Excerpt: ...2) plaintiff would return her vehicle to Ford and provide all information necessary to consummate the repurchase, (3) the amount of attorneys' fees due to plaintiff under the Song-Beverly Act would be determined via motion to be filed within 30 days of the mandatory settlement conference, (4) the case would be dismissed without prejudice, (5) the parties would execute a standard settlement and release agreement prepared by Ford's counsel. (See Mo...

Excerpt: ...ement can be reached that resolves the objections to be raised in the motion to strike.” Subdivision (a) further provides that the parties must meet and confer at least five days before the date that a motion to strike is filed. It requires that the moving party file and serve a declaration with the motion to strike: (1) the means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, ...

Excerpt: ...nth causes of action are sustained with 20 days' leave to amend. Defendants' request for judicial notice is granted. Defendants demur generally to the entire first amended complaint and to all ten causes of action in therein. The first cause of action is for violation of Civ. Code § 2924.55 and asserted against all defendants. Section 2924.55, which was repealed effective January 1, 2018 and in effect between January 1, 2014 and December 31, 201...

Excerpt: ...clined 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 briefing as to issue 7 below. A. Standard of Review Petitioners argue correctly that where the underlying facts are not in dispute, then the ultimate question of procedural fairness -- whether Petitioners received a fair administrative hearing -- is a pure ques...

Excerpt: ...es, and does not include their attorneys of record. Levy v. Superior Court (1995) 10 Cal.4th 578, 585. Thus, representations made by party counsel or even the temporary judge on the record are insufficient. (Id.) The Court's Minute Order of October 27, 2017 reflecting that the parties reached a “tentative settlement” does not place the settlement before the court pursuant to Code Civ. Proc. §664.6. Neither party, Mr. Landsem nor Wells Fargo,...

Excerpt: ...at he has reviewed the medical records pertaining to plaintiff Kristina Brightbill and that, based on that review as well as his education, training, and experience, he is of the opinion that the care and treatment recorded to her by the moving defendant was well within the standard of care in the community. Dr. Wachtel also attests that that no negligence that could be attributed to the moving defendant either caused or was a substantial factor ...

Excerpt: ...f the opposition. Therefore, the court deems the defect waived. Evidentiary Objections: To Steve Leonard's Declaration: 1. Overruled 2. Overruled 3. Overruled 4. Overruled 5. Overruled 6. Overruled 7. Overruled 8. Overruled 9. Overruled 10. Overruled 11. Overruled 12. Overruled 13. Overruled 14. Overruled To Bradley P. Knypstra Declaration: 15. Overruled 16. Overruled 17. Sustained, Exhibit 3 should have been attached to Plaintiff's expert, John ...

Excerpt: ...ngful termination under the Fair Employment and Housing Act (“FEHA”). The motion is DENIED as to paragraph 59. This paragraph simply states a required element of a cause of action for intentional infliction of emotional distress – namely, that the conduct complained of was either intentionally hurtful, or done with reckless disregard for probability of causing emotional distress. See, e.g., Hughes v. Pair, 46 Cal.4 th 1035, 1050-1051 (2009)...

Excerpt: ...only question is whether the trial court should specifically enforce the arbitration agreement. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. (Rosenthal (1996) 14 Cal.4th 394, 412-413 [error for trial court to merely f...

Excerpt: ...court DENIES the motion. In Opposition, Defendant Van Cao Nguyen argues correctly that Manh has failed to carry his burden to show that there are any new or different facts, circumstances, or law which would justify revisiting its prior ruling. The court has carefully considered all of the briefs, evidence, and oral and written arguments submitted by the parties. Manh argues that under CCP 1008 (a), he is not required to present newly discovered ...

Excerpt: ...eet and confer process, by the filing of a demurrer, or by the filing of a motion for leave to amend. The court does find that the claims and theories of liability alleged in the FAC are substantially similar to the claims alleged in the Sanchez class action, because they arise from the same set of transactions and involve many of the same overlapping questions of law and fact. As a member of the class, Hopson is also a plaintiff in the Sanchez a...

Excerpt: ...Defendant would enter into a licensing agreement with plaintiff to operate the restaurants in Anaheim, Santa Ana and Tustin, with certain restrictions on defendant's ability to license the trademark to others.  Plaintiff would transfer ownership of the Anaheim restaurant to defendant.  Plaintiff would transfer ownership of the Fullerton restaurant business to defendant.  The owner of the Fullerton Property would agree to transfer fee sim...

Excerpt: ...ed brief under the Code of Civil Procedure or Rules of Court. Defendant demurs to all six causes of action in the second amended complaint, which are for fraud, breach of third party contract, conversion, financial elder abuse, deceit, and breach of fiduciary duties. Defendant contends that all six causes of action are time-barred under subdivision (a) of Code Civ. Proc. § 340.6, which provides in relevant part: An action against an attorney for...

Excerpt: ...owever, that this may be the end result at a later stage of the proceedings. Plaintiff's request for judicial notice of the location of Plaintiffs' alleged incident as 33 o35'22.7N, 117 o46'13.6”W is DENIED because it is based on search results on Google Maps (Ex. C, D & E) which is not something that is “not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accur...

Excerpt: ...(d)(2) current “means that the address was confirmed within 30 days before the filing of the motion to be relieved.” An internet title search, by itself, is insufficient to demonstrate that the address is confirmed as current. If the client's current address is not known, service must be made on the clerk of the court pursuant to Code of Civil Procedure section 1011(b). See Cal. Rule of Court 3.162(d). Further, Counsel has submitted a proof o...

Excerpt: ... jurisdiction, the burden of proof is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. Kroopf v. Guffey(1986) 183 Cal.App.3d 1351. Plaintiff contends that the Court has specific personal jurisdiction over the moving defendant. According to a recent decision of the United States Supreme Court, for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant's cont...

Excerpt: ...elaware. On March 6, 2018, HCR ManorCare filed a notice of stay. At the time that the notice of stay was filed, plaintiffs had several pending motions to compel discovery on-calendar, including motions to compel further discovery responses against defendant Manor Care of Fountain Valley, CA LLC, that were set for hearing on March 14, 2018, and motions to compel further discovery responses against defendant Heartland Employment Services, LLC, that...

Excerpt: ...t,” including claims for harassment. (Ibid.) Defendant also presents evidence that it made a demand upon plaintiff's counsel to arbitrate the dispute on 12/14/17, to which plaintiff did not respond. (Moss Decl., Ex. C.) Plaintiff raises two basic arguments as a defense to enforcement of the arbitration agreement. First, she argues that defendant waived its right to arbitrate by the delay in seeking arbitration. Second, she claims that the arbit...

Excerpt: ...es on the ground that 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 and cl...

Excerpt: ...es on the ground that 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 and cl...

Excerpt: ...ting of summary judgment and awarding of attorneys' fees to the defendant. Thus, the defendant was the responding party on appeal, and the Court of Appeal affirmed both aspects of the appeal. As the party moving for an award of fees, the prevailing defendant seeking fees and costs bears the burden of establishing entitled to an award and documenting the appropriate hours expended and hourly rates. Christian Research Institute v. Alnor (2008) 165 ...

Excerpt: ...in. Securities Corp., 14 Cal.4 th 394, 410 (394). Under Code of Civil Procedure §1281.2, the court is required to order the parties to arbitration only “if it determines that an agreement to arbitrate the controversy exists,” and there are no defenses to enforcement as provided in subdivisions (a) through (d) of that Code section. Here, the court concludes that no valid agreement existed between the parties to arbitrate the present controver...

Excerpt: ...ts' alleged misconduct, both as to the Onda and Plata properties. Defendants insist that Plaintiff must plead more detailed evidentiary facts, however Plaintiff is only required to plead ultimate facts. B. 2 nd COA: Fraud and Deceit -- Intentional OVERRULED on this ground. The court finds that Plaintiff has sufficiently pled actual and justifiable reliance on Defendants' fraudulent misrepresentations. As a practical matter not much is required to...

Excerpt: ...es 5 causes of action for violations of: 1. CC 2923.55 2. CC 2923.6 3. CC 2923.7 4. CC 2924.12 5. Bus. & Prof. Code 17200 (Unfair Business Practices) A. 2 nd COA: CC 2923.6 OVERRULED on this ground. Under CC 2923.6 (c), once a borrower has submitted a complete application for a first lien loan modification, the defendant may not record a notice of default or notice of sale, or conduct a trustee's sale, while the application is still pending. Doin...

Excerpt: ...has been traveling for a month and has not had time to prepare a formal report. Defendant's counsel asks for more time to allow Dr. Roth to prepare his report and to allow counsel to prepare a declaration to support Plaintiff's Opposition to the motion. In Reply, Defendants make a compelling argument that Defendant's counsel waited too long to hire an expert, has been dilatory in responding to discovery, and hasn't made an adequate showing of due...

Excerpt: ...t for entry of default. Given Defendant's testimony that his default was entered through his mistake, inadvertence, surprise, or excusable neglect, and given that the Complaint seeks to quiet title to real property which has been recorded in Defendant's name, but not in Plaintiff's name, the court finds that justice requires the granting of relief from default and the trial of this quiet title dispute on the merits. Defendant also testifies that ...

Excerpt: ...us subject to an “inherent” conflict of interest which has not been waived by Mr. Del Valle. Second, they claim that Mr. Hapeman is a witness in this case because he was involved in seeking investors for the project in question. For his part, Mr. Hapeman denies that he provided legal advice to Mr. Del Valle, or that the two had an attorney-client relationship. Leaving that issue aside momentarily, the timing of cross-defendants' motion is ver...

Excerpt: ...rike out all or any part of a pleading not filed in conformity with the laws of the State. Plaintiffs are currently without counsel in this action. Under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before the courts of record in propria persona, nor can it represent itself through a corporate officer, director, or other employee who is not an attorney. CLD Construction, Inc. v. Cit...

Excerpt: ... and its counsel, payable within 30 days. Plaintiff served the set of form interrogatories on August 18, 2017 and defendant served the response on September 19, 2017. The parties agreed to put the proceedings, including discovery, on hold while they explored mediation, and plaintiff's counsel obtained several extensions to bring motions to compel, the last one being through March 12, 2018. Although the moving papers indicate that both interrogato...

Excerpt: ...1 st COA – Defamation The demurrer to the First Cause of Action for defamation is OVERRULED. Defendant makes two main arguments in support of demurrer: first, that plaintiff cannot allege special damages, and second, that the claim is barred by the statute of limitations. On the previous demurrer, the court ruled that plaintiff's damages were based on delayed entry into the insurance business, and that such damages – being from an unestablish...

Excerpt: ...gedly orchestrated by defendant Ronald Touchard. “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” Civ. Code §1714(a). Thus, the law creates exceptions to a g...

Excerpt: ...P 473 (b), (d), 473.5, 418.10, 415.20.) B. Void Judgment; Inherent Equity Power DENIED on this ground. Defendants argue that they were not properly served so that the defaults and default judgments entered against them are void any may be set aside at any time. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4 th1241.) 1. POS Defective? Defendants argue that the POS is defective because it does not include a declaration of due diligence. (Motio...

Excerpt: ...ory requirements, so that they are entitled to the rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4 th 1426, 1441-1442.) Therefore, the burden is on Defendant to negate the presumption of proper service. (Evid. Code 606.) B. Defendant was Properly Served DENIED on this ground. The court finds that Defendant Gutierrez was properly served by personal service at the Varna address in Anaheim, as s...

Excerpt: ...y to permit amendment of the pleadings, even up to and including the time of trial. See Nestle v. Santa Monica, 6 Cal.3d 920, 939 (1972); Atkinson v. Elk Corp., 109 Cal.App.4 th 739, 761 (2003). Thus, if a motion for leave to amend is timely made, and the amendment will not prejudice the other party, it should be permitted. See Morgan v. Sup. Ct., 172 Cal.App.2d 527, 530 (1959). Defendants have not demonstrated prejudice. The amendment to the SAC...

Excerpt: ... cause of action is defective as to defendants Majid and Sara Ghorbani because they were not parties to the contract. However, paragraph 5 of the complaint alleges that the three defendants were owners of the real property. Paragraph 6 alleges that all three plaintiffs and all three defendants entered into an oral agreement for the completion of the construction on the property. Paragraph 6 also alleges that defendant Habib Ghorbani later entered...

Excerpt: ...ngful termination under the Fair Employment and Housing Act (“FEHA”). The motion is DENIED as to paragraph 59. This paragraph simply states a required element of a cause of action for intentional infliction of emotional distress – namely, that the conduct complained of was either intentionally hurtful, or done with reckless disregard for probability of causing emotional distress. See, e.g., Hughes v. Pair, 46 Cal.4 th 1035, 1050-1051 (2009)...

Excerpt: ...are in Kansas, it has a facility in Sacramento, California, where it repairs and operates aircraft. When a defendant moves to quash service of summons for lack of jurisdiction, the burden of proof is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. Kroopf v. Guffey(1986) 183 Cal.App.3d 1351. Plaintiff contends that the Court has specific personal jurisdiction over the moving defendant. According to a rec...

Excerpt: .... Motion 1: The motion by defendants to stay civil case pending resolution of criminal cases is DENIED. Defendants Anthony Nguyen and Toan Thai are currently in default, and thus, they do not have the right “to take any further affirmative steps in the litigation until either [the] default is set aside or a default judgment is entered.” See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., 155 Cal.App.3d 381, 385 (1984). As for defendant Minh Ngu...

Excerpt: ...settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Here, plaintiff and defendants Tri-Emerald Holdings, Jacques Poujade, GemTK Realty, Inc., and GemTK.com LLC, entered into a settlement agreement on June 10, 2017 in which Tri- Emerald Holdings agreed to make specified payments to plaintiff and Mr. Poujade agreed to personally guarantee the payments. The parties further a...

Excerpt: ... verified, no verification is necessary where it contains only objections.) During their meet and confer meetings, counsel for the parties agreed that the deadline for filing a motion to compel a further response would be December 26, 2017 and then February 16, 2018. (See Exhibits F and G.) As such, the motion, which was filed on February 15, 2018, is timely. A party moving to compel a further response to interrogatories need only show that the a...

Excerpt: ...n on the merits of any disputed issue, a statement of the total hours spent and the total fees charged by the referee, and the referee's recommended allocation of payment. The referee shall serve the report on all parties. Any party may file an objection to the referee's report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct. The objection shall be served on the refer...

Excerpt: ...s personal property. Ultimately, the Appellate Court in Regent Alliance Ltd. cites elements of conversion in a dispute in which each side sought control over and possession of an alleged other party's personal property. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another. The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the...

Excerpt: ...by the economic loss rule and that it is improperly duplicative of the second cause of action for breach of contract. Cross-defendant URS cites Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988, for the proposition that where a party seeks to recover economic loss allegedly caused by defective services, that party's remedy is in contract alone. Cross-defendant URS contends that construction service providers do not owe a duty...

Excerpt: ...omplaint reveals little about the accident which gives rise to this action; the complaint fails to identify where the accident occurred, how the accident occurred, how Deft was negligent in causing the accident, what injuries and damages Plaintiff claims from the accident, etc. The court file reflects two prior Motions to Compel Plaintiff's responses and document production which were taken off-calendar, however, a deposition of Plaintiff is like...

Excerpt: ...ing caption page and notice of opposition. See Cal. Rule of Court 3.1113(d). Plaintiff did fail to include a table of contents and table of authorities, as required by California Rule of Court 3.1113, subdivision (f). Given the nature of the present motion, however, the court will consider the opposition in its discretion. Evidentiary Objections The court declines to rule on the City's evidentiary objections, as none are material to the dispositi...

Excerpt: ...et for May 3, 2018. Plaintiff seeks to file amended pleadings in both the lead case and the consolidated case in order to add new defendants, a new cause of action for aiding and abetting, and to add some additional facts. Defendants Avalon, L.P. and Neil and Carol Anenberg (Trustees) do not oppose the filing of the amended pleading but ask that the 9-24-18 trial date be continued or vacated, contending that the new defendants will not be ready f...

Excerpt: ... and cross-complainant Prime Concrete Pumping. Under Code Civ. Proc. § 428.50, moving party may file its claims against existing parties and others in a cross-complaint filed before or at the time it files its answer to the cross- complaint against it. In the event that the cross-complaint against the moving party is dismissed before the moving party files its answer and cross-complaint and it is no longer a party, it may renew its motion for le...

Excerpt: ...d (injunction for restraining trespass) and 3 rd (IIED) causes of action, and granting defendants' motion to strike the claim for punitive damages and attorney's fees, with leave to amend. However, the operative pleading for purposes of a special motion to strike is the operative pleading at the time the motion was filed. “Nor may plaintiff amend the complaint before the hearing on the anti-SLAPP motion. [Citation] Rationale: Amendments could f...

Excerpt: ...ed to cause them injury or that he engaged in despicable conduct carried on with a willful and conscious disregard for the safety of others. Ibid. As the court has previously stated, simply taking many paragraphs to allege that the defendant drove while intoxicated is insufficient to warrant punitive damages. See Dawes v. Sup. Ct., 111 Cal.App.3d 82, 90 (1980). Nonetheless, plaintiff's counsel indicates that plaintiff can allege additional facts ...

Excerpt: ...lves in this action because they are not natural persons. Under Code Civ. Proc. § 436, the Court has discretion to strike out all or any part of a pleading not filed in conformity with the laws of the State. Plaintiffs are currently without counsel in this action. Under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before the courts of record in propria persona, nor can it represent...