Excerpt: ... requirements contained in CCP §1005(b). Pursuant to California Rules of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and b) Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when th...

Excerpt: ...ays after the conference. The conference is not meant to substitute for any future meet and confer that will be required under § 430.41(a), if there is another demurrer to the next pleading. Defendants are to give notice. Uncertainty There is some uncertainty about whether Plaintiff Touraj is alleging a direct-victim or bystander theory of negligence, as the facts implicate both potentially. Therefore, the next pleading should be clear by includ...

Excerpt: ...PART. MPs have requested summary adjudication on five issues. The Motion is GRANTED as to Issues 1, 2, and 4. The Motion is DENIED as to Issues 3 and 5. Issue 1: Issue 1 is directed to three of the causes of action (“COAs”) in Plaintiff's Complaint: strict liability (COA 1) negligence (COA 2), and breach of warranty (COA 4). But the Opp at p. 17 concedes that COAs 1 and 4 do not apply to MPs. What remains at issue is thus only COA 2, for Negl...

Excerpt: ...y an additional $50 per month for the upgraded machine, and to limit the number of photocopies to a total of 144,000 or pay $.01 extra per page upon Plaintiff's demand and the type of papers to use with the machines. Complaint, at ¶¶6-7 (Defendants breached the “Oral Agreement by, among other things, failing to sign the Service Agreement, failing to sign the revised Lease Agreement, failing to sign the revised Service Agreement, …”). Plai...

Excerpt: ... of record, Rima M. Badawiya and K. Fredric Willis of Lewis Brisbois Bisgaard & Smith, LLP. This is an elder abuse case arising from the care and treatment of Margarita Beltran De Leon (“Plaintiff”) while she resided at Defendant's skilled nursing facility known as Harbor Villa Care Center (the “Facility”). The Complaint in this matter was filed on February 21, 2019 and alleges of causes of action for elder abuse/neglect, negligence, elde...

Excerpt: ...ipt of the proceedings”].) MPs' citations to excerpts of a “rough” transcript are thus insufficient here. The Motion fails in any event on the merits. MPs argue under C.C.P. § 657(1) and § 657(7) that there were multiple errors or irregularities in the proceedings which deprived them of a fair trial. But MPs have not shown that any alleged error was prejudicial to their right to a fair trial or that a different result would have been prob...

Excerpt: ...was timely. Additionally, the Court exercises its discretion to consider the entire Opposition even though it exceeds the page limits by 1 page. (CRC Rule 3.1113(g).) Page 16 of the Opposition did not raise any new arguments, Defendant was able to provide a substantive response, and there was no prejudice to Defendant. The Merits: Defendant, a non-signatory to the Lease, argues it is entitled to avail itself of the arbitration provision in the Le...

Excerpt: ...tiff's counsel on 07/19/19 and filed with this Court six days later. Had the stipulation been filed with a proposed order thereon, the default would have been set aside pro forma. Nevertheless, this Court finds counsel's refusal to now honor that stipulation (ostensibly because defense counsel objected to interrogatories) to be a bad faith tactic and in violation of the California Attorney Guidelines of Civility and Professionalism, Sec 4, 6, 9. ...

Excerpt: ... Objections to Verzal Declaration: All OVERRULED, except Objection No. 9, which is SUSTAINED. Rainbow's Objections to Edison's Request for Judicial Notice, Google Map Photograph: Objection No. 19 is SUSTAINED. Edison's Objections to Norris Declaration: All OVERRULED. Rainbow's Request for Evidentiary Sanctions: Rainbow's request for evidentiary sanctions based on alleged spoliation of evidence by Edison is DENIED. A request for evidence sanctions...

Excerpt: ...ter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant moving for summary judgment must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material f...

Excerpt: ...probability that the moving party will prevail as well as such equitable factors such as the relative harm to the parties from the granting or denial of relief. (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280; Monterossa v. Superior Court (2015) 237 Cal.App.4th 747, 757.) A court decides, while balancing the respective equities of the parties, whether the defendants should or should not be restrained from exercising rig...

Excerpt: ...It doesn't appear to be mentioned in the Complaint itself, or in the Plaintiffs' discovery responses. The Court will therefore treat this as a request by the Plaintiff to amend the pleading. Before the entry of judgment, Plaintiffs may therefore promptly move for leave to amend the complaint to include the theory. The Scope of Motion According to the undisputed evidence, Defendant Joseph Chavez was driving the vehicle at the time of the accident,...

Excerpt: ...ff “doing business as Island Puzzles.” However, the balance of the operative pleading refers to plaintiffs (plural) as if there are two distinct plaintiffs. However, DBAs are not separate parties or legal entities. See Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701; Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348. Thus, it seems that the only proper plaintiff here is Mr. Lima. Second, identifying the proper plainti...

Excerpt: ...t/Cross-Complainant Carlos Velazquez (“Velazquez”) is written, oral or implied. As such, the special demurrer to the first cause of action is SUSTAINED, with leave to amend. The demurrer to the second cause of action for an accounting is OVERRULED. To state a cause of action for an accounting, a party need only plead: (1) A fiduciary relationship or other circumstances appropriate to the remedy; and (2) A balance due from the defendant to the...

Excerpt: ...ng any confidential, fiduciary or other relationship between Plaintiff and State Farm that would give rise to any duty of care by State Farm. As such, the Complaint fails to support any of the elements necessary to state a prima facie claim for motor vehicle negligence or general negligence against State Farm. Similarly, Plaintiff fails to state a prima facie claim for fraud against State Farm. The elements of an action for fraud based on conceal...

Excerpt: ...is likely being utilized by the individuals as a personal instrumentality, including because of such factors of underfunding of corporate responsibilities and intermingling of property and finances, in such a way as to cause injustice or disregard of corporate financial responsibilities, including vis-a-vis the plaintiffs here. (See, e.g., Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 538 (“Under the alter ego doctrine, ... when t...

Excerpt: ...e proverbial empty chair). Nevertheless, defendants prefer to have them here in the action. Pursuant to CCP §428.10(b), defendants are entitled to file a cross-complaint against new parties “if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy w...

Excerpt: ...e failed to properly authenticate their documentary evidence, they lack foundation and personal knowledge, and contained impermissible hearsay, conclusions or opinions. Defendants' Request for Judicial Notice is DENIED. Defendants failed to properly place the St. John's University guide to “Understanding Blood Alcohol Content (BAC)” before this Court since the request was made in a footnote in the supporting memorandum in violation of CRC Rul...

Excerpt: ...s formally dissolved on 08/31/15. MSJ, Ex. 20. Plaintiff had been dealing with AXP Lighting, Inc., for some time regarding the sample bulbs and negotiating the warranty and pricing on the bulbs prior to AXP Lighting's dissolution. MSJ, Exs. 5 and 34. On 09/21/15, Wang incorporated defendant AXP Technology, Inc. (“AXP Technology”). MSJ, Ex. 21. During the 21-days in between dissolution of AXP Lighting and the creation of AXP Technology, and fo...

Excerpt: ...ivil action commenced here in Orange County. Wymont, a self-described “British Virgin Islands business entity,” entered into that retainer agreement by the hand of Jonathan Sandler, its designated personal representative. The retainer agreement provided that the personal representative (Jonathan Sandler) was personally bound to the terms thereof, including the agreement to have fee disputes resolved in San Diego. See Para 4, 12. The common in...

Excerpt: ... resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) A reasonable and good faith effort at informal resolution, “entails something more than bickering” with opposing counsel. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438-39.) A respected treatise provides the following guidance and practice tip: “PRACTICE POINTERS RE ‘RE...

Excerpt: ... 6. As for the claims asserted by Lab, Plaintiffs argue in the Opposition that Lab may not demur on the merits, as the claims as to Lab are entirely derivative. Plaintiffs are correct that in a derivative action, the entity generally cannot defend on the merits. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1005.) However, the Complaint as presented also appears to be asserting claims against LAB directly. (See e.g. COA 1, asserted “...

Excerpt: ...rmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. (Tarmann, supra, 2 Cal.App.4th at 157.) Here, the fraud claim basically repeats the contract claim, with conclusory statements added as to Defendant's concealed intent. But no facts are alleged to support the conclusory assertions...

Excerpt: ...nt debtor (Wecosign) has already declared bankruptcy – and it is not clear if the judgment against Wecosign survived discharge. The judgment against Frank was already set aside, so there could be no fraudulent conveyance associated with him. Moving party correctly argues that the SAC is uncertain as to him because there are no facts showing how Kinum helped defendants hide assets, and no clear averment of any enforceable judgment from which to ...

Excerpt: ...cult to discern when held to the light of this long-standing dispute, the parties are incapable of resolving their own impasses. Discovery Impasse. On 06/12/15, plaintiff and defendant Tara Jakubaitis (hereinafter referred to as “Tara,” with no disrespect intended, to distinguish her from her co-defendant husband Frank Jackubaitis) appeared here in Court to discuss appointment of a discovery referee. Tara had previously preferred Hon. Nancy W...