Excerpt: ...ead of filing and serving the opposition nine court days prior to the hearing (12/03/19), Plaintiff allegedly served the opposition five court days before the hearing (12/09/19) and filed it four court days before the hearing (12/10/19), both of which are improper. Id. Additionally, it was not properly served as Plaintiff states she was the serving agent, which, as a party to the lawsuit, is not permitted. CCP § 414.10. The proof of service stat...

Excerpt: ... causing the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 262, 225 Cal. Rptr. 3d 305, 317 (Ct. App. 2017), as modified (Nov. 6, 2017). Here, the Complaint is devoid of any facts supporting any of the elements of trespass, other than plaintiff La Floresta Regency, LLC's, (“Plaintiff”) ownership of the Village at La Floresta, located in Brea, California. Facts supporting a cause of action for trespass should i...

Excerpt: ...s 998 Offer The Supreme Court has not expressed whether section 998 has an implied term that an offer must be reasonable and in good faith. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531 (“Assuming without deciding that … section 998 entails such a requirement, we conclude that the trial court did not abuse its discretion in awarding fees and costs”); and id. at 531 (“the City satisfied whatever g...

Excerpt: ...hall or shall not operate as a general or special appearance.” (Slaybaugh v. Superior Court (1977) 70 Cal.App. 628, 632.) If a party seeks relief on any basis other than lack of personal jurisdiction, it is a general appearance. “One cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent.” (Szynalski v. Superior Court (2009) 172 Cal.App.4 th 1, 10.) CCP § 418.10 authorizes a motion to quash service s...

Excerpt: ...ers and (2) plaintiff's former and current employers. As such, plaintiff is seeking relief on two separate issues and is required to pay, at least, two separate filing fees, and has only filed one. Kashini Decl., at ¶7. The Court's order will not be effective until the additional filing fee is paid. Although a separate statement is required for this motion (CRC Rule 3.1345) and plaintiff failed to file any, the Court may exercise its discretion ...

Excerpt: ...the inducement is a subset of the tort of fraud. It ‘occurs when ‘ “the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294–295.) The Supreme Court has expressed, “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff t...

Excerpt: ...f a receiver is a drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the propriety of such appointment in exercising their discretion to appoint a receiver particularly if there is an alternative remedy.”]) When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should carefully weigh the propriety of appointing a receiver. (C...

Excerpt: ... least some information and facts supporting his defenses, including in the least his own name and contact information, if he is the one alleging those defenses. As there were no objection to FROG No. 15.1, and as Defendant did not provide a proper response, a further substantive response is necessary. As to FROG 17.1, many of Defendant's objections to the RFAs are unmerited (see ruling on Motion to Compel Further Responses to Requests for Admiss...

Excerpt: ...5:1). Defendant asserts the Complaint includes insufficient facts and is uncertain, “[e]specially given the context set forth above.” (See Demurrer: 5:2). The context referenced by Defendant and heavily relied on in this Demurrer, are factual allegations included within Defendant's Texas Petition; however, while the Court may take judicial notice of the fact such a petition has been filed, the Court cannot take judicial notice of the truth of...

Excerpt: ...atutes, case law, and facts, the Court will give a combined analysis. Defendant All Pro (“All Pro”) has failed to abide by the Court's 09/23/19 order to provide responses to sets one of Form Interrogatories and Requests for Production propounded by Plaintiff within 10-days of service of the Notice of Ruling (“Notice”) and to pay combined monetary sanctions in the amount of $1,121.25 within 60-days of service of the Notice. Additional sanc...

Excerpt: ...grant the present Motion. To the extent that this Court has the jurisdiction to grant the Motion under a different code section, Defendant's failure to cite to such a code section prohibits granting the Motion. In addition to not citing to a statute that permits the Court jurisdiction to grant the Motion, the Court finds that in reviewing the arguments by the parties, that it is not convinced the jury should have reached a different verdict or de...

Excerpt: ...mma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. Plaintiffs are entitled to an expeditious and...

Excerpt: ...on itself, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” CCP § 435(b)(1). “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems roper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436(a). Regarding punitive damages under Civ. Code...

Excerpt: ...tiff resides out of state or is a foreign corporation, and (2) there is a “reasonable possibility” the moving defendant will prevail. (CCP § 1030(a).) A “reasonable possibility” does not require defendant to show that there was no possibility that plaintiff could win at trial, but only that it was reasonably possible that defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [“reasonable possibility” s...

Excerpt: ...ed materials. The “taxpayer” privilege is thus directly at issue here. (See Webb v. Standard Oil Co. of Calif. (1957) 49 Cal.2d 509, 513-514.) But that privilege is not absolute. (Schnabel v. Sup.Ct. (Schnabel) (1993) 5 Cal.4th 704, 721.) Plaintiffs' Complaint puts the financial performance of Griffin's Grill (“Grill”) during the 2017- 2018 period directly at issue. (Complaint ¶¶ 9-17.) For example, Plaintiffs claim that they were damag...

Excerpt: ...CP § 2031.220 or § 2031.230 as applicable. In addition, Plaintiff must produce its responsive documents to the Defendant within 10 days. Defendant is awarded sanctions of $3,512, payable by Plaintiff within 45 days. Defendant shall give notice of this ruling. Motion to Compel Compliance or Further Responses Plaintiff has waived the ability to object to Defendant Wright Finlay's' RFPs 66 and 67 in RFPD Set Two. As such, Plaintiff is not in a pos...

Excerpt: ...nce or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, CCP § 598 provides that, within the same trial, the court may, “when the convenience of witnesses, the ends of just...

Excerpt: ...y Larwin, the court must accept that construction on demurrer. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) The Demurrer as those COAs is therefore overruled. For COAs 9 and 10, the XDs assert that the names of the individual tenants and the terms of the contracts with each must be alleged, citing The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, and Westside Center Associates v. Safeway Stores 23...

Excerpt: ...lectively Plaintiffs”) on 8/22/18, and (b) on the First Amended Cross-Complaint (the “FAXC”) filed by Advance on 2/25/19. For the reasons discussed below, Advance's Motion is GRANTED IN PART. Summary adjudication in favor of Advance on Issues 1-3 is GRANTED, which results in judgment on the Complaint in favor of Advance, and renders Issue 4 moot. However, summary adjudication on Issues 5-9 is DENIED, as Advance has not met its burden on the...

Excerpt: ...om claims from non-settling parties for equitable indemnity or contribution. CCP §877.6(c). There is no precise yardstick for measuring “good faith” of a settlement, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors or co-obligors. At a minimum, the settlement must be within the reasonable range (aka “ballpark”) of the settling party's share...

Excerpt: ...the parties' respective motions. A) Motion for Sanctions Plaintiffs Yan Sui and Pei-Yu Yang's (“Plaintiffs” together) Motion for Sanctions (“Motion”) is DENIED. Once again Plaintiffs filed an overly lengthy pleading, this time one of approximately 44-pages. This is well above the 15-page maximum permitted in filing a motion pursuant to CRC Rule 3.1113(d). The Court will not consider any portion of the Motion in excess of the 15-page limit...

Excerpt: ...h inherent and statutory. For example, CCP § 1048(b) authorizes a trial court to try separately proceedings to avoid prejudice, for convenience, or to permit greater expedience and economy: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separ...

Excerpt: ... not base this ruling upon Mission Hill's corporate status or suspension of such status. The court finds that Mission Hill lacks standing to bring any of the pled causes of action against the cross defendant. Therefore, a determination regarding the suspension argument is not relevant. First, Third and Fourth Causes of Action - Statute of Limitations: Cross-Defendant demurs to the First, Third and Fourth Causes of Action of the First Amended Cros...

Excerpt: ...e is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564. “[I]t is an abuse of discretion to deny leave to amend where the opposing...

Excerpt: ...ss was conducted by co-defendant Alisson Rosales, and operated out of a gym owned by co-defendant OC All Stars. The class started at 5:30am, and was well-attended. Following a quick warm-up, participants engaged in an exercise called the farmer's carry in which they walked a straight line, arms by their side, holding 20-lb dumbbells. Because participants had to stagger and space themselves, it was common for participants to actually walk right pa...

Excerpt: ...plemental responses. (Moore Decl. ¶ 6; Pick Decl. ¶ 3.) In the opposition, Ms. Gjested states that she did not learn of any issues regarding these supplemental responses until the motion came in. (Gjested Decl. ¶ 7.) However, she does not claim that no discussions occurred with any of her colleagues, and the opposition otherwise demonstrates that there is indeed an impasse as to the responses at issue. The Court thus finds that the meet and co...

Excerpt: ...s. CCP §§ 2030.300(c) [Interrogatories], 2031.310(c) [Requests for Production] and 2033.290(c) [Requests for Admission.] The demanding party waives the right to compel any further responses if the Motion is not served within 45 days of a verified response. Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745. Application: It is undisputed that the Plaintiffs served their discovery requests on September 20, 2018. It is also undisputed that the Def...

Excerpt: ...is adequate need shown for the relief sought, in light of prior discovery delays, including delays in document productions, and Plaintiffs appear to have acted with reasonable diligence. (Weisberg Decl. Exs. 12, 24 -28.) No undue prejudice to the defense is shown, and Plaintiffs have not unduly delayed in seeking this relief. (Weisberg Decl. Ex. 28; Weisberg Reply Decl., ¶¶ 2-6.) The discovery cut-off will thus be continued to correspond to the...

Excerpt: ....) The motion as to this cause of action is DENIED. Defendant argues that the cause of action fails, because Plaintiff did not perform substantially similar work as other directors. The test is “substantially similar work” “when viewed as a composite of skill, effort, and responsibility” (Lab Code §1197.5(a)). This description suggests a pretty factual inquiry to begin with. The Motion itself does not present enough information about the...

Excerpt: ...of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within this court's jurisdiction and (2) prevent out-of-state residents from filing frivolous lawsuits against California residents. Alshafie v. Lallande (2009) 171 Cal.App.4 th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4 th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibilit...

Excerpt: ...ease”) between Plaintiff and Esports Arena Seattle, LLC, contains a choice of law clause requires venue for any action on the Lease to be in King County, Washington (Complaint, Ex. B, p. 31), the present matter is not based upon the Lease, but rather it is based upon the Personal Guaranty of Defendant (“Guaranty”). The Guaranty is a separate contract between Plaintiff and Defendant, and contains a separate choice of law clause that pertains...

Excerpt: ...tals LLC to sit for deposition pursuant to the 11/5/18 deposition notice. The plaintiff shall produce documents at the deposition as well. This plaintiff must appear for its deposition within the next 30 days. The Court awards the Defendant a reasonable monetary sanction of $480 payable by Plaintiff Creative Plant Rentals LLC within 60 days. The movant's additional request for terminating or evidentiary sanctions is DENIED. There has been no cour...

Excerpt: ... without regard to the laws of those particular states. (McKenzie Decl., Exs. A & B.) But a non- party resident of a foreign state can be compelled for deposition only under the law of the place where the deposition is to be taken. (See C.C.P. § 2026.010 et seq., 2029.100 et seq, and Rutter Group, Civil Procedure Before Trial §8:637 – 8:640.) Plaintiff here has failed to show that its subpoenas complied. The Motion is therefore GRANTED as to ...

Excerpt: ...r defendant herein. Demurrer SUSTAINED. Plaintiff must provide an offer of proof in order to secure leave to amend. Theresa Van Haeren. There is no mention of this individual anywhere within the operative pleading, save for an averment regarding her county of residence. There is mention of her in the opposition papers as having acted in a fiduciary capacity regarding plaintiff's deceased mother. It is not clear why plaintiff alleges conversion ra...

Excerpt: ...al.App.4th 1371, 1378. In deciding whether to issue a preliminary injunction, a court 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,...

Excerpt: ..., 892–893 (the term pain and suffering includes the mental component); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840–842, 847; Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 653; Whitfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 81, 82.) In Capelouto, the Supreme Court said that a child is entitled to recover for pain and suffering on the same basis as an adult. The court recognized that a ...

Excerpt: ...ion that conforms with the page requirements of the Rules of Court. The amended opposition must be filed and served, pursuant to code, no later than 03/12/19. Defendants will may file and serve their own amended reply brief responding to Plaintiffs' amended opposition, no later than 03/18/19. The amended reply brief must also be filed and served pursuant to code. Finally, the Court notes that Plaintiffs filed what appears to be a Sur-Reply to Def...

Excerpt: ... action when it believes that the action may be more appropriately and justly tried elsewhere. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. A trial court considering a forum non conveniens issue engages in a two-step process: First, the court must determine whether a suitable alternative forum exists. An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations. It is ...

Excerpt: ..., this Court notes that the opposition papers were late. However, the principal purpose behind the statutory timing requirements is to insure that both sides have adequate time to respond. That purpose is served if the aggrieved party can still prepare a responsive memorandum. See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; Carlton v. Quint (2000) 77 Cal.App.4th 6...

Excerpt: ...has considered all of the papers submitted in connection with that application, but finds that reconsideration is not warranted here, and that even if the Court were to reconsider the prior ruling, it would reach the same result. Under C.C.P. § 1008, reconsideration may be sought based upon new or different facts, circumstances, or law. The moving party must also provide a satisfactory explanation for failing to produce such evidence for the hea...

Excerpt: ... Defendants to give notice. Defendant Crescent Moon is not a Proper Party to the Motion Defendant Crescent Moon Foundation Inc. joins in the motion. (See the Notice of Motion p. 1, Fears Dec. ¶ 1.) But this defendant did not serve or propound the discovery here. (See Moving Fears Decl. Ex. B, the RFPs, p. 1.) Under the Code (CCP §§ 2031.310(a) and 2031.010), it is the “demanding party” who can bring the motion to compel the further respons...

Excerpt: ...he Court to set aside judgment under the discretionary basis of CCP § 473(b). Plaintiffs and their daughter actively participated in the mediation process with aid of a Spanish interpreter. Modarelli Decl. ¶¶ 5-15; Nunez Decl. ¶¶ 4-10. The interpreter also verbally translated the settlement agreement to Plaintiffs prior to Plaintiffs signing the agreement. Id. Although Plaintiffs' former attorney attests that Plaintiffs did ask about the aff...

Excerpt: ...s (1967) 66 Cal.2d 435, 437; Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168); two years for interference with prospective economic advantage (CCP § 339(1); Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 10); also two years for negligence (CCP § 335.1); and four years for a violation of §17200. (B&P § 17208; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1193.) Generally, a cause of action accrues when...

Excerpt: ...C on the basis that it contains little more than conclusory statements and conjecture. It does not plead specific facts supporting fraud, malice, or oppression as required by Civ. Code § 3294; ‐ TAC ¶¶ 48-50 – These paragraphs merely parrot the law of Civ. Code § 3294(b), and provide no specific facts to support the allegations; ‐ TAC ¶¶ 89, 91, 92, and 97 – As pled, these paragraphs appear to argue a class action, which has not bee...

Excerpt: ...., the pre-printed dates on the Notice and Motion are approximately three months apart, and there is no date on the Korff Decl. It appears that this motion may have been filed in error or may be incomplete. Cross- Complainants may serve and re-file this motion at a later date should they so choose. B) Motion for Leave to File Amended Cross-Complaint Cross-Complainants unopposed Motion to File a First Amended Cross- Complaint (“Motion”) is DEN...

Excerpt: ...to Form Interrogatories, Special Interrogatories, and Requests for Production, and to Deem Facts in the Requests for Admission as Admitted is GRANTED IN PART, AND DENIED IN PART. On 11/19/18, Defendant personally served plaintiff Shakeel Ahmed (“Plaintiff”) through his then attorney of record with written discovery requests. Goldstein Decls. Exs. A. Plaintiff's responses to these requests were due to be served no later than 12/19/18. CCP §§...

Excerpt: ...es of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and b) Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and ...

Excerpt: ...act claim. MPs argue that the agreement on its face was to serve solely as a backup for any refusal by the insurer to pay. But that is not self-evident from the face of the agreement. (XC Ex. 1.) And the XC at ¶ 12 specifically asserts that Advance was told not to bill the insurer. Where a pleading is based on an attached written contract, a general demurrer admits not only the contents of the instrument but also any pleaded meaning to which it ...

Excerpt: ...efendants, Jason Askenaze and Roger Urroz, on the FEHA Discrimination Claims, to the 11 th to 13 th C/A: In prior rulings, it was noted that FEHA does not provide for personal liability of individual supervisors, co-workers, or nonemploying individuals, for discrimination claims. FEHA makes the individual employer, or organizational employer liable. (See Minutes of 4/30/18, p. 2. SeeGovt Code §12940(a), §12926(d); Jones v. Lodge at Torrey Pines...

Excerpt: ...ted deposition officer on or before 11/02/18. No response occurred by that date, nor did Epoxy2U object, seek an extension or move for a protective order. The production date passed without so much as a whisper. However, all is not so clear. The individual responsible for making personal service upon Epoxy2U included with the subpoena a “service packet” containing a cover letter from the deposition officer, a letter from plaintiff's counsel, ...