Excerpt: ...out leave of court. (CCP §2032.220(a)). Separate injuries do not entitle defendant to more than one exam. Only a single examination can be obtained on demand despite the variety of injuries claimed. (Weil & Brown, The Rutter Group (2021) Cal. Prac. Guide: Civ. Pro. Before Trial, Discovery §8:1516) For example, if plaintiff claims both orthopedic and neurologic injuries resulting from the accident, the medical examination will have to cover both...

Excerpt: ...easonably calculated to lead to the discovery of admissible evidence as OCTA admits that Mr. Beyer was acting in the course and scope of his employment for OCTA at the time of the subject incident…” OCTA cited to Diaz v. Carcamo (2011) 51 Cal.4th 1148 in support of each response. The objections are not well-taken. In Diaz, the court held that an employer's admission of vicarious liability for an employee's negligent driving bars a plaintiff f...

Excerpt: ...ve the court for an order compelling that answer or production.” Civ. Proc. Code § 2025.480(a). “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasona...

Excerpt: ...Baron v. Dillard, Vierra, and Arizona Medical Training Institute, there was a final judgment during the pertinent period, and at least three related appeals, all of which were determined adversely to Mr. Baron. (See RJN Exs. 1 and 2, and Barron v. Dillard, 2016 WL 54832 (Ariz. Ct. App. 2016) [rejecting “Baron's three remaining notices of appeal…”].) Each appeal constitutes a separate “litigation” under the statute. (In re Kinney (2011) ...

Excerpt: ... given, Defendant also late filed its reply based on the present hearing date. Civ. Proc. Code § 1005. As such, the court declines to consider the arguments in the late filed reply brief (ROA #893). CRC 3.1300(d). Although Defendant is the prevailing party, it is not entitled to recover attorney fees from plaintiff Loan Pham (“Plaintiff”) under either Civ. Proc. Code §§ 1717 or 998. Defendant is not entitled to attorney's fees pursuant to ...

Excerpt: ...rer challenges the legal sufficiency of a complaint on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, whic...

Excerpt: ... favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment shall be granted ...

Excerpt: ... Decl. ¶¶ 3-6, Ex. 3.) Courts may permit amendments at any stage in the proceedings, up to and including trial, so long as there is no prejudice shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 (where no prejudice is shown to the adverse party, the liberal rule of allowance prevails). However, leave can be denied where a proposed amendment fails to state a vali...

Excerpt: ... CA ST CIVIL RULES Rule 3.1345, Defendant's separate statement does not comply with that Rule. However, Civ. Proc. Code § 2031.310(b)(3) permits a part to, “[i]n lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” Id. Here, Defendant has produced a concise outline of the discovery request and each re...

Excerpt: ...mpel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ Civ. Proc. Code § 1281.2. “The party seeking to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence.” Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005 (9th Cir. 2010) (internal quotation marks and citation omitted). “[T]h...

Excerpt: ...t and confer with Defendants prior to filing the demurrer was insufficient. Plaintiff was required to identify all of the specific defenses believed to be subject to demurrer and identify with legal support the basis of the deficiencies. §430.41(a)(1). Plaintiff failed to satisfy this mandate. Defendant failed to respond to plaintiff's perfunctory meet and confer attempt. However, because a determination that the meet and confer process was insu...

Excerpt: ...tories (FROG and SPROG): “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declarati...

Excerpt: ...e parties. Preliminary Question - Is a Cross-Action, “Maintaining an ‘Action or Proceeding”? The RP argues that Section 2203 doesn't apply, because a cross-complaint is not “maintaining an action or proceeding” under § 2203(c). The statute does not say that a foreign corporation shall not “maintain a lawsuit” but that it “shall not maintain an action or proceeding.” “An action is an ordinary proceeding in a court of justice b...

Excerpt: ...ed evidence that he was been indicted in the Criminal Matter, which is pending for trial on 12/07/21. Bauche argues an immediate stay is necessary to avoid compromising his 5th Amendment right against self-incrimination. A stay, “is in accord with federal practice where it has been consistently held that when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of ...

Excerpt: ..., where the basic meaning is clear, the responding party must appropriately respond. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) To the degree the scope of the inquiry is the maintenance performed at the entire Disneyland park, this may draw fair objections to the relevance and breadth. Presumably, however, the definitions...

Excerpt: ...dant represented that the product had characteristics, uses, or benefits it did not have (3) plaintiff was harmed; and (4) the harm resulted from Defendant's conduct. CACI 4700. Here, the allegations contained in the Complaint at paras. 1, 6-7, 10, 11, 13, & 14 are sufficient to state a claim against MBUSA for violations under the CLRA. To prove reliance, it is enough for the plaintiff to prove the representation was a substantial factor in the p...

Excerpt: ..., the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Here, Plaintiff...

Excerpt: ...'s informal request for judicial notice of the Peaslee declaration is DENIED, because (1) it constitutes the equivalent of a speaking demurrer, by relying upon a declaration rather than any official records (Evid. Code § 452(d)) or matters of common knowledge (Evid. Code § 452(g)) or indisputable facts (Evid. Code § 452(h)), and (2) it does not comply with CRC Rule 3.1113 [separate document for RJN]. (Evid. Code § 452, CRC Rule 3.1113.) Nonet...

Excerpt: ...eet and confer efforts were more than adequate, and Plaintiff has demonstrated good cause for the requested discovery. Defendants' non-appearance – following only days after confirming their attendance – was without any justification. Defendants' failure to oppose the Motion can be treated as an implied concession to the merits of the same. (See, e.g., Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; see also, Sexton v. Superior Cou...

Excerpt: ...vision (b) . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion...

Excerpt: ...f Contract Demurrers are sustained with leave to amend. There are a number of deficiencies in the pleading. Paragraph 29 refers to a breach of the Business Purchase Agreement, which is attached to the pleading as Exhibit 1. (See CC ¶ 16, 29.) However, the exhibit is illegible. The Court therefore orders the cross-complainants to attach a legible copy in the next pleading. The obligations in that writing appear to have been undertaken by a nonpar...

Excerpt: ...ly alleges, in part: “At the time of purchase and/or lease, or within one-year thereafter, the Subject Vehicle contained or developed the defects set forth above.” The Complaint alleges in Paragraph 10 that the Subject Vehicle was purchased on 3/12/2012. Defendant contends, in part, that this cause of action is barred by the 4-year statute of limitations under UCC § 2725(2), because there is no delayed discovery rule unless the “warranty e...

Excerpt: ...llegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the FAC, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4...

Excerpt: ...es of action. MOOT as to 4th (Armin, Wess, and Wilber only) cause of action. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling o...

Excerpt: ...nd negligent misrepresentation are SUSTAINED with leave to amend. Plaintiff must allege facts with greater specificity, such as the dates of the representations, the speakers, the manner of their communication, the location, the plaintiff's reliance thereupon, and other elements. Conclusory and general allegations are not sufficient. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Robinson Helicopter Co., Inc. v. Dana Corp. (2004)...

Excerpt: ...e claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts ...

Excerpt: ...the arbitration and Award are governed by the Federal Arbitration Act (“FAA”). ROA #69, Ex. B § 8; Pla. Lodging, Ex. B § 5.8. Regarding vacating or correcting the Award: “(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-- (1) where the award was procured by corruption, fraud, or undue means;...

Excerpt: ...v. Proc. Code § 1032. Plaintiff seeks to strike the entirety of the cost bill pursuant to Gov't. Code § 12965(b), which in relevant part states: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant...

Excerpt: ...and Priore Dec., Ex. A, see Cross-Complaint ¶ 10, 12, 17.) The Agreement has a broad arbitration provision calling for binding arbitration of all matters and disputes that relate in any way or arise out the Agreement or any resulting transaction. The argument of Defendant regarding its different understanding of the transaction, and regarding oral statements by an NPA representative, do not appear to illustrate fraud in the entry into the arbitr...

Excerpt: ...f limitations defense. (C.C.P. § 439(a); Howard Decl., ¶ 3, Ex. 1.) “A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations]. A motion for judgment on the pleadings ‘is equivalent to a demurrer and is governed by the same de novo standard of review.' [Citation]. Leave to amend ‘is properly denied if the facts and natu...

Excerpt: ... would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. . .” Civ. Proc. Code § 526(a). The burden is on the moving ...

Excerpt: ...o meet and confer letters was without substantial justification and left Plaintiffs with virtually no choice but to file the current Motion by or on the extended motion cutoff deadline. Defendant's opposition to the current Motion, on the ground that it is somehow premature because the meet and confer process is incomplete – through some purported fault of Plaintiff by “only” sending two meet and confer letters and not receiving any respons...

Excerpt: ...t. As a general principle, the party resisting enforcement of an arbitration provision has the burden to establish the defenses. (See Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Unreasonable Delay/Waiver The record does not support unreasonable delay by the Defendants in seeking to arbitrate the matter. What constitutes a reasonable time to assert the arbitra...

Excerpt: ...n at all times to the inspection of any partner. (SAC ¶ 19-20). Defendant argues that Plaintiff hasn't properly alleged damages from any breach of this term. (SAC ¶20, 32, 33.) This is a general demurrer as noticed (See Notice of Dmrr at 2:7, citing CCP 430.10(e).) A general demurrer must be overruled if the complaint states any cause of action, under any theory. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Here, if t...

Excerpt: ...declining to take judicial notice of materials not “necessary, helpful, or relevant”].) Demurrer: Defendants' demurrer to the FAC's third cause of action for fraud on the basis of uncertainty is OVERRULED. (C.C.P. § 4301.0(f).) A demurrer on the ground of uncertainty is disfavored and should be sustained only when a complaint is so incomprehensible that a defendant cannot reasonably respond since ambiguities may be clarified in discovery. (L...

Excerpt: ...the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “In our examination of th...

Excerpt: ...purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “In our examination of the co...

Excerpt: ...rior Court as Family Law Case No. 18D006202 (the “Divorce Case”). (See Complaint, ¶¶ 1- 4.) Plaintiff's Complaint alleges that during their representation of Ms. Krafve, Defendants hired a paralegal, Bernadette Ratti (“Ms. Ratti”) who was previously employed by Plaintiff's counsel and who had substantively worked on Plaintiff's case and obtained confidential information regarding Plaintiff's position(s) in connection therewith. Plaintif...

Excerpt: ...aintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate tha...

Excerpt: .... By way of her opposition to the demurrer, Plaintiff asserts that she will amend her 1st through 7th causes of action with respect to individual defendants and will amend her 8th cause of action with respect to entity defendants. Plaintiff also asserts that she will amend her 15th cause of action by way of eliminating the negligent training allegation therein. Plaintiff further asserts that she will “delete” her 10th, 13th, 14th, 16th, and 1...

Excerpt: ...property to share an identity of interest with the property-owners for purposes of seeking the statutory remedy of expungement of the recorded lis pendens. For this reason, the Court does not grant any relief to the party on the “joinder”. (See Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149) (noting that a “purported [monetary] interest does not go to legal title or possession of the subject property”); see CCP § 405.30.) ...

Excerpt: ...the sake of example and to punish the defendant, they are proper when tortious conduct rises to levels of extreme indifference to the plaintiff's rights, which decent citizens should not have to tolerate. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; American Airlines, Inc. v. Sheppard, Mullin, Richter & H...

Excerpt: ...431, 1438- 39.) The purpose of the requirement is to encourage the parties to work out the differences informally, to reduce the unnecessary expenditure of resources on litigation, and to reduce the burdens upon the court. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) The particular effort required in each situation depends on the circumstances. Among the factors considered are the breadth of the discovery demands, whether there is an im...

Excerpt: ...oprietary information readily available to the public. In the alternative Intersect moves for summary adjudication on four issues which will be discussed if necessary. A. Some Procedural History Because both the moving party (Intersect) and responding party (Plaintiff) cite to Plaintiff's procedural history in the United States District Courts before filing the current action in this Court, the following procedural background is provided. On Apri...

Excerpt: ...ially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) Here, Plaintiff has made only conclusory assertions as to MP's alleged knowledge of bedbug infestation when Plaintiff stayed there. The only actual “fact” asserted as to such knowledge is that “other guests who had stayed at the Subject Property prior to Plaintiff's stay complained to Defendant's employees specifically...

Excerpt: .... shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affid...

Excerpt: ...o be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Under Civil Code §1794(d), a prevailing buyer in a Lemon Law case to recover fees and costs, including attorney'...

Excerpt: ...avy quartz, and controlled with a counterbalance system. The system – technically known as the Lift-A-Syst 30 Series Heavy Duty – has a fulcrum, a hinge, and a torsion spring designed to neutralize the weight of the bar bridge, allowing the user to lift the bridge easily and holding it passively open when needed. If the appropriate device and counterweight measures are applied, the bridge should lift easy, stay up, and descend in a slower con...

Excerpt: ...ts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp...

Excerpt: ...ettlement Agreement, the parties expressly agreed that this Court would retain continuing jurisdiction over the Settlement Agreement for enforcement purposes pursuant to C.C.P. § 664.6. (Pipes Decl., Ex. A.) Plaintiff Gallegos is neither a moving nor responding party with respect to this Motion, yet Plaintiff Moctezuma's proof of service indicates service of the Motion upon separate counsel for Plaintiff Gallegos. The Settlement Agreement concer...

Excerpt: ...regarding Plaintiff's claims. Farkar Decl. ¶¶ 2-3. The SEC is also alleged to currently be investigating Riemann and his business entities. Id., at ¶ 4. Defendants argue an immediate stay is necessary to avoid compromising Riemann's 5th Amendment right against self- incrimination. Although Defendants' “evidence” is inadmissible hearsay and double hearsay, Defendants are not required to prove a criminal matter is currently pending to reques...

Excerpt: ...rd and guidance. James became agitated after an interaction with a customer and left the store. Traveling on foot, James broke into plaintiff's home, chased her into the street, and stabbed her repeatedly with a kitchen knife. When approached by Good Samaritans, James ran, stole a car, ran over a jogger, and crashed. After copious amounts of bystander pepper spray, James surrendered. Before the Court this day is a motion by plaintiffs to compel t...

Excerpt: ....) Any doubts as to whether a material, triable issue of fact exists are to be resolved in favor of the plaintiff opposing summary judgment. (LPP Mortg. v. Bizar (2005) 126 Cal.App.4th 773, 776; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.) 1st COA Negligence “To determine whether a duty exists, the following factors must be weighed: the foreseeability of harm, the degree of certainty of injury, the closeness of the connection between the...

Excerpt: ...motions. LOEC, “is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.” Connolly v. Pre-Mixed Concrete Co. (1957) 49 Cal. 2d 483, 489. This means the Plaintiffs' inability to earn money in the future from any job, not just earnings from their curr...

Excerpt: ...rk, Inc. et al., OCSC Case No. 30-2019-01102657 (“Mission I”); 3) Mission Hospital Regional Medical Center v. Heritage Providence Network, Inc. et al., OCSC Case No. 30-2019-01103466 (“Mission II”); and 4) St. Jude Hospital, Inc. v. Heritage Provider Network, Inc., OCSC Case No 30-2019- 01104195. “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the...

Excerpt: ...d the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a c...

Excerpt: ..., the issue was so elusive that as a matter of law it could not rise to the level of a cognizable defect. Plaintiff opposes the motions, pointing out that defendant's arguments are really just sour grapes that the jury believed plaintiff and his father (and the video) more than Toyota employees. Pursuant to CCP §§ 629 and 657, a trial court may cure a defective verdict by either setting it aside in favor of a new trial or entering an entirely d...

Excerpt: ...ernal reproduction services company, retained by health care facilities to respond to and comply with requests for copies of patient records. See 45 CFR §160.103 et seq. When requested by the patient's appointed representative (usually a lawyer), various statutes permit an internal reproduction services company – like plaintiff – to recoup reasonable costs incurred in the process. Defendant is an online portal accessible to patients wishing ...

Excerpt: ...1 Larson Avenue 3. But the Complaint and Exhibit 1 also identify the Property by the same Assessor's Parcel Number (937-09-027). Based on this slight discrepancy in the address of the Property, the court declined to sign the Notice of Pending Action submitted to Plaintiffs. However, since the APN is the same for both properties, and the Complaint indicates the address of the Property may also be known as 8171 Larson Avenue #3, the court determine...

Excerpt: ...ourt is not required to review any other document beyond the statement. (CRC 3.1345(a)(3), (c).) The failure to include the statement has bene described by the appellate courts as being “fatal” to the motion and a trial court does not abuse discretion in denying a discovery motion that lacks this. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; St. Mary v. Superior Court (2014) 223 Cal.App.4th762, 778-779.) In the interest of justice...

Excerpt: ...eclaration are OVERRULED and Objections 4-46 and 52-55 are SUSTAINED; Objections 56, 59, and 61 to the Foell Declaration are OVERRULED and Objections 57, 58, 60, and 62 are SUSTAINED; and Objections 63-75 to Plaintiff's Deposition are OVERRULED. 2. Summary of Tentative Ruling (1) Defendant's Motion for Summary Judgment, or in the Alternative, for Summary Adjudication is GRANTED in part and DENIED in part. The Motion for Summary Judgment is DENIED...

Excerpt: ...which included a standard form arbitration clause. Although plaintiff alleges she neither saw, nor knew of, the arbitration clause, there is no question about its presence. On 02/05/13, after amassing 27,964 miles, plaintiff obtained some warranty work relating to the WIN module. That fix was apparently successful. On 06/11/15, with 69,646 miles on the odometer, plaintiff obtained additional warranty work relating to the cooling system and altern...

Excerpt: ...e Complaint, he seeks a writ of mandate to compel the City to comply with the MOU and calculate and pay his back pay. In the second cause of action, Petitioner alleges, “by not including the [foregoing] additional compensation owed to Plaintiff … in the employees' regular rate of pay, Defendants are underpaying Plaintiff's and thereby miscalculating their overtime rate of pay, all in violation of the FLSA”. Petitioner's Complaint is styled ...

Excerpt: ...position papers, they complained about the additional filings as well as complaining about the confusing nature of the proceeding. (See Plff Opp. p. 2-3.) The Defendants then served reply papers on or about May 18th which expanded the evidence in the reply. (Ordinarily, new evidence is not permitted with replies, see Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Plaintiffs filed a supplement stating that they may require leave to offer...

Excerpt: ...e to late-file. Since no order was sought, much less obtained, here, the question first on this Court's plate is whether the pending motion is even timely when filed on 05/26/20. The cross-complaint in this case was filed on 08/09/17. This was clearly more than 60 days prior to when the anti-SLAPP motion was filed. This is where the inquiry would have stopped but for our Supreme Court's recent decision in Newport Harbor Ventures, LLC v. Morris Ce...

Excerpt: ...her proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) The moving party bears the burden of proving that he or she is entitled to relief under CCP § 473(b). If an “attorney affidavit of fault” is filed, this burden is met since relief is mandatory. However, absent such affidavit, the moving party's evidence must preponderate as to the claimed “mistake, surprise,...

Excerpt: ...d, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the...

Excerpt: ... 3rd COA: negligent undertaking;  4th COA: intentional interference with prospective economic advantage;  5th COA: negligent interference with prospective economic advantage;  6th COA: slander of title. LEGENDS previously attacked all four causes of action in an unsuccessful motion for summary judgment, and another unsuccessful oral motion for judgment on the pleadings. Plaintiff argues that the pending motion is simply a defective mo...

Excerpt: ...triking his bicycle with her minivan. He sustained serious injuries that appear to have had a lasting impact. On 09/27/18, Francisco caused to be filed a civil action for damages (case no 2018- 01021903) arising out of the above-referenced roadway incident against Geraldine (driver) and Michael (owner). Shortly after filing the parties reached a settlement. Geraldine and Michael agreed to pay Francisco $100,000 (which was their GEICO policy limit...

Excerpt: ...o such cause of action (CCP § 430.30(a)) and that the pleading is uncertain (CCP § 430.10(e)). Patrick also demurs to the second cause of action for Conspiracy to Commit Fraudulent Transfers on the bases that it does not state facts sufficient to constitute a cause of action and the pleading is uncertain. CCP §§ 430.10(e) and (f). A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to...

Excerpt: ...e properly verified costs memorandum. Plaintiff is only required to submit proof of the claimed costs after a proper objection is made. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Thus, the court DENIES the motion to strike plaintiff's entire costs memorandum. The court finds that plaintiff's CCP § 998 offer (“998 Offer”) is valid and enforceable, and that defendant failed to obtain a more favorable judgment than the 998 Offer. De...

Excerpt: ... third cause of action for Unfair Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.) on the basis that they do not state facts sufficient to constitute the causes of action. CCP §§ 430.10(e). 1) COA #2 – Breach of Implied-In-Fact Contract for Post-Stabilization Services “An implied contract is one, the existence and terms of which are manifested by conduct.” Civ. Code § 1621. “For an implied-in-fact contract, a plaintiff must...

Excerpt: ...tion Services, and the third cause of action for Unfair Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.) on the basis that they do not state facts sufficient to constitute the causes of action. CCP §§ 430.10(e). 1) COA #2 – Breach of Implied-In-Fact Contract for Post-Stabilization Services “An implied contract is one, the existence and terms of which are manifested by conduct.” Civ. Code § 1621. “For an implied-in-fact cont...

Excerpt: ...ey fees based upon the nonpayment of what might constitute “wages” under the law. The outcome of this litigation was mixed: Palo technically prevailed on its misappropriation claim, but received from the jury what could only be described as a token “People's Court” victory - $4,352.00 for losses associated with unproductive employee time digging around. However, more importantly, Palo successfully defeated most of Cannivet's claims, inclu...

Excerpt: ...Jet was one of the first companies to mass produce direct to garment printing. AnaJet sold printers equipped with Ricoh inkjet printheads. On or about 04/30/12, plaintiff Christopher Lima – dba Island Puzzle – acquired from AnaJet, LLC a new 2012 mPower Printer with accessories, serial number R2737. Plaintiff paid $24,145.00. (Although plaintiff is not making claims associated with this printer, for reasons only plaintiff could know, it conti...

Excerpt: ... fn. 2). As noted by Plaintiff, “[s]imply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 disagreed with on other grounds in Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 67). While the Complaint alleges Plaintiff was behind the LA Fitness gym located at 29400 Portola Parkway, Lake Forest, CA 92630,” and...

Excerpt: ... unseal a “confidential report” filed in the underlying criminal case. This is NOT a motion to compel someone to produce a copy of that report, but merely a request to lift a seal. The precise nature or content of this report is unclear, but according to plaintiff is contains details of what Bassinne allegedly did to plaintiff. By process of elimination, this Court surmises that plaintiff must be referring to the presentencing psychosexual ev...

Excerpt: ...rits since it appears unlikely that requiring the parties to meet and confer would resolve the issues raised in the demurrer. Page Limits: Cross-Complainant correctly objects that Cross-Defendants exceeded the 15- page limit for a supporting memorandum. (Cal. R. Ct. 3.1113(d).) Since the excess pages contain the conclusion and signature, the court will consider the entire memorandum in support. Judicial Notice: In support of their demurrer and mo...

Excerpt: ...d written notice of this hearing to the Plaintiff/MP (see Register of Action #46), but where the Defendants/RPs have not appeared in the case, the notice of hearing should have been imparted to them by the moving party for purposes of this motion. (CCP § 1005.) In addition, the Motion should be served by something other than electronic service. (see Register of Action # 37). While “notices” under the apparent settlement agreement, can be giv...

Excerpt: ... to notice these omissions and did anything about it and what was a junior lien became a senior lien that a subsequent foreclosure didn't extinguish. Before the Court this day is defendant Escrow Legends' (hereinafter ELI) motion to set aside and vacate a default judgment recently entered against it. On 04/27/17, plaintiff filed her Second Amended Complaint. While there were no charging allegations directed at ELI, as a “doe” defendant ELI wa...

Excerpt: ...ey fees based on the nonpayment of wages. The jury in this case awarded Palo $4,352.00 for misappropriation. The jury separately awarded Cannivet $355,455.00 as damages for the two cross-claims resolved in his favor: breach of contract and quantum meruit. The jury did not distinguish between the two, presumably concluding that whether it was based on a clear contractual obligation or a reasonable totality of the circumstances, Cannivet was entitl...

Excerpt: ...e Demurrer is SUSTAINED as to each of those three COAs. COA 1: COA 1 asserts a claim for Dependent Adult Neglect under Welfare and Institutions Code § 15600 et seq. The elements of such a claim include denial or withholding of goods or services necessary to meet the individual's basic needs. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-07.) The facts constituting the neglect and establishing the causal link to...

Excerpt: ...terials Co. (1981) 123 Cal.App.3d 593, 604.) Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why the earlier admissions are incorrect. Absent such explanation, however, the self-destructive allegations in the earlier pleading or discovery response are “read into” the complaint, and allegations inconsistent therewith treated as sham and disregarded. (Owens v. Kings Supermarket (1988...

Excerpt: ..., 88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” Navellier, supra, 29 Cal. 4th at 89. In order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have “'...

Excerpt: ...lding themselves out or their offices out as plaintiff's new offices or otherwise as successors to plaintiff; and 3. Using business names that include “Focus Financial”. Defendant Williams' objections to paragraphs 3, 4, 10, 12, 19, 21, 23, 31, 32, 33, and 34 of the Cho Declaration are OVERRULED, and the objections to paragraphs 13, 14, 15, 16, 17, 22, 25, 26, 27, 28, 29, and 30 of the Cho Declaration are SUSTAINED. Although the court has bro...

Excerpt: ... and declaratory relief. Cross-defendants demur to all six causes of action. Cross-defendants also move to surgically excise a number of averments within the operative pleading pertaining to the underlying agreements between the parties. Initially, this Court notes that the First Amended Cross-Complaint is narrowly-tailored, consuming a relatively scant nine pages. The essential facts are set forth clearly, and with adequate precision to acquaint...

Excerpt: ... days leave to amend. Alter Ego Allegations: “ ‘Before the acts and obligations of a corporation can be legally recognized as those of a particular person, and Vice versa, the following combination of circumstances must be made to appear: First, that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corpor...

Excerpt: ... notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the...

Excerpt: ...n a residential, treatment and “work therapy” program through the Salvation Army in the hopes of perhaps, one day, achieving some degree of independent productivity. As part of the overall program, individuals like James are sometimes tasked with helping out in Salvation Army retail shops (aka family store and donation center). James helped out in the shop in Lake Forest. On 04/16/19, something caused James to snap. He had an altercation with...

Excerpt: ...torney's annual salary. On 06/10/19, defendant formally retained/employed a candidate presented by plaintiff. Based on that candidate's salary, plaintiff was entitled to a finder's fee in the amount of $27,750.00. Plaintiff sent an invoice for payment, to no avail. Plaintiff followed up with numerous telephone calls and emails, all to no avail. Finally, plaintiff requested a substantive explanation for the refusal to make good on the agreement, t...

Excerpt: ...the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) There are four circumstances in which concealment may constitute actionable fraud: (1) when t...

Excerpt: ...paid in settlement. Rather that work it out, the parties took a trip to the DCA, and then the Supreme Court, and then back to the DCA, and now back here. Despite the journey, from this Court's perspective, nothing has changed. Pertinent History This action was commenced on 07/19/18 with the filing of a six-count complaint. Despite the number of claims, the clear crux of the case was unpaid wages – which subsumed the 1st, 2nd, 3rd, 5th and 6th c...

Excerpt: ...oundaries. The parties were apparently in discussion for over a year, but no resolution was reached. Plaintiffs filed suit, alleging a cause of action for trespass and one for nuisance. At issue is whether the facts pled support the inclusion of a prayer for punitive damages. This Court concludes they do not. To adequately plead a claim for punitive damages under the malice rubric, one must plead with specificity facts demonstrating (1) defendant...

Excerpt: ...nce billing and records, billing records, explanation of benefits (EOBs) billing off-sets, write-offs, and records of payment, amounts paid, and amounts adjusted, file including any and all records, reports, correspondence, work orders or referrals generated by any and all social workers including but not limited to social workers Bridgett White and Jerry Comberos, pertaining to the care, treatment, and examination of Chuck S. Montgomery, DOB: 03...

Excerpt: ...D Nos. 21, 24-27, 30-31 with similar boilerplate objections: No. 21: Communications between YOU and MARTIN. No. 24/26: Communications between YOU and CROSS-DEFENDANTS. No. 25: Communications between YOU and SANDLER. No. 27: Communications referring to defendant. No. 30: Documents prepared by MARTIN in connection with underlying litigation. No. 31: Communications that include MARTIN. Response: “Objection, this request seeks documents which are n...

Excerpt: ... 2020. A corrected Notice was thereafter served on October 30, 2019, which provided sufficient notice pursuant to C.C.P. §1005. While Cross-Complainant is correct in asserting mail service on October 15, 2019 provided insufficient notice for a November 7, 2019 hearing, this issue has since been mooted. The Demurrer to the Third Cause of Action for Interference with Contractual Relations is SUSTAINED, as Cross-Complainant has not properly pled a ...

Excerpt: ...andings. On 08/16/19, this Court adopted the discovery referee's recommendation to strike defendants' answer to the operative pleading (3rd Amended Complaint), as well as their cross-complaint, following a series of discovery abuses. On 09/18/19, this Court entered a signed order striking defendants' appearances, and ordering defendants to pay fees for the discovery referee. Thereafter, plaintiffs filed and served default prove-up packages. Befor...

Excerpt: ... utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” “When the Legislature enacted section 7031(b), courts had long held that a contractor was not entitled to any compensation for any work performed unless the contractor was licensed during the entire project (absent a sh...

Excerpt: ...(See Plff's Opp. RJN; see also Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483; El Escorial Owners' Ass'n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1350.) Wavy Clothing objects to judicial notice of the license information presented by the Plaintiff, but in the reply, Wavy offers the Court similar data and from a similar source (See Reply, RJN.) The Court will not address the licens...

Excerpt: ...entry of judgment. CRC 3.1700; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burde...