Excerpt: ... distinguished, as in Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 502–503, so that a supplemental designation of Dr. Patel would be permitted, Plaintiff then failed to properly designate Dr. Patel in any event. Plaintiff attempted to supplementally designate Dr. Patel as a retained expert. (Keshmiri Decl. Ex. D.) However, where a treating physician is designated as a retained expert, all of the rules for a retained expert ap...

Excerpt: ...ces for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (CCP § 340.5.) The Supreme Court has provided guidance about the difference between professional negligence versus ordinary negligence by health care providers: “[W]e conclude that whether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of th...

Excerpt: ...ualify as alter egos. Before the Court this day is a defense motion by the three putative alter ego defendants (CFNFS, J&W and DJ) for summary judgment on the principal basis they are not alter egos of National Flooring. Plaintiff correctly notes that this is an “unusual motion” – but not for the reason proffered. It is unusual because most of the time plaintiff-creditors seek to add alter egos to an existing judgment by way of a noticed mo...

Excerpt: ...um 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 burden then rests with the party seeking to tax costs to show they were improper, unreasonable or un...

Excerpt: ...there is no dispute that plaintiff qualifies as a prevailing party overall, and with regard to the specific causes of action which carry a potential right to recover attorney fees (more on this below). Although plaintiff did not prevail on all eight causes of action asserted, she prevailed on a majority of her claims and secured a total award in her favor of $53,624.86. Defendants do not dispute that plaintiff qualifies as a prevailing party but ...

Excerpt: ...This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2024.050(a).) “The court shall take into consideration (1) The 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 tha...

Excerpt: ...en to produce admissible evidence on each element of its causes of action entitling him to judgment on the causes of action. (CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) Only if the plaintiff meets its burden does the burden shift to the other side to present specific facts establishing a triable issue of fact. (CCP §437c(p); Aguilar v. Atlantic Richfield (2001) 25 Cal.4th at 845.) “In...

Excerpt: ...sumers were mailed to approximately 20 individuals pertaining to their loan files, which were requested in connection with some of the requests for production of documents. Although omitted in the moving papers and the Carlin Declaration, based on an email dated 10/4/19 from VOM's counsel to Attorney Martin, nonparty Hebert Borja, one of the consumers, did object to the deposition subpoena. Ex. D. There is no information in the moving papers rega...

Excerpt: ...uding his mental state.” Mem. Supp., at p. 5. Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. (The Rutter Guide, Cal. Proc. Before Trial, § 8:293, citing inter alia, Britt v. Sup.Ct. (1978) 20 Cal. 3d 844, 855–56, & Pioneer Electronics (USA), Inc. v. Sup.Ct. (2007) 40 Cal. 4th 360, 370 [right of...

Excerpt: ... 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 “'stated and substantiated a legally sufficient claim.'” Briggs v. Eden Counc...

Excerpt: ...dments of pleadings are allowed in theory at any time in furtherance of justice, and while courts generally exercise liberality in permitting amendments, the Court must also consider whether prejudice will result to the other parties. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; W&W El Camino Real, LLC v. Fowler (2014) 226 Cal.App.4th 263, 270.) Prejudice exists where the amendment would require delaying the trial, add to the costs of ...

Excerpt: ...wo females, and then slapped one of them on her bottom. Nobody was amused. Several students complained, prompting Bassinne to ramp up his shenanigans by actively intimating students who he viewed as potentially adverse witnesses. Defendant district investigated, and found all the allegations (sexually abuse and subsequent intimidation) credible. The Orange County District Attorney also investigated, and secured from Bassinne a guilty plea to a fe...

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

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

Excerpt: ..., or any other official proceeding authorized by law, (e)(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law…” (CCP § 425.16(a); Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The Defendant must show that the activity giving rise to his asserted liabi...

Excerpt: ... at ¶8. Additionally, Plaintiff does not dispute that both defendants may seek to enforce the arbitration agreement. Thus, the burden shifts to Plaintiff to demonstrate the arbitration agreement is not enforceable. (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Plaintiff argues that the arbitration provision in this case is not enforceable because it fails to meet the additional procedural requirements for unwa...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...ct. (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.) Plaintiffs assert that by sending them to an infested room, AMC's agents caused them to be bitten by th...

Excerpt: ...is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day” (emphasis added). Cannivet contends that the $355,455 in damages awarded to him was certain or capable of being made certain by virtue of the fact the monies related directly to services rendered. The test for determining...

Excerpt: ...t present admissible evidence with particularity. (CCP §§ 482.040, 484.030; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 853; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1391; Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 272-74.) The MP has the burden of proving that there's an appropriate claim for the remedy to issue, and also, the probable validity of that claim. (CCP § 484...

Excerpt: ...aint on 8/8/18. The pleading is not properly labeled to indicate whether it is the first amended complaint or intended to be something else. In addition, the causes of action are not separately stated in compliance with Rule 2.112 of the California Rules of Court. The subject property at issue in the pleading is not identified or described. The plaintiffs allege that the property is located at SE Corner Carpenter and Second Ave, Carmel by the Sea...

Excerpt: ...he parties to engage in a meet and confer conference to occur within the next 10 days to discuss the amendment of the pleading and any future responsive pleadings. Plaintiff must initiate the conference. The amended complaint is due within 10 days after the conference occurs. For reasons of judicial economy, the Court is not granting Plaintiff leave to add new causes of action at this time but Plaintiff may pursue a noticed motion for leave to am...

Excerpt: ... Court will continue the trial and any related dates for an appropriate period of time. Regardless of the presence of some delay by the Defendant in introducing the defenses into the case, the denial of leave to amend is too drastic an outcome here, where the prejudice can be remedied by the Court giving Plaintiff time to address the defenses. The equities weigh in favor of granting leave. The Court expects the parties to pursue their remaining d...

Excerpt: ...ocess service, Mario Gomez, specifically states, “I have been unable to locate defendant [both Sami Fargo and Khelood Fargo in the respective declarations], therefore I have been unable to effect service. Fargo Opposition, Ex. 3. As neither Sami Fargo nor Khelood Fargo were served the deposition subpoenas pursuant to CCP § 1987(a), the motion to quash these subpoenas are Granted. The motion is Denied as to the subpoenas of Pamela Allen (“Pam...

Excerpt: ...ve received the same reprimand, and that hers was worse because she was female. On 10/25/18, this Court granted defendant's motion for summary judgment. After reviewing all the evidence, this Court found in pertinent part as follows: “Plaintiff admits that she was an at-will employee, subject to immediate termination for violating [company policy]. Nonetheless, plaintiff contends that the decision to terminate her for violating company policy w...

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

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

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

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

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

Excerpt: ...andings. Before the Court this day are numerous discovery motions filed by plaintiffs, seeking further responses to written discovery. At issue is whether the responses previously provided are good enough to satisfy the substantial compliance litmus. General Form Interrogatories No. 2.1 (to Dawn Tucker only). GRANTED. Plaintiffs are correct that defendant failed to response to the subparts. No. 12.1. GRANTED. The term INCIDENT – at least as def...

Excerpt: ...as to defendant RRE. Among other things, Plaintiff must demonstrate that attachment is sought on a contract claim for a fixed or readily ascertainable amount. (C.C.P. §483.010(a).) Plaintiff here has asserted a claim for $4,000,000, without any evidentiary support, and without demonstrating any contractual basis for that claim. That requirement is thus clearly not met. Plaintiff must also establish the probable validity of the claim upon which t...

Excerpt: ...d to the main action or cross-action. The Court also noticed the following: in the caption of Answer to the Cross-Complaint, filed by Moving Solutions Inc. and the Philpotts on 12/22/17, there is a second law firm, Employment Rights Attorneys LLP. Will this law firm continue to represent the clients in the cross-action? The Court expects this matter to be clarified at the hearing. The Court also expects clarification about whether the entire law ...

Excerpt: ...avoid prejudice, for convenience, or to permit greater expedience and economy: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, C...

Excerpt: ...ap, the separate motions directed at each plaintiff will be treated together. On 02/14/18, this Court entered stipulated orders akin to CCP §2032.320 that plaintiffs were no longer seeking damages for extraordinary emotional or mental injuries. In particular, plaintiffs waived psychiatric injury (original or exacerbated) and agreed not to claim any mental health services/therapy resulting from the fall. As a result, plaintiffs have sought to wit...

Excerpt: ...ide action, which is available on the official website of the Riverside Superior Court, using the free public-access, case search feature, see http://public- access.riverside.courts.ca.gov/OpenAccess/Civil/CivilCaseReport.asp?CourtCode=A&RivInd= RIV&CaseType=RIC&CaseNumber=1807364 as of August 3, 2018, and Evid. Code § 452(d), (h).) The Court agrees that Greenfield Communications Inc.'s 1st cause of action in the Riverside case, for breach of co...

Excerpt: ...-10. However, although Plaintiff has served substantive supplemental responses to FROGs and SPROGs, they were served after the respective motions to compel were filed. Pursuant to C.C.P. § 2030.300(d), sanctions are mandatory. After reviewing the declarations and evidence provided by the parties, the Court has not found substantial justification or other circumstances make the imposition of the sanction unjust. Id. Therefore, the Court awards sa...

Excerpt: ...tions to Compel the deponents, Christine Kasulka, and William Gallahar to appear for their depositions. The dates shall be selected at the hearing and counsel shall be prepared to do so. The Court was not persuaded from the evidentiary showing in the Opposition papers that the principles of Liberty Mutual insurance apply, that is, of the need to limit the depositions of high-level “apex” officers of the companies. There was no evidentiary sho...

Excerpt: ...intiff for neck surgery. Plaintiff contends this was bad faith, and filed suit for breach of the implied covenant. Before the Court this day is a motion by defendant seeking summary judgment on the sole cause of action for breach of the implied covenant of good faith and fair dealing. Alternatively, defendant separately seeks adjudication as to punitive damages and Brandt fees. On 10/17/12, plaintiff underwent an anterior cervical discectomy and ...

Excerpt: ...e does not have it now and the procedures he intends to use to obtain that evidence. Plaintiff therefore is entitled to a mandatory continuance under Code of Civil Procedure section 437c (h). The plaintiff has established that there is a likelihood that Jeff Shuman has evidence which may controvert the issues presented in the defendant's motion for summary judgment and that such evidence is essential to plaintiff's opposing of the defendant's mot...

Excerpt: ...ties: Fraud based causes of action require the plaintiff allege “how, when, where, to whom and by what means the representations were tendered. Stansfield v. Starkley (1990) 220 Cal. App. 3d 59, 74. The parol evidence rule provides that the terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a conte...

Excerpt: ... did not oppose the County's demurrer to this porti o of their seventh cause of action and have submitted no argument on the iss u in their briefs on appeal. Accordingly, we deem plaintiffs to have abandon e the issue.”). Additionally, the court construes the absence of a memorandu m as waiver of all grounds not supported. CRC 3.1113(a). ...

Excerpt: ...uding the dismissed causes of action) appears to arise from the type of constitutionally protected speech and petition activity protected by Code Civ. Proc., § 425.16. However, Defendants/Cross- Complainants (“Defendants”) have properly alleged a legally sufficient cause of action for breach of contract, and have establishes a probability of Defendants prevailing on the claim of breach of contract by way of the contracts attached to the Cros...

Excerpt: ...acts as Admitted (“Motions” together), are Granted. Plaintiffs Harry J. Brown III, and Patricia S. Brown are each hereby ordered t serve substantive responses, without objections, to the discovery reques t attached to the Motions no later than 15 days following the hearing on th matter. See, C.C.P. §§ 2030.290, 2033.280, and 2031.300. Additionally, although the Court recognizes that Plaintiffs' attorney David L Smart's illness, and the sudd...

Excerpt: ..., (3) a lawful object, ( 4 sufficient cause or consideration, (5) plaintiff's performance or excuse for failu r to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 160 5 Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v Lincare, Inc. (2009) 173 Cal.App.4th 508, 525. Precision or in haec verba not required, nor is attaching the actual contract if in writing. Pleading the leg a effect (ie, enough facts t...

Excerpt: ...ers unreasonab l denied. Garcia v. Hyster Company (1994) 28 Cal.App.4th 724, 736-737. T h attorney invoices submitted in support of defendant's request reveal that h seeks to recover all or essentially all of the attorney's fees and costs incurr e by defendant after plaintiff's denials. It would appear to this Court that defendant is entitled to the costs he incurr e to prove that he did not have or received any of the money alleged in t h compla...

Excerpt: ...ritten, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525. Precision or in ...

Excerpt: ...ty. The defendant has established that she propounded written discovery upon the defendant requesting all facts, witness, and documents supporting plaintiff's contentions that defendant was at fault or responsible for plaintiff's claims. UMF #11-14. In response, the plaintiff provided no witnesses or documents and no facts beyond the conclusory statements from her com-plaint. UMF #4, 5, 11, 13 and 14. The plaintiff provided no facts support a con...

Excerpt: ...lowing, assisting, conducting, permitting, or in any way granting authority to make any use of the Property, or any other location in the City of Huntington Beach, to dispense or distribute marijuana and/or any products containing marijuana;..” (Proposed Order, 2:14-17) It should read: The Court granted Plaintiffs preliminary injunction prohibiting “Leasing, renting, allowing, or in any way granting authority to make use of the premises at 81...

Excerpt: ... App. 4th 102, 118. Plaintiff's attempt to use the outcome of the MSJ hearing is irrelevant on the basis that the offer expired before the outcome of the MSJ was known, and an MSJ is not based up the merits of the case, but rather if there is a question of fact remaining for the jury to hear. “[G]enerally, ‘[i]f items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, placin...

Excerpt: ...ative pleading contains a single cause of action for unfair business practices under B&P §17200. Within that single cause of action, plaintiff avers that defendant (at Paras 7, 9): 1. has “improperly shifted [its] medical records requests from Section 1158 to HIPAA, so that [it] can obtain patients' records much more inexpensively than under Section 1158;” 2. went “out into the marketplace, marketing [itself] to attorneys (particularly pla...

Excerpt: ...0 years old with health problem, etc.), the motion must be supported by a declaration that all essential parties have been served with process or have appeared.”); Cal. Judges Benchbook Civ. Proc. Before Trial § 2.49.) At this hearing, Plaintiff's counsel must address on the record, that the foregoing aspect for the granting of trial-preference is satisfied. The argument of Defendants that Plaintiff is lacking a substantial interest in the act...

Excerpt: ...recently provided potential collateral options for Plaintiff in order to allow RMMT to cover expenses and remain in business, while slowly paying off the judgment amount. Although RMMT's Opposition is late filed based on the prior hearing date, the options presented may offer attractive alternatives for Plaintiff. The Court invites the parties to discuss these options before the Court makes its final ruling on the assignment. ...

Excerpt: ... by any state or local agency.” (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329 (citing Govt § 6252(e); § 6253(a)). It is the burden of the public agency to “justify withholding any record by demonstrating that the record in question is exempt under express provisions” of the Act, or under the catch-all exemption (which provides that, on the facts of the par...

Excerpt: ...ailed to allege that he was given notice and a reasonable time to correct the claimed habitability violations while Plaintiffs remained in possession. But Plaintiffs allege that after notice of a severe termite infestation, Paul waited 38 days to begin fumigation to remedy the condition. (FAC ¶¶ 10-15.) Plaintiffs also allege that after the fumigation, there were toxic chemicals in the unit which prevented Plaintiffs from safely returning, that...

Excerpt: ...vide UIM coverage. Before the Court this day is a demurrer to the Complaint by the employer, Goodyear. Pursuant to CCP §1060, any person interested under a written instrument or contract “may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action [for] a determination of any question of construction or validity arising under the instrument or contract.” The essential elemen...

Excerpt: ... statute of limitations, offset). The operative pleading is difficult to navigate, in large part because it is clearly intended as a preemptive strike to any action taken by defendant to collect on the debt. The essential elements of a declaratory relief cause of action are (1) an actual controversy between the parties regarding contractual or property rights (2) involving continuing acts/omissions or future consequences, (3) which has sufficient...

Excerpt: ...development Agency of City of San Diego v. San Diego Gas & Elec. Co. (2003) 111 Cal. App. 4th 912, 921. Although the Complaint states, “plaintiff's assignor,” (pg. 2 § 9; pg. 3 BC-1) there is no indication who the assignor is, what rights were assigned (if any) to Plaintiff, when the rights were assigned, how the rights were assigned, what was exchanged for the assignment rights (if anything), the assignor's rights to sue Badii, etc. Presuma...

Excerpt: ...ns set forth below. Issue 1 is directed to the first cause of action (“COA”) for declaratory relief. Summary judgment on a declaratory relief COA is proper where the controversy is as to past conduct, money damages would be an adequate remedy, and the COA is redundant of other claims. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909–910.) Plaintiff Javier Ospina (“Plaintiff”) effectively concedes in the Opposition that...

Excerpt: ... to support the conclusory allegation that the defendant's actions were reckless. The facts alleged support nothing more than standard negligence. ...

Excerpt: ...under consideration by the Court and it will listen to further argument. Meet and Confer: The plaintiff's meet and confer efforts were sufficient. The parties were not likely to further resolve any of the issues presented by this motion without the court's involvement. Discovery At Issue: Special Interrogatories, Set One No. 1 - 5, 20 - 28, 31, 32- 39, 45, 48, 49, and 51 request the identity and contact information for witnesses including current...

Excerpt: ...Complaint ¶¶ 19; 152 ln. 21-23; 160 ln. 23-24; 177 ln. 23-13; 185 ln 15-16) Kaura has provided no arguments at all as to why those items should be struck from the Complaint. Therefore, the request to strike these items is also DENIED. ...

Excerpt: ...is in the opposition papers. To the extent that the Defendants want Plaintiff to identify trade secrets, they can bring an independent motion that focuses on the particular issue. The present generalized request by Defendants for a blanket protective order against discovery, in general, is DENIED at this time, but it is without prejudice to a different motion by the Defendants. In the 4th and 5th causes of action of the FAC, which are for breach ...

Excerpt: ...f the requested relief is granted. The Court will therefore GRANT the Motion, and in light of Plaintiff's request, is inclined to reset the trial date to a date in January 2019. The parties should be prepared to discuss specific dates at the time of the hearing. (2) The Motion to Compel Neuropsychological Exam of Plaintiff is GRANTED. Good cause is shown for the requested relief, as Plaintiff has put her mental condition in controversy. (Renaud D...

Excerpt: ... Medical Center, Sea Cliff Healthcare Center, and Kaiser Permanente, as well as the autopsy report, deposition of Luis Garcia, M.D., and the expert declarations of Alan Brown, M.D., and Daniel Wohlgelernter in support of their respective client's Motions for Summary Judgment. Wachtel Dec. ¶ 5. Dr. Wachtel opined that the care and treatment of the decedent while she was under the care of Dr. Hosseinian and Dr. Nguyen complied with the requisite s...

Excerpt: ...agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . .” Civ. Proc. Code § 1281.2. “[B]oth California and federal courts have recognized limited exceptions to this rule, allowing nonsignatories to an agreement containing an arbitration clause to . ....

Excerpt: ... the last decade embroiled in hostilities. Before the Court this day is a motion to plaintiff to bifurcate the defamation cause of action currently stayed on appeal, and lift or narrow a case wide stay to permit all but the defamation cause of action to proceed. A brief review of this Court's history discloses that the premise behind the pending motion is fatally flawed. On 11/10/16, this Court granted defendant's (Frank) special motion to strike...

Excerpt: ...ion”) with the Court and served parties via mail, with a hearing date of 05/17/18. This is improper filing and service of a motion. Pursuant to C.C.P. § 1005(b), “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” [Emphasis added.] C.C.P. § 1005(b). The Motion was filed one court day after the filing deadline of 04/25/18, and should have been rejected. Further, if notice is served by mai...

Excerpt: ...ty, other than the memorandum of costs, is her declaration. The only testimony provided in the declaration is the defendant's assertion that "Defendants never served a Code of Civil Procedure Section 998 offer in this action.” Williams Dec. ¶ 2. The assertion is irrelevant because the moving party does not challenge expert witness fees, interest or any costs related to a 998 Order. The motion properly challenges and the plaintiff acknowledges ...

Excerpt: ... application papers were filed, the court received a declaration from plaintiff's counsel stating that the defendant Maxwell was no longer apparently present at a former address in Irvine, California. Further, the application papers and summons were later served on the Defendant more recently, at a residential address in Sunset Beach, California according to a proof of service (see Register of Action # 37 and 48). The Court will hear from the par...

Excerpt: ...tration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1575. The burden rests with the party seeking to compel arbitration to establish these three...

Excerpt: ...ue. First, discovery is no longer automatically extended when the trial date is continued. CCP §2024.020(b). Instead, the party making such a request must demonstrate necessity, due diligence, absence of prejudice, and a good faith meet and confer effort to resolve beforehand. CCP §2024.050(a)-(b). Defendants did not submit a motion pursuant thereto to have discovery extended. Moreover, the declaration filed in support of the motion to continue...

Excerpt: ...oad, Anaheim, California 92806; Los Alamitos Medical Center - X-rays, 3751 Katella Avenue, Los Alamitos, California 90720 is DENIED. AUTHORITIES: Although a plaintiff suing for personal injuries waives the physician-patient privilege (Ev.C. § 996), plaintiff still has a right of privacy in his or her medical records. Disclosure thereof depends upon balancing the need for discovery against the need for confidentiality. Ordinarily, discovery of re...

Excerpt: ...ction at trial on 03/19/18, but trial has since been continued. However, since there is a risk of this issue recurring, what with the subpoenas being recently re-issued with the new trial date, this Court will exercise its discretion to reach the motion on the merits. There are two subpoenas at issue, one to plaintiff Palo Capital, and the other to cross- defendant Kevin O'Grady. Both request production of basically the same types of documents pe...

Excerpt: ...vail (see ROA 423). Four days after that, plaintiff tried once again to get past the clerk gate, without success (ROA 426). With all due respect to our own, the clerk of the court had no legal basis for rejecting plaintiff's attempted filings. As before, plaintiff is hereby granted leave to file the 5th Amended Complaint. Chicago's demurrer and motion to strike are thus moot. ...

Excerpt: ...l burden of presenting evidence which supports a finding that there exists no triable issue of fact which would subject Defendant to liability. The defendant Karim has presented evidence which supports a finding that that he did not have or receive any money from Defendant Mahfuz Alam. The defendant Karim has also presented evidence which supports a finding that he and defendant Alam did not engage in any conspiracy to commit fraud against Plaint...

Excerpt: ...proposed Order Granting Attorney's Motion to Be Relieved as Counsel- Civil (form MC-053). See, CRC 3.1362(c) and (e). Additionally, the Notice and Motion must be served on the client and on all other parties. CRC 3.1362(b). Attorney Tamborini filed and served the Notice of Motion and Motion (Form MC-051), but failed to file and serve form MC-052 and form MC-053, as required by CRC 3.1362(e) Additionally, service is improper as the moving paper wa...

Excerpt: ...'s order. Review 1) Mental Health Records The California Supreme Court has recognized the importance of effective treatment of mental illness, and in protecting the right of patient privacy in relation to mental health records. Tarasoff v. Regents of Univ. of California (1976) 17 Cal. 3d 425, 440. “Evidence Code section 1014 provides that a patient has a privilege to refuse to disclose, and to prevent another from disclosing, confidential [] co...

Excerpt: ...which codify the sealed records rule. This would actually be the third time this Court has been asked to “seal” from public view something pertaining to the non-party clients these parties are fighting over. It seems a recurring theme that both sides are attempting to “seal” client identities, while at the same time forcing the other side to disclose client identities. The dispute here is strange. On 12/19/17, plaintiff motioned this Cour...

Excerpt: ...�Motion”) is continued to 06/07/18 to allow parties to properly meet and confer and file the necessary supporting documents to their Motion to Strike as required by C.C.P. § 435.5. Parties are to meet and confer no later than 05/28/18. MP is to file and serve the required documents no later than 05/31/18. Additionally, MP is to serve its Motion on defendant Charles A. Jansen, O.D., A Professional Corporation, doing business as Charles Jansen O...

Excerpt: ... it appears that the client's address is unknown: If the attorney has no current address for the client, a reasonable effort must be made to locate the client (e.g., through the County Registrar of Voters). The attorney (or search firm) must provide a declaration detailing the efforts made. If the declaration establishes the client cannot be located despite diligent efforts, the client may be served in compliance with CCP § 1011(b), which author...

Excerpt: ...nent death in the November and December 2017 timeframe. See, Decl. MANH at paras. 9 & 15. He further states that due to his inadvertence and distraction, that both a default and default judgment were entered against Defendant. See, Decl. MANH at para. 15. The Court finds that this showing is credible. The Motion to Set Aside Default was filed on 03-20-18, which was within the six month time limit following entry of default judgment on 01-05-18. D...

Excerpt: ... and judgment is void. The Defendant Moshe Ninio has established that he lacked notice of the action in time to defend and that such “was not caused by his avoidance of service or inexcusable neglect.” DEFENDANT MOSHE NINIO'S MOTION: When service of a summons has not resulted in actual notice to defendant in time to defend the action, defendant may move the court to set aside the default and any judgment thereon and for leave to defend the ac...