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