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

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

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

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...:  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: ...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: ...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: ...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: ...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:...