Excerpt: ...ause of Action for Negligence, and Fifth Cause of Action for Unfair Business Practices, Violation of Bus. & Prof. Code § 17200, et seq. of Plaintiff Salvador Ojeda's Complaint for failure to state facts sufficient to constitute causes of action under Code of Civil Procedure section 430.10(e). The Complaint alleges causes of action based on violations of the Homeowners' Bill of Rights (“HBOR”), negligence, and Violation of Business & Professi...

Excerpt: ...ntiffs have failed to plead their claims for fraud and negligent misrepresentation with the requisite particularity. Defendants also contend that Plaintiffs' cause of action for intentional infliction of emotional distress (“IIED”) fails because: (1) Plaintiff's purported mental ailments as alleged in the SAC do not rise to the level of “severe emotional distress” necessary to establish an IIED claim; (2) Plaintiffs have failed to plead s...

Excerpt: ...ble provision of Code of Civil Procedure section 473(b), as they attempted to serve an opposition, but the opposition was to the wrong defendant, and that the Order deeming the admissions admitted is essentially a terminating sanction. Defendants, Patricia Pacheco (“Pacheco”) and Keith Muraoka contend that Plaintiffs' counsel's failure to respond to Defendant Pacheco's First Set of Requests for Admission for nearly nine months constitutes ine...

Excerpt: ...Sun Mar Management Services and Sun Mar Healthcare, Inc. (collectively, “Defendants”) do not oppose Plaintiff's request to substitute Plaintiff. An order substituting the decedent's representative or successor in interest may be obtained “on motion.” (CCP § 377.31.) A successor in interest who seeks to be substituted as plaintiff in place of the decedent must execute and file a declaration in statutory form. (CCP § 377.32.) Plaintiff su...

Excerpt: ...ion 2016.040 states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Here, in Opposition, Plaintiff contends that Defendants failed to adequately meet and confer prior to filing this Motion because even after Plaintiff's served an Objection to the Deposition Notice and Plaintiff's counsel and the non-party witn...

Excerpt: ... not supported by substantial evidence; and/or 2. The first affirmative defense of contributory negligence has no merit because the element of causation is not supported by substantial evidence. Plaintiff's Request for Judicial Notice Plaintiff requests that the Court judicially notice page 41 of the 2018 California Driver Handbook published by the California Department of Motor Vehicles which is attached as Exhibit L to Plaintiff's Evidence in S...

Excerpt: ...tates, in relevant part, as follows: “A new trial is a re-examination of an issue or fact in the same court after a . . . decision by a . . . court.” A right to a new trial is purely statutory and must be based on grounds set forth in CCP § 657. Plaintiff's notice of intent to move for new trial indicates the following as grounds upon which her motion is based: 1. CCP § 657(1) – Irregularity in the proceedings of the court, jury or advers...

Excerpt: ... controlled by FDISS, but that it is the personal checking account of Williams. Williams also contends that he is not subject to the Writ of Attachment, and that he never received notice of Plaintiff's Ex Parte Application for Writ of Attachment. Plaintiff, Sami Services Inc. dba Sami-Aid (“Plaintiff”) contends that an individual's personal checking account is subject to attachment, that the evidence establishes the probable validity of Plain...

Excerpt: ...e, inadvertence and/or excusable neglect. Plaintiffs, in opposition, contend that Defendant's motion fails because: (1) it is brought under CCP § 473(b), instead of CCP § 2031.300(a), the latter of which specifically governs requests for relief from waiver in connection with untimely RFP responses; (2) Defendant's Motion is untimely because more than eight months elapsed between the time Plaintiffs emailed Defendant about the untimely responses...

Excerpt: ...session and a withholding thereof from the plaintiff 1st cause of action for Ejectment: The essential elements of a cause of action in ejectment are: “ownership disclosing a right to possession, the defendant's possession and a withholding thereof from the plaintiff.” [Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 675] Here, it appears from the face of the Cross-Complaint, that the cause of action for ejectment is MOOT. In...

Excerpt: ...cting Plaintiffs' access to the “Easement Area”; (2) requiring Defendants to (a) detach the “Fence” from Plaintiffs' home and repair any damage resulting therefrom; and (b) consenting to replacing the Fence with a new fence with an entryway that is adjacent to Plaintiffs' home, and across the Easement Area, that is wholly accessible to Plaintiffs, which Plaintiffs agreed to pay for in its entirety. The burden is on a plaintiff to show all...

Excerpt: ... unclear whether the demurrer challenges the First Cause of Action for Breach of Express Warranty. The Notice of Demurrer provides that it is being brought against “Plaintiff's second cause of action for breach of express warranty,” (Notice, 1:25), and the Memorandum states that “Defendant HMA brings this demurrer to Plaintiff's Complaint for the following causes of action: (1) second cause of action for breach of implied warranty, (2) thir...

Excerpt: ...the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” [Morgan v. Sup.Ct. (Morgan) (1959) 172 CA2d 527, 530] Initially, there is no argument whatsoever by Defendant Dr. Phan that Plaintiffs' motion is either untimely or that granting the motion will r...

Excerpt: ...to allege any “material” violations of these code sections as required. Civil Code section 2924.12 states, in pertinent part, as follows: “(a)(1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.” Here, the Complaint fails to allege that the violations of Civil Code sections 29323...

Excerpt: ... granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”]) Mojtaba Sean Taat's Evidentiary Objections (ROA 557) Objections 1 – 4 – OVERRULED Merits By the 17th COA, which is alleged by Mojtaba Sean...

Excerpt: ...icle. To establish a cause of action for negligent entrustment of a motor vehicle, “the plaintiff must prove all of the following: “1. That [name of driver] was negligent in operating the vehicle; [¶] 2. That [name of defendant] was an owner of the vehicle operated by [name of driver]; [¶] 3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle; [¶] 4. That [name of defend...

Excerpt: ... Documents (ROA 157) 2. Special Interrogatories (ROA 144) 3. Requests for Admission (ROA 150) The Discovery Act allows for a party to whom written discovery has been directed to request and be granted relief from waiver of objections if (1) the party has subsequently served a response that is “in substantial compliance” with code, and (2) the party's failure to serve a timely response was “the result of mistake, inadvertence, or excusable n...

Excerpt: ...he District failed to file a meet and confer declaration with its demurrer, and thus, failed to comply with Code of Civil Procedure section 430.31(a)(3). Defendant is admonished to comply with the rules. Despite the District's failure, the Court addresses the demurrer on the merits. First Cause of Action for Disability Discrimination, Fourth Cause of Action for Gender/Pregnancy/Fertility Discrimination, and Sixth Cause of Action for Retaliation. ...

Excerpt: ...rd, Kevin O'Hara, O'Hara & Greco, William F. Wraith, and Wraith Law, jointly and severally. Defendant contends that plaintiff cannot establish the probable validity of any alleged real property claim because (1) the claims cannot be brought against defendant in her capacity as trustee, or in her individual capacity; (2) there was inadequate valuable consideration for the 50% interest in the subject property; (3) the documents upon which plaintiff...

Excerpt: ...CP § 1281.2 states in pertinent part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration ...

Excerpt: ...on. Plaintiff contends that pursuant to Corporations Code §2105, Revenue and Tax Code §23304.1, and other applicable law, the transaction which is the subject of this lawsuit is voidable by this Court, rendering that transaction unenforceable as a matter of law. Defendants Newport Coast, Nils Lommerin and Sourabh Roy (collectively “Defendants”) contend that Newport Coast was not required to register with the Secretary of State because it wa...

Excerpt: ...�(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness . . . .” Here, Defendant presents evidence that it is not the owner of the dog. Plaintiff does not dispute this. (SSUMF 1 [Tran Decl. ¶¶ 4, 5; SSUMF ...

Excerpt: ...ants have judgment by default entered against them jointly and severally pursuant to the SAC. The motion is unopposed. Plaintiff initially filed its Motion for Attorney's Fees on 6/9/20 which was set to be heard on 8/27/20, seeking $52,350 and costs in the amount of $4,386.01. On 8/27/20, the Court denied the motion, without prejudice, finding that Plaintiff failed to demonstrate its entitlement to attorney's fees against Defendant IGT LED Lighti...

Excerpt: ...5 as including attorney's fees that are authorized by contract, statute, or law. (CCP § 1033.5(a)(10)(A), (B), (C).) “When a contract or a statute authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at trial and on appeal.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) Here, on 6/28/18, Plaintiff filed a request for dismissal. On 10/12/18, the Cour...

Excerpt: ...rdering the costs of production and review be borne by Defendant. The Subpoena orders UPS to produce the following categories of documents: “All DOCUMENTS pertaining to MR. FREEM, including, but not limited to, his complete personnel file, employment application(s), resume(s), interview notes, records of reference or background checks, attendance records, payroll records, salary and benefit information, disciplinary record, job description(s), ...

Excerpt: ...to a special motion to strike under Code of Civil Procedure section 425.16. First, the Court determines whether the defendant has made a prima facie showing that the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc. §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.Ap...

Excerpt: ...Sharon Jeffrey indicates that she sent a letter to counsel for plaintiffs Desiree Wiles and Presley W., a minor by and through her guardian ad litem, Desiree Wiles (collectively, “Plaintiffs”). Despite this procedural deficiency, the Court will rule on the merits below. (See CCP § 435.5(a)(4).) Item 1: Punitive damages Defendant seeks to strike punitive damages allegations at 9:22-27: “DEFENDANTS' conduct and failure to abate the nuisances...

Excerpt: ...d (3) request for monetary sanctions in the amount of $6,000 against Plaintiff and his counsel pursuant to Code of Civil Procedure sections 128.5 and 128.7. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). "The petitioner bears the burden of proving the existence of a valid arbitrat...

Excerpt: ...ed individuals, including MAJID, since there is no written agreement guaranteeing payment by any of the individuals. 3. The statue of frauds bars the Plaintiff from recovering against any individual or entity that did not sign or acknowledge an invoice accompanying a purported delivery. 4. MOVING DEFENDANT is entitled to judgment on all six causes of action against Defendant MAJID ADASSI because the CORPORATE VEIL DEFENSE defeats each cause of ac...

Excerpt: ...tion agreement that would require Plaintiff to prosecute its claims against him in another forum, i.e., Utah. Thus, the traditional forum non conveniens test applies here. (See Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 661 [“factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause”].) 1. Traditional Forum Non Conveniens If a court “find...

Excerpt: ...ompel–SROG, Set 1–Kurshida Nabi By these motions, Plaintiff moves for an order compelling defendants Debra L. Khandaker, Syed H. Khandaker, Amirul Islam, and Kurshida Nabi (collectively, “Defendants”) to each provide responses, without objections, to Requests for Production of Documents, Set Two (Nos. 20-26) and Special Interrogatories, Set One (Nos. 1-15) (collectively, the “Discovery Requests”) served upon them respectively. The fai...

Excerpt: ...d the parties to submit a joint statement at least 9 court days prior to the hearing specifying the special interrogatories that remain at issue, or whether the motion has been resolved and is being withdrawn. In issuing this order, the Court recognized the “recent heightened amount of law and motion practice relating to discovery in this case.” The Court is frankly disappointed by the parties' inability to at least “meet” to discuss thes...

Excerpt: ...�COA”) – Breach of Contract Defendant contends that the first COA is barred by two-year statute of limitations for breach of an oral contract. Defendant also contends that the complaint is ambiguous because it does not expressly allege whether the entire contract is written or oral. As to the entire demurrer, plaintiff generally contends that all facts alleged must be accepted as true, that a general demurrer must be overturned if a cause of ...

Excerpt: ...o provide discovery.” CCP § 2023.030, subdivision (d), provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . [¶] (d) The court may impose a termi...

Excerpt: ...ue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010(g), misuse of the discovery process includes the disobeying of a court order to provide discovery. The failure to comply must be willful. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 8:1203.1.) Although the moving party bears the burden of proof, the moving party n...

Excerpt: ...f Requests for Production, Nos. 51 and 69 from Defendant Ron Love (“Love”). The Court GRANTS Davis and Love's Requests for Judicial Notice as to Plaintiffs' Ex Parte Application for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue filed on July 6, 2020, pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's ...

Excerpt: ...gainst Defendant: (1) general negligence, and (2) premises liability. (ROA 26.) On 4/4/19, Plaintiff dismissed the 2nd cause of action for premises liability with prejudice (ROA 37); thus, the only cause of action remaining against Defendant is the 1st cause of action for general negligence. The elements of a negligence cause of action are: duty, breach, proximate or legal cause of injury to Plaintiff resulting from the breach, and damage to Plai...

Excerpt: ...��Brandyberry”), Brian Travis (“Travis”), Big Wave Business Investments, LLC (“Big Wave”) (collectively “defendants”), are not set forth verbatim in the Separate Statement of Undisputed Material Facts (“SSUMF”) such that the request for summary adjudication is defective and the Court should only consider whether to grant summary judgment. California Rules of Court (“CRC”), Rule 3.1350(b) provides, in relevant part: “If sum...

Excerpt: ... the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement….” “Because the existence of an agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenth...

Excerpt: ...reatment rendered by Dr. Nguyen, to patient Ms. Campbell did not cause or contribute to Ms. Campbell's contended injuries. A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (CCP § 427(c)(a)(1).) Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appoint...

Excerpt: ...ana Point City Council, and referencing Plaintiff. Plaintiff filed an Amendment to Complaint on October 25, 2019, adding Ellis as DOE 1. Ellis contends that Plaintiff's lawsuit arises from Ellis' exercise of his rights of free speech concerning a public issue as it arises from Ellis' creation of campaign mailers criticizing three candidates for Dana Point City Council due to their association with Plaintiff such that it constitutes protected acti...

Excerpt: ...hat received the document entitled “Pathways Health and Community Support, LLC Arbitration Agreement” a copy of which is attached hereto as Exhibit B. • Special Interrogatory No. 22: IDENTIFY all EMPLOYEES that signed the document entitled “Pathways Health and Community Support, LLC Arbitration Agreement” a copy of which is attached hereto as Exhibit B. • Special Interrogatory No. 23: IDENTIFY any and all COMMUNICATIONS and/or DOCUMEN...

Excerpt: ... success—e.g., where the party won on some causes of action but lost on others. Partial success, however, reduces the awardable fees and costs; and the party seeking attorney fees bears the burden of demonstrating to the court the time and costs expended on the claims on which it prevailed. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1016-1020); Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177-178). Plaintiff's Fir...

Excerpt: ... Distress,” and Sixth Cause of Action for “Negligent Infliction of Emotional Distress.” Request for Judicial Notice: The Court takes judicial notice of the following documents pursuant to Evidence Code §§ 452(d),(g) and (h), and 453: (1) Plaintiff's DFEH Complaint of Employment Discrimination dated November 3, 2015 (Defendant's RJN, Exhibit “1”); (2) Plaintiff's DFEH Notice of Case Closure and Right to Sue dated November 14, 2016 (Def...

Excerpt: ...lied with the applicable standard of care in the medical professional at all times; or 2. The medical care and treatment rendered by Dr. Hamamji to patient Ms. Campbell did not cause or contribute to Ms. Campbell's contended injuries. Plaintiff's Complaint alleges a single cause of action for professional negligence against Defendant. The elements of a medical negligence cause of action are: (1) duty of professional to use such skill, prudence, a...

Excerpt: ...aat”), Farzin Hassanzadeh (“Hassanzadeh”), Banoo Taat (“Banoo Taat”), and MNTS, Inc. (“MNTS”) (collectively “Plaintiffs”) was made in good faith within the meaning of Code of Civil Procedure sections 877 and 877.6, and an order barring any claims against Settling Defendants by any other joint tortfeasor or co-obligor in this action, or in related case No. 30-2018-00972408-CU-CO-CJC, for equitable comparative contribution, partia...

Excerpt: ...ginal complaint and demurrer thereto (Id¶3), these meet and confer efforts are insufficient as to the demurrer to the First Amended Complaint under the code. The Court admonishes the parties that failure to meet and confer and failure to comply with the code only delays the proceedings and/or results dooms their motion. The parties are advised in the future to meaningfully meet and confer when required to do so. In any event, because the opposit...

Excerpt: ...e Court should vacate 2/6/20 Order striking defendants' answer and subsequent entry of default under the discretionary provision of Code of Civil Procedure section 473(b) based on mistake and excusable neglect as Defendants were not notified of the scheduled time or department for the Mandatory Settlement Conference, were not told they needed to attend, and were not notified by their former counsel, Jennifer Bradford (“attorney Bradford”) tha...

Excerpt: ...an employment with Seaman in 2006 and executed an employment agreement on or about October 30, 2006. (Complaint, ¶¶ 8-9). In particular, it is alleged that the employment agreement contained a choice of law clause specifying that Ohio law governed the Agreement and that Flaherty consented to submit to the personal jurisdiction of the federal and state courts of Ohio for the sole and limited purpose of administering and enforcing the agreement. ...

Excerpt: ...ndants and one that deals with claims against Defendant SCMM only. In contrast, the Separate Statement filed in support of the Motion identifies “nine” specific issues identified by “Issue No.” which address only the 1st through 9th causes of action. The Separate Statement complies with California Rules of Court, Rule 3.1350(d)(1)(A) which states: “Separate Statement of Undisputed Material Facts in support of a motion must separately id...