Excerpt: ...of jurisdiction. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (199 4) 24 Cal.App.4th 1426, 1439 -1440.) The parties agree that there is no basis for the exercise of general personal jurisdiction over Defendant. The question is whether speci�...

Excerpt: ...hibits are attach ed to the operative Complaint. (See ROA 2.) Plaintiff filed a Supplement to Complaint attaching what appears to be a 3 -day notice to quit, dated November 1, 2022. (ROA 10.) According to the declaration of service, the notice was personally handed to De fendant Robert Campbell on November 1, 2022. Notably, the dates in the Supplement to Complaint do not match the dates and actions as alleged in the Complaint. II. Request for Ju...

Excerpt: ... The opposition was to include why the Court should not sustain, without leave to amend, the demurrer to the First Amended Complaint. (See ROA 60.) Initially, the Court notes that the opposition does not have a proof of service. A proof of service of the opposition must be filed with the court. (California Rules of Court, rule 1.21(b).) Nevertheless, as a reply on the merits has been filed, the Court will address the merits of the demurrer. The...

Excerpt: ...24, Cross -Defendants timely filed and serv ed a supplemental declaration pursuant to the Court's March 7, 2024 Minute Order. Despite apparent telephonic conferences to meet and confer held on March 15, 2024, and March 26, 2024, it appears that the parties failed to reach an agreement concerning any of the 11 causes of action at issue. Standing for Dessau and M86 Cross -Defendants contend that Dessau and M86 lack standing to file a lawsuit agai...

Excerpt: ...nt cites to Janken v. GM Hughes Elec. (1996) 46 Cal.App.5th 55, 64 -65 as legal authority. In Opposition, Plaintiff contends that the Court previously found a viable claim could be pled based on Plaintiff's protected status if alleged; that the SAC pleads that Plaintiff went on medical leave on 4/23/2020, returned, and then Defendant Leano's conduct worsened when she returned (see SAC, ¶¶ 23 and 32); and the fact that a defendant is in a manage...

Excerpt: ...2020.010(b), 2025.280(b ); see Terry v. SLICO (2009) 175 Cal.App.4th 352, 357, (citing text)] (Code Civ. Proc. § 1985 et seq. dealing with subpoenas generally also apply to deposition Page 3 of 39 subpoenas except as modified by § 2020.010 et seq.; see Code Civ. Proc. § 2020.030.] Personal service of a deposition subpoena requires a person who is a resident of California to appear, testify and produce whatever documents or things are specifi...

Excerpt: ...sponded 7/26/2023. Pl aintiff filed Page 7 of 21 this Motion to Compel Further Responses to RPDS on 8/23/2023. The Court notes that in recent years, an astounding number of cases have been filed against Defendant Volkswagen Group of America, Inc. in OCSC. These cases involve a tremendous amount of time and resources for the Court, its staff, and research attorneys. For example, in this case, Plaintiff's motion includes a 195 page separate state...

Excerpt: ...ntiff's Motion to Compel further Deposition of HMA's Person Most Knowledgeable: a. Paragraph 4 – 1:19, 20 – 3:6 b. Paragraph 5 – 3:7 -8 c. Paragraph 6 – 3:9 -10 d. Exhibit P e. Exhibit Q 3. ROA# 488, Plaintiff's Amended Motion for Terminating Sanctions or Alternatively, f or Issue and/or Evidentiary Sanctions a. Page 1:15 -16, 19 -27 b. Page 2:2 -8 c. Page 2, fn. 3 d. Page 6, 13 -14, 16 -24, 26 -28 e. Page 7: 1 -2 4. ROA# 486, Amended Dec...

Excerpt: ...re, the motion is d enied, without prejudice, for the same reasons as set forth in the Court's March 7, 2024 and March 28, 2024 Minute Orders on Defendants' motion to deem the truth of the matters in Request for Admissions, Set One, admitted and motion to compel responses to Demand for Production of Documents, Set One. (See ROAs 90 and 94.) On June 21, 2023, Defendants served written discovery by mail on Plaintiff, including the instant Form Inte...

Excerpt: ...tiary objections to the De claration of Robert Dale Beaver are OVERRULED. Plaintiff's request for judicial notice of Orange County Ordinance 2183 and the Court's 04 -0722 minute order is GRANTED. (Evid. Code, § 452(b), (d).) Steven and Robert purchased the Pine Place property in 1 988 as joint tenants. Steven subsequently moved out in 1989 or 1990. Robert claims that in 1992, he and Steven agreed that Steven would grant Robert his entire interes...

Excerpt: ...ly found tha t defendant Cutler is subject to the Page 5 of 21 Court's personal jurisdiction in its November 17, 2023 Minute Order and that Defendant has not met his burden for reconsideration. A motion for reconsideration must be filed within 10 days of service of n otice of entry of the order in question. (Code Civ. Proc., § 1008(a).) However, “the trial court retains the inherent authority to change its decision at any time prior to the en...

Excerpt: ...fact the operativ e complaint is the First Amended Complaint. The court also notes that Plaintiff filed two identical oppositions to the Demurrer. In the notice of motion, Defendant argues that Plaintiff lacks standing to bring the action. Defendant also argues that the complaint is uncertain because Plaintiff failed to allege whether the actions are brought on Plaintiff's behalf or on the corporation's behalf and, to the extent that they were b...

Excerpt: ...iled to fil e an opposition. In reviewing the complaint, it is unclear what causes of action are being alleged and against whom. However, the gravamen of the complaint appears to be rooted in a negligence claim. Defendant's first argument that plaintiff's complai nt fails to plead any of the elements of dangerous condition of public property under Government Code section 835 is well taken. Moreover, Defendant also appears correct in its asserti...

Excerpt: ...vice of the Complai nt as the Complaint was served on the City on June 15, 2023. Plaintiff does not dispute this assertion in the points and authorities. “The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any la ter time upon terms it deems proper.” (Code Civ. Proc. § 425.16(f).) “In other words, the defendant is only entitled to ‘file[]' such a motion within 60 days of ser...

Excerpt: ...e meet and confer, pursuant to Code of Civil Procedure S ection 435.5. The Court notes that Defendant failed to adequately meet and confer before filing this Motion. The Court will exercise its discretion to consider the merits of the Motion at this time but admonishes Def endant that the future failure to comply with all applicable statutes and rules may result in a motion being taken off calendar in the future or sanctions, where appropriate. ...

Excerpt: ...r than her i nitial request. No explanation is given as to why Plaintiff now seeks a sanction amount 37 times greater than initial requested. Plaintiff contends in her moving papers, that Defendants failed to timely pay fees or costs to initiate an arbitration procee ding. Indeed, in her moving papers, Plaintiff cites to and relies exclusively on Code Civ. Proc. §1281.97(a) quoting as follows: “In an employment or consumer arbitration that req...

Excerpt: ...o effectua te personal service. Instead, Plaintiff served all Defendants by emailing the summons and complaint to Defendant Chavez. Defendants argue that Chavez did not agree to accept service of the summons and complaint by email and further did not agree to accep t service on behalf of the other Defendants. Defendants also argue that Plaintiff did not establish that she made diligent attempts to personally serve Defendants prior to serving them...

Excerpt: ... must consider the objections to the interrogatories, the interrogatories themselves, the pleadings, and the contentions of the interrogating party as to the purpose and validity of the interrogatories. (Columbia Broadcasting System, Inc. v. Superior Court for Los Angeles C ounty (1968) 263 Cal.App.3d 12, 18- 19.) “If the interrogatories stray too far and seek information which cannot reasonably serve the acknowledge purposes of pretrial discov...

Excerpt: ...1, 2023 be deemed admi tted and conclusively established for all purposes in this action. Defendants additionally move for an order awarding monetary sanctions against Plaintiff in the sum of $690 each for three filed motions for a total of $2,070 for all motions. Defendants contend that Plaintiff has not served responses to the discovery at issue and that Plaintiff has asserted that she has already responded to the discovery via her complaint a...

Excerpt: ...operly serve an amen ded Complaint by April 3, 2023, or thereafter; that at the May 4, 2023, Case Management Conference, Plaintiff had still not filed the First Amended Complaint and represented to the Court that one would be filed but that one had still not been filed and tha t Plaintiff never requested additional time to file and serve an amended complaint, and no extension was granted. Defendant asserts that the entry of default appears to...

Excerpt: ...ng party has 30 days after service of a demand for inspection to ser ve a response, Page 4 of 16 unless the parties agree to extend the date for a response and the agreement is “confirmed in a writing that specifies the extended date . . . for the service of a response.” (Code Civ. Proc. §§ 2031.260(a), 2031.270(a) -(b).) If a party to whom requests for production of documents were directed fails to serve a timely response, the propoundin...

Excerpt: ... if a statement of compliance with the demand is incomplete, a rep resentation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must set forth specific facts showing good cause to justify the discovery sought. (Code Civ. Proc., § 2031.310(b).) A party may move for an order compelling further responses to interrogatories if the party deems an answer to be evasive...

Excerpt: ...e profession commonly possess and exercise; (2) a brea ch of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care against which the acts of a physician are to b e measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be p...

Excerpt: ... Fourteenth Amendment, and Third Cause of Action for Civil Harassment. D efendant contends that although the caption of Plaintiff's Complaint appears to allege violations of the 4th and 14th Amendments, the body of the Complaint states no facts regarding any such violations, and that actions were taken in accordance with the OC Municipal Code. Defendants also contend that Code of Civil Procedure section 527.6 concerns harassment, and that Plainti...

Excerpt: ...award of reasonable attorneys' fees and costs pursuant to Civil Code section 1717, as they are authorized by the Promissory Note at issue in this case. Plaintiff asserts that the motion is timely; that the lodestar applies; that 172.6 hours of attorney time was expended for this action which commenced in October 2020 through August 2023 by Sean Cooney, principal of Cooney Law PC, and is reasonable as this case was aggressively defended until coun...

Excerpt: ...berts dba Image Auto Group; 2. that all parties to this acti on are hereby restrained from instituting or further prosecuting any other proceeding in any other court in the State of California, or any other jurisdiction, affecting the rights and obligations between the parties to this interpleader; 3. that Hudson b e dismissed with prejudice from the instant action, and any legal actions pending against the bond proceeds; 4. that Hudson be awarde...

Excerpt: ...��If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” Co de of Civil Procedure section 2025.480(b) states, in relevant part: “[t]his motion [motion to compel answers or pro...

Excerpt: ...operty. ISSUE NO. 2: Summary Adjudication is proper as to Plaintiff's Second Cause of Action for Premises Liability because Defendant had no actual or constructive notice of a dangerous condition on Defendant's property. Initially, the Court notes that the instant motion and moving papers were filed and served on February 8, 2024, which is only 42 days before the noticed hearing date of March 21, 2024. 75 -days' notice is required on a motion fo...

Excerpt: ...o. 7, and awarding monetary sanctions in the amount of at least $1,387.57 against Defendant. Plaintiff additionally moves for an order compelling further responses to Request for Production of Documents, Set One (“RFP”), Nos. 4 -6, 8, 9, 15, and 19, and compelling compliance with RFP, Nos. 1 -3, 7, 10, 14, 16, and 17, as well as awarding monetary sanctions in the amount of at least $3,862.57 against Defendant. Lastly, Plaintiff moves for an o...

Excerpt: ...egations of the plaintiff's complaint. (FPI Development v. Nakas hima (1991) 231 Cal.App.3d 367, 381 -382 (pleadings serve as the outer measure of materiality in a summary judgment motion)). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the exist ence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4...

Excerpt: ...section 426.50. However, when a defendant seeks to file a cross-complaint against another party, not the plaintiff, the cross -complaint is not compulsory. Rather, the defendant will be permitted to file a cross - complaint if the cause of action asserted: “(1) arises out of the same transaction, occurrence, or ser ies of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or...

Excerpt: ... has not filed an opposition. Here, on June 21, 2023, Defendants served written discovery, including the instant Request for Admissions, Set One, by mail on Plaintiff, and responses were due no later than July 26, 2023. (Declaration of David W. Tetzlaff, ¶ 4, Ex. A.) To date, Plaintiff has failed to provide any response to Defendants' discovery requests, despite Defendants' counsel's attempts to meet and confer on August 22, 2023. (Id., ¶¶ 5,...

Excerpt: ...ward -Clyde & Associates (1985) 38 Cal.3d 488. Any party objecting to a proposed settleme nt has the burden to prove an absence of good faith. (Code Civ. Proc., § 877.6, subd. (d).) The objecting party must prove that the settlement is “so far out of the ballpark” in comparison to the Tech- Bilt factors that it is inconsistent with the equitab le objectives and purposes of section 877.6. (Tech -Bilt, supra, 38 Cal.3d at pp. 499 -500.) Page 1...

Excerpt: ...UNSTOPPABLE AUTOMOTIVE GROUP, LLC (Plaintiff's former employer) separately moves for an aw ard of fees. Initially, the action was initiated on 4/19/2023 when Plaintiff filed the Complaint. Thereafter, she filed a First Amended Complaint on 4/25/2023 pleading causes of action for Sexual Harassment, Retaliation, Failure to Prevent Harassment and Retaliation, Retaliation under Labor Code. The parties herein do not dispute that a valid Arbitration ...

Excerpt: ...urt may, when the convenience of witnesses, the ends of ju stice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be hel d, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the ...

Excerpt: ... true.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 154; CACI 1903.) “It also requires the tortfeasor's intent to induce reliance, justifiable reliance by the person to whom the false assertion of fact was made, and damages to that person.” (Ibid.) “An implied assertion of fact is ‘not enough' to support liability.” (Ibid.) Like fraud, negligent misrepresentation must be specifically pled. (Cadlo v. Owens - ...

Excerpt: ...Civil Procedure section 430.41(a) provides that “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer . . . .” Code of Civil Procedure section 430.41(a)(3) requires that the demurring party file and serve with the demurrer a declaration stating eithe r “[t]he means by which the demurring party met and conferred with the party who filed the pleading subject t...

Excerpt: ... Professions Code section 17200. Defendant attacks these causes of action based on one argument: the fourth, fifth, sixth, and eighth causes of action are based on the same nucleus of facts that would constitute a claim for trade secret appropriation and are preempted by Civil Code section 3426.7. Defendant does not address each element of these causes of action and relies solely on the argument that they are preempted because they are based on ...

Excerpt: ...se to a request for reasonable accommodation by an employee or app licant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perfo rm his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the fai...

Excerpt: ...party may give notice that he or she will not appear at a law and motion hearing and submi t the matter without an appearance unless the court orders otherwise. The Court must rule on the motion as if the party had appeared.” The Court ORDERS Plaintiff's counsel to appear at the hearing on February 29, 2024. Plaintiff's counsel contends that counsel failed to appear at the May 11, 2023 order to show cause hearing where the instant action was or...

Excerpt: ...ewise time -barred as they arise from the same contract. Defendant co ntends that Plaintiffs' counsel wrote to Defendant on October 1, 2018, outlining the claims they had against Defendant, but that the Complaint in this action was not filed until October 14, 2022, 13 days beyond the four -year statute of limitations imposed by Code of Civil Procedure section 337(a). Plaintiff has not filed an opposition. “A party may move for summary judgmen...

Excerpt: ...Page 7 of 23 an individual, under Code of Civil Procedure section 187. Defendants contend that Mr. D'Al essio is the owner, sole member, manager, president, and alter ego of NHV and VMG; that there is a unity of ownership; that Mr. D'Alessio refers to them interchangeably with himself; that NHV and VMG have not adhered to corporate formalities for years and have been suspended multiple times during this litigation; that Mr. D'Alessio testified h...

Excerpt: ...t to C.C.P. § 177.5; (4) imposing an issue sanction against Defendants L anham, Cutler, and Riley ordering that the fact that they breached their fiduciary duties shall be taken as established in the action; and (5) subjecting Defendants to other monetary or nonmonetary sanctions as the Court deems appropriate. The Motion is m ade pursuant to Code of Civil Procedure sections 1209, 1211, 177.5, 583.150, 2023.030 as well as Evidence Code sections...

Excerpt: ...(names): ARMSTRONG GARDEN CENTERS, INC.” Defendant contends that the second count of Plaintiff's First Cause of Action for Premises Liability is not drawn and filed in conformity with California law and should be stricken under Code of Civil Procedure section 436 because no facts are alleged with respect to actual or constructive noti ce of the allegedly dangerous cement walkway, or that injury on the walkway was probable, and no facts are all...

Excerpt: ...imination in violation of the Fair Employment and Housing Act (“FEHA”) (Govt. C ode § 12940(a)) is without merit because Plaintiff was not constructively discharged and therefore, cannot make out a prima facie cause of action. ISSUE NO. 2: The first cause of action for pregnancy discrimination in violation of FEHA is without merit b ecause Plaintiff was not subjected to any adverse employment action and therefore, cannot make out a prima fa...

Excerpt: ...hich was denied the next day on 7/25/2023 without any argument. After a two day jury trial on 7/25/2023 and 7/26/2023, Judgment was entered in favor of Plaintiff and against Defendant in the amount of $23,168.23. On 8/2/2023 Defendant filed a Motion to Stay Execution of the Judgment, which was denied on 12/7/2023. That motion was unopposed. 8/7/2023 Plaintiff filed a Memorandum of Costs in the amount of $724.60. 8/10/2023 Plaintiff filed this ...

Excerpt: ...al sought by this Motion is $76,866. The Song -Beverly Consumer Warranty Act pr ovides remedies for consumers that have purchased, among other consumer goods, new vehicles. Remedies include the right to recover “damages and other legal and equitable relief.” (Civ. Code, §1794, subd. (a).) Further, any buyer that prevails in an action brought under the Act shall recover “attorney's fees based on actual time expended, determined by the court...

Excerpt: ...er prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” To determine the appropriate fee award under Civil Code section 1794, the...

Excerpt: ...led and refused to participate in mediat ion such that the parties are bound to submit this dispute to binding arbitration pursuant to the terms of the arbitration agreement. A petition to compel arbitration “shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions, except that not less than 10 days' notice of the date set for the hearing Page 5 of 29 on the petition shall be given....

Excerpt: ...ernatively, Defendants request that the Court strike all allegations i n the Complaint where Plaintiff claims that his service dog was taken from him through an illegal seizure, and specifically where Plaintiff alleges the following: (1) “Due to race and disability, H.I.P.A. right violation, conspires false allegation of ani mal cruelty, illegal seizure of certified service dog for mental/emotional support,” (2) “conspires with OC Animal ...