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: .... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...