Excerpt: ...(Id. at p. 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Jewish Def. Org., Inc. v. Superior Court (1999) 72 Cal. App. 4th 1045, 1054-55). There two types of personal jurisdiction: (1) general jurisdiction; or (2) specific jurisdiction. A court with general jurisdiction may hear any claim agai...

Excerpt: ...cant revenue for either plaintiff or defendant – but not both. Before the Court this day is a motion by plaintiff to secure a further response from defendant to eight (8) categories of documents contained in a first set of RPDs. According to defendant, the responses are Code-compliant. According to plaintiff, the responses are deceptive. The party receiving a demand for production of documents has two legitimate options: (1) move for a protecti...

Excerpt: ...gs Plaintiffs have filed. That being said, the proof of mail service attached to the Demurrer itself appears proper. If Defendant seeks to serve by e-mail in the future, it will need to use the proper email address. As to the Demurrer itself, it is sustained pursuant to CCP §§ 430.10(e)-(g). “The [] reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citat...

Excerpt: ...ific cause of action therein. (See Cal. R. Ct. Rule 3.1320(a).) As Plaintiffs correctly point out, Defendant's Demurrer is procedurally defective since he only demurred to the First Cause of Action. ROA 27. However, because Defendant did advise Plaintiff that he would demurrer to each cause of action (Supp. Jain Decl., Ex. A.) and included these arguments in his supporting memorandum, the Court exercises its discretion to consider the merits of D...

Excerpt: ...ll, Shaw & Garcia is GRANTED in part and DENIED in part; and (3) Motion to Compel Further Responses from Defendant Madison Conrad to Requests for Production of Documents, Set One, and for Monetary Sanctions Against Defendant and/or Her Counsel of Record, Patricia Valenzuela of the law firm, McDowell, Shaw & Garcia is GRANTED as set forth below: The motions to compel are GRANTED as to Form Interrogatories (“FI”) Nos. 2.6, 12.4, 16.1, 17.1, 20....

Excerpt: ...Appeal returned defendant's SLAPP motion with modifications. Pertinent Background Plaintiff is an internal 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 re...

Excerpt: ...t precedents strongly inform this area. Under California's long-arm statute, California courts may exercise personal jurisdiction “on any basis not inconsistent with the US Constitution or the CA constitution.” (CCP § 410.10.) When the defendant has not consented to the forum state's jurisdiction, the US Constitution permits a state to exercise jurisdiction over a nonresident defendant if the defendant has sufficient “minimum contacts” w...

Excerpt: ...ns to the Declaration of Chuck Montgomery are OVERRULED. “Except as provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify as to any matter.” (Evid. Code § 700.) A witness is presumed competent to testify absent a showing to the contrary. (People v. Knos (1979) 95 Cal.App.3d 420, 431.) The party challenging a witness' competency has the burden of proving to the judge by a...

Excerpt: ...e Court here has considered the Demurrer on the merits. However, the continued failure to comply with C.C.P. § 430.41 is troubling, after the prior omission was specifically noted. Moving counsel is reminded that compliance with statutory requirements is expected and that future omissions may not be similarly treated. On the merits, the COA as pled in the FAC is still barred by the Economic Loss Rule. Under the Economic Loss Rule, where a purcha...

Excerpt: ...art that the subject letter constituted a protected communication. Plaintiff's subsequent motion for reconsideration was denied on procedural grounds. Before the Court this day is defendant's motion for attorney fees as the prevailing party on that motion. Plaintiff does not challenge defendant's status as prevailing party, but instead objects to the amount sought as excessive, inflated and for matters not entitled to reimbursement. The prevailin...

Excerpt: ...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 the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) whe...

Excerpt: ...ing party must have “made a complete and timely compliance” with all expert witness exchange requirements. (CCP § 2034.300; Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446.) To make the required showing, the moving party must show that the expert witness disclosure is inadequate under the statutory scheme and that the failure to comply was unreasonable. (See CCP § 2034.300). However, when no demand is made by any party, no party is require...

Excerpt: ...se of escrow, plaintiff and his daughter received a check for surplus funds in the amount of $793.60. Neither plaintiff nor his daughter moved into the property. Instead, it was apparently leased to a third-party. However, those tenants did not move in (or stay long), and the property was soon sold to plaintiff's ex-wife – the defendant herein – for a small profit. Now the wrinkle: plaintiff contends that his ex-wife (the defendant) “forged...

Excerpt: ...nts relating thereto). Pursuant to CCP §§ 435 and 436, a party may move for an order striking from a pleading “any irrelevant, false or improper matter” or “any part of any pleading not drawn in conformity” with laws, rules or orders. The motion is to be used sparingly, not as a line item veto. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683. Defendant contends that the prayer for punitive damages is improper and not draw...

Excerpt: ...ter of law. That is because of the general principle that a party who seeks a court's action in his 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 C...

Excerpt: ...nt History This action was commenced on 07/19/18. Discovery ensued. On 11/29/18, defendant tendered to plaintiffs checks totaling just over $122,000.00. According to defendant, these checks were intended to cover all of the claims in the case except meal and rest breaks. See Pinedo Decl Para 3-4, 10. The cover letter accompanying the checks confirmed as much: “the totals for each [check] represent the full amount of back wages … [defendant] B...

Excerpt: ...aintiff alleges that he was directed by the Defendants into the patient examination room where he lay down on the examination table awaiting a medical professional to see him. (Complaint ¶ 6.) The doctor opened the door to enter and apparently the door hit plaintiff's body, as he lay on the examination table. (Id.) Plaintiff alleges that the poor placement of the examination table in the examination room was a dangerous condition of the room. (C...

Excerpt: ...e necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar...

Excerpt: ...p.4th 280, 291.) Unlike the tort of inducing breach of contract, interference with contractual relations does not require proof of a breach; it only requires proof of interference. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.) Further, it is not necessary that the defendant's conduct be wrongful apart from the interference with the contract itself. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26...

Excerpt: ... it appears that he received the Demurrer and has waived the improper service. Farrar v. McCormick (1972) 25 Cal. App. 3d 701, 705. As for the Reply, the Court has no way of knowing if it was actually served via e-mail, or to what address it was sent. The Court hereby admonishes Plaintiff to follow the proper statutory procedures for proofs of service in the future. Additionally, the Court also notes that Plaintiff's meet and confer statement is ...

Excerpt: ... whether it has specific jurisdiction over Danielson. To establish specific jurisdiction, Aviana was required to show that 1) Danielson purposefully established contacts with California and 2) the claims here arise and are related to California-related claims. Aviana has done so. The evidence establishes that although Danielson lived in Illinois, he worked for Aviana, a California company, as an employee. He reported to Hansen and Ishikawa, both ...

Excerpt: ...job or contractor names, dates, invoice numbers, and amounts. The Special Interrogatories (“SROGs”) at issue inquired about specific entries or groups of entries in the Summary. The responses at issue as provided by Plaintiff are inadequate. For SROG No. 52, Plaintiff asserted that a response would require a compilation from “voluminous documents in plaintiff's possession,” referred MP to subpoenaed materials without specifying any specif...

Excerpt: ...des appeared for that hearing, and the application was granted on 6/27/19. But Plaintiff then failed to timely file or serve either his Opening Brief or his Reply. (See 6/27/19 M.O.) Plaintiff thus did not comply with the briefing requirements for this Motion. The Motion fails in any event on the merits. Plaintiff argues that under C.C.P. § 657(1), a new trial should be granted based on evidentiary rulings concerning testimony from Dr. Pressman ...

Excerpt: ...each/control. CCP §2030.220. Even if portions of an interrogatory are objectionable, the remaining answerable portion must be substantively addressed. CCP §2030.240; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189. Form Rogs to Diane Stern Plaintiff contends that defendant's refusal to answer FRog 2.5 is a misuse of the discovery process. Therein, plaintiff asks for defendant's present and recent residence address(e...

Excerpt: ...e the 5/2/19 Order. Thus, the court admonishes Plaintiff, again. A. Special Interrogatories, Set One The court grants in part Plaintiff's Motion to Compel Further Responses to Special Interrogatories, Set One, as to Defendant KPC Healthcare Holdings, Inc. Defendant is ordered to provide a verified response, without objections to Nos. 13, 14, 15, and 18 only. The court denies each party's request for sanctions. The court denies the Motion as to No...

Excerpt: .... As the prevailing party, Defendants are entitled to an award representing their fees and costs incurred in litigating the Anti-SLAPP motion pursuant to Code Civ. Proc. § 425.15(c).) Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal. 4 th 1122, 1131.) This does not mean that the prevailing party is entitled to receive whatever it asks for, h...

Excerpt: ...Cal.2d 596, 603 [“A cross-complaint is a pleading separate and apart form the answer, and is required to be complete and sufficient in itself. It cannot be aided by averments of the answer.”] Since combining the two is improper, and makes analysis of the cross-claims imprecise, the usual course of action is to strike the pleading sua sponte and give defendant leave to file separately an answer and cross- complaint. Doing so will moot the pres...

Excerpt: ...rt is not limited to direct body-to-body contact. (See Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.) But the intent element requires that the defendant either intended to commit a battery or was substantially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) In the FAC, Plaintiffs assert that by sending them to an...

Excerpt: ...ustification as well. (CCP § 2025.480(j).) MP shall give notice unless notice is waived. Deposition Question, regarding where the Defendant currently lives. There are highly divergent views of the alleged “incident” here, and as to who was the perpetrator or aggressor. The record reflects a basis for the Defendant to have concern. (See Opposing Exhibit 2 p. 136-137 and 142-143 and 106 – 110, 40-42, see Opposing Exhibit 4.). Further, a pers...

Excerpt: ... Agreement calls for arbitration to be submitted to Henning Mediation & Arbitration Service (“Henning”). Edgerton Decl., Ex. C - Partnership Agreement, Article XXVI § C, pg. 31-32. Apparently, Henning's only location is in Atlanta, Georgia. Hall Decl. ¶ 5. The Court also notes that even if the Partnership Agreement were not the document referenced in the Purchase Agreement, Plaintiff has provided no alternative document that the Purchase Ag...

Excerpt: ...he employee's personnel file is off-limits. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of Cali...

Excerpt: ...s dispute the applicability of the equitable tolling doctrine. (Reply, at p. 4.) When the plaintiff is relying on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, the plaintiff must specifically plead facts which, if proved, would support that theory. (Lantzy v Centex Homes (2003) 31 Cal.4th 363, 384–385; Mills v Forestex Co. (2003...

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: ...COA are: (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) The conduct must be so extreme “as to exceed all bounds of that usually tolerated in a civil...

Excerpt: ...4,045 in attorney's fees and $787.58 in costs, for a total of $34,832.58, plus a 1.25 multiplier. The hourly rates claimed appear reasonable here, in light of the experience and expertise of counsel, the contingent nature of the claim, and the attendant delays in potential recovery. The number of hours devoted to the case for the services rendered also appear reasonable under the circumstances here. Jaguar argues that the hours billed are excessi...

Excerpt: ...discovery, professional courtesy generally warrants allowing one. In another context, the DCA has recently said: “The policy of the state is that the parties to a lawsuit ‘shall cooperate.' Period. Full stop.” (LaSalle v. Vogel 2019 ___ Cal. Rptr. 3d ___ (June 11, 2019, No. G055381) 2019 WL 2428668, at *1 (published, pending citation). The Court continued, “We conclude by reminding members of the Bar that their responsibilities as officer...

Excerpt: ...seeking. Plaintiff did not oppose the motion substantively. Instead, plaintiff contends that the motion was not properly served or timely noticed – requiring a continuance of the hearing. The matter was continued to this date to permit further briefing. The Court has now looked to the further briefing and issues the 2nd tentative. Pursuant to CCP §473.5, “when service of a summons has not resulted in actual notice to a party in time to defen...

Excerpt: ...rported to act in court, as a guardian ad litem (GAL) for his mother, even though the son was not formally appointed a GAL. Plaintiff alleges that the orders that issued in the case concerning payment of legal fees and spousal support, are void therefore. He is seeking a declaration that orders were void and to have the son pay for the alimony and legal fees that were ordered in the family court. Plaintiff is suing the son, Defendant Sridhar Redd...

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: ...scope of the responses thereto, which were not produced, and that reasons existed to compel further production for these, then the Court reasonably required and requested a separate statement in accordance with CRC 3.1345(c). After the Motion was filed, MP filed a Separate Statement, however, the document is transforming the matter into another dispute, namely one to compel a further response – for some 45 RFPs approximately. The Separate State...

Excerpt: ...Plaintiff did not oppose the motion substantively. Instead, plaintiff contends that the motion was not properly served or timely noticed – requiring a continuance of the hearing. The pending motion was filed on 05/03/19, but not served upon plaintiff until 05/15/19. The papers were served via regular US Mail. Minimum statutory notice for a motion is 16 court days. CCP §1005(b). When service is made by regular US mail, 5 additional calendar day...

Excerpt: ... entitled to recover costs as a matter of right. The allowed costs are enumerated in CCP § 1033.5(a) and discretionary items are also permitted under § 1033.5(c). Defendant's verified memorandum of costs is prima facie evidence that the costs were proper and necessarily incurred. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) There is no requirement for the Defendant...

Excerpt: ...ehensive discussion is still warranted. The jury found in Cannivet's favor on his cross-complaint for breach of contract and quantum meruit, based on his proof of a joint venture with Palo. These findings are challenged herein. It should be noted since the time of the jury verdict on Cannivet's cross-complaint, this Court ruled against Cannivet on his various remaining equitable claims, as follows:  On Cannivet's cause of action for promissory...

Excerpt: ...dentified attorneys in moving exhibit A, whose rate the Court is reducing to $300 per hour (- 3,600). Added to this, is 14 hours for reasonable work for this fee proceeding (14 x 425 = + 5,950) and finally, 25 hrs. are added for reasonable paralegal time at the reasonable rate of $125/hrs. to cover the range of work that is described in moving exhibit A (25 x 125 = +3,125). Preliminary Matters The papers indicate that case has settled. Plaintiff ...

Excerpt: ...2024.050(a), on motion of any party, the Court “may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Further, in exercising its discretion to grant or deny such a request, the Court should consider: (1) The necessity and the reasons for the discovery; (2) The diligence of the party seeking the discovery�...

Excerpt: ...sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. (Lopez, supra, at p. 604.) Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating san...

Excerpt: ...ed her Complaint for damages on July 12, 2018 alleging sexual harassment, retaliation, failure to take all reasonable steps to prevent discrimination and harassment, negligent supervision, intentional infliction of emotional distress, quid pro quo sexual harassment, and breach of the covenant of good faith and fair dealing. The plaintiff alleges that the defendant told her that his wife was no longer having sexual relations with him. Authorities:...

Excerpt: ...:  Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and  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 the facts giving rise to the amended allegations were discovered; and 4. the reasons why the request was not made earl...

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

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: ...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: ...ation of Mr. Moon also fails to adequately address the basis for seeking relief as to each (or all) of these three defendants. And while it seems to be seeking relief for defendants MK Fitness and Kim, the attached proposed order is as to MK Fitness alone. The Motion also fails to comply with C.C.P. § 473, as no proposed Answer or otherwise responsive pleading has been submitted with the Motion. (See C.C.P. § 473(b) [“Application for this rel...

Excerpt: ... support of this issue are reasonably established for purposes of this matter. For Fact 1, it was taken from Plaintiff's operative pleading (see 3rd AC, ¶ 12) and in a summary judgment proceeding, the moving party can fairly rely on the judicial admissions made by the opposing party in the opposing party's pleading to establish a fact and the pleader is generally estopped to deny judicial admissions in his or her own pleading. (Thurman v. Baysho...

Excerpt: ...ice of Exhibits 1 and 2 is GRANTED. Proposed Amendment: The cross complainants' current pleading alleges Trespass and Declaratory Relief causes of action. The proposed First Amended Cross Complaint alleges Declaratory Relief, Slander of Title, Interference with Easement and Negligence causes of action. General Amendment Authorities: Motions for leave to amend are directed to the sound discretion of the judge: ‘The court may, in furtherance of j...