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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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