Excerpt: ...s pursuant to Corporations Code sections 1601(a) and 1602, and made proper shareholder and director inspection demands to Plaintiff/Cross-Defendant Jae Pak, M.D. (“Pak”), the only other shareholder and director of NHI, on November 29, 2021; December 3, 2021; and December 8, 2021, but that Pak refused these demands. Rassman also contends that Pak's reliance on Tritek Telecom, Inc. v. Sup. Ct. (2009) 169 Cal.App.4th 1385 is misplaced as it does...

Excerpt: ...argue that the FAC fails to allege facts sufficient to constitute any of these causes of action against them. Third Cause of Action for Fraudulent Concealment The Barnes Defendants argue that Plaintiffs' Fraudulent Concealment cause of action fails because Plaintiffs have failed to allege every element of a Fraudulent Concealment claim. They argue that the FAC fails to allege intentional concealment, knowledge by the Barnes Defendants, materialit...

Excerpt: ...claration”), ¶ 2.) Thereafter, on 11/5/21, Petitioner filed an amended pleading entitled “Verified Petition for Writs of Traditional and Administrative Mandate and Request for Immediate Stay.” (ROA 20; Dunn Declaration, ¶ 8.) Then, on 12/13/21, Petitioner filed an amended petition entitled, “First Amended Verified Petition for Writs of Traditional and Administrative Mandate; Temporary Restraining Order; Injunctive Relief; Damages” whi...

Excerpt: ...k Matsushige, with Darin W. Barber, in his capacity as Executor of the Estate of Kirk Matsushige, deceased. (See ROA 114.) As such, this motion is directed to the First Amended Complaint and all Plaintiffs named therein. Dr. Pham contends that there is no triable issue of material fact as to the following issues: (1) the medical care and treatment rendered by Dr. Pham to patient, Debbie Matsushige (the “patient” or “Ms. Matsushige”), comp...

Excerpt: ...tal Partners, LLC (2007) 158 Cal.App.4th 226, 244). Additionally, “[t]he allegation of a fiduciary relationship must be supported by either a contract, or a relationship that imposes it as a matter of law.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1558). Relevant to this claim, Plaintiff alleges he entered into a business partnership with Defendant in 2014, wherein each became 50% partners in two entities: New...

Excerpt: ...leave to amend the Complaint to allege punitive damages. On 11/4/21, this Court sustained the demurrer to the First Amended Complaint with leave to amend. The operative pleading is the SAC, filed on 11/24/21, which alleges: 1. Professional Negligence, 2. Intentional Infliction of Emotional Distress, 3. Intentional Misrepresentation, and 4. Fraudulent Concealment. No future events are currently scheduled. Meet and Confer: Despite numerous attempts...

Excerpt: ... been made in good faith and that any future complaints or cross-complaints against DEVRE, PICKFORD, COLDWELL BANKER, and TOBIN are forever barred pursuant to C.C.P. section 877.6(c). Defendants Edward Knight (“KNIGHT”) and Edward Knight & Associates, Inc. (“EDWARD KNIGHT INC.”) (collectively “KNIGHT DS”) filed this Motion contesting DEVRE and PICKFORD's application for determination of good faith settlement. A plaintiff may settle wi...

Excerpt: ... allege sufficient facts to support punitive damages that Horizons acted with malice, intent to oppress, fraud, or despicable conduct, and that specific facts must be pleaded but the Complaint provides only conclusory statements which give rise to nothing more than mere negligence, such that the claim for punitive damages should be stricken. Plaintiffs contend that the Complaint makes sufficient factual allegations for malicious and oppressive co...

Excerpt: ...otion to be relieved from deemed admissions pursuant to CCP § 2033.300(b); 4. Allow Megarit on his own behalf and all other Defendants' behalf to set aside/vacate pursuant to CCP § 473(d), the Court's September 9, 2020 Order (ROA 255) denying Defendants' Motion to Set Aside/Vacate the Court's February 6, 2020 Order (ROA 209), Striking Defendants' Answer filed April 19, 2018 (ROA 49), and deem such Answer timely (re)filed, or alternatively, perm...

Excerpt: ...ides that “[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.” Counsel for Defendant sent Plaintiff's counsel a September 23, 2021 letter asking whether Plaintiff would stipulate to a mental health examination. (Declaration of Marc Lafer, ¶ 4.) Counsel for Plaintiff did not respond. (Id., ¶ 5.) The Court finds t...

Excerpt: ...FP, Nos. 112-155; that Pak failed to respond separately to each request in violation of Code of Civil Procedure section 2031.210(a) by providing general, boilerplate objections; failed to identify with particularity any document, tangible thing, or electronically stored information falling within any category of items therein, in violation of Code of Civil Procedure section 2031.240(b); that Pak failed to provide sufficient factual information fo...

Excerpt: ...information within the proper scope of discovery. In Opposition, Defendant contends that a verification was not required because her response to Form Interrogatory No. 15.1 contained only objections and contends that her objections are not boilerplate as each of her asserted objections were explained and not baldly stated. Whether a Verification Was Required? C.C.P. section 2030.250(a) states in pertinent part as follows: “The party to whom the...

Excerpt: .... Defendant IRVINE's Evidentiary Objections to Plaintiff's Evidence in Support of the Opposition. The Court OVERRULES all objections to the Declaration of Denis LeBreton. The Court SUSTAINS Defendant's objections to Exhibits L, N, O, T, and U based on lack of foundation only. All other objections to Plaintiff's exhibits are OVERRULED. Motion. This action arises from the death of Plaintiff's father, Jerry Corcoran (“Decedent”), who was attacke...

Excerpt: ...rer, but the parties never met and conferred in person or by telephone. On this ground alone, the Court could overrule the demurrer or continue it to require the parties to meet and confer. Second, the Court notes that Plaintiff failed to properly serve his Opposition pursuant to Code of Civil Procedure section 1005(c). The Court will exercise its discretion to consider the Opposition because Defendants were able to file their Reply timely and it...

Excerpt: ...with Phase 1 to be a bench trial on question of law concerning the meaning, existence, and enforceability of the implied covenant of good faith and fair dealing in the property management agreement upon which Plaintiff/Cross-Defendant, Vertical Media Group, Inc. (“Plaintiff/Cross-Defendant” or “VMG”) sues, and whether VMG has standing sue for a contract to which it is not a party, as well as, whether the implied covenant of good faith pre...

Excerpt: ...s contend that Plaintiffs have combined all named defendants into the definition of “Defendant” in the FAC, without specifying which of the named defendants allegedly engaged in misconduct, such that the FAC is vague and uncertain. Plaintiffs do not address this point in opposition. Code of Civil Procedure section 430.10(f) provides that a defendant may demur on the ground that the pleading is uncertain. “As used in this subdivision, ‘unc...

Excerpt: ... the statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. A motion filed pursuant to C.C.P. section 2031.310 requires the motion “set forth specific facts showing good cause justifying the discovery sought by the demand.” There are only two document demands at issue. Request No. 3 seeks:...

Excerpt: ...o 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 pretr...

Excerpt: ...ication as to 48 issues and the First Cause of Action for Negligence [Issue Nos. 27 to 40]; Second Cause of Action for Violation of California Business & Professions Code § 17200, et seq. [Issue Nos. 41 to 46]; Third Cause of Action for Public Disclosure of private Facts [Issue No. 26]; Fourth Cause of Action for Breach of Contract [Issue Nos. 2 to 4]; Fifth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing [Issue...

Excerpt: ...working on a stipulation. Rassman contends that the proposed First Amended Cross-Complaint (“FACC”) removes the Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress causes of action and adds additional causes of action for: Financial Elder Abuse (Cal. Welfare & Institutions Code, §15610.30); Disability Discrimination in Violation of FEHA (Gov. Code, § 12940, subd. (a)); Age Discrimination in Violation ...

Excerpt: ...tiff had a medical exemption letter from a doctor and Defendant told Plaintiff to stand outside until the other customers left; after the other customers left, Defendant left Plaintiff standing outside until Plaintiff asked why and re-entered the store; Defendant took the letter, read it, and argued with Plaintiff, stating Plaintiff can wear a face shield; Defendant intentionally restrained and harassed Plaintiff without legal authority. A defend...

Excerpt: ...h of the following occur: “(1) The defendant obtains a summary judgment, judgment under CCP section 631.8 (motion for judgment in court trial), directed verdict, or nonsuit in an action for indemnity or contribution or in a proceeding under the California Tort Claims Act; and “(2) The court, on motion, finds that the plaintiff did not bring the action in good faith and with reasonable cause.” (See C.C.P. section 1038(a).) Section 1038 “re...

Excerpt: ...at this is not a wrongful termination claim based on public policy but rather, based on contract. It is well settled that a cause of action is not defined by the label plaintiff puts on it. Instead, the validity of a cause of action is determined by an examination of the allegations themselves, and a determination of whether those facts state any cause of action at all. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94.) In fact, in evalu...

Excerpt: ...n the basis the claim cannot be asserted outside an insurance context. As explained by the California Supreme Court in Foley, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Id. at p. 683). “Because the covenant is a contract term, however, compensation for its breach has almost always been limited to contract rather than tort remedies.” (Id. at p. 684). “As a con...

Excerpt: ... complaint and that Plaintiff fails to plead facts sufficient to state a cause of action for Violation of the Unruh Civil Rights Act (the “Unruh Act”), Civil Code section 51 et seq. under the first ground for a predicate violation of the American with Disabilities Act, 42 U.S.C. § 12181, et seq. (the “ADA”); or under the second ground for an alleged intentional discrimination against disabled persons in the provision of facilities and se...

Excerpt: ...2/11/21. Solis filed this motion on 11/10/21. Trial is set for 4/11/22. Whether a settlement is within the “good faith ballpark” is to be evaluated on the basis of information available at the time of settlement under the following factors: • the amount paid in settlement • a rough approximation of plaintiff's total recovery and the settlor's proportionate liability • a recognition that the settlor should pay less in settlement than if ...

Excerpt: ...emonstrate that he possesses a legally sufficient claim which is ‘substantiated,' that is, supported by competent, admissible evidence.” (Ibid.). “[T]he court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim.” (Ibid.). “The court also must deny the motion where the evidence provided in the ‘supporting and opposing affidavits' ...

Excerpt: ...aser against Defendants Carmax Auto Superstores California, LLC (“Carmax”) and Ford Motor Company (“Ford”). The operative pleading is the First Amended Complaint (“FAC), which was filed on 8/4/21, and alleges: 1. Violation of the Consumers Legal Remedies Act (injunction); 2. Breach of Contract; 3. Intentional Misrepresentation; 4. Negligent Misrepresentation; 5. Breach of the Implied Warranty of Merchantability; 6. Breach of the Express...

Excerpt: ...to set forth any of his qualifications, education, or experience. “To determine that a witness qualifies as an expert the judge must ascertain ‘if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.' (Evid. Code, § 720, subd. (a).)” (Miller v. Los Angeles Cty. Flood Control Dist. (1973) 8 Cal. 3d 689, 701.) Mr. Harris states he is a “roo...

Excerpt: ...980.7, subdivision (c), among other orders in support thereof, and requiring reimbursement in this action. The City contends that the Property owned by Defendant, Anna Makkouk (“Defendant”) has had on-going nuisance conditions since 2004, and most recently from 2018 to 2021, including unsafe structures, trash, debris, improper ventilation, inadequate heating, inadequate plumbing fixtures, inadequate lighting and ventilation, inadequate room a...

Excerpt: ... LLC (the “Company') there, and the Company's principal place of business is in Bakersfield in Kern County. He also contends that there is no statutory exception to authorize the filing of the lawsuit in Orange County, and that the Complaint does not allege that any event or wrongful conduct occurred in Orange County. Brown additionally contends that Plaintiffs' counsel should be ordered to pay Brown the reasonable expenses and attorney's fees ...

Excerpt: ...Plaintiff's fraud by omission claim is barred by the economic loss rule and is insufficiently pled. Whether Plaintiff's Claims are Time Barred? Defendant contends all of Plaintiff's claims are time-barred by their respective statute of limitations. The three-year statute of limitations applies to Plaintiff's claim for violation of Civil Code section 1793.2. (C.C.P. section 338(a) [“Within three years: (a) An action upon a liability created by s...

Excerpt: ...ave notice of the Court's ruling on September 22, 2021 by email; and thus, the FACC should have been filed by October 14, 2021—20 days plus 2 extra days since service was by email. Cross-Complainants did not oppose the Demurrer. In any event, CENTER is correct that the Court sustained its demurrer with 20-days leave to amend. The matter was set to be heard on September 23, 2021 and the Court's Minute Order on the matter was issued on September ...

Excerpt: ...rth, and Sixth through Fourteenth Causes of Action of the SAC fail to state facts sufficient to constitute a cause of action such that the demurrer should be sustained and these causes of action dismissed. Plaintiff contends that the causes of action at issue are sufficiently pled, and that the demurrer should be overruled but that if it is sustained, it should be with leave to amend. Initially, the Declaration of Joshua Bornstein, counsel for De...

Excerpt: ...laintiff, Kirk Matsushige, with Darin W. Barber, in his capacity as Executor of the Estate of Kirk Matsushige, deceased. (See ROA 114.) As such, this motion is directed to the First Amended Complaint and all Plaintiffs named therein. Dr. Pham contends that there is no triable issue of material fact as to the following issues: (1) the medical care and treatment rendered by Dr. Pham to patient, Debbie Matsushige (the “patient” or “Ms. Matsush...

Excerpt: ...equests that the Court “immediately issue an alternative writ, order to show cause, and temporary stay preventing Respondents from voting to extend or maintain the Emergencies, pending issuance of a peremptory writ prayed for in paragraphs 2 and 4.” (ROA, Verified Petition, Prayer for Relief, ¶ 6.) A proceeding for a writ of mandate is initiated by filing a verified petition of the party beneficially interest, and the writ must be issued in ...

Excerpt: ...on said motion took place on February 4, 2021; that the Court stated at the hearing that the order compelling arbitration pertained to Stueve Bros. Farms and Millcreek, and that no specific arbitrator was to be assigned to arbitrate the dispute between Plaintiffs, Stueve Bros. Farms and Millcreek outside the customary random assignment procedures of JAMS; that the Court's order compelling arbitration does not so state; that Plaintiffs have attemp...

Excerpt: ...action and dismiss the third amended complaint with prejudice.” Defendants ask the court to deem this a motion in limine, or common law motion for judgment on the pleadings, as the court deems appropriate and proper. Defendants assert that the Court should exclude all evidence and argument which contradicts Plaintiff Vertical Media Group, Inc.'s binding admissions that show it lacks standing to sue: (a) the property management agreement referen...

Excerpt: ...Settled Case hearing, Plaintiffs' counsel stated that attorney fees still needed to be resolved. The Court continued the OSC to 9/30/21, noting the 9/4/21 dismissal date. The Court ordered Plaintiff to give notice. On 9/30/21, no dismissal having been filed, the Court ordered the entire action dismissed without prejudice and ordered the Clerk to give notice. No parties had appeared. Then on 11/4/21, Plaintiffs filed the subject Motions to Set Asi...

Excerpt: ...mages. In addition, Plaintiff also includes facts and exhibits that are outside of the operative complaint and judicial notice has not been requested. Accordingly, this evidence is not considered by the Court. Pursuant to Civil Code § 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Civil Code § 3294(c) defines “malice” as conduct which is intended to cause injury or despicable conduct carried on with a...

Excerpt: ...vacy is a 'fundamental interest' of our society, essential to those rights ‘guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution.' … However, ‘the constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘the historically important state interest of facilitati...

Excerpt: ...… “(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. “(e) Notwithstanding any other provision of la...

Excerpt: ...996) 12 Cal.4th 631, 638.) Under CCP § 338(d), the statute of limitations for a cause of action for fraud is three years. The cause of action is not deemed accrued “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (CCP § 338(d); (Kline v. Rutner (2001) 87 Cal.App.4th 1369, 1373.) Section 338(d) effectively codifies the delayed discovery rule in connection with actions for fraud. (Britton v. Girar...

Excerpt: ...as specifically directed at Plaintiff with an intent to harm, and that Plaintiff's allegations do not constitute conduct that is so outrageous and shocks the conscience to impart liability under an IIED theory. Huntington Gardens also contends that leave to amend should be denied as amendment would be futile. Plaintiff contends that the demurrer does not specify the code section under which Huntington Gardens makes it demurrers, that the IIED cau...

Excerpt: ...e amount of $25,250 as mandated by California Code of Civil Procedure section 425.16(c). The Carlson Defendants contend that Plaintiffs' single claim for malicious prosecution arises solely and exclusively from constitutionally protected activity as Plaintiffs seek to hold the Carlson Defendants liable for alleged conduct undertaken during their representation of their former client, Defendant High Seas Yacht Charters, LLC (“High Seas”) in an...

Excerpt: ...nts, without objection, and to produce all responsive documents in his possession of under his control. Plaintiff seeks monetary sanctions in the amount of $1600 against Defendant and his attorneys of record herein, Timothy Joens and Matthew Joens. (ROA 42) Initially, it should be noted that service herein was defective. The motions were served by electronic delivery on 10/11/2021, but the email addresses of the parties appearing herein were not ...

Excerpt: ... the statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. A motion filed pursuant to C.C.P. section 2031.310 requires the motion “set forth specific facts showing good cause justifying the discovery sought by the demand.” There are only two document demands at issue. Request No. 3 seeks:...

Excerpt: ...ntiffs named therein. The elements of a medical malpractice cause of action are: (1) duty of professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 C...

Excerpt: ...Privacy; Plaintiff alleges the following: he was riding a motorized skateboard in the City when he was stopped by Officer Ecsedy and cited for riding the skateboard in the area. After, Plaintiff walked to an area with a crowd of about 300 people on the block in their 20s and 30s. City Police officers arrived at the area. Officers Ecsedy and Vidana told Plaintiff to leave the city. He stated he would not leave without his friend. He called his fri...

Excerpt: ...4.35 against Plaintiffs for the costs incurred when Z-WANG failed to appear for his noticed depositions and for the attorney fees incurred in filing this Motion. LOAN OAK seeks terminating sanctions pursuant, inter alia, to Code of Civil Procedure Sections 2023.010, 2023.030, and 2025.450. C.C.P. section 2023.010(g) defines the misuse of discovery process to include “[d]isobeying a court order to provide discovery.” C.C.P. section 2023.030(a)...

Excerpt: ...gations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of ...

Excerpt: ...ing monetary sanctions in the amount of $4,642.50 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 without merit; that the objections to SPROG, Nos. 2 to 9, and 35 to 70 that they have been previously propounded and that continuous di...

Excerpt: ...or breach of contract, fraud, and products liability, or its claim for punitive damages as to World. The court combines the discussion of both motions to make the ruling more manageable. A. Background Brief Factual Background The plaintiff alleges that World entered into a contract with Fueling to convert 50 fleet vehicles from gasoline to compressed natural gas (“CNG”) power and to provide warranty coverage on emission and control systems in...

Excerpt: ...n. Motions: Per the declarations of Corey Taylor, counsel for Defendant, in support of the motions, Plaintiffs failed to timely respond to discovery requests. Responses were due on 6/11/21. Attorney Taylor sent opposing counsel a letter on 8/20/21 stating he would file a motion if responses were not received by 8/23/21. There was no response to that letter. These motions were filed on 9/22/21. Plaintiffs filed an untimely omnibus opposition (file...

Excerpt: ...ses to Form Interrogatory, Nos. 12.1 is evasive and incomplete, as the response to No. 12.1 identifies 191 allegedly percipient witnesses and does not truly respond to the call of the request, that Plaintiff is entitled to the contact information of percipient witnesses, and that the boilerplate objections are without merit. Defendant, Southern California Specialty Care, LLC dba Kindred Hospital Santa Ana (“Kindred Hospital”) contends that it...

Excerpt: ...her responses as to Nos. 1-33, 36, 39-61. Meet and Confer A motion to compel further responses to requests for admission must include a meet and confer declaration pursuant to CCP § 2016.040. (CCP § 2033.290(b)(1).) A declaration pursuant to CCP § 2016.040 must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Here, Plaintiff files the declaration of her counsel, Harm...

Excerpt: ... Plaintiff. (See SSUMF 1.) 1st COA for Medical Negligence The elements of a medical negligence cause of action are: 1. Duty of professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; 2. A breach of that duty; 3. A proximate causal connection between negligent conduct and resulting injury; and 4. Actual loss or damage resulting from professional's negligence.   (Avivi v. C...

Excerpt: ... claims contractual damages which is not permitted for the tort of negligent misrepresentation and is recoverable through Plaintiff's bad faith claim rendering the cause of action deficient, redundant and improper. Plaintiff Mindi Miller (“Plaintiff”) contends that additional facts have been added to support the element of justifiable reliance, that justifiable reliance is a question of fact, and that the negligent misrepresentation claim aga...

Excerpt: ...ponding party permits. “(b) Each answer shall: “(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. “(2) Deny so much of the matter involved in the request as is untrue. “(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. �...

Excerpt: ... compel further responses to interrogatories or inspection demands must include a meet and confer declaration pursuant to CCP § 2016.040. (CCP §§ 2030.300(b)(1), 2031.310(b)(2).) A declaration pursuant to CCP § 2016.040 must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Here, Plaintiff files a separate declaration of her counsel, Harmony Alves, in support of each...

Excerpt: ...etween…Plaintiff and Defendant, and/or each of them,” and that a copy of the agreement is attached as Exhibit A. Exhibit A appears to consist of two documents: (1) an apparent invoice dated 02/04/2021 from “Drinkwater Investment Group LLC” billed to “Boss Consulting”, and (2) an email message. Although the complaint alleges the existence of an agreement (comprised of the order and invoice), the cause of action is still uncertain and/o...

Excerpt: ...pertinent part, as follows: “Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes...

Excerpt: ...ed as Exhibit A to the Complaint. “Schedule A” attached to the note shows interest totaling $29,811.55. The Complaint states Defendant made the first two payments, albeit late, but failed to make the last and final payment which was due on 9/30/20. The Court overruled Defendant's demurrer on 4/22/21. Defendant answered on 5/28/21. Proof of Service: There was no proof of service filed or attached to the motion. There was also no opposition. Pl...

Excerpt: ...defaulted on two business loans and that Defendant is obligated to pay on the remaining outstanding balance on the loans such that Plaintiff is entitled to summary adjudication on the First and Third Causes of action in this collection action. The motion is unopposed. A plaintiff 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 ju...

Excerpt: ...iled two motions in a single moving document, with only one reservation, and only one filing fee paid. The court orders Defendants to pay the additional filing fee within 5 days. 1. Motion to Compel CCP § 2025.480(a) states: “(a) 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 subpo...

Excerpt: ...dy Property”. Defendants' Notice of Motion. Defendants' Notice of Motion, the caption and the body of the Notice, states that Defendants are seeking to compel Plaintiff's further deposition to answer questions pertaining to Plaintiff's Trust and the sale and resulting proceeds of Plaintiff's property known as the “Kennedy Property”. (See Notice of Motion caption and body of Notice.) Defendants' Motion, however, discusses Plaintiff's failure...

Excerpt: ...laims that are the subject of this action dated November 14, 2019 (the “Agreement”); that all Defendants named in the Complaint are included and covered by the Arbitration Agreement; that Plaintiff refuses to arbitrate the claims; and that all requirements of Code of Civil Procedure section 1281.2 are satisfied. Plaintiff contends that the Agreement is unenforceable because it is procedurally unconscionable as an adhesion contract because it ...

Excerpt: ... into hospice care. She returned to the property as her health improved, but her mental state deteriorated. Plaintiffs allege Defendant moved Candaleria Singh out of the house and kept her in a hotel, and Defendant gave her drugs and alcohol. In February 2019, Defendant quitclaimed her interest in the property to himself. Candaleria Singh had no recollection of transferring title. Plaintiffs filed a proof of service of summons on 6/11/21 (ROA 27)...

Excerpt: ...n to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.  (...

Excerpt: ...Decl., ¶3.) Fraudulent Conveyance: “Under the UFTA, ‘a transfer of assets made by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer, if the debtor made the transfer (1) with an actual intent to hinder, delay or defraud any creditor, or (2) without receiving reasonably equivalent value in return, and either (a) was engaged in or about to engage in a business or transaction for which the d...

Excerpt: ...efendant has such minimum contacts with the state that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. The concept of minimum contacts ... requires states to observe certain territorial limits on their sovereignty. It ensure[s] that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. To do so, the mi...

Excerpt: ...ement are indefinite and unknown. ISSUE 2 – Regarding Plaintiff's First Cause of Action for Specific Performance. Plaintiff is not entitled to specific performance against the Estate for ownership of the Lilac Property because she never fully performed on the written agreement. ISSUE 3 – Regarding Plaintiff's Fourth Cause of Action for Specific Performance. Plaintiff is not entitled to specific performance against the Estate for ownership of ...

Excerpt: ...FFIC improperly denied coverage related to business loss resulting from the COVID-19 pandemic and governmental orders shuttering businesses. Plaintiffs further claim that the insurance broker, WEIS, was negligent in failing to obtain proper insurance. On 9/23/21, this Court overruled FFIC's demurrer to the FAC. FFIC answered on 10/8/21. WEIS filed this demurrer on 8/20/21. To state a claim for negligent failure to obtain insurance coverage, the p...

Excerpt: ...ginal amount of $440,204.10, but that Judgment Debtors have not satisfied any portion of the judgment, such that the current amount owing on the judgment, with post-judgment interest and recoverable costs, is $525,420.44 (the “Judgment Balance”). Judgment Creditor contends that Code of Civil Procedure § 708.510 authorizes the Court to enter an assignment order directing a judgment debtor to assign to a judgment creditor all or part of a righ...

Excerpt: ...§ 2030.290(c) and 2031.300(c), which relate to a party's failure to respond to interrogatories and inspection demands, respectively, nowhere in Plaintiff's memorandum of points and authorities does Plaintiff mention or discuss such statutes or the applicability of the same to the facts here. In any case, it appears that Plaintiff argues that sanctions are necessary because: (1) Defendant failed to conduct a noticed deposition, (2) Defendant viol...

Excerpt: ...r admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.23...

Excerpt: .... Plaintiffs contend that Code of Civil Procedure §§ 1060, 1061, 1062.3, 1281, and 1281.2 authorize the Court to make a binding declaration of the parties' respective rights and duties concerning an arbitration agreement (the “Agreement”). Plaintiffs contend that a controversy in the interpretation and enforceability of the Agreement has arisen which requires the Court to make a binding declaration of the parties' respective rights and duti...

Excerpt: ...ate that it certified or declared as true “under the laws of the State of California”, as required by code. (See CCP § 2015.5.)” As such, the court continued the motions “to allow Plaintiff to file proof of proper service of the opposition and to allow Defendant to cure his failure to fully comply with CCP § 2015.5.” The court is in receipt of a proof of service filed by Plaintiff (ROA 38), indicating overnight mail service of the opp...

Excerpt: ... allege facts of defendant's oppression, fraud, or malice. (CC § 3294(a).) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious dis...

Excerpt: ...ppears to be referencing the Memorandum of Points and Authorities in Support of Petitioner's Ex-Parte Petition for Temporary or Permanent Administrative Mandamus and Complaint for Relief that was filed on July 1, 2021. (ROA 6.) On 7/14/21, the Court, having considered the arguments and evidence, both written and oral, of all parties, denied Petitioner's Ex Parte Petition for Temporary or Permanent Administrative Mandamus (“Ex Parte Petition”)...

Excerpt: ...es o $1,5101.10 in deposition costs o $175.47 in service of process fees o $13,725.00 in expert witness fees; • The requested $19,825.00 in expert witness fees; • The $235.00 for filing and motion fees. Verification Cal. Rules of Ct., 3.1700(a)(1) requires that the memorandum of costs be verified. Plaintiff argues that the instant memorandum of costs is not verified. However, on 8/30/21, the court granted Defendant's Ex Parte Application For ...

Excerpt: ... may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Defendant argues that the notice of pendency of action should be expunged because of (1) Plaintiff's failure to comply w...

Excerpt: ...the property owned, possessed, and/or otherwise controlled by Plaintiffs -- Parcel No.: 09831305, Lot No.: 120, Tract Nox 2524, with the physical address of 9122 Washington Avenue, Westminster, California 92683 (“Subject Property”); (2) interfering with, disturbing, violating, and/or engaging in any other act, omission, and/or conduct that directly and/or indirectly causes harm, injury, and/or damage to Plaintiffs' quiet use and enjoyment of ...

Excerpt: ...ors”) have not satisfied the judgment entered by this Court in favor of Judgment Creditor, and that Judgment Debtors have membership interests in Nino Land & Investment Co., LLC. No opposition has been filed. Judgment Creditor brings this motion pursuant to Code of Civil Procedure sections 708.310 and 708.513, and Corporations Code section 17705.03. Code of Civil Procedure (“CCP”) § 708.310 states, in relevant part, “If a money judgment ...

Excerpt: ...amages and attorney fees and costs relating to the fifth cause of action. Plaintiff filed a complaint on 3/19/21 against Defendants Dr. Amy Bandy and Amy T. Bandy, Medical Corporation. On 7/15/21, this Court granted Plaintiff leave to amend the Complaint to allege punitive damages. The operative pleading is the FAC, which alleges Professional Negligence, Intentional Infliction of Emotional Distress, Intentional Misrepresentation, Fraudulent Conce...

Excerpt: ...FFIC improperly denied coverage related to business loss resulting from the COVID-19 pandemic and governmental orders shuttering businesses. Plaintiffs further claim that the insurance broker, WEIS, was negligent in failing to obtain proper insurance. On 9/23/21, this Court overruled FFIC's demurrer to the FAC. FFIC answered on 10/8/21. WEIS filed this demurrer on 8/20/21. To state a claim for negligent failure to obtain insurance coverage, the p...

Excerpt: ...�) filed by Plaintiffs LZ Costa Mesa LLC, Wave Plastic Surgery Center Inc., and LZ Management Group LLC (“Plaintiffs”). Ninth Cause of Action for Unfair Business Practices State Farm contends that the FAC fails to allege sufficient facts showing that Plaintiffs have standing as they fail to allege any real monetary or property loss with sufficient particularity, as well as fails to plead this cause of action with sufficient particularity, onl...

Excerpt: ...21 against Defendants MJA Restaurants, Inc. (“MJA”), 4G Wireless, Inc. (“4G”), James M. Burcar, and Does 1 through 20 for: 1. Breach of Written Contract; 2. Common Counts; and 3. Enforcement of Guaranty Plaintiffs leased property to Defendant MJA with Defendants 4G and Burcar signing as guarantors. Plaintiffs claim MJA failed to pay rent beginning in August 2019. A plaintiff may, upon the filing of the complaint or at any time thereafter,...

Excerpt: ...0 is GRANTED, pursuant to Evidence Code section 452(d). First Cause of Action (“COA”) – Breach of Contract Defendant contends that the SAVC is ambiguous because the allegations make it unclear if Plaintiff is the titled owner or if Plaintiff is not on title and holds only a beneficial and equitable interest. No opposition was filed. Thus, Plaintiff effectively concedes all arguments made in the motion. The failure to challenge a contention ...

Excerpt: ...33.) Here, as an initial matter, the Court entered Judgment in this matter on 8/12/21. (ROA 432.) The Notice of Entry of Judgment was filed and served by electronic service on 8/24/21. (ROA 442.) On 9/7/21, Cross-Complainant and Defendants Majid Adassi, Happy Kids Nutrition, Inc., and Wijdan Adassi, as successor-in-interest to the estate of Shaheer Adassi filed a Notice of Intention to File Motion for New Trial. (ROA 448, 450.) The Court notes th...

Excerpt: ...1. Following the Court's sustaining of Respondent's demurrer for uncertainty, Petitioner filed the operative pleading, which is the FAP. Respondent sufficiently met and conferred with Petitioner regarding the issues in the demurrer and motion to strike as required under Code of Civil Procedure sections 430.41 and 435.5. DEMURRER: Government Code section 31721 (all further statutory references are to the Government Code unless otherwise stated) pr...

Excerpt: ... Clerk of the Court; (3) Cross- Defendants, and each of them, and their respective attorneys, be restrained from instituting or further prosecuting any other proceeding in any court in California for recovery against the bond; and (4) ACIC be permitted to dismiss itself from the cross-complaint without prejudice.” (Ex Parte App. 2:3-10.) In short, ACIC moves to be discharged and dismissed from this action, and for an award of costs and attorney...

Excerpt: ... action for Motor Vehicle Negligence is without merit as a matter of law as PACIFIC is a business entity and did not operate any of the vehicles involved in the subject incident; and (2) Issue 2: Plaintiffs' 2nd cause of action for General Negligence is without merit as a matter of law as Plaintiffs' cannot establish that (i) PACIFIC owed Plaintiff CHAYA a duty of care on the date of the incident, (ii) PACIFIC breached any purported duty of care ...

Excerpt: ... Court's review, in camera, the Certificates of Merit wherein Plaintiff complied with CCP § 340.1(g), as he submitted certificates of merit from his attorney and from a mental health practitioner who meets the requirements of the statute, and Plaintiff complied with CCP § 340.1(h), as Plaintiff's attorney executed a separate certificate of merit for each defendant named in the complaint. (ROA 37.) As to Plaintiff's motion, pursuant to CCP § 34...

Excerpt: ...de any void judgment or order.” Defendant argues that default is void and should be set aside because the court did not have personal jurisdiction over Defendant or its predecessor-in-interest, FRMB, Inc. (“FRMB”) at the time of service, due to a defective service of process. Service on a corporation is governed by CCP § 416.10, which states, in part, as follows: “A summons may be served on a corporation by delivering a copy of the summo...

Excerpt: ...rrogatories, special interrogatories and requests for production, and deeming the first sets of requests for admissions admitted were granted. Defendants were ordered to serve their verified responses without objections before 01/09/20. Monetary Sanctions were ordered suspended until 01/09/20. If verified responses were not provided before 01/09/20, Defendant(s) were ordered to pay the entire amount of $2,120 to Plaintiffs and their attorneys. (S...

Excerpt: ...nst them as Plaintiffs have no evidence that Individual Defendants breached any duty of care owed to Plaintiffs, and that Plaintiffs cannot demonstrate that Individual Defendants were negligent in the operation of Pacheco's vehicle based upon Requests for Admissions, Set One, propounded by Pacheco against Plaintiffs, that were deemed admitted. As of October 7, 2021, Plaintiffs, Maricar Regis, Philip H. Dorantes, The Duc Nguyen, Vu Phi Khac, and A...

Excerpt: ...n to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.  (...

Excerpt: ...ntiffs' counsel via e- mail on or about July 20, 2021, seeking to meet and confer on the First Amended Complaint; that they received an e-mail from Plaintiffs' counsel that did not resolve the issues in the demurrer; and that “[i]t is [counsel's] understanding that, as to the demurrer on the claims in the First Amended Complaint, the parties remain in disagreement.” (Declaration of Anthony Cartee, ¶¶ 2-4.) This is insufficient to establish ...

Excerpt: ...tiffs' vicarious liability claims are barred by the Graves Amendment pursuant to 49 U.S.C. § 30106(a); (2) EAN had no duty to provide warnings beyond those required by the National Highway Traffic Safety Administration and the vehicle's manufacturer; and (3) EAN did not proximately cause Plaintiffs' injuries. Procedural Deficiencies in Plaintiffs' Separate Statement in Opposition “The opposition papers shall include a separate statement that r...