Excerpt: ...erified responses must be addressed in a motion to compel further responses, which must be accompanied by a separate statement. (See CRC 3.1345(a)(1).) To the extent that the Motion attempts to seek relief under §2033.290, it is denied without prejudice to a proper motion to compel further responses which complies with CRC 3.1345 and all related requirements. To the extent that this motion seeks relief under C.C.P. § 2033.280, it is now moot, e...

Excerpt: ...ant's conversion by a wrongful act or disposition of property rights; and (3) damages. Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4 th 1395, 1404-1405; Ananda Church of Self- Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4 th 1273, 1281. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has a...

Excerpt: ...the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations omitted.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations omitted.)” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any rea...

Excerpt: ...efendants' fact Nos. 3, 5, 8, 10, 11, 15, 17, 20, 22, and 23. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. “On a defendant's motion for summary judgment, the defendant's burden is...

Excerpt: ...et and confer declaration, but no comparable requirement exists for a motion to quash. (C.C.P. § 1985.3(g).) On the merits, as the subpoena seeks financial records and information, privacy rights are at issue. (See Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481 [“there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account i...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) And the Demurrer has merit. COAs 2-4 assert essentially identical claims for fraud, intentional misrepresentation, and negligent misrepresentation. But every element of a fraud claim must be alleged in full, factually and specifically. General and conclusory allegations do not suffice. (Lazar v....

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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