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