Excerpt: ...nded are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. The prevailing party has the burden of showing ...

Excerpt: ...pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary ...

Excerpt: ...to allow the matters to be heard together and it would allow the Court to have a fuller record. The Defendants' arbitration motions were pending in the case for some three months' time. Judicial notice is taken of the records of the case in relation to these matters. (See Evidence Code § 452(d); see Dillard v. McKnight (1949) 34 Cal.2d 209, 218 (“a trial court is bound to take judicial notice of its own records in the same action”); Nichols ...

Excerpt: ...triking the complaint and dismissing the action and assessing reasonable attorneys' fees and costs, on the grounds that: (a) Plaintiff failed to provide sufficient Notice to the Defendant before filing the lawsuit; (b) the Complaint is without factual or legal merit and was filed primarily for an improper purpose to harass and extort money from the Defendant; (c) Plaintiff failed to comply with statutory notice to Defendant; and (D) deficient Ser...

Excerpt: ... request for a continuance must be considered on its own merits.” (Id., at rule 3.1332(c).) Moreover, on motion of any party, the court may “reopen discovery after a new trial date has been set[.]” (Civ. Proc. Code § 2024.050(b).) The court may grant a continuance when good cause is shown, by circumstances including the following: • A party's excused inability to obtain essential testimony, documents, or other material evidence despite d...

Excerpt: ...on, it had not yet been approved. Second, the Motion as filed is defective on its face, as it did not state the date and time of the hearing or identify the papers upon which it would be based, as required by C.C.P. § 1010 and CRC 3.1110(b),or the date of the filing of the action, as required by CRC 3.1110(b). However, as Plaintiff responded on the merits, those defects are waived. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 and Ca...

Excerpt: ...inventory levels. The job required occasional walking, but was otherwise sedentary. Her supervisor was Patrick Murphy. On 10/17/17, plaintiff sustained an achilles tendon injury to her left foot while competing in a roller derby match. She requested, and was granted, an initial leave of absence through 10/31/17. She thereafter requested unpaid leave through 02/11/18. Defendant agreed to hold plaintiff's position though 01/31/18 – noting that pl...

Excerpt: ... 146–148 Plaintiff has not met its “substantial burden” of showing that the forum selection clause is unfair, unreasonable, or violates California public policy. Ibid. Because this is a mandatory forum selection clause, the Court does not undertake the forum non-conveniens analysis. Ibid. Had it done so, however, the evidence presented here is insufficient on its face to establish that Arizona venue is improper in any respect. There is no s...

Excerpt: ... naming Jian Guo as the Doe 1 masseuse. Doe 1 is referenced numerous times throughout the operative first amended complaint and there are factual allegations against Doe 1 as the masseuse who allegedly assaulted the plaintiff. On 12/7/18 the plaintiff filed a Doe Amendment naming demurring defendant Massage Envy Franchising, LLC as Doe 2. The first amended complaint fails to make any allegations against Doe 2 generally or specifically. Doe 2 is n...

Excerpt: ...ortfeasors. Cal. Code Civ. Proc. § 877.6(c). When the good faith basis for the settlement is contested, the moving party must make a sufficient showing of the Tech-Bilt factors. That showing may be made either in the original moving papers or in counter declarations filed after the non-settling defendants have filed oppositions challenging the good faith settlement. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262. A part...

Excerpt: ...sue is directly relevant to their claim that this suit was brought in bad faith, the business judgment rule defense, and compliance with a non-compete provision in the Partnership Agreement. But how Plaintiffs' other investments over the past 25 years have performed does not appear to have any bearing on whether this action was brought in good faith or has merit. Plaintiffs' other investments are also irrelevant to whether the business judgment r...

Excerpt: ...omson v. Anderson (2003) 113 Cal.App.4th 258, 266.) In addition to the evidence and the arguments in the Motion, the Court noted the existence of Hawaii choice-of-law clauses in the promissory notes, as well as what appears to be a mandatory forum selection clause within the August 2017 (settlement) agreement, that dictates that the courts of Hawaii shall have exclusive jurisdiction to hear any disputes arising out of the agreement. (See Complain...

Excerpt: ...sue, the Court here has considered the Demurrer on the merits. On the merits, the COA as pled is barred by the Economic Loss Rule. Under the Economic Loss Rule, where a purchaser's expectations are frustrated because the product is not working properly, his remedy is in contract alone, for he has suffered only “economic” losses. (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1232; Robinson Helicopter Co., Inc. v. Dana...

Excerpt: ...nt due is fixed and readily ascertainable by a standard governing a contract sued upon, and other requirements. CCP §§ 483.010, 484.090. The Application papers did not have a brief to address the statutory criteria and show how they are each satisfied. Since this is considered to be a significant remedy and subject to strict construction (see Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476; Pacific Decision Scien...

Excerpt: ... Amended Complaint. The notice is a nullity, and plaintiffs' subsequent attempt to file that amended pleading was also a nullity. Pursuant to CCP §472(a), “a party may amend its pleading once without leave of the court … before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date ...

Excerpt: ...ty against the LLC defendants, only box-checking. Checking too many boxes is a common occurrence with a Judicial Council form complaint, and risky in light of CCP §128.7. Nevertheless, it happens all the time. Plaintiff has checked every box under Para MV-2, which exposes the LLC defendants to direct liability for actually operating the subject vehicle, as well as negligently entrusting it to the defendant driver, negligently employing the defen...

Excerpt: ...ars later plaintiff alleged an inability to work based on unrelenting, work-related back pain. A dispute arose, leading to the pending civil action for breach of contract, wage/hour violations, and unfair competition. On 04/02/14 (augmented on 05/07/15), this Court signed a stipulated agreement between the parties to submit the dispute to arbitration. The selected arbitrator was John McCauley, Esq. The dispute was heard over several days. A final...

Excerpt: ...this regard, the Separate Statement is an important document and a difficult one to prepare correctly. (See Civ Proc. Before Trial ¶ 10:94.1 (Rutter Group 2018).) A court may quickly determine if a summary disposition can be granted by seeing if any material fact is in dispute and may not dispose of the Issue, where there is a proper dispute regarding any supporting material fact. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 2...

Excerpt: ... Trust Amendment and so must be addressed – if at all - in the Probate Court. However, COA 1 asserts a financial elder abuse claim. A financial elder abuse claim differs from a probate action, and W&I Code §15610.30(c) specifically permits a claim for financial elder abuse where an elder “is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest...” A COA for financial elder abuse may...

Excerpt: ...ement may be enforced here over the former client's objection, only if a copy was timely provided to the client and the agreement applies to the representation here at issue. Plaintiff contends that he was not timely provided with a copy of the agreement. (See Glickman Decl. filed with Opp.) Defendants respond that a copy was provided on the day the agreement was signed. (Krolikowski Decl.¶¶ 4-6.) But even if Defendants' claim is credited, the ...

Excerpt: ...change of address or unit number, or to have emailed the moving papers to Plaintiff at the email address listed on the caption of the Complaint. It thus appears that Plaintiff did not receive notice of the motion. Nor does the Motion demonstrate that the requested relief is warranted under C.C.P. § 128.7. Although MP argues that service was not properly effectuated on the corporate defendant, that is not a basis for dismissal under § 128.7 - an...

Excerpt: ...estate. See 8:14-bk-13999. On 02/22/16, Hon. Lewis sustained Kinum's demurrer to the original fraudulent conveyance complaint, observing that the underlying debt upon which the claim rested (default judgment against Frank) had been vacated. On 08/29/16, Hon. Lewis again sustained Kinum's demurrer to the operative pleading, observing that the underlying bankruptcy court judgment upon which the debt rested had been vacated. On 03/30/17, this Court ...

Excerpt: ... to be something else. Nor are the causes of action separately stated in compliance with Rule 2.112 of the California Rules of Court. The property at issue in the pleading is also not identified or described. Plaintiff(s) alleges that the property is located at the SE Corner of Carpenter and Second Ave, Carmel by the Sea, California. To the extent that it is, it appears to be in Monterey County, California - not Orange County, California. In addi...

Excerpt: ... and/or judgment. The operative pleading is the Fifth Amended Complaint. The causes of action contained therein at issue in this pending motion are the 3rd COA for negligent undertaking, the 4th COA for intentional interference with prospective economic advantage, the 6th COA for slander of title, and the 7th COA for unfair business practices. At issue is whether there exists a legal basis for plaintiff – a stranger to an imperfect real estate ...

Excerpt: ...rd Amended Complaint that the moving Defendant “malnourish[ed] patients in an effort to increase profits while actively seeking to fill the facility with patients in need of high levels of care to generate more revenue”. (3rd AC ¶ 86.) If the allegation was mean to refer to the HME defendants, then Plaintiff reasonably should concede this in the further response. Otherwise, Plaintiff should provide the information requested. Although the Cou...

Excerpt: ...ntional interference on the basis that it arises from protected activity. Before drilling down into the claim itself, it is necessary to briefly revisit other lawsuits touching upon 21411 Vista Drive in Rancho Santa Margarita. The home is owned in trust by Jennifer Loeffler (hereinafter “Loeffler”), who previously lived there with her common law husband Attorney Steven Radar (hereinafter “Radar”). The home is now leased as a sober living ...

Excerpt: ...s pendens can be recorded and the serious consequences flowing from it.” (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 913.) A number of cases have expressed the following principle: “a claim that seeks an interest in real property merely for the purpose of securing a money damage judgment does not support the recording of a lis pendens.” (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 912; Wardley Development Inc. v. Supe...

Excerpt: ...rty” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564. “[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Declaration: Cal. Rules of Court, R...

Excerpt: ...Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140; in accord, Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526. Although some courts of appeal have treated it as a separate cause of action, those cases involved statutes employing the term itself. See, e.g., Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412; Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 945-946. Our ...

Excerpt: ... which the remaining claims would proceed – i.e. that there would be no stay on the remaining claims to be litigated in this court. Defendants do not dispute that this was so. The responding defendants changed their position on that after the hearing. That change in circumstances could not have been presented for the prior hearing, as it had not yet occurred. Plaintiff has thus shown a new “fact” or “circumstance” which is at least argu...

Excerpt: ...ndants were substantially justified in opposing this motion. The parties are ordered to meet and confer to draft and execute a protective order to preserve the plaintiff's privacy rights and limit the use of the plaintiff's medical records to the litigation of this case. Subpoenas: 1. HOAG Memorial Hospital: Defendant seeks all documents and records, from 6/11/2016 to present for plaintiff. 2. HOAG Memorial Hospital (Billing): Defendant seeks any...

Excerpt: .... The court finds that the second cause is duplicative of the first for negligence. Requests for Judicial Notice: The Defendant Planet Home Housing Pool 1, LLC's request that this Court take Judicial Notice of the Plaintiff's First Amended Complaint for personal injury filed January 28, 2019 is GRANTED. The Defendant Planet Home Development, Inc. request that this Court take Judicial Notice of the Plaintiff's First Amended Complaint for personal ...

Excerpt: ...ne prevailing party status only upon final resolution of the contract claims. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) It is not enough to have prevailed on an “interim step” in the case. (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977; Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959, 961.) Here, the appeal at issue was not a final resolution of the contract claims. Therefore, even though the Motion is un...

Excerpt: ...or Production/Inspection seeks entry onto the actual land to conduct non- invasive, expert testing of the subject stairs where this accident allegedly occurred, at a time with similar atmospheric conditions. Request for Production/Inspection seeks further responses and production of documents in response to document production requests for witness information and other documents. Authorities: Code of Civil Procedure § 2031.300, (3)(d) provides t...

Excerpt: ...roperty.” When the condition of property lies at the heart of litigation, the party in control of the premises should assume good cause for the request and not obstruct discovery. See, e.g., Manzetti v. Superior Court (1993) 21 Cal.App.4th 373, 379. Here, on 09/10/18, defendants served upon plaintiff a demand to permit an inspection of her yard in order to assess the degree of nuisance caused by defendants' allegedly-overgrown shrubbery. Althou...

Excerpt: ...Authorities, and the portions of the Declaration of Michelle L. Buxton sought to be sealed by Defendants involve protected information related to mental health treatment and diagnoses of Plaintiffs' and R.C., as well as highly private information related to R.C. and A.C. There is a high probability that if these records are not sealed, the respective Plaintiffs' and non-party witnesses' privacy will be able to be invaded by the general public, ne...

Excerpt: ...usiness or marijuana dispensary at the Property, or at any other location, fixed or mobile, in the City of Brea;  Selling, providing, or otherwise making marijuana available, or permitting the same, to any person at the Property, or at any other location, fixed or mobile, in the City of Brea;  Operating any business at the Property, or permitting the same, without a valid business license issued by the City of Brea; and  Maintaining a pu...

Excerpt: ... to Pfieffer Fitzgibbon & Ziontz; Apex Law; Atkinson, Andelson, Loya, Rudd & Roma; Buchalter, Nemer, Fields & Younger; and Freeman Freeman & Smiley are void. Where employee or consumer records are subpoenaed from a third party, notice must be served on the employee/consumer 5 days before the subpoena is served on the custodian of records and at least 10 days before the production date. Code Civ. Proc. § 1985.6(b)(3). Proof of service on the “c...

Excerpt: ...lished opinions. The party asserting the FAA applies, has the evidentiary burden of establishing a relevant nexus to interstate commerce. What the Moad Decl. ¶ 8 does not provide is something to show that the distributorship of Defendant Stewart and Plaintiff, in particular, was involved with interstate commerce rather than SeneGence's business overall. (See Moad Dec. ¶ 8 and compare Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5t...

Excerpt: ...egin the action in Riverside County when considering the mechanic's lien claim involved there. However, the Greenfield defendant's contract-claims were probably compulsory cross-claims for the present case in Orange Country. (See CCP §428.10(a). CCP § 426.10(c). Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967.) Even local claims can be transferred to another county, when the circumstances warrant this. (See CCP § 392; 61 Cal...

Excerpt: ...ify the specific causes of action in the complaint for which adjudication is sought. (CRC 3.1350(b), (c)(1), (d)(1); see also Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498.) The separate statement serves a due process function. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251.) For due process reasons, when a motion seeks summary judgment only, a trial court cannot summarily adjudicate individual causes of acti...

Excerpt: ...has taken judicial notice of the Plaintiff's sec. 998 offer which was filed in her concurrent 1/18/19 motion to augment her costs. [See ROA 782, Boskovich Decl. and exhibits; Evid. Code § 452(d), (h).] Plaintiff offered to compromise for $250,000 in October of 2014, the offer was not accepted, and the Defendant did not fare better at trial. (See Judgment f. 8/12/16 and Order of 1/17/19.) Therefore, augmenting the costs is properly invoked. Exper...

Excerpt: ...rd Postrel, Icahn Associated Holdings, LLC and CSGP, Inc. The motion to quash is denied as to the subpoenas served upon Yucaipa Companies, LLC, Maria Sefarian, Jeffrey Gordon, and TGS Management Co., LLC but the subpoenas are modified and limited to include documents going only as far back as January 2014. The Defendants' request sanctions in the amount of $4,937.50 is denied. Out of State Subpoenas: A California subpoena is only valid within Cal...

Excerpt: ...ode §51.9. Pursuant thereto, plaintiff may sue any person with whom she is in a “business, service or professional relationship” if the latter “has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexu a nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe” and “there is an inability by...

Excerpt: ...t, Third Cause of Action for Account Stated, Fourth Cause of Action for Money Had and Received, and Fifth Cause of Action for Fraud. Materialness of Separate Statement Facts Defined by Moving Party: “Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. CRC 3.1350(a)(2). A moving...

Excerpt: ...tion was then served for that date. On 01/03/19, Frank served objections to the deposition notice. The objections were procedural only, relating to the selected date and the presumed duration. That same day, referee Balmages conducted a telephone conference with all parties. It is unclear if the topic of Frank's deposition was actually discussed, as the conference came to a halt over a retainer fee dispute. On 01/16/19, plaintiff filed an ex part...

Excerpt: ...cility has refused to comply with a subpoena absent such a release. However, Dr. Saran has not shown why a motion to compel compliance with the subpoena was not thus sought, rather than this motion. Nor has he demonstrated that the types of “sensitive” information which may have thus been withheld should be discoverable here. Therefore, although Plaintiff has not filed opposition to the Motion, it fails on its own merits. However, defendants ...

Excerpt: ... v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 161.) The Court may decline to consider papers that are not filed in conformity with the Code. (Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252, 266; Cal. Rule Ct. 3.1300 (d).) The Court requests that the Plaintiff consider the guidelines below. A “Motion” is generally one set ...

Excerpt: ...her costs, which are therefore allowed. (See CRC 3.1700(b).) The Court does not have discretion to deny a party who “fits” one of the four definitions of a prevailing party in CCP §1032(a)(4), the entitlement to receive costs of suit. Here, Defendant Certified Auto does “fit” one the definitions, it is a defendant in whose favor a dismissal was entered. Hence, it is entitled to costs as a matter of right. (See CCP §1032(a)(4); Charton v...

Excerpt: ...y, education and employment information, although considered private information, may be relevant as to the veracity of R.C./A.C.'s statements at their respective depositions. This information is to be marked “Attorney's Eyes Only,” and is not to be shared with the any of the parties or the general public. Although Plaintiffs contend that they only seek answers to five questions, these questions seek to invade R.C.'s privacy in her mental hea...