Excerpt: ...l notice of documents previously filed in this case. CCP § 2023.010 states, in part, as follows: “Misuses of the discovery process include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” CCP § 2023.030, subdivision (d), provides, “To the extent authorized by the chapter governing any particular discovery m...

Excerpt: ...rue all allegations of fact contained in the cross-complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007)...

Excerpt: ...General (Set One), and Special Interrogatories (Set One). For the following reasons, Defendant's motions are denied in part and granted in part. As an initial matter, Moving Defendant provides evidence that despite Plaintiff's representation to the contrary, the motion is not moot. Plaintiff had agreed to provide supplemental responses by March 8, 2021. Defendant did not receive any supplemental responses at the time of Reply, two days later. The...

Excerpt: ...the City's Motion to Quash Notices to Appear at Trial served on: City of Dana Point City Council, Patrick Munoz, and Robert O. Owen. For the following reasons, the motion for reconsideration is denied. When an application for an order has been made to a judge or a court and has been refused in whole or in part or has been granted or granted conditionally or on terms, any party affected by the order may, within ten days after service on the party ...

Excerpt: ...ntitlement to an award, and (2) documenting the appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) It is undisputed that Plaintiff is the prevailing party on this derivative suit. If a corporation obtains a monetary recovery from a successful derivative suit, the plaintiff shareholder is entitled to reimbursement for reasonable legal fees and costs incurred in prosecuting the action. Th...

Excerpt: ... N.A. (2011) 198 Cal.App.4th 256, 265.) First Cause of Action to Set Aside Trustee Sale: “The elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; a...

Excerpt: ...er was filed late, the trial court nevertheless has discretion to entertain it. Ibid, 281. Failure to Comply with ADR Requirements: Civ. Code, § 5930 (a) requires that “An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” Civ. Code, § 5925 (b) states that an “'Enforcement action' means a ci...

Excerpt: ...Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) To withstand a motion to strike punitive damages, a plaintiff must plead ultimate facts showing the plaintiff is entitled to such relief. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166; see also Smith v. Superior Ct. (1992) 10 Cal.App.4th 1033, 1042 [complaint “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice” subject t...

Excerpt: ...os Dodge for the purchase of a 2018 Jeep Grand Cherokee (the “Subject Vehicle”). The RISC's arbitration clause provides, in relevant part: Any claim or dispute whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us and our employees, agents, successors or assigns, which arises out of or relates to your credit appl...

Excerpt: ... the demurrer is sustained as to the second, third, and sixth causes of action. Plaintiffs' FAC includes causes of action for: Statutory Violations/Breach of Resident Rights (Health & Safety Code § 1599.1, § 72527); Fraud – Intentional Misrepresentation; and Fraud – Negligent Misrepresentation. These causes of action are not present in the original Complaint. Plaintiffs first contend that the cause of action for Statutory Violations/Breach ...

Excerpt: ...GDL Best Contractors, Inc. (2019) 38 Cal.App.5 th 677, 695. The FAC adequately described the location of the dispute between the parties. First Cause of Action for Prescriptive Easement: “[A] claim for prescriptive easement, include use that is (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner, (4) continuous and uninterrupted, (5) under a claim of right, (6) for the statutory period of five years.” Brewer v. M...

Excerpt: ...adings.” Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493. (Emphasis original). In the First and Second Causes of Action, Plaintiff alleged that “Defendants negligently, carelessly and recklessly owned, entrusted, managed and maintained their premises as to allow a dangerous condition to exist.” (GN-1 & Prem. L-1). Plaintiff has been consistent in asserting this theory. The fact that there might be possible additional t...

Excerpt: ...panied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2017.020(a).) Section 2016.040, in turn, requires a supporting meet and confer declaration to “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity fo...

Excerpt: ...caylar Decl., ¶ 7, Ex. A, p. 5.) A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Code of Civil Procedure section 1281.2 requires the court to order arbitration pu...

Excerpt: ... remedy is to file a motion compelling compliance as agreed pursuant to Code of Civil Procedure Section 2031.320. Although Defendant did not provide a verified response to the inspection demand, it is undisputed that Defendant agrees to comply with and has no objection to the subject Inspection Demand as written. (Opp. at 4:23-24, 10:10-11.) Thus, the court will presume— as the parties do—Defendant's agreement to comply with the Inspection De...

Excerpt: ...of which the court is required to take judicial notice.” Item No. 1 & 2: Paragraphs 2 & 47, Plaintiffs alleged James and Timothy Wynne assigned their claims to the Estate. Plaintiffs needs to allege the basis that James and Timothy Wynne were insureds under the title insurance policy. In addition, “a purely personal tort cause of action is not assignable in California, it must be concluded that damage for emotional distress is not assignable....

Excerpt: ... Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Liu has not shown that Exhibit C (discovery in this case) is judicially noticeable. This Motion is timely. This Motion takes issue with one allegation in the FAC in the General Allegations section of the pleading, which is generally incorporated into the causes of action: Plaintiff is informed and believes, and thereupon alleges, that defendant Noh then made motion, of which Sam Kim seconded and ...

Excerpt: ...l. Civ. Proc. Code § 396b. The moving party must overcome the presumption that the plaintiff has selected the proper venue. (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046, 231 Cal.Rptr. 176.) Thus, “[i]t is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” (Ibid.) In opposing the motion to change venue, “[t]he plaintiff may bolster his or her c...

Excerpt: ...er inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Injunctive relief Health and Safety Code, section 1430, subdivision (b) provides, in pertinent part, as follows: A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined...

Excerpt: ...7-1538 (A court may properly exercise its discretion to consider new evidence on reply that filled in gaps in the evidence created by the opposition); Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 (“[T]rial court had discretion whether to accept new evidence with the reply papers.”). Defendant/Cross-Complainant Azzur of CA, LLC (“Azzur of CA”) and defendant Azzur Group, LLC (“Azzur Group”) (collectively, “De...

Excerpt: ...ns. Second cause of action for fraud The statute of limitations defense may be asserted by general demurrer if the complaint shows on its face that the statute bars the action. Mitchell v. State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1007. However, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” Id.; see, Marshall v. Gib...

Excerpt: ... make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders…” On 11/2/20, Plaintiff issued deposition subpoenas for the production of business records to the Hemet Unified School District and Apple Valley Unified School District. The subpoenas request 25 categories of documents, including documents related to any suspensions...

Excerpt: ...rmation reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).) Absent an objection, the response must be: (1) an admission; (2) a denial; (3) or a statement claiming the inability to admit or deny. (Code Civ. Proc., § 2033.220, subd. (b).) Where responses have been timely filed but are deemed deficient by the requesting party, that party may move for an order compelling a further response. (Code Civ. ...

Excerpt: ... filing was due to a miscalendaring issue. Barrett Decl., ¶ 2. Although Pixalate objects to Plaintiff's untimely opposition, Pixalate served and filed a timely reply on the merits. The Court exercises its discretion to consider Plaintiff's opposition, subject to any objections to service by defendant LKQD Technologies, Inc. (“LKQD”). First and second causes of action for libel per se and libel per quod For defamation, a plaintiff must allege...

Excerpt: ...rce v. Kaiser Found. Health Plan, Inc. (2010) 181 CA4th 471, 482-484; see Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 CA4th 651, 659-660.] While it may be proper to take judicial notice that the judge did in fact make a particular finding, it is a different matter to take judicial notice that the fact is necessarily true. (Sosinsky v. Grant (1992) 6 CA 4th 1548, 1565.) Taking judicial notice of the truth of a judge's factual finding, ...

Excerpt: ...3(d). Neither party objected to the over-length memorandum. Accordingly, the Court exercises its discretion to consider the memorandums in their entirety. In addition, Plaintiff's separate statement did not address issue numbers 3 or 4. Because Defendant supports issues 3 and 4 with the same set of facts, which Plaintiff responded to all 59 material facts in Defendant's separate statement in support of Defendant's motion for summary judgment, and...

Excerpt: ...efendants' Demurrer to the fraud claim for lack pf specificity. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California, (2016) 245 Cal.App.4...

Excerpt: ...endants' evidentiary objections to the declaration of Christine Barker, because they are not material to the disposition of the motion. For the reasons explained, below, the Court denies the motion on two grounds. The Motion is Untimely First, the Court finds the motion is untimely as to the Association because it was not brought within 60 days of service of the cross-complaint. (Code Civ. Proc., § 425.16, subd. (f).) The proof of service attach...

Excerpt: ...tered on 12/4/20 is denied. As the document filed on 12/4/20 is a notice of entry of judgment, the court understands this motion to be directed at the judgment entered on 10/29/20. The judgments at issue were entered for different defendants but both were entered after Defendants' demurrers to Plaintiff's third amended complaint were sustained without leave to amend. Prior to entry of judgment, Plaintiff unsuccessfully moved to vacate the orders ...

Excerpt: .... The court is inclined to grant the Motion. The court overrules all of Plaintiffs' untimely evidentiary objections as improper and without merit. "When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be award...

Excerpt: ...ers stated the wrong zip code for City's counsel. Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288 (“[F]ailure to use the correct zip code invalidates what would have otherwise been sufficient notice.”) Subject to City's objection regarding service, the Court rules as follows. Plaintiff's request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h) is denied. Plaintiff's affidavit did not show facts essential t...

Excerpt: ...ion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that...

Excerpt: ...te (which was secured by the first Deed of Trust) and guarantees. (See ¶8 and the First, Second and Third Causes of Action). Additionally, per the Complaint, a Subordination Agreement was executed, which subordinated the first Deed of Trust to the second. (¶32-¶33 of Complaint). Based on the above, the first Deed of Trust is a sold out junior, and C.C.P. §580d does not apply to bar the First Cause of Action. (Black Sky Capital, LLC v. Cobb (2...

Excerpt: ...nd ¶79-¶80 of FAC). While an earlier allegation indicate that $140,621.58 is owed by Defendants, it is unclear if this number refers to the amount owing on the Promissory Note or amounts owed due to oral loan agreements. (¶30 of FAC). Moreover, this allegation is contradicted by an attached exhibit, which purports to detail all transactions between the parties. (¶31 of FAC and Exhibit 1). The court further notes that the payments listed withi...

Excerpt: ...termine the amount of attorney fees to be awarded.” $36,206.20 has already been ordered, which was the basis for the appeal. Intervenors request additional amounts representing post-judgment interest, the amount of fees and costs that has since been incurred in this action, unrelated to the appeal, collection costs, fees and costs incurred in connection with the appeal, and fees and costs incurred in connection with the instant motion. The only...

Excerpt: ...termine the amount of attorney fees to be awarded.” $36,206.20 has already been ordered, which was the basis for the appeal. Intervenors request additional amounts representing post-judgment interest, the amount of fees and costs that has since been incurred in this action, unrelated to the appeal, collection costs, fees and costs incurred in connection with the appeal, and fees and costs incurred in connection with the instant motion. The only...

Excerpt: .... (Wong v. Tai Jing (2010) 189 Cal.App.4 th 1354, 1376). Instead, the Complaint repeatedly refers to Plaintiff's alleged negligent conduct. (¶46 and ¶47 of Complaint). At best, Plaintiff attempts to allege Defendant ignored email communications, which warned of a likelihood of damage. (¶49 of Complaint); however, the referenced email communications are attached to the Complaint and do not reveal any warnings concerning asbestos – the alleged...

Excerpt: ...on as to all other challenged cost items, for the reasons set forth below. When a party files a motion to tax costs, the initial burden is on the party seeking to recover those costs to make a prima facie showing by providing an itemized worksheet and supporting documentation. “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put at issue v...

Excerpt: ...sjoinder. Witkin states that: “[a]lthough the code seems to authorize the sustaining of a demurrer solely on such a technical objection, the authorities indicate that the defendant is entitled to a favorable ruling only when he or she can show some prejudice suffered or some interests affected by the misjoinder.” 5 Witkin, Cal. Proc. (5th ed. 2018) Pleading, § 973; see also Anaya v. Sup. Ct. (Dow Chemical Co.) (1984) 160 Cal.App.3d 228, 231,...

Excerpt: ...ays. Counsel for all parties shall appear at the hearing on this matter, either in person or by court call, and shall be prepared to calendar a date certain for Plaintiffs' depositions. There shall be no further delays, no further excuses, and no further game playing. Defendants are entitled to take Plaintiffs' depositions and the court shall ensure that Plaintiffs' counsel promptly propose alternative dates at the hearing. On 4/12/18, Plaintiffs...

Excerpt: ...cted social security number, so that the document at Ex. C must be sealed. Second, she argues that notice was defective because it was made by email and she did not consent to email service. Third, she did not learn of the motion until 12/04/18 and believes that Defendants failed to properly serve it on purpose so that she would not have sufficient time to complete discovery to defend against the motion. The court finds that all three grounds rai...

Excerpt: ...cellphone records are confidential and that Plaintiffs have made no showing that the records sought are relevant to this action. There is no evidence before the court that Defendant was using his cellphone during the accident. Plaintiffs have filed no Opposition. Defendant shall serve notice of this ruling. II. Defendant's Motion to Second Compel IME of Plaintiff Defendant William Spenser Thomas asks the court to compel Plaintiff Myles Valentine ...

Excerpt: ...tiff will prevail on its punitive damages claim must seek such a court order in order to obtain the supporting information.” Id. at 282- 283. “In this context, a ‘substantial probability' of prevailing on a claim for punitive damages means that it is ‘very likely' that the plaintiff will prevail on such a claim or there is a ‘strong likelihood' that the plaintiff will prevail on such a claim.” Id. at 283. Here, plaintiff seeks punitiv...

Excerpt: ...because it would have to purchase a proprietary license and micropod to extract the data, at an additional cost of $3,500. FCA already possess the required license and micropod and can extract the data at little or not additional cost. The court agrees with Plaintiff that it would be unfair and unnecessary to require Plaintiff to pay an additional $3,500 to extract data, which is potentially relevant to the dispute, when FCA can extract that data...

Excerpt: ...he claims that it will be crucial to demonstrating that she was treated differently from other employees in her position who engaged in similar conduct. However, the privacy issues presented by the requests must be carefully addressed. Requests 52 through 54 seek “time and attendance” records for all inventory specialists working for Hoag from 2013 to the present, including employees Steven Gill and Suzanne Robson. Request 56 seeks “work sc...

Excerpt: ...s and their physicians and staff met the applicable standard of care when treating plaintiff Imelda Tovar and did not cause or contribute to her alleged injuries. They therefore have established two complete defenses to plaintiffs' claims, and meet their initial burden on the motion. Plaintiffs do not oppose the motion. TENTATIVE RULING ON MOTION #2: The motion of defendant Kaiser Foundation Healthplan, Inc. for summary judgment on the complaint ...

Excerpt: ...ements. Nguyen states that Tracy is making untrue statements and says she is very sad, very hurt and extremely disappointed. Arguably, these statements are all within Catherine Nguyen's free speech rights. Unless Plaintiff can cite controlling case law showing that the emails constitute threats and intimidation under PC 136.1, the court cannot impose sanctions based on the conduct alleged. Regardless of whether Vu is a witness or potential witnes...

Excerpt: ... of action remains unchanged in the present pleading. The court sees no reason to change its ruling. 2 nd COA – Fraud The court OVERRULES the demurrer to the Second Cause of Action. As the court observed in its ruling pertaining to the Second Amended Complaint, any claim sounding in fraud is governed by the three-year statute of limitations in Code of Civil Procedure 338(d). The statute incorporates the discovery rule. See Cansino v. Bank of Am...

Excerpt: ... in this action with proper notice of the motion with continued hearing date, as well as the moving papers, pursuant to the Code of Civil Procedure. However, if plaintiff can establish that defendant has been properly served with the instant motion, the motion is granted. Code Civ. Proc., § 2033.280 provides, “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to wh...

Excerpt: ...Complaint that cures the defects noted below. A. 2 nd COA: IIED DENIED as to this cause of action. To recover for IIED, Plaintiffs must prove: (1) that Defendants engaged in extreme and outrageous conduct; (2) with the intent to cause, or with reckless disregard of the probability of causing, Plaintiff to suffer emotional distress; (3) that Plaintiff experienced severe emotional suffering; and (4) that Defendants' conduct was the actual and proxi...