Excerpt: ...rial to consider. The court will, inter alia, take judicial notice of the records of the case. (Evid. Code § 452(d).) A motion cannot be granted, on the grounds made, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (CCP §657; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-2...

Excerpt: ...e review a ruling on a demurrer, we do not assume the truth of contentions or conclusions of fact or law, such as those contained in plaintiffs' pleadings. . .. ‘Facts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In California, all liability against a public entity must be based on a statute creating liability. (Govt. Code §815; Searcy v. Hemet Unified School Dist. (198...

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: ...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: ...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: ... producing the documents would cause unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2031.060(b). Plaintiff has also not shown that the “burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP ¶ 2017.020(a). Although Plaintiff's arguments regarding “vouching in” and collateral attacks on t...

Excerpt: ...llowing costs are in dispute: $2,245 for costs already incurred; $500 for future motion and filing fees; $2,500 for future daily jury fees; and $400 for future record subpoenas. Defendant Saez has shown that although the costs per day for a court reporter is $700, that amount does not include fees for transcript preparation, charges for computer assistance, and other charges, nor does it include the need for interpreters and translators. Defendan...

Excerpt: ...fficient to support a prayer for punitive damages: “There are no specific allegations as to what the defendant did that would justify the imposition of punitive damages … plaintiff is basically summarily concluding that the alleged acts were … intended to harm plaintiff.” Based on just the four corners of the operative pleading, it is clear that plaintiff has alleged malice. Malice means “despicable conduct which is carried on by the de...

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: ...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: ...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: ...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: ..., 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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...