Excerpt: ...hoice-of-law clause expressly incorporating them.” (Ibid.) Here, the Arbitration Provision in the Lease for the vehicle at issue expressly states that “[t]his Arbitration Provision, and any arbitration conducted hereunder, shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.” As such, the FAA applies. The Arbitration Provision is Enforceable “Section 2 of the FAA provid...

Excerpt: ...e filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” “If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed b...

Excerpt: ...The Bank Defendants assert that during the meet and confer process, Plaintiff agreed to dismiss its Sixth Cause of Action for Breach of Warranty and Eighth Cause of Action for Negligence, leaving only the Seventh Cause of Action for Conversion at issue, and providing that it was pursuing the conversion cause of action solely as an assignee of FMC. The Bank Defendants contend that FMC does not have a valid conversion cause of action against either...

Excerpt: ... exist therefor.” Additionally, Code of Civ. Proc. §526(a)(1) provides, in relevant part, that an “injunction may be granted” when “it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.” In this instance, Plaintiff has not filed a verified complaint...

Excerpt: ...iff is a public figure because she is the wife of a Fountain Valley City Councilman, Ted Bui; (2) Ted Bui ran for the State Assembly in this year's primary election held on June 7, 2022; and (3) the commentary by Defendants was about the political campaign and arose in the course of Plaintiff's husband's campaign for the State Assembly. Defendants also contend that Plaintiff cannot show a reasonable probability of prevailing on the merits of her ...

Excerpt: ...res 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.” Plaintiff contends that the Defendants and their expert, DR. BOONE, agreed to produce “all of the test materials from the examination” of Plaintiff pursuant to the October 13, 2021 Joint Stipulation and Order The...

Excerpt: ...rder requested and Rule 3.1113(a) requires that a motion be filed with a supporting memorandum. Plaintiff's notices of motion each state the nature of the order requested and that the motions are based on the memorandum of points and authorities, among other things. The memorandums of points and authorities include citations to the applicable Code sections and Defendant's legal arguments in favor of further responses. The Court finds that the Mot...

Excerpt: ...ment to arbitrate.” (Ibid.; citing JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237].) “The doctrine of equitable estoppel is one of the exceptions.” (Ibid.) “Under the doctrine of equitable estoppel, as applied in both federal and California decisional authority, a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the ...

Excerpt: ...ering of services for which the health care provider is licensed.” [Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297.] However, in the First Amended Complaint ¶4, Plaintiff defines Defendant Pfizer as a manufacturer of products, and not as a health care provider. As such, Defendant argues that Plaintiff does not, and indeed cannot, allege that Pfizer had any role in providing medical care to him. [See First Amended Complaint¶¶18-21.] Plainti...

Excerpt: ...e first time on reply, including CarMax's arguments related to its duty to investigate the subject vehicle's title. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Uncertainty CarMax argues the FAXC is uncertain because it does not state the indemnity theory under which Ford is proceeding such that CarMax has no way of knowing which indemnity theory it should defend. Ford ...

Excerpt: ...022. As a threshold matter, the Court notes that the initial Complaint in this matter was filed on 9/14/21 by Plaintiff/Petitioner, Hall against Respondents. (ROA 1.) Thereafter, on 11/5/21, Petitioner Hall filed an amended pleading entitled “Verified Petition for Writs of Traditional and Administrative Mandate and Request for Immediate Stay.” (ROA 20.) Then, on 12/13/21, Petitioner filed an amended petition entitled, “First Amended Verifie...

Excerpt: ...d conferred by telephone regarding Defendants' Demurrer, as required by Code of Civil Procedure section 430.41(a). (See Declaration of Wyatt Butler, ¶¶ 7-8.) Uncertainty Defendants demur to the SAC on the ground that it is uncertain. However, the Memorandum of Points and Authorities cites no legal authority and contains no argument in support of this contention. Thus, the Demurrer to the SAC on the basis of uncertainty is OVERRULED. First Cause...

Excerpt: ...emands, and awarding monetary sanctions against Plaintiff in the amount of $1,108.50. • An order deeming the truth of all matters specified in Request for Admissions, Set One, served on Plaintiff, admitted, and awarding monetary sanctions against Plaintiff in the amount of $1,108.50. Subsequent to the filing of the discovery motions, Plaintiff served responses to Defendant's First Set of Form and Special Interrogatories; Inspection Demands; and...

Excerpt: ...15.1 and 17.1, and awarding $1,355 in monetary sanctions against Molina. Plaintiff contends Burns served written responses on January 31, 2022, asserting objections to each interrogatory but Burns failed to verify his response to any of the Form Interrogatories, and served meritless boilerplate objections to the Form Interrogatories at issue. Plaintiff also contends that Plaintiff agreed to extensions of time to respond up to June 14, 2022, but t...

Excerpt: ...t private nuisance, and that no private nuisance existed based on testimony from Matthew Cosylion, the Code Enforcement Supervisor for the City of Newport Beach, who stated there was no violation of any Newport Beach Municipal Code (“NBMC”) ordinance. Defendants also argue that there is no triable issue of fact as to Plaintiff's Second Cause of Action for Violation of Newport Beach Municipal Code sections as the noise from the two air conditi...

Excerpt: ...$2,690.25; •Additional anticipated fees for motion, reply and oral argument: $2,550. Plaintiff contends that Ford necessitated the accrual of Plaintiff's attorney's fees in this action over the course of eight months of litigation by refusing to consider reasonable compromise proposals; that Plaintiff is entitled to an award of her attorney's fees pursuant to Civil Code section 1794(d) which mandates such fees and costs to the prevailing party ...

Excerpt: ...iolate the mediation privilege and Plaintiff's request for punitive damages. BV has filed a joinder to Hodson and Pham's Demurrer and Motion to Strike, in addition to its own Demurrer. Meet and Confer A demurring party must meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer in an attempt to reach an informal resolution before a demurrer is filed. (Code Civ. Proc., § 430.41(a).) Here, H...

Excerpt: ...ated, or such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Code Civ. Proc., § 1048(a).) “Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number...

Excerpt: ...oth of the following findings: “(1) The party has a substantial interest in the action as a whole. “(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” Code Civ. Proc. §36(f) provides that, “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond ...

Excerpt: ...ode Civ. Proc., § 2023.030(d).) Code of Civil Procedure section 2023.010(g) defines the misuse of the discovery process to include “[d]isobeying a court order to provide discovery.” On April 7, 2022, Defendant's Motion to Compel Plaintiff to appear for a mental health examination was granted. (Declaration of Marc Lafer (“Lafer Decl.”), ¶ 2, Ex. A.) Plaintiff was ordered to appear for examination by Nathan Lavid, M.D., on April 29, 2022 ...

Excerpt: ...t) against Burkhart and Canop Holdings, Seventh Cause of Action for Intentional Interference with Contract against all Defendants, Eighth Cause of Action for Intentional Interference with Contract against Burkhart, Canop Holdings, Rails, Luxx Lighting and Athena, Tenth Cause of Action for Aiding and Abetting against Luxx Lighting and Athena, and Eleventh Cause of Action for Intentional Interference with Contract against Luxx Lighting and Athena o...

Excerpt: ...Civil Procedure section 430.41(a). However, a “determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) Here, the court admonishes Defendant for failing to meet and confer. Notwithstanding the above, the court concludes that it is unlikely that a meet and confer will reduce the number of issues or eliminate the need for a d...

Excerpt: ... cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Th...

Excerpt: ...'s requested hourly rate of $2,400 for deposition testimony is unreasonable given that this is a recent increase from $1,500, his historical rates, and market rates for similar experts, as well as Dr. Mobin's failure to provide the information required by Code of Civil Procedure section 2034.470. Defendant also contends that Defendant has attempted to meet and confer with Plaintiff's counsel and Dr. Mobin through Plaintiff's counsel, to reduce hi...

Excerpt: ... an order for monetary sanctions in the amount of $1,930 against Plaintiff, Mark Chanove, for reasonable costs and fees associated with bringing this motion under Code of Civil Procedure sections 2030.290 and 2031.300. JAO contends that it served its Special Interrogatories, Set One and Requests for Production of Documents, Set One, on Plaintiff Mark Chanove (“Plaintiff”) on August 3, 2021, by electronic mail to his counsel of record; that re...

Excerpt: ...s to consider the Declaration of Wolfe Adefeso, which was untimely served and filed. Section 638 of the Code of Civil Procedure provides: “A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists...

Excerpt: ... Form Interrogatories, Special Interrogatories, and Requests for Production Defendant moves for an order compelling responses, without objections, by Plaintiff Aaron Malaszewski (“Plaintiff”) to Defendant's Second Set of Form Interrogatories and Special Interrogatories, and awarding Defendant sanctions in the amount of $487.50 against Plaintiff. Defendant also moves for an order compelling responses, without objections by Plaintiff to Defenda...

Excerpt: ... there is a mandatory arbitration clause in the Retail Installment Sale Contract (“RISC”) concerning Plaintiff's purchase of a used 2013 Scion FR-S, VIN No. JF1ZNAA19D2726381 which the parties entered into on or about March 26, 2021 which encompasses the claims against Defendant in this action; that Plaintiff concurrently signed an Arbitration Addendum setting forth that an arbitration pursuant to the RISC shall be conducted by the AAA; that ...

Excerpt: ...consent, and election of remedies. Issue Three: Plaintiffs' 3rd CoA for an equitable lien against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies. Issue Four: Plaintiffs' 4th CoA for an injunction against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies. Request for Judicial Notice by LOAN OAK. LOAN OAK requests the Cou...

Excerpt: ...e objections to be raised in the demurrer.” Here, the Declaration of Defense Counsel, Edmond Menchavez establishes that he sent a meet and confer “correspondence” on 4/25/2022 (Decl. of Menchavez ¶2); and, attempted to call Plaintiff's counsel on the same date but was unable to reach Plaintiff's counsel. (Id. ¶3) Despite the meet and confer correspondence and leaving a message, Plaintiff's counsel has not responded to the meet and confer ...

Excerpt: ...mitations. LPL contends that Plaintiff's claims for breach of fiduciary duty and financial elder abuse in connection with Plaintiff's investment in Northstar Healthcare REIT (“Northstar REIT”) are barred by the three-year statute of limitations under Code of Civil Procedure section 338, and four-year statute of limitations under Welfare & Institutions Code section 15657.7, respectively. LPL contends that allegations in the Complaint, the docu...

Excerpt: ...r Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored inf...

Excerpt: ...REEM cannot state a prima facie case, FEDEX had legitimate, non- discriminatory reasons for firing FREEM, and FREEM has no substantial evidence of evidence of pretext. Issue 2: Defendant FEDEX is entitled to summary adjudication on Plaintiff's 1st CoA for age discrimination because FREEM cannot state a prima facie case, FEDEX had legitimate, non- discriminatory reasons for not promoting FREEM to fleet manager, FREEM has no substantial evidence of...

Excerpt: ...their statutory duties under Government Code, section 8630, and/or Health & Safety Code, section 101080, to review local, County conditions to determine whether such conditions warrant terminating the local state of emergency and/or local health emergency (hereinafter collectively “Emergencies”) declared by Respondents on February 26, 2020, and to terminate the local state of emergency and/or local health emergency if such conditions warrant;...

Excerpt: ... provided inadequate and insufficient responses to SPROG, Nos. 4 and 10 which seek relevant and essential facts to Plaintiff's claims of negligence; that Plaintiff failed to respond to Defendant's two meet and confer letters; that the motion is timely; and Plaintiff's failure to provide adequate or further responses is willful and without substantial justification such that Defendant requests that the Court order monetary sanctions in the amount ...

Excerpt: ...roc., § 2031.310(a).) The motion must set forth specific facts showing good cause to justify the discovery sought and be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310(b)(1)(2).) The Court finds that Plaintiff satisfied the meet and confer requirement before filing this Motion....

Excerpt: ... court may, upon a motion or at any time in its discretion, and upon terms it deems proper, strike out “...any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. § 436(a)-(b); See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Irrelevant matters include a...

Excerpt: ...the Subject Vehicle, i.e., 2016 Dodge Ram 1500, Vehicle Identification Number 1C6RR7KM2GS215407 purchased by Plaintiff (the “Subject Vehicle”) (RFP, Nos. 1 and 54); (2) Documents concerning the Defects in other 2016 Dodge Ram 1500 vehicles with the same Engine Defects, Powernet Defects and Transmission Defects as the Subject Vehicle including internal investigations, emails, and other ESI (RFP, Nos. 18, 19, 21, 22, 23, 24, 25, 28, 29, 33, 34,...

Excerpt: ...t Green Sip Construction Inc. to form interrogatories, set no. 1; special interrogatories, set no. 1;, and inspection demands, set no. 1 (ROA 24). In addition, Plaintiff requests monetary sanctions. Preliminarily, the Court notes that Plaintiff has improperly combined multiple motions. Specifically, at issue are actually eight discovery motions, not four. Whether this was done to avoid paying the court filing fees or some other improper purpose, ...

Excerpt: ..., LLC dba Decades Bar and Grill, LLC is liable to Plaintiff for breach of lease under Plaintiff's 1st cause of action; (2) Issue 2: There is no triable issue of material fact that Defendant Randy Carrillo is liable to Plaintiff for enforcement of guaranty under Plaintiff's 2nd cause of action; and (3) Issue 3: There is no triable issue of material fact that the Cross-Complaint is time barred. Plaintiff's Evidentiary Objection in Reply. The Court ...

Excerpt: ...fendant's policies and procedures for investigating injuries, taking photographs, reporting an incident, and retaining video of an injury incident; that the instant dispute involves a one-page document describing the internal protocol regarding the handling of injury incidents that was created by Defendant's general liability department; that this internal document is protected by the attorney-client privilege and attorney work-product privilege ...

Excerpt: ...econd Cause of Action for False Imprisonment, and Third Cause of Action for Unauthorized Practice of Medicine fail to state facts sufficient to constitute a cause of action against Defendant. Late Filing of FAC Under Code of Civil Procedure section 436, the court may, upon a motion or at any time in its discretion, and upon terms it deems proper, strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this ...

Excerpt: ...ould strike all of the $6,955.20 sought for “Models, enlargements and photocopies of exhibits” or alternatively tax $4,600 in costs for “slide presentations” and $1,330 of the $1,575.20 for trial exhibits. Defendants also argue that the Court should tax $960.25 sought for filing and motion fees because this total is wrong as the items listed in Plaintiff's worksheet total $691.75, not $960.25, and that $691.75 should be taxed because Plai...

Excerpt: ...in the matter being taken off-calendar. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to s...

Excerpt: ... is seeking to compel B&S' compliance with the Subpoena (which sought four category of documents, see Exh. E to Kearney Decl.), the Motion admits that B&S complied with the Subpoena and already produced responsive documents. Rather than seeking compliance with the Subpoena, Defendants seek an order compelling B&S to produce documents identified in its privilege log (252 documents) on the grounds the documents are not protected by the attorney-cli...

Excerpt: ...use Plaintiff cannot prove that ICON had notice of the alleged dangerous condition. ISSUE NO. 2: ICON is entitled to summary adjudication in its favor on Plaintiff's first cause of action for negligence and second causes of action for premises liability because the alleged dangerous condition was open and obvious. ISSUE NO. 3: ICON is entitled to summary adjudication in its favor as a matter of law that Plaintiff's non-delegable duty argument doe...

Excerpt: ... awarded Plaintiff attorney's fees and costs in the amount of $43,139.24 incurred in opposing Ellis' anti-SLAPP motion and bringing Plaintiff's prior motion for attorney's fees. (ROA 294.) Ellis appealed the denial of his anti-SLAPP motion and this Court's award of attorney's fees, both of which were affirmed. (See ROAs 359, 398.) Plaintiff now seeks an award of fees and costs incurred in opposing: (1) Ellis' appeal of the anti-SLAPP motion; (2) ...

Excerpt: ...ections 22658(a)(2) and 22658(e)(1). I. DEMURRER Defendant brings its Demurrer pursuant to (1) Code of Civil Procedure section 430.10(e) on the grounds that each cause of action fails to state facts sufficient to constitute a cause of action against Defendant and (2) Code of Civil Procedure section 430.10(f) on the grounds that the complaint is uncertain. Conversion “Conversion is the wrongful exercise of dominion over the property of another. ...

Excerpt: ...evails 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.” It is Plaintiffs' burden of proof to show the fees they incurred and that thos...

Excerpt: ...ction. Plaintiff also moves for an order for an award of costs in the amount of $8,509.45 as set forth in the memorandum of costs. Service of Papers As a threshold matter, the Court notes that the applicable proofs of service indicate that the moving and reply papers were served by U.S. mail and fax. (ROA 400, 414.) Service by fax is permitted only where the parties have agreed to this method of service and a written confirmation to that effect i...

Excerpt: ... and 2, which seek all documents pertaining to Defendants Burns and Savient, respectively, from 12/1/15 to 12/31/20. Defendants object to these requests as they are overbroad and invasive of the rights to privacy, and not reasonably calculated to lead to the discovery of admissible evidence. Defendants contend that the action involves a dispute concerning a single real estate transaction, and sole individual, and in no way encompasses every banki...

Excerpt: ...o file, the Court finds Defendant has not suffered any prejudice and will exercise its discretion to consider the Opposition. On October 25, 2021, Plaintiff filed a Proof of Service of Summons on Defendant, indicating that service had been made by personal service at 252 Lincoln Road, Brooklyn, New York (the “Brooklyn Address”). (ROA 14.) Default was entered against Defendant on December 15, 2021. (ROA 19.) Judgment for Plaintiff was entered ...

Excerpt: ...s why production should not be compelled. (See Calif. Rules of Court, Rule 3.1345(a)(5).) A court may, in its discretion, deny a discovery motion for failure to comply with the separate statement requirement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Here, Plaintiff failed to file a separate statement as required. As such, the court has discretion to deny the Motion or to continue the hearing on the Motion to allow for the filing of a...

Excerpt: ...on (“IME”) is necessary in order to evaluate the nature and extent of Plaintiff's claimed orthopedic injuries. Kadowaki contends that there is good cause for having Plaintiff come to California for the IME from his residence in Alabama, that Kadowaki offered to pay and is willing to pay for reasonable travel costs, and that the costs to conduct the IME in Alabama would be astronomical, and that Kadowaki would be prejudiced or would be deprive...

Excerpt: ...eficient as HMA asserted only meritless, boilerplate objections which are not code-compliant. Plaintiff contends that she attempted to meet and confer and sent meet and confer letters, that Defendant represented that it would respond to the meet and confer letter, but that Defendant never provided supplemental responses or additional documents. Plaintiff also contends that the requests seek documents that are highly relevant to her Song-Beverly A...

Excerpt: ...se that is the subject of this AGREEMEN [sic], as well as in the event of any dispute, motion, action, or disagreement arising out of or relating to the terms and conditions of this AGREEMENT or performance thereof, such as: attorney fees, small court, court, arbitration etc'. Any dispute between Salesperson and Company arising under this Agreement will be submitted to binding arbitration in accordance with the rules of the American Arbitration A...

Excerpt: ... to do so. However, at pg.4:4-8 of the motion, Cross-Defendant Long states, “LONG therefore moves for a determination by this Court that the settlement between LONG and Plaintiff was in good faith, and dismissing HARKENSS' cross-complaint against LONG pursuant to Code of Civil Procedure section 877.6.” Therefore, through this statement the Court has enough information to deduce the pleadings and parties affected by the settlement. Code Civ. P...

Excerpt: ...” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”) and as defined in Welfare & Institutions Code (“WIC”) section 15610.23 as he does not reside in California under subdivision (a) of Section 15310.23 as “residence” means “domicile” and that the FAC is a “sham” pleading. The AKUA Defendants also contend that Plaintiff is not a “dependent adult” under WIC section 15310.23(b) as AKUA is not a 24-ho...

Excerpt: ...Second Cause of Action for False Imprisonment, and Third Cause of Action for Unauthorized Practice of Medicine fail to state facts sufficient to constitute a cause of action against Defendant. Failure to Oppose the Demurrer Initially, all papers opposing a motion “shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.” (Code Civ. Proc. § 1005(b).) The failure to oppose a demurrer may ...

Excerpt: ...ose documents without a justifiable basis, and imposing monetary sanctions in the amount of $1,998.00. Code of Civil Procedure Section 2031.320 states that if a party filing a response to a demand for inspection fails to permit the inspection in accordance with that party's statement of compliance, the propounding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320(a).) This Section also states that “the court shall...

Excerpt: ...ct pursuant to Code of Civil Procedure section 425.16. Oversized Memorandums California Rules of Court, rule 3.1113(d) provides that no opening or responding memorandum may exceed 15 pages, and that no reply or closing memorandum may exceed 10 pages. “The page limit does not include the caption page, the notice of motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (Californi...

Excerpt: ... Defendant BOBICH's surgical removal of “a lesion in his lower left throat” which Plaintiff alleges was performed without his informed consent and which resulted in profuse and continued bleeding after he was sent home. (Id.) As to Defendant Dr. HELTON, Plaintiff alleges he was negligent because, inter alia, he failed to determine that Plaintiff was on two blood thinning medications prior to the surgery and should not have allowed any surgery...

Excerpt: ...Plaintiff also argues that Lovett's employment file is highly relevant to the claim of negligence against Lovett and the Defendant Capistrano Unified School District (the “District”). Plaintiff asserts that the employment file would likely contain information regarding Lovett's prior notice concerning Plaintiff's doctor note and/or prior misconduct, and could likely demonstrate a history of inappropriate behavior such that production of it wi...

Excerpt: ...he Court reminds counsel to comply with all applicable statutes and rules and any future failure to do so may result in the motion being taken off calendar or denied, if appropriate. A separate statement in opposition to a motion for summary judgment must indicate if the opposing party disputes each material fact and, if so, include a reference to the supporting evidence. (Code Civ. Proc., § 437c(b)(3); California Rules of Court, Rule 3.1350(f)(...

Excerpt: ...occur on March 23, 2022, in Scottsdale, Arizona, based on Plaintiff's attorney representation that Plaintiff would not travel to California for the examination; that Plaintiff served a “response and objection” stating plaintiff would appear but would not sign any forms presented by the doctor including a “consent” form; that Defense counsel attempted to meet and confer to have Plaintiff undergo the examination just before trial in Califor...

Excerpt: ...”.) CCP § 2023.010 states, in part, as follows: “Misuses of the discovery process include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” CCP § 2023.030 provides, in part, as follows: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, ...

Excerpt: ...s. Plaintiff also provides that upon reviewing Defendant's March 17, 2022 responses to discovery, the termination of an alleged at-will employee was in fact the wrongful termination of an employee under a contract of implied good faith not to terminate without good cause. Defendant Environments for Learning, Inc. v. DBA Montessori on the Lake (“Defendant”) argues that there is an unwarranted delay in seeking leave to amend as Plaintiff's coun...

Excerpt: ...tion for Loss of Consortium fail to state facts sufficient to constitute a cause of action and are uncertain. Second Cause of Action for Elder Abuse Defendants contend that Plaintiffs' allegations lack the required specificity to make a claim for fraud in support of the Elder Abuse Cause of Action, and do not allege how, when, where, to whom, and by what means any fraudulent misrepresentations were made. Defendants also contend that Plaintiff fai...

Excerpt: ...f based upon a protected characteristic. Defendants contend that the Court previously sustained Defendants' demurrer to the Second Amended Complaint, with leave to amend as to the cause of action for Violation of the Ralph Civil Rights Act, but that the 3AC still fails to allege sufficient facts evidencing any act of violence or threat of violence, or that any alleged conduct by Defendants was motivated by racial animus, and that Plaintiff's subj...

Excerpt: ...ant personally, rather than counsel. The Court finds service to be proper. The Motion was served before Defendant appeared in this matter and the statute that requires service on counsel for represented parties expressly excludes writs. (Code Civ. Prco., § 1015.) The Court therefore finds service to be proper. Further, the Court finds that Defendant has suffered no prejudice, as it was able to file a timely Opposition on the merits of the Motion...

Excerpt: ...ue that Mr. Shaw is a percipient witness and the asserted privileges raised do not apply to these facts. Administrative Mandamus Discovery: In administrative mandamus proceedings, the standards for discovery differ from the routine case. The trial court must consider the administrative record. “Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly...

Excerpt: ...cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) On this ground, the demurrer is OVERRULED. Fraud, Negligent Misrepresentation and Constructive Fraud The elements of fraud, which give rise to the tort action for deceit, are (1) misrepresentation (false representation, concealment or non-disclosure); (2) knowled...

Excerpt: ...ode of Civil Procedure section 2030.300(b) and were unable to reach an informal agreement. The Court declines to consider all new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Therefore, the exhibits filed with Plaintiff's Reply will not be considered in the Court's ruling on this Motion. A party may ...

Excerpt: ... 1102.5 cause of action was inextricably tied to Plaintiff's Retaliation in Violation of FEHA cause of action, and at trial, Plaintiff dismissed his intentional and negligent infliction of emotional distress causes of action (“IIED” and “NIED”), as well as dismissed his wrongful demotion in violation of public policy cause of action before or at trial, and all of these causes of action were based on the same facts supporting his FEHA clai...

Excerpt: ...(FAC, p. 12, lines 8-9.) Meet and Confer Was Insufficient. C.C.P. section 435.5(a) states: “Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is...

Excerpt: ... 162, 166. The principal grounds are set forth in Code Civ. Proc. §657. Preliminarily, although defendants list multiple grounds in their motion, they fail to specify which grounds their motion is based upon. In reviewing the arguments of defendants, it appears that defendants contend that an irregularity in the proceedings occurred (Code Civ. Proc. §657(1)); the verdict was supported by insufficient evidence (Code Civ. Proc. §657(6)); and the...

Excerpt: ...' prayer for punitive damages, attorney's fees, and disgorgement of profits, as well as all allegations that Defendants contend relate to illegal, unenforceable, or retired contract provisions. As an initial matter, the Court notes that the parties met and conferred by telephone prior to the filing of this Demurrer and Motion to Strike, in compliance with the Code of Civil Procedure. Demurrer Information and Belief Defendants demur to the first, ...

Excerpt: ...riting. Defendant also contends that Plaintiff fails to allege facts showing a meeting of the minds as to the amount to be paid by Defendant to the Plaintiff, and that eligibility for benefits under the Plan does not demonstrate an agreement implied in fact to pay a certain price. Plaintiff contends that California case law has recognized that allegations in complaint similar to the instant allegations by Plaintiff are sufficient to state a breac...

Excerpt: ...eding. (Code of Civil Procedure Section 1032(b).)  Code of Civil Procedure Section 1033.5 sets forth the items that are allowable as costs.  Items not mentioned in section 1033.5 may be allowed or denied in the court's discretion.  Additionally, Code of Civil Procedure section 1033.5(c) states that allowable costs shall be reasonable in amount and “reasonably necessary to the conduct of the litigation rather than merely convenient or be...

Excerpt: ...In their effort to seek collection and enforce the terms of the lease and guarantees, Plaintiff thereafter filed an Application for Right to Attach Order/Writ of Attachment. The matter was heard in this court on 10/28/21. The court's Minute Order dated 10/28/21 states in part, “The Court GRANTS Plaintiffs' applications seeking to attach $160,158.03 [original amount requested reduced by $200 (bond fee)] and orders Plaintiffs to post a bond of $1...

Excerpt: ...ions must follow a two-step procedure. First, the offending party must be served with a motion for sanctions. This starts the 21-day “safe harbor” period during which the offending party may withdraw the improper pleading and thereby avoid sanctions. Here, the motion was personally served on Plaintiff on February 1, 2022. Thereafter, Plaintiff did not withdraw the Motion for Leave to Amend; and this motion was timely filed on February 25, 202...

Excerpt: ...w, upon any terms as may be just, an amendment to any pleading. (Code of Civ. Proc., § 473(a)(1).) Additionally, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code of Civ. Proc., § 576.) A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or a...

Excerpt: ... a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for an order for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) The party moving for relief has the burden to demonstrate “that due to some mis...

Excerpt: ...arty to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (CCP § 473(a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or...

Excerpt: ...”) including exhibits, and addressing the deficiencies raised by the Court's April 21, 2022 Minute Order, which provides that Certificates of Merit comply with, as well as lodged confidential documents. (Supplemental Johnson Declaration, ¶ 8.) The Court noted that the Certificates of Merit filed by Plaintiff's counsel, Thomas A. Cifarelli, and by a Mental Health Practitioner, Paul Larsen LMFT contain the declarations required by CCP § 340.1(g...

Excerpt: ...d and to deem LOAN OAK's requests for admission admitted; (2) evidentiary sanctions to preclude Z-WANG from asserting any affirmative defense to LOAN OAK's Cross-Complaint; (3) terminating sanctions by dismissing Z-WANG's complaint against it, striking Z-WANG's Answer to LOAN OAK's Cross-Complaint, and entering default against Z-WANG; and (4) monetary sanctions of $12,865.60 against Z-WANG to compensate LOAN OAK for the attorneys' fees and costs ...

Excerpt: ...ports to name a trust as a party to the FAC; and b. Exhibit “F” of the FAC. (ROA 86) Initially, pursuant to CCP§430.41(a), before filing a demurrer the demurring party shall meet and confer in person or by telephone with the party who filed the pleading. An in person or telephonic meet and confer is also required prior to filing a motion to strike. (CCP§435.5(a)) Here, on 3/9/2022, this Court ordered the parties to “meet and confer prior ...

Excerpt: ...ction against Defendants L'Inc D'Aline Corporation (“LDC”) and S&S Fuel, Inc. (“S&S”) for (1) judicial foreclosure, (2) specific performance, (3) appointment of receiver, (4) imposition of constructive trust, (5) accounting, (6) injunctive relief, and (7) breach of written contract. The Complaint alleges LDC executed a promissory note (Complaint, Exh. 1) in the amount of $1 million secured by a deed of trust (Complaint, Exh. 2) on propert...

Excerpt: ...f and her ex-husband as to how to divide the $5,000,000. Plaintiff and her ex-husband agreed to participate in an arbitration hearing with the retired judge who assisted in the settlement of the underlying case. In the arbitration hearing to divide up the settlement funds, Plaintiff was represented by separate counsel and Plaintiff's ex-husband was represented by Defendants. Plaintiff contends now that it was improper for Defendants to have repre...

Excerpt: ...workers' compensation claim within the last seven (7) years. • No. 24: For each individual identified in Special Interrogatory No. 23, please provide the dates that they were employed by YOU. • No. 25: For each individual identified in Special Interrogatory No. 23, please describe if they were terminated, resigned, or continue to be employed by YOU. • No. 29: IDENTIFY any and all individual(s) that YOU terminated or forced to resign within ...

Excerpt: ...nd that leave to file the proposed SAC should be granted as they are not adding additional causes of action but are adding allegations to recoup the damages incurred as a result of the removal of drainage systems, as well as allegations relating to Defendants' continued trespassing, which would be adjudicated during Phase 2 of the trial. Plaintiffs allege that the proposed amendments relate to conduct and damages that occurred after Phase 1 of th...

Excerpt: ... from Defendant, Erik Matsuno (“Defendant”) to Plaintiff's Special Interrogatories, Set One, (“SPROG”) Nos. 1 to 70, and awarding monetary sanctions in the amount of $2,242.50 against Defendant and his counsel of record, Niral Patel. Plaintiff contends that Defendant's responses to the SPROG are deficient and evasive; that the objection that SPROG, Nos. 1, 10, 11, 12, and 13, are unintelligible due to the definition of “INCIDENT” is w...

Excerpt: ... arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other doc...

Excerpt: ...Attorney's Fees, and Unfair Competition. Defendant argues that the FAC fails to allege facts sufficient to constitute any of these causes of action against it. Defendant also moves to strike Plaintiffs' prayer for punitive damages and attorney's fees, on the ground that they are unsupported by Plaintiffs' allegations, as well as Exhibits 2 and 4 of the FAC. DEMURRER First Cause of Action for Breach of Contract Defendant argues the Breach of Contr...

Excerpt: ... served may, prior to the date for production, bring a motion under Code of Civil Procedure Section 1987.1 to quash or modify the subpoena duces tecum.” CCP §1987.1 empowers this Court to "make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protec...

Excerpt: ...n precluding Defendant from contesting liability by way of the affirmative defenses of comparative fault or assumption of risk; and/or (4) an order for monetary sanctions against Defendant and/or their attorneys of record Law Office of Anthony T. Schneider in the sum of $5,664.95. Plaintiff contends that the incident occurred on June 2, 2018, and that on June 4, 2018, Plaintiff's counsel sent a preservation of evidence letter via registered certi...

Excerpt: ... with Dr. Scott Forman, M.D., on October 29, 2021. Pursuant to Code Civ. Proc. §2032.220(a), “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff.” However, if a defendant seeks more than one physical examination of Plaintiff, Defendant “shall obtain leave of court.” [Code Civ. Proc. §2032.310(a).] Code Civ. Proc. §2032.240(a) provides, “If a p...

Excerpt: ...out January 13, 2016, he entered into a warranty contract with FCA regarding the vehicle. (Compl., ¶ 10.) Plaintiff dismissed Elk Grove from this action on April 11, 2022, without prejudice. Request for Judicial Notice Plaintiff requests judicial notice of the Ninth Circuit's opinion in Ngo v. BMW of N. Am., LLC (9th Cir. 2022) 23 F.4th 942 (Exhibit A), seven California federal court orders denying motions to compel arbitration (Exhibits B, C, D...

Excerpt: ...os. 1-3. The Court overrules and disregards all objections asserted by Defendants in their Response to the Separate Statement. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354(b). Plaintiffs' Objections to Defendants' Evidence in Support of the Opposition. The Court OVERRULES Plaintiffs' evidentiary objection Nos. 1-4 to the Declaration of Myles Sachs. The Court OVERRULES P...

Excerpt: ...contends that the Court may review in camera Plaintiff's Certificates of Merit which comply with the requirements set forth in CCP § 340.1(f)-(i) and requests that the Court find that there is a reasonable and meritorious cause for the filing of this action against DOE 3. Plaintiff also contends that the Court should grant Plaintiff's request for an in camera review of Plaintiff's Application to Amend Complaint and Certificate of Corroborative F...