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: ... 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: ...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 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: ...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: ...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: ... 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: ...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: ... 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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...