Excerpt: ... cannot be liable for this claim because only the seller of the property has the obligation to make disclosures on the transfer disclosure statement under Civ. Code § 1102.3. Section 1102.3 provides that the seller of any single-family real property must provide a prospective buyer with a completed written statement on the form specified in section 1102.6 and make the disclosures required by that form within specified times. However, this does n...

Excerpt: ...judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The “settlement” that is the subject of the motion is a written settlement that was entered into in February 2018, which is before the instant action was filed on April 5, 2018. Accordingly, there does not appear to have been any...

Excerpt: ...fendant opposes the motion, claiming that the meet and confer process was not followed and that it has no obligation to provide information to disprove constructive discharge until Plaintiff establishes that constructive discharge. Defendant therefore contends that its answer to interrogatory 15.1 was sufficient and asks for a monetary sanction of $1200 against plaintiff and his attorney. Defendant's answer contains 36 affirmative defenses. After...

Excerpt: ...or appointment of a discovery receiver at Defendants' cost and sanctions. Timeliness The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” CCP § 2025.480(b). It is undisputed that Plaintiff initially filed and served this motion on 1/25/19 and that it was timely made. That motion was set for hearing on 3/28/19. It is also undisputed that Plaintiff's motion filed and served on 1/25 was...

Excerpt: ...ovided by his client but there was no answer. Counsel also sent an email to the client at the email address that she provided and also contacted the attorney who referred the client to counsel, but to no avail. The question before the Court is whether counsel gave proper email service on his client under CRC 3.1362 (d)(2). Proper email service of a motion to be relieved as counsel is governed by CRC 3.1362 (d)(2), which provides: “The notice of...

Excerpt: ....1350(b) states in pertinent part as follows: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.” Castillo did not state the summary adjudication issues verbatim in the s...

Excerpt: ...yment, because he sent three emails to his supervisor Nylen, complaining, among other things, about workplace conditions and the mishandling of his injury report. (Complaint at ¶¶ 53-55.) Labor Code 1102.5 (b) provides that: “(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose informatio...

Excerpt: ...der Code of Civil Procedure §430.40, a demurrer is to be filed within 30 days after service of the pleading. Id. at subd.(a). However, the Court has “discretion to consider” an untimely demurrer. See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749 (citing Code of Civil Procedure §473(a)(1)). Here, Caltrans filed a proof of service for the cross-complaint that indicates that Cross-Defendant was served personally on 01/17/19. Cross-Defendant's...

Excerpt: ...ion in the FAC are alleged under the Song- Beverly Act, Civil Code §1790 et seq. The first three causes of action are brought under Section 1793.2, and are for (1) breach of express warranty (subd.(d)), (2) failure to repair in order to conform to warranty (subd.(b)), and (3) failure to make available to service facility adequate literature and replacement parts to effect repairs (subd.(a)(3)). The Fourth Cause of Action is for breach of express...

Excerpt: ...d on conditional consent are: 1) that Plaintiff consented to a medical procedure, but only on certain conditions; 2) that Defendant proceeded without this condition having occurred; 3) that Defendant intended to perform the procedure with knowledge that the condition had not occurred; 4) that Plaintiff was harmed; and 5) that Defendant's conduct was a substantial factor in causing Plaintiff's harm. A patient can consent to a medical procedure by ...

Excerpt: ...whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.” The City did not state the summary adjudication issues verbatim in the separate statement. Additionally, the enumerated issues for summary adjudication join...

Excerpt: ...rom the two causes of action for intentional and negligent misrepresentation asserted by Cross-Complainant Fusco, which the Court overruled. As to these two causes of action asserted by Ital Pizza, LLC, the Court previously sustained the demurrer to these two causes of action in the third amended cross-complaint because they were pled in extremely vague and confusing terms and conflated the actions of Nardone and Ital Pizza, Inc., such that it wa...

Excerpt: ...on, arguing that it will not promote judicial economy or the interests of justice. Plaintiff contends a bifurcated trial in front of one jury will require the same amount of preparation and that a bifurcated trial in front of two juries would be unworkable. Moreover, Plaintiff claims, any potential prejudice or sympathy from trying both liability and damages in the same trial could be mitigated by appropriate jury instructions. “The court may, ...

Excerpt: ... CRC 3.1346, a nonparty deponent is entitled to personal service of written notice and all moving papers supporting “a motion to compel an answer to a deposition question or to compel production of a document” unless the nonparty deponent “agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” The motion is DENIED without prejudice. Motion #2 Defendant moves ...

Excerpt: ... compelling a further response to a request for production must both: (1) set forth specific facts showing good cause justifying the discovery sought by the demand; and (2) be accompanied by a meet and confer declaration. Code Civ. Proc. § 2031.310(b). Once the moving party makes this showing, the burden shifts to the responding party to justify the answer or objection. Plaintiff seeks supplemental answers to requests 18-21. Request 18 Request 1...

Excerpt: ...e and irrelevant information. On a motion to compel further responses, the moving party must be able to “set forth specific facts showing good cause justifying the discovery sought by the demand.” Code Civ. Proc. §2031.310(b)(1). Defendants have failed to set forth any specific facts which would show good cause for the production of Plaintiff's Facebook account data, whether or not that material is currently in the hands of her counsel. Even...

Excerpt: ...the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” In ruling on a motion to enter judgment the “trial court acts as a trier of fa...

Excerpt: ...ED. Second Cause of Action: In order to establish a cause of action for willful misconduct, “a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to...

Excerpt: ...tion of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97. To prove the statutory claim, “a plaintiff must present evidence of ‘all the elements of the common law cause of action' and must also prove ‘a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose...

Excerpt: ...s for a determination that Plaintiff Masimo Corporation is collaterally estopped from re-litigating 11 specific issues regarding claims for misappropriation of trade secrets and breach of contract against him. This action was filed by on May 10, 2013 against the moving Defendant and Co-Defendants David Hunt and Sotera Wireless. The first amended complaint was filed on December 16, 2013 and contains causes of action for trade secret misappropriati...

Excerpt: ... Inc. v. Woodward-Clyde & Assocs.(1985) 38 Cal.3d 488, 499. Usually, this determination is based on several factors enumerated within the Tech-Bilt decision. However, where the motion is uncontested, such as it is here, the moving party need only submit a barebones motion with a declaration setting forth a brief background of the case. See City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1251, 1261. Here, One Stop submits a declaration fro...

Excerpt: ...ed upon new or different facts, circumstances, or law, make application to the same judge…to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown.” This motion was served and filed on 12/19/18. That was...

Excerpt: ...rmines that” certain circumstances are present, such as waiver of the right to arbitrate, or the presence of third parties in the lawsuit. The petition is to allege “the existence of a written agreement to arbitrate the controversy,” and also that the other party “refuses to arbitrate such controversy.” In addition, pursuant to California Rule of Court 3.1330, the petition must state “the provisions of the written agreement and the pa...

Excerpt: ...,149) and parking ($81); (5) CourtCall costs ($86). Defendant contends that pursuant to Code of Civil Procedure § 1033(b)(1) and (2), the Court should exercise its discretion and deny all costs to Plaintiff. Section 1033(b) provides: “When a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court, the following shall apply: (1) When t...

Excerpt: ...arate Statement, Defendant seeks further responses to Request Nos. 3, 7, 8, 9, 10, 13, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 propounded on A&R, and Request Nos. 1, 2, 3, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 propounded on Gold Star. Defendant styles this a motion to compel further responses ...