Excerpt: ... considered by the Court in its prior ruling. Plaintiff offered a satisfactory explanation for why the evidence was not presented at the September 22, 2022 hearing. (Declarations of Stuart A. Katz, Joel Garcia and James Weaver.) Thus, the Court grants the Motion for Reconsideration and will reconsider the merits of BoostAddict.com's third party claim with the new evidence. Here, in support of BoostAddict.com's third party claim of exemption, two ...

Excerpt: ... Mr. Levy declares that he is “the Credit Operations Manager for Plaintiff, FUSION LLF, LLC (hereinafter "Plaintiff' or "Fusion")” and asserts that he has personal knowledge of the following facts (¶1 of Levy Declaration); however, no additional facts are offered which establish personal knowledge of the relevant contract or invoices. As explained by the Court in Snider v. Snider (1962) 200 Cal.App.2d 74, a “bare statement” of personal k...

Excerpt: ...l Interrogatories If a timely motion to compel has been filed, the responding party has the burden to justify any objection or failure fully to answer the discovery requests. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221.) Interrogatory responses “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot ...

Excerpt: ...deposition is GRANTED. CCP §2025.450(a) provides “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelli...

Excerpt: ... hearing, it was the same as an initial trial setting On 10/8/20, the Court “vacated” the trial date. When the trial date was “vacated” it would seem reasonable to believe that there was no cut-off on discovery. Typically, when a court vacates an order, it is as though the order has never existed. If that were the case, then when the court vacated the trial date, it was as though no trial date had ever been set. Therefore, when the court ...

Excerpt: ...5(a).). The document noticed was offered as authority rather than to show some fact that would be properly subject to judicial notice. Plaintiff's Evidentiary Objections are SUSTAINED as to Obj. Nos. 1, 2 [as to “warranted”] and 4 [foundation, legal conclusions] but OVERRULED on Obj. No. 3. The Reply Objections, as to the La Torre Decl. are SUSTAINED on Obj. Nos. 3 -7 as to the characterization of the records [foundation; best evidence] but o...

Excerpt: ... (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.) “(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmat...

Excerpt: ...the Court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”. Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs: “(d) All motions, petitions and applications brought to the court for adjudication in any case subject to this order shall be served on all parties having r...

Excerpt: ... is to be liberally applied. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 {Fasuyi).) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) As such, “‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].'” (Id., at p. 134-135.) Defendant seeks relief from default on the ground that his failure t...

Excerpt: ...985) 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 complaint, the court ma...

Excerpt: ...7), Belenardos are admonished to timely file proof of service for all future motions. Notice of Appeal The filing of a notice of appeal of this court's ruling on Bales demurrer to the Belenardos' FACC does not stay the proceedings as to the present motion. (CCP §916(a); See also Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461). Merits “If the court finds that a special motion to strike is frivolous or is solely intended to c...

Excerpt: ...torney should be disqualified is a matter that is addressed to the sound discretion of the trial court. National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 713. In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Ibid. An attorney may not represent a new client whose interests are ad...

Excerpt: ... “they will face actual physical violence, the threat of physical violence, immediate deportation to China or their country of origin, likely arrest upon arrival in China or their country of origin and an order by China and other authorities accelerating the repayment of debt incurred for recruitment fees” and that they “reasonably fear that their families may face similar threats of physical and economic retaliation if their true identity ...

Excerpt: ...w disabled individuals to discern if the hotel is accessible to them. On 8/30/2021, the court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”. Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs: “(d) All motions, petitions and applications brought to the court for ad...

Excerpt: ...g sanctions against Margareta based on her failure to respond to discovery propounded on 12/27/2019, including form interrogatories (“FROGS”), requests for production of documents (“RFPS”) and requests for admission (“RFAS”) and her failure to obey two court orders (entered on 12/13/2021 and 4/14/2022) compelling responses to that discovery, citing CCP §§2030.290(c) and 2023.010 (d) and (g). CCP §2030.290(c) authorizes the court to...

Excerpt: ...e 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 complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day ...

Excerpt: ... apple”): • [7:141] At least one case holds such demurrers are improper because the court is “foreclosed from rendering a new determination on the viability of those claims” absent a timely motion for reconsideration under CCP § 1008 (see ¶ 7:155.2 ff., 9:324 ff.). [Bennett v. Suncloud (1997) 56 CA4th 91, 96-97, 65 CR2d 80, 83] • [7:142] Other courts have allowed demurrers to amended pleadings on grounds previously overruled because �...

Excerpt: ...facie showing of the existence of a triable issue of material fact.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) Under Section 437c(p)(2), 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 complete defense to the cause...

Excerpt: ...retion” in allowing amendments to pleadings. (Foot's Transfer & Storage Co. v. Superior Ct. (1980) 114 Cal. App. 3d 897, 901.) “[W]hat constitutes “good faith”-or lack of it-under Code of Civil Procedure section 426.50 must be determined in light of and in conformity with the liberality conferred upon the trial courts by the section and by prior law. We conclude that this principle of liberality requires that a strong showing of bad faith...

Excerpt: ...ion, like the present one, that is brought under Civ. Proc. Code § 473(d) as a void judgment can be attacked at any time. (Westport Oil Co. v. Garrison (1971) 19 Cal. App. 3d 974, 978; Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 830; Yeung v. Soos (2004) 119 Cal. App. 4th 576, 582 (“Yeung”).) Although there is a time limit under Civ. Proc. Code § 473.5, that code section does not apply here as the default judgment was void on its face, ...

Excerpt: ...of the demurrer. (See Arce v. Kaiser Foundation Health Plan (2010) 181 Cal.App.4th 471, 482). Merits This action arises out of an installment promissory note by plaintiff payable to Wells Fargo for $885,000 secured by a first trust deed in connection with plaintiff's property in Corona del Mar. (FAC ¶¶2, 7) In April or May of 2017, plaintiff defaulted on the note and applied to Wells Fargo for loan modification, which was denied. (FAC ¶6) On 4...

Excerpt: ...ransport van owned and operated by defendant Medlink. (Id.) Plaintiffs allege that the decedent was ejected from her wheelchair in the motor vehicle collision because Medlink failed to properly restrain her during transport. (FAC ¶12). They further allege that Defendants maintained a policy and practice of failing to compensate its employees for all hours worked, requiring employees to inspect equipment and supplies used to transport patients, i...

Excerpt: ...an inference that CRA was in fact a party to the Option Agreement. As Parman points out, the Option agreement contains representations and warranties specifically being made to CRA and by CRA, not Thompson. (TACC Ex. 1, ¶ 8.) The TACC also alleges that Parman and CRA and Thompson entered into the Option Agreement. (TACC ¶ 85.) Given the ambiguity raised on the face of the documents, the Court finds CRA's argument to be a factual issue that shou...

Excerpt: ...Action (Negligence, Intentional Infliction of Emotional Distress [IIED], Negligent Infliction of Emotional Distress [NIED]) As the Court previously stated in the first round of demurrers, negligence, IIED and NIED all fall within the 2-year period of limitations set forth in CCP §335.1 for injury caused by the wrongful act or neglect of another. The statute of limitations begins to run for negligence when the plaintiff has discovered or through ...

Excerpt: ...djudicated in other actions, etc.), which are not properly the subject of this Motion. The only issue before this court is whether or not Districts are permitted to file a Complaint in Intervention (Motion, Ex. 1 - “CII”) in this matter. As such, while the court will address the general allegations in plaintiffs Orange County Board of Education, Children's Health Defense, and Children's Health Defense-California Chapter's (“Plaintiffs” to...

Excerpt: ...r an order compelling third party JPMorgan Chase Bank N.A. to comply with a subpoena for the production of documents. Plaintiff also moves for an order imposing a monetary sanction of $4522.50 against JPMorgan Chase Bank. MP CONTENTIONS: Plaintiff brought this action after defendants acted as an escrow holder for plaintiff's $1.55 million investment into a company that defendants represented and beneficially owned. Under the escrow instructions p...

Excerpt: ...Per that Minute Order, after defendants failed to comply with certain terms of the settlement agreement, the property was to be sold under court supervision. On 7/9/2020, the court found that although there was no formal written settlement agreement between the parties, there is a valid and binding settlement agreement of the entire action between plaintiff and defendants Hermelinda Zamora and Maria Zamora that was placed on the record orally bef...

Excerpt: ...ent, in violation of C.C.P. § 437c(b)(3), which defect alone “may constitute a sufficient ground, in the court's discretion, for granting the motion.” However, as a responsive Separate Statement was very belatedly filed by Plaintiff on 7/7/22, the Court has elected to consider it here, despite the pages of improper argument presented as a preliminary statement at pp. 1-4 therein. The Complaint asserts two causes of action (each a “COA”) ...

Excerpt: ...ents. The court therefore will disregard the Requests for Admission and responses Defendants produced in its reply. The court also notes, even if it were to consider the new evidence in Defendant's reply brief, that evidence would not change the court's ruling on this Demurrer. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...of service complying with the 8/30/2021 Minute Order. He failed to do so. 2. Demurrer by USA Hotel Group LLC to FAC by Rafael Arroyo in 30-2020- 01173676 (ROA #306, 308, 311, 313, 314) The demurrer was served only on the plaintiff's counsel in violation of Judge Hunt's 8/30/2021 Minute Order. On 5/26/2022, moving party was ordered to file proof of service showing compliance with the 8/30/2021 Minute Order, and plaintiff was ordered to file the FA...

Excerpt: ...bjections pursuant to Evid. Code §§ 970, 971, and 980, and objections against self-incriminating pursuant to 5th Amendment rights. The court finds none of these objections are applicable to the questions at this present time. 1) Marital Privilege Objections (Evid. Code §§ 970, 971, 980) As to the marital privilege objections, none of the questions request any information about Lamberto's wife, co-defendant Meredith Anne Castillo (“Meredith�...

Excerpt: ... is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16, citation omitted.) A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. (Code Civ. Proc., § 1161(2); Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3...

Excerpt: ...e, that date was 6/17/2022. The opposition papers were woefully late, filed and served on Cape Frio only 2 days before the court hearing. Nevertheless, although the court has broad discretion under CRC rule 3.1300(d) to refuse to consider papers served beyond the deadline, (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765) the court has considered plaintiff's opposition here. Cape Frio's Request for Judicial Notice Cape Frio's unopposed r...

Excerpt: ...vidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.) If the employer's moving papers satisfy the initial burden, the burden shifts to the employee to “demonstrate a triable issue ...

Excerpt: ...Amended Complaint (the “FAC”), based on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”). Kia argues that under Rodriguez, Plaintiff's claims in COAs 1-5 are barred, because the subject vehicle was purchased as a used car from a retail seller unaffiliated with the manufacturer, and thus does not qualify as a “new motor vehicle” under the relevant portions of the Song- Beverly Consumer Warranty Ac...

Excerpt: ..., Plaintiff argues that Moving Party is liable pursuant to Education Code §44808, which imposes liability on school districts where they have “undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school- sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” (Cal...

Excerpt: ...nt 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 reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of ...

Excerpt: ...filed on 2/17/22 by Plaintiff Luis Alvarez (“Plaintiff”). Motion 1 – the MSJ/MSAI The MSJ/MSAI is GRANTED IN PART. As a preliminary matter, the Regents' papers contains multiple defects. The Motion's MPAs and Reply brief both substantially exceed the page limit under C.R.C. 3.1113(d), and also fail to comply with C.R.C 2.108(1) and (4). While the violation on the moving papers could be attributed to oversight, the same is not true for the r...

Excerpt: ...hat they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1...

Excerpt: ...torney Roofian and his client Tylor Johnson between 2017 and the present relating to plaintiff's investment in a cannabis company through Yellowstone Holdings 2020 and Johnson's direction to Roofian regarding transfer of funds received on behalf of plaintiff to third parties. Roofian has asserted the attorney-client privilege in response to all RFPS and produced a privilege log. Attorney-Client Privilege A confidential communication between clien...

Excerpt: ...tivity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  Prong 1: Protected activity   A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence...

Excerpt: ...s DENIED. AGA is ordered to file and serve an answer to the TAC within 10 days. Demurrer A claim for intentional infliction of emotional distress must plead the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of ...

Excerpt: ...5/19/22 is also ordered to be terminated. The court notes Plaintiff has put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of her request for a PI. Plaintiff failed to cite to any code section that permits the court to grant a PI, and Plaintiff only cited to two cases, neither of which involves a foreclosure action. There are multiple possibilities for requesting a PI under Civ. Proc. Code § 525,...

Excerpt: ...that ruling based on CCP sections 128(a)(8) and 663a. That filing was 70 days after notice had been served on the MSJ and it was originally set for hearing on 11/4/21. On 9/24/21 MP served the instant motion for sanctions, giving plaintiff more than 21 days “safe harbor” to withdraw the Motion to Vacate prior to the then hearing date. Subsequently, the Court, on its own motion continued that hearing to 1/27/22. On that date the Motion to Vaca...

Excerpt: ...bpoenas filed on 7/10/20 by Plaintiffs (“Motion 5”); and 5) two Motions to Compel filed on 9/25/20 by Plaintiffs, as to five sets of discovery (“Motion 6 and Motion 7”). Motion 1-Motion for Summary Judgment/SA Motion 1 is GRANTED. In the legal malpractice context, the elements of causation and damage are particularly closely linked. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 591.) The pl...

Excerpt: ...efendant's property on 10-22-20 in the amount of about $1,313,182; and (2) awarding defendant its attorneys' fees of $10,625.00. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 388-389 and Civil Code §§ 8422, 8430, 8488. Under Lambert v. Superior Court, supra, 228 Cal.App.3d 383, a property owner may bring a motion to remove an unjustified mechanic's lien without waiting for trial on the action to foreclose the lien. The inquiry made on su...

Excerpt: ...ional non-privileged responsive documents located on Mr. Pittman's computers and agreed that if Mr. Pittman produced additional responsive documents, he would sit for another deposition session limited to the topics affected by the supplemental production. (Supp'l Ledingham Decl. at ¶ 13 and Exhibit J thereto.) Nonetheless, Bryan Industrial maintains its request for a Court order compelling Mr. Pittman's deposition and document production based ...

Excerpt: ...he existence of the contract, the plaintiff's performance or excuse for failure to perform, defendants' breach and damage to plaintiff resulting therefrom. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031) The complaint must allege the ultimate facts necessary to state an actionable cause of action, and it is insufficient to simply plead the evidence by which he hopes to prove such ultimate facts. (Careau & Co....

Excerpt: ...le, 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 (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (19...

Excerpt: ...Court (2010) 186 Cal.App.4th 414, 426 [C.C.P. § 998 offer made while motion to quash pending]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 214 [anti-SLAPP motion made while motion to quash pending].) As Carlyle had a Motion to Quash pending when its other filings occurred, those filings did not constitute a general appearance here. On the merits, Plaintiff Plutos Sama Holdings, Inc. (“Plaintiff”) has failed to meet its burden on this...