Excerpt: ...provement contracts with the defendants based on representations that the defendants were licensed contractors and would provide home improvement construction goods and services in a workmanlike manner when, in fact, the defendants were not licensed and performed construction services that violated applicable building code provisions and deviated from industry standards. Defendant demurs generally to the entire TAC as well as to the four causes o...

Excerpt: ...§452. HOLA Preemption Wells Fargo argues that the First, Second, Fourth, and Fifth Causes of Action are preempted by the Home Owners' Loan Act, 12 U.S.C. §1461 et seq., or “HOLA.” The court OVERRULES the demurrer on this ground. Wells Fargo's memorandum of points and authorities only argues as to the First and Second Causes of Action, and does not address the Fourth and Fifth. The court is unaware of any post-2013 California authority holdi...

Excerpt: ...ent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda v. City of Angels, 20 Cal. 4th 805, 817 (1999). By way of this Writ, Petitioner asks the court to set aside the decision of the Appeals Board affirming ...

Excerpt: ...oceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Defendant submits his own declara...

Excerpt: ...efore the continued hearing per the time periods in Code Civ. Proc. § 1005. When jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction. Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710. The plaintiff has the right to conduct discovery with regard to the issue of juri...

Excerpt: ... ordinance would materially impact the issues in this matter. At present the trial date is only four months away, but the court has not previously granted any continuances. The motion was brought as soon as reasonably practicable after plaintiff was notified of the City's pending review of its outdoor advertising regulations. It would appear that the current uncertainties should be resolved by early 2019, and the resolution of those uncertainties...

Excerpt: ...ts at the deposition, its deponent failed to produce those documents. Defendant contends that the documents were produced in 2017 on a CD. Plaintiff's authority for the motion is Code Civ. Proc. § 2031.320(a). That subdivision authorizes a motion to compel compliance with a statement of production contained in a “response to a demand for inspection, copying, testing, or sampling” under Code Civ. Proc. § 2031.210, et seq. Plaintiff did not s...

Excerpt: ...y the request was not made sooner. Id. at subd.(b). Given that this lawsuit was filed over one year ago, and trial is upcoming in December, this information is necessary for the court to assess plaintiff's request. ...

Excerpt: ...r First Cause of Action for dangerous condition of public property, their Second Cause of Action for negligence, and their Fourth Cause of Action for negligent infliction of emotional distress. All three causes of action against the City are premised on the assertion that the City maintained a dangerous condition on its property. On 05/23/18, the court granted the City's motions to deem the truth of matters asserted in Requests for Admission, Set...

Excerpt: ... for various wage and hour violations. The initial citation sought $180,070 jointly and severally from each petitioner, but the hearing officer reduced that amount to $104,541.92 for Konier and $148,210.92 for KS Carwash LLC. (CCP 1094.5.) The court is inclined to GRANT the petition as to issue 5 (f) and issue 7 below and to DENY the petition as to all other issues. However, at the parties' election, the court is inclined to permit further briefi...

Excerpt: ...rable harm pending trial on the merits. Burden of Proof 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. 4 th 1452, 1481.) As the moving party, Defendant has the burden to show that they have a reasonable probability of prevail...

Excerpt: ...hin the past 30 days that the address is current. Additionally, the Declaration conflicts with the Proof of Service and states that the Motion was served by personal service on the client. Accordingly, it is unclear whether client has been served with the Motion at an address confirmed within the past 30 days. The Court is also concerned that withdrawal of counsel about a week before trial will be prejudicial to defendant, CreAgri, Inc. since a c...

Excerpt: ... to serve verified responses, without objections, to Form Interrogatories, Special Interrogatories and Requests for Production of Documents, Sets One within 20 days, and imposed a monetary sanctions award of $660 against plaintiff to be paid within 30 days pursuant to CCP §§2030.290 and 2031.300. Defendant gave notice of the Court's 4/4/18 ruling to plaintiff on 4/27/18. Plaintiff has failed to comply with the court's order of 4/4/18. Plaintiff...

Excerpt: ...s “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”) The demurrer to Defendants' 9 th affirmative defense for “Statute of Limitations—Personal Injury Negligence” is OVERRULED. The affirmative defense properly pleads the provision and subdivision barring the claim as required by California Code of Civil Procedure § 458. Plaintiffs to give notice. ...

Excerpt: ...rt witness costs, except as provided in paragraph 20. Paragraph 20 contains the following provision: Should either party attempt an arbitration or court action before attempting to mediate, that party shall not be entitled to attorney fees that might be otherwise available to it in a court action or arbitration and the party who is determined by the arbitrator or judge to have resisted mediation may be sanctioned by the arbitrator or judge. This ...

Excerpt: ...hat the motion was not served or filed within the time period required by Code of Civil Procedure §437c(a). Since the motion was served via U.S. mail to an address within the State of California, 5 calendar days are added to the 75-day notice period, and the motion should have been served and filed no later than 04/23/18. The motion was not served and filed until 04/25/18. Nonetheless, plaintiff filed a timely opposition on the merits, and did n...

Excerpt: ...1005, and, when applicable, the statutes and rules providing for electronic service. Cal. Rule of Court 3.1300(c) requires that a proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing. Second, Code Civ. Proc. §473(b) states, in part: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the applica...

Excerpt: ...from Alzheimer's disease. Therefore, Plaintiff must present foundational evidence that the physicians are qualified to offer expert opinions on this point, albeit indirectly through the medical records which they and/or their staff prepared. The remaining arguments in the Opposition are without merit. First, Defendants argue that the medical records are hearsay, but the court is inclined to find that the medical records are generally admissible a...

Excerpt: ...ime enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” Here, the moving plaintiff has submitted evidence consisting of the verified complaints, the felony complaints against defendant M...

Excerpt: ...o forward a copy of its motion and notice of this ruling to the State Bar. Finally, the Court sets a hearing on 8/16/2018 at 9 a.m. for an Order to Show Cause whether the trial date should remain and to determine the status of Plaintiffs' legal representation. The individual Plaintiffs are now in Propria Persona. If new counsel substitutes in for the Plaintiffs, the Court will take the OSC off-calendar. ...

Excerpt: ...m this court although she received actual notice of the default, default judgment, and collection efforts against her, (by her own admission) dating back to 2016. The evidence also suggests that she had ample notice even earlier, dating back to 2012 and 2015. A. CCP 473 (b) and 473.5 The motion is DENIED under CCP 473 (b) on the ground that the motion was not made within a reasonable time, in no case exceeding six months. The motion is also DENIE...

Excerpt: ...m this court although she received actual notice of the default, default judgment, and collection efforts against her, (by her own admission) dating back to 2016. The evidence also suggests that she had ample notice even earlier, dating back to 2012 and 2015. A. CCP 473 (b) and 473.5 The motion is DENIED under CCP 473 (b) on the ground that the motion was not made within a reasonable time, in no case exceeding six months. The motion is also DENIE...

Excerpt: ...ime enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” Here, the moving plaintiff has submitted evidence consisting of the verified complaints, the felony complaints against defendant M...

Excerpt: ...from Alzheimer's disease. Therefore, Plaintiff must present foundational evidence that the physicians are qualified to offer expert opinions on this point, albeit indirectly through the medical records which they and/or their staff prepared. The remaining arguments in the Opposition are without merit. First, Defendants argue that the medical records are hearsay, but the court is inclined to find that the medical records are generally admissible a...

Excerpt: ...Code Civ. Proc. § 437c(a)(1). A plaintiff moving for summary judgment has the burden of showing that there is no defense to a cause of action if that plaintiff has proved each element of the cause of action entitling the party to judgment on the cause of action. Code Civ. Proc. § 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue or one or more material facts exists as to the caus...

Excerpt: ...int only as authorized by the court's order. [citation omitted] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” Harris v. Wachovia Mortg., FSB, 185 Cal.App.4 th 1018, 1023 (2010). In the court's ruling on the previous demurrer on 04/04/18, plaintiffs were given leave to amend only the Four...

Excerpt: ...t Dr. Roth has reviewed the medical records and has formed a controverting opinion but has not completed his report. She anticipates being able to receive the report and prepare a declaration within 14 days, which is not unreasonable. Any supplemental opposition by plaintiff must be filed and served 14 days before the continued hearing and any supplemental reply by the moving hospital must be filed and served 5 days before the hearing. ...

Excerpt: ...hich a trial court has discretion to stay or dismiss a transitory cause of action that it believes may be more appropriately and justly tried elsewhere. The inquiry is whether “in the interest of substantial justice an action should be heard in a forum outside this state.” (CCP 410.30 (a); Animal Film LLC v. D.E.J. Productions Inc. (2011) 193 Cal.App.4 th 466, 471.).) “In a contract dispute in which the parties' agreement contains a forum s...

Excerpt: ...ord of the deposition.” For a business record subpoena, such as the subpoena of AutoCrib at issue here, the 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party. At the time the objections are served, the record of deposition is complete. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192; Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 136.) The 6...

Excerpt: ...edings before courts of record.” CLD Const., Inc. v. City of San Ramon, 120 Cal. App. 4th 1141, 1145 (2004). Defendant is unrepresented and has filed an answer in propia persona through a corporate representative, co-defendant Lau Musembi Senga. Accordingly, the court grants Plaintiff's motion to strike Excel Metals, LLC's answer. Plaintiff to give notice. ...

Excerpt: ...remised on a lack of personal jurisdiction, which he contends, renders the default and default judgment void pursuant to Code of Civil Procedure §473(d). Defendant claims that he is not a resident of California. However, defendant admits that he is the principal of Cardan, LLC, and that Cardan owns the property at issue in the lawsuit. He also admits that he was heavily involved in leasing the property that is the subject of the lawsuit. Thus, e...

Excerpt: ...ding contempt, plaintiff fails to identify “[a] clear, intentional violation of a specific, narrowly drawn order.” See Van v. Language Line Servs., Inc., 8 Cal.App.5 th 73, 82 (2017). Plaintiff cites no order that defendants allegedly violated, and so a contempt citation is unavailable. Regarding monetary and terminating sanctions, “[t]he trial court may order a terminating sanction for discovery abuse ‘after considering the totality of t...

Excerpt: ...Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Code Civ. Proc., § 2024.020(b). CCP section 2024.050(a) provides that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This m...

Excerpt: ...rty who filed the pleading that is subject to demurrer for the purposes of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Subdivision (a) states that it applies to amended pleadings. Subdivision (a)(3) of section 430.41 states that the demurring party must file and serve with the demurrer a declaration stating either: (a) the means by which the demurring party et and conferred wi...

Excerpt: ...negligence are: (1) the defendant's legal duty of care toward plaintiff; (2) the defendant's breach of duty; (3) that the defendant's breach was the proximate or legal cause of injury to plaintiff; and (4) damages. These elements also apply to premises liability actions. Kesner v. Sup. Ct. (Pnuemo Abex, LLC) (2016) 1 Cal.5th 1132, 1158; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal. App. 4th 32, 37. Utilizing a form complaint, plaintiffs ha...

Excerpt: ...Inc. v. Sup. Ct., 252 Cal.App.2d 194, 197 (1967). Here, O'Neil claims that the City Attorney of Santa Ana has recently opined that the City's Municipal Code does not prohibit the advertising attached to O'Neil's trailers, and that this supports the claim made in its First Amended Cross-Complaint. Cross-defendant does not appear to have any opposition to the filing of the proposed supplemental amended cross-complaint, but asks the court to take it...

Excerpt: ...efendant maintains in its opposition that plaintiff was hired by cross-defendants to perform pool services in their stead. As such, it would appear that plaintiff and cross-defendants could have had some relationship for which a duty may have arisen. The court will allow cross-complainant an opportunity to amend in order to assert any such relationship. ...

Excerpt: ... a “prevailing party,” he is actually is entitled to fees and costs under the terms of a statutory offer to compromise that defendant made and plaintiff accepted. That settlement, which was submitted by plaintiff as Exhibit 1, provides that, defendant would pay $112,000 and “reasonable costs, expenses and attorney's fees based on actual time expended pursuant to Code of Civil Procedure Section 1794(d) as stipulated by the parties or, if the...

Excerpt: ...objections of defendants Advanced Surgical Partners, Advanced Surgical Management, Genetic Institute of AntiAging, Applied M.A.K. Enterprise, and Mohammad Ali Kharazmi to the declaration of attorney Brian C. Vanderhoof submitted with the moving papers are overruled. The objections of plaintiff to the declarations of defendants Mohammad Saeed Kharazmi, Massoumeh Kharazmi, and Mohammad Ali Kharazmi are sustained on the ground of lack of relevance. ...

Excerpt: ... and to reopen discovery for a limited purpose. Adnan Ayoub was the principal for the entity that purchased one of the three gas stations from Nawaha. Defendants argue that on 4/16/18, during the deposition of Adnan Ayoub, they learned for the first time that Ayoub made a $350,000 payment to Nazari in April 2017, to get Nazari to release his lien on the gas station, so that the gas station could be sold to a third party. Defendants argue correctl...

Excerpt: ...nt via certified mail and a return receipt. The return receipt for the Summons and Complaint was signed by “Gwendolyn Johnson.” In order to effectuate valid service, the return receipt need not be signed by the person to be served, but must be signed by someone authorized to receive mail addressed to the party. Cruz v. Fagor Am., Inc., 146 Cal. App. 4th 488, 496 (2007). In his declaration, defendant Henderson attests that he has no idea who �...

Excerpt: ...ecover the fees and costs in connection with the instant motion for costs. Cross-Defendant has shown that his counsel spent 17.0 hours in connection with bringing and prevailing on the special motion to strike and $96.60 in costs associated therewith. The Court finds that this time is reasonable and that the billing rate of $295/hr. is also reasonable. Thus, the attorney's fees and costs recoverable on the special motion to strike total $5,111.60...

Excerpt: ... is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the def...

Excerpt: ...thout objection, within 10 days of notice of this court's order. Motion 3. Defendant Smith's Motion to Compel Plaintiff to Answer Form Interrogatories is granted. If verified responses have not already been served, plaintiff must serve verified responses, without objection, within 10 days of notice of this court's order. Motion 4. Defendant FTRS Family Partnership's Motion to Compel Plaintiff to Answer Special Interrogatories is granted. If verif...

Excerpt: ...n their real property. (Complaint, ¶ 7.) It alleges that, on July 1, 2009, plaintiffs filed bankruptcy petition and their schedules listed defendant's predecessor in interest as well as their other lender as creditors. (Complaint, ¶ 9.) It alleges that, on December 31, 2009, defendant's predecessor in interest charged off the entire balance of the HELOC and advised plaintiffs that the balance on the loan was $0. (Complaint, ¶ 12.) It alleges t...

Excerpt: ...can be tried separately, the two cases cannot proceed in parallel because of the significant risk of conflicting rulings of fact and law. Even if the court were to rule on the demurrer, it would OVERRULE the demurrer on three grounds. First, Plaintiff Irene Hopson argues correctly that CalPERS improperly seeks to introduce evidence from outside the four corners of the FAC and CalPERS also relied on some evidence which is not judicially noticeable...

Excerpt: ...rruled. Defendants seek relief from the defaults and default judgment under the discretionary relief provision in subdivision (b) of Code Civ. Proc. § 473. Subdivision (b) provides in relevant part as follows: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusab...

Excerpt: ...es on the ground that the motion is procedurally defective in at least 5 related ways. 1. Defective Notice of Motion and Separate Statement First, Plaintiff's notice of motion is defective because it fails to properly identify the specific causes of action, defenses, issues, or claims being addressed. (CRC 3.1350 (b).) Second, Plaintiff's separate statement is defective because it fails to repeat verbatim the causes of action, defenses, issues an...

Excerpt: ...m, including the parents of both parties whose property and well- being is the focus of the litigation. It is undisputed that the action was first filed in Vietnam, and essentially all potential witnesses reside in Vietnam, except one person that lives in California. The focus in both cases is upon the elderly, infirm parents of the two parties to this litigation, as well as their property and other assets. Plaintiff attests that the majority of ...

Excerpt: ...filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” Subdivision (a) further provides that the parties must meet and confer at least five days before the date that a motion for JOP is filed. It requires that the moving party file and serve a declaration with the motion for JO...