excerpt: ...the material allegations of the complaint, including all essential elements of the claims. Advantac Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4 th 621, 627. Although the defendant should aver “carefully and with as much detail” as possible, allegations should be liberally construed. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. Since a general denial puts in issue the material allegations of the complai...

Excerpt: ... other remedy demanded in a cause of action. But here, no cause of action is stated at all: the Second Cause of Action instead attempts to assert a punitive damages claim based on the First Cause of Action. (See Complaint ¶¶ 13-15.) The Opposition effectively concedes that this is so. (See Opp. at p. 1.) As the Second Cause of Action fails to state any cognizable cause of action, Defendants' demurrer is sustained. However, as this Demurrer is a...

Excerpt: ...Quick Bridge alleges that it is owed the principal sum of $60,997.20, plus $10,650.00 in attorneys' fees and costs, as per the attorneys' fee provision in the Loan Agreement, and $6,784.26 in prejudgment interest, for a total judgment amount of $78,431.46. Authorities: Summary judgment may be granted where it is shown that "there is no defense to the action or proceeding." See Civ. Proc. Code§ 437c(a). a moving plaintiff has met his burden of sh...

Excerpt: ...; Bostanian v. Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1083; M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554, 562.) But that is not addressed in the venue motion, and is not jurisdictional. The Court has thus addressed the merits of the venue motion. A defendant is entitled to have an action tried in the county of his residence unless the action falls within some exception to the general venue rule. (C.C.P...

Excerpt: ...subpoena, noticed, but never actually served.) On 11/14/17, plaintiff caused to be filed herein motions to quash the subject subpoenas. Pursuant to CCP §1985.6(f)(1), plaintiff was entitled to bring such a motion “prior to the date for production.” CCP §1987.1 further provides that the motion must be “reasonably made.” The motions are timely, but procedurally defective in that each motion omits the required meet and confer declaration. ...

Excerpt: ...h below. Plaintiff to give notice. 1. Combined Discovery Motions This is a combined motion to compel production of documents (and to compel further responses to RFPDs) as well as a motion to compel further responses to interrogatories. These are independent discovery devices, however, pursuant to independent statutes. (See CCP §2031.310 vs. §2030.300). Plaintiff is ordered to tender the filing fee for the hearing of the second motion to compel,...

Excerpt: ...ith the Laws of Belize. The parties hereto consent to the jurisdiction and venue of such court in Belize as the sole and exclusive forum for the resolution of claims by the parties arising under or relating to this real estate purchase contract." (See PL-0121 to Complaint). The law in this area is well-established. “In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , ...

Excerpt: ...t alleging two causes of action for (1) wrongful death (CCP 377.60) and (2) negligence. Defendant Daniel Scott DePalma argues that the court should strike Plaintiff's for punitive damages because punitive damages are not recoverable in a wrongful death action. (Georgie Boy Manufacturing Inc. v. Superior Court (1981) 115 Cal.App.3d 217, 222.) Defendant argues that decedent “died instantly,” but this appears to be a mischaracterization of Plain...

Excerpt: ...l capacity (see ROA 15). As plaintiffs make plain in their stipulation regarding the First Amended Complaint (see ROA 55), the brother “has been omitted as a defendant” from the action. True to their word, brother is not a named party in the action now (only his estate). An amended pleading which omits a previously named defendant operates as a dismissal of that defendant. Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.Ap...

Excerpt: ...f her deposition. Moreover, the court finds that the plaintiff's agreement to stipulate to not use the videotape for purposes other than this litigation is sufficient restriction to address any concerns expressed by the defendant regarding the potential improper use of the videotape. Authorities: The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, man...

Excerpt: ...laintiff is granted 15 days leave to amend. The demurrers to the 4 th, 5 th, 6 th, and 7 th, causes of action are OVERRULED. As to the 1 st [Breach of Implied Contract] and 2 nd [Intentional Interference with Existing Contractual Relations] causes of action, no legally cognizable implied contract has been alleged. Exhibit A to the First Amended Complaint, the Offer Decision Form, expressly states it is not a contract and that employment is at wil...

Excerpt: ...; Advance Transformer Co. v. Super.Ct. (1974) 44 Cal.App.3d 127, 144, and Security Pac. Nat. Bank v. Matek (1985) 175 Cal.App.3d 1071, 1077.) But here, the claim is based on an employment contract, and concerns money paid to Ms. Barrie as a bonus, which was to be treated as income and reported on her W-2. (McCarthy Decl., ¶¶ 2-14, Exs. A-E.) The claim at issue is thus effectively one to recover wages paid to a former employee - which is not a c...

Excerpt: ...10 days after service of notice of this ruling. The request for sanctions is also GRANTED, as LAFMC has evidently ignored a valid subpoena and has failed to provide any explanation for such conduct in response to this motion. Sanctions are thus imposed against LAFMC under C.C.P. § 2023.030(a) in the amount of $1,260.00, to be paid to Defendants, through their counsel of record, within 20 days after service of notice of this ruling. Defendants ar...

Excerpt: ...17/17. Despite a robust meet and confer effort, neither party sought judicial intervention. On 06/12/17, plaintiff caused to be served upon Oracle a second subpoena. This new subpoena sought only five categories of documents. The new subpoena carried over categories 3, 4, 5, 6, and 13 from the earlier subpoena. Oracle once again objected to the subpoena on burden grounds (citing Calcor, which will be discuss infra). During the meet and confer eff...

Excerpt: ...s never received? A 998 offer does not have to have a proof of service attached to it to be valid (see Berg v. Darden (2004) 120 Cal.App.4 th 721-732-33), but it must be “made” as an offer, and must be “served” (CCP §998(b), (c)). Here, the person who prepared the proof of service of the offer, did not actually serve the document. According to the proof of service, she merely gave the document to someone else to serve. That does not prov...

Excerpt: ...state Services, Inc. (2006) 138 Cal.App.4th 1215, 1219- 20; WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151.) Facts appearing in the exhibits take precedence over contrary allegations about them, in the pleading. (See Sarale v. Pacific Gas & Elec. Co. (2010) 189 Cal.App.4th 225, 245.) Demurrers to the 1 st through 5 th causes of action in the First Amended Complaint are SUSTAINED with leave to amend. ...

Excerpt: ...away, February 26 th. The Court does not grant the request for a terminating sanction at this time as an incremental approach is warranted. (See Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 572, 604; Doppes, 174 Cal.App.4 th 967, 993-4). The alternative request for evidentiary sanctions is not sufficiently supported as the papers fail to specify the particular matters that the Defendant would be prohib...

Excerpt: ...les 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 noticed motion consistent with CCP §§ 284 and 1005, CRPC 3-700 and CRC, Rule 3.1362. Here, counsel informs th...

Excerpt: ...oticed only two depositions, failed to seek relief from the Court when a dispute arose over the location, and then proposed new dates that were after the Opposition for this Motion was due. (Mirabel Decl. ¶ 10.) She also fails to explain when the document requests that she now claims to need responses for were served. (Mirabel Decl. ¶ 17.) And although she claims that Jokar refused to produce Ms. Martinez in September, without cause (Id. at ¶ ...

Excerpt: ...nent is a non-party, CRC Rule 3.1346 requires that the motion to compel be personally served upon him or her. The POS attached to the motion does not show such required service (nor does it show authority to accept by another). Second, assuming Mr. Guerra is indeed the current president of cross- complainant Roof RX, Inc., service of a notice of deposition is effective to require a party or party-affiliated witness to attend and to testify. CCP �...

Excerpt: ...rm represented the partnership, the partnership cannot assert attorney-client privilege against Rose. (Evid. Code 962; Wortham & Van Liew v. Superior Court (1987) 188 Cal.App.3d 927; Hecht v. Superior Court (1987) 192 Cal.App.3d 560, 565.) The court DENIES both motions. Both Plaintiff's and Defendants' request for monetary sanctions are DENIED. Based on the evidence presented in connection with the motion, the Court finds as follows: 1. There is ...

Excerpt: ... LLC (S.D. Ind. 2010) 270 F.R.D. 430, 435, stated that "the simple fact that a claimant has had social communications is not necessarily probative of the particular mental and emotional health matters at issue in the case. Rather, it must be the substance of the communication that determines relevance." The Simply Storage Court rejected a privacy argument, stating that it didn't apply even if the plaintiff locked her website (which De Angelis did...

Excerpt: ...f this action, having been filed on 10/2/17, without sealing. [See Docket #146, 147.] It is not apparent why they require being filed under seal now. In short, the entire RJN should not have been filed under seal. Truinject perhaps implicitly agrees with this, as the Motion indicates that the sealing is requested, specifically for Exhibit 1 of the RJN. [See 12/11/7 Mot. to Seal at 1:5.] That exhibit is a Note Purchase Agreement of 7/2014, ostensi...

Excerpt: ... the defendants and they sought to recover their first appearance fees, and another minor sum, for a total of $2,177.25. First, an order was entered inadvertently on 11/28/17 awarding these Defendants the costs, while the Plaintiff's (mislabeled) motion to strike was pending. Given this, the Court finds it appropriate and necessary to consider the Plaintiff's Motion to strike at this time. Nevertheless, the Motion was untimely under CRC 3.1700(b)...

Excerpt: ...for trial on 10/24/16 without a biomechanic (see ROA 97, 100), further showing the absence of good cause for the late request. Plaintiff is here now seeking permission to once again add an expert to discuss forces associated with the impact (by way of an accident reconstructionist). Plaintiff also wants to include four additional treating physicians and expand the scope of testimony from economist Enrique Vega. This request is an expansion of pla...

Excerpt: ... argues that decedent “died instantly,” but this appears to be a mischaracterization of Plaintiff's pleadings, as discussed more fully below under the third point. (Motion to Strike at p. 2, lines 5-6 [citing Complaint at ¶¶ 4-10. 17].) Defendant's argument tacitly imples that decedent's surviving spouse may maintain a wrongful death action, but cannot not bring a survival action because decedent's death was instantaneous. Where a decedent ...

Excerpt: ... regarding the use of Doe pseudonyms in court proceedings. “[F]ederal courts “have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations] ; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,' [citations]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engag...

Excerpt: ... above reason and because defendant's/cross-complainant's Separate Statement of Undisputed Material Facts does not comply with California Rule of Court Rule 3.1350(b). The issues specifically stated in the Notice of Motion are not repeated verbatim in the Separate Statement. Moving party to give notice. ...

Excerpt: ...erent facts, circumstances, or law are claimed to be shown.” CCP § 1008 CCP § 1008 allows the trial court to reconsider and modify, amend, or revoke its prior order where the moving party show different facts exist. Mink v. Superior Court (1992) 2 Cal.app. 4th 1338, 1342. The moving party "'must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time." Id. Application: Prio...

Excerpt: ...rt further ORDERS plaintiff to SHOW CAUSE why the action should not be dismissed due to its apparent suspended status. The OSC is set for March 12, 2018 at 2:00 p.m. Plaintiff shall file its papers in opposition to dismissal no later than February 20; defendant shall file any papers in response thereto no later than February 17; plaintiff may file any reply to defendant's papers no later than March 5. I. Demurrer A. Suspended Corporate Status In ...