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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...bdivision (A)(3) of Civil Code§ 1793.2, Defendant Hyundai Motor America argues that these violations are not separately-actionable claims and there are no damages available for alleged violations of these provisions. However, Plaintiff argues Civil Code§ 1794(a) specifically states: “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contr...

Excerpt: ...3(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein.” (CCP § 473(b).) Here, Defendant submitted a copy of the pleading proposed to be filed. Mistake, inadvertence, surprise or excusable neglect Under CCP § 473(b), a defendant may seek discretionary relief from the court “upon such terms as may be just ... from a judgment, dismissal, order or other proceeding taken against him or her through hi...

Excerpt: ...ts contained therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) The Court OVERRULES Rutan's Objections to the Declaration of Jared Walder. The Court declines to rule on other objections that are not material to the disposition of the motion. (Code Civ. Proc. § 437c(q).) Defendants contend that the action is barred by the four-year statute of limitations set fo...

Excerpt: ...NTS Defendants' request to judicially notice Exhibits A and B attached to the Requests for Judicial Notice, pursuant to Evidence Code section 452(d). Plaintiff filed a Request for Judicial Notice in support of its Opposition to Defendants' Motion to Dismiss, requesting that the Court judicially notice Defendants' “Notice of Ruling Re Defendants' Demurrer and Motion to Strike as to Plaintiff's First Amended Complaint.” The Court GRANTS plainti...

Excerpt: ...20 hearing date in the Court's registry of actions. Moving Party failed to give notice of the current motion. Thus, it is unknown whether Defendant/Cross-Complainant ATV, Inc. had notice of this hearing. On the other hand, Cross-Defendant filed a notice of non-opposition on August 20, 2020 and Cross-Complainant was served with that pleading, so it does appear that Cross- Complainant is at least now aware of the hearing. The crux of the motion is ...

Excerpt: ...ease describe the nature and extent of YOUR job duties at the time of the INCIDENT.) Plaintiff JOSHUA responded as follows: “Objection. The request seeks information that is not reasonably calculated to lead to the discovery of admissible evidence and is unintelligible as it pertains to this Responding Party. The request also seeks privileged medical information, and the Responding Party has not put his medical condition at issue in this case. ...

Excerpt: ...of improper claims of the attorney-client and work product privilege. C.C.P. section 2031.310 states, in pertinent part, as follows: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representatio...

Excerpt: ...s, David Ellis (“Ellis”) and Michael Powers (“Powers”) filed individual oppositions to the motion. As a threshold matter, the Court notes that plaintiff filed his original motion on 6/23/20, and then filed an “updated and corrected” motion, as well as a Notice of Errata on 7/6/20, explaining that the “updated and corrected” papers were filed to correct a citation to an exhibit, and that the Court should review the 7/6/20 filing. P...

Excerpt: ...Brokers Failure to Inspect and Disclose, Civil Code §§ 2079, et seq.: Brokers and salespersons subject to Civil Code § 2079 have a two-pronged duty: first, to conduct a “reasonably competent and diligent visual inspection of the property”; and second, to “disclose to … prospective buyer[s] all facts materially affecting the value or desirability of the property that an investigation would reveal.” (Civil Code § 2079(a); Ryan v. Real...

Excerpt: ...non-responsive, and that the objections are without merit. Khalili contends that the motion is moot as Amended Responses were served prior to him being served with the instant motion, that Steed failed to sufficiently meet and confer prior to bringing the motion, and that sanctions are not warranted. Code of Civil Procedure §2030.300(a) provides that a party propounding discovery may move for an order compelling a further response if an answer t...

Excerpt: ...ing causes of action for wrongful death pursuant to Code Civ. Proc. §377.60 et seq.; wrongful death pursuant to Code Civ. Proc. §377.30 et seq.; and assault and battery. Defendants City of Los Alamitos, Los Alamitos Police Department and Chief of Police Eric R. Nunez (“Nunez”) (collectively “Moving Defendants”) move for an order sustaining their demurrer without leave to amend as to the First Amended Complaint (“FAC”) filed by Plain...

Excerpt: ...egal action or proceeding in the United States District Court for the District of Utah or in any court of the state of Utah sitting in Salt Lake City.” “ ‘In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens mot...

Excerpt: ...ract on the ground it is insufficiently pled because it fails to plead require ultimate facts. Specifically, Defendants contend that paragraph 48 fails to allege the “obligations that are excused by Defendants [sic] conduct”; paragraph 49 fails to allege “when, where, how, and to whom specifically Defendants disclosed” the confidential information, fails to allege what actual information was improperly disclosed, and paragraphs 49 and 50 ...

Excerpt: ... (2015) 237 Cal.App.4th 651, 657, 188 Cal.Rptr.3d 113.) “[T]he phrase ‘ “involving commerce” ' in the FAA is the functional equivalent of the term ‘ “affecting commerce,” ' which is a term of art that ordinarily signals the broadest permissible exercise of Congress's commerce clause power.” (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1097, 56 Cal.Rptr.3d 326 (Shepard), citing Citizens Bank v. Alafabco,...

Excerpt: ...l. “Following entry of a dismissal of an action by a plaintiff under Code of Civil Procedure section 581, a “trial court is without jurisdiction to act further in the action [citations] except for the limited purpose of awarding costs and statutory attorney's fees. [Citations.]” (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405. In Harris, the Court held the “trial court in this case had no jurisdiction to vacate the dismissal without ...

Excerpt: ...o judgment on each of the 1st, 2nd, and 3rd causes of action under the doctrine established by Privette v. Super. Ct. (1993) 5 Cal.4th 689 and its progeny. The Privette doctrine bars an employee of an independent contractor from recovering against the independent contractor's hirer for work-related injuries. (Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 913.) “[I]t would be unfair to impose liability on the hiring person when th...

Excerpt: ...ntal pleading indicating compliance. On 7/6/20, Moving Defendants filed the Declaration of Hala A. Mousa (“Declaration”) providing that “all parties to this action” were electronically served and provided with notice of the motion to consolidate, pursuant to the Court's 6/18/20 Minute Order. The Declaration also provides that no parties have objected to the motion, but that Defendants Enterprise Rent-A-Car Company of Los Angeles, LLC (“...

Excerpt: ...97) 16 Cal.4th 953, 967.) Although the Constitution does not require that civil actions be stayed until the conclusion of the related criminal proceedings, courts retain the power to stay those proceedings under their general authority to issue stays and other similar relief when necessary to ensure the fairness of proceedings pending before them. (Landis v. North American Co. (1936) 299 U.S. 248, 254–55.) A court has discretion to stay civil p...

Excerpt: ...time in its discretion, and may consider a motion to strike on the merits even though the motion was filed after a defendant has filed its responsive pleading. (Code Civ. Proc. § 436; CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4th 1014, 1020-1021.) The Court thus exercises its discretion and considers the merits of the motion. To support exemplary damages, the complaint must allege facts of defendant's oppression, fraud, or malice, as req...

Excerpt: ... fact of the filings and the results reached. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882). Cross-Defendant brings this Motion for Summary Judgment and/or Adjudication, asserting Cross-Complainant cannot establish damages to support its claims. After reviewing the evidence, the Court finds the majority of Cross-Complainant's requests for damages are barred by collateral estoppel. The doctrine of...

Excerpt: ...n”), Farzin Hassanzadeh, Banoo Taat, and MNTS, Inc. (collectively “plaintiffs”). The Court GRANTS the Moving Defendants' Request for Judicial Notice as to Exhibits 1, 2, and 5 through 12 as court records pursuant to Evidence Code section 452(d). The Court GRANTS the Request for Judicial Notice as to Exhibit 3 containing a grant deed; and as to Exhibit 4 containing a settlement agreement, pursuant to Evidence Code section 452(h). Although th...

Excerpt: ...s an order granting issue and/or evidentiary sanctions, as follows: a. Issue sanctions ordering that it is established that Defendants have not suffered any lost profits or other damages; and/or b. Evidentiary sanctions precluding all evidence and testimony regarding Defendants' alleged lost profits and damages. (CCP§2023.030(b) and (c)). In the alternative, Plaintiff moves to compel further verified responses, without objection, to Plaintiff's ...

Excerpt: ...emaining against Defendant is the 1st cause of action for general negligence. The Court notes that Defendant appears mistaken in believing that the second cause of action for premises liability is still at issue. The Court also notes that the motion was served on 4/13/2020. As to the remaining cause of action, the elements of a negligence cause of action are: duty, breach, proximate or legal cause of injury to Plaintiff resulting from the breach,...

Excerpt: ...arties, X Border Media USA, LLC (“X Boarder”) and Hong Hanh Le Dao (“Hanh Le”); 2. Since the inception of this litigation, cross-defendant, Vietface Media Group LLC (“VFMG, LLC”) has formed an additional subsidiary, S Channel, Inc. (“S Channel”), which ought to be included as a cross-defendant in this shareholders derivative suit; and 3. Ton seeks to add additional instances of breaches of fiduciaries duties to his existing claim ...

Excerpt: ...Decl., ¶¶ 12-14.) Plaintiff's counsel also presents evidence that when he prepared the Case Management Conference Statement, he was focusing only on Plaintiff's Complaint—not the Cross- Complaint, and that when he checked “nonjury trial” that was intended only to apply to Plaintiff's Complaint. (Id., ¶¶ 6-8.) Plaintiff's counsel also presents evidence that he and his client assumed there would be a jury on the Cross-Complaint since the ...

Excerpt: ...ically identify what damages she alleges were caused by Defendant's alleged concealment. Allegations in the FAC: The FAC alleges that Plaintiff was harmed by (1) purchasing a vehicle that she would not have purchased had she known the true facts about the engine defect, (2) unknowingly exposing herself to the risk of liability, accident and/or other injuries, (3) $2,511.55 for repairs of the subject vehicle, and (4) at least $1,100.00 in earnings...

Excerpt: ...o 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 case 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 defense thereto. The defendant or cross-defendant shall not rely upon the allegations or deni...

Excerpt: ... good faith efforts were made to personally serve Nadiya Aziz prior to serving Defendant by substitute service. In Opposition, Plaintiff contends that the Motion should be denied because Plaintiff properly served Defendant at its current place of business identified on the Statement of Information filed by Defendant on 5/8/17 with the State of California Secretary of State's website; Defendant failed to timely respond; and nothing in the supporti...

Excerpt: ...d expert witnesses that are necessary to effectively defend this action and prepare for trial. Defendant seeks to add four additional retained-expert witnesses and twenty-five non-retained expert witnesses – all of whom are in the categories of psychiatrist, life care planner, economist, or biomechanical engineer. (See Van Buren Decl., ¶¶4 and 6, Exh. C.) In Opposition, Plaintiff contend this Motion is untimely as it is brought some 15 months...

Excerpt: ...nses to such a request must be accompanied by a separate statement.” However, the discovery at issue is limited and thus, the Court will exercise its discretion and address the motion on the merits. The subject subpoena seeks the following records: “Any and all writings pertaining to Elvira Jeronimo as follows: medical records, medical bills, defense medical examination reports, discovery propounded to and discovery responses of Elvira Jeroni...

Excerpt: ...t Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order; and that these rules do not apply to records that are required to be kept confidential by law. Penal Code § 851.8(a) provides that if the court finds that the petitioner is factually innocent of the crimes charged, the law enforcement agency must, with the district attorney's concurrence, seal both the records and the petition to seal the records. The records mu...

Excerpt: ...nderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.) Due process permits state courts to exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. “Minimum contacts” means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notio...

Excerpt: ...igence. Dr. Azzam and Dr. Gaw each move for summary judgment in their favor and against plaintiffs Carlos Lustre and Dorothy Lustre as to both causes of action. Dr. Yip moves for summary judgment, or in the alternative, summary adjudication in his favor and against plaintiffs Carlos Lustre and Dorothy Lustre as to both causes of action. The elements of a medical negligence cause of action are: (1) duty of professional to use such skill, prudence,...

Excerpt: ...are therefore MOOT, and thus, does not address any issues for adjudication concerning these defendants. (Opposition, 2:2-7.) A Request for Dismissal without prejudice was entered on 2/24/20, as to these defendants. Accordingly, the Court dismisses SCD Holdings, LLC, Payman Rashtchi, and Arman Rashtchi, and all causes of action asserted as against these defendants. The motion that remains is Defendant Super Color Digital, LLC's Motion for Summary ...

Excerpt: ...aintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder ...

Excerpt: ...e case was settled when it is not, which caused all future hearing dates in this case to be vacated; and that counsel failed to timely remedy the problem when the erroneous filing was brought to their attention. Pursuant to CCP § 128.5, a Court may order a party or counsel, or both, “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or s...

Excerpt: ...Cause of Action for Breach of Covenant of Good Faith and Fair Dealing in the Third Amended Complaint (“TAC”) filed on 9/16/19, by Plaintiffs, Michael Alladawi (“Alladawi”), Nour Khedraki, Umbrella Capital Group, Inc., dba The Plaza Realty Group, Umbrella Investment Group, LLC, Ikon, LLC, and Acacia Properties 1, LP (collectively “Plaintiffs”). A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, ...

Excerpt: ...ration of Due Diligence filed with the Proof of Service seems to contradict Item 6 of the Application for Writ of Possession and Declaration of Blong Vang ¶11. The Declaration of Due Diligence signed by the process server, Laurie Evans, indicates that service could not be made at 718 Huntington Street, Huntington Beach, CA because it is a sober living home, only women live there, and no mail for defendant goes there. She also indicates that the ...

Excerpt: ...r of consumer goods sold in California and for which the manufacturer has made an express warranty shall “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” Defendant contends that Plaintiffs failed to set forth what service literature and replacement parts were unavailable. A review of the Complaint reveals that the claim does...

Excerpt: ...ainst whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Emphasis added.) Here, the First Amended Cross-Complaint was filed on 8/28/19. The proof of service indicates service by email and mail. Yet, the instant demurrer was not filed until 48 days later on 10/15/19. Thus, the demurrer is untimely. Nonetheless, the Court, in its di...

Excerpt: ...n Carlos Fernandez and/or his attorney of record in the amount of $3,128. Specifically, Defendant seeks further responses to the following: a description of the dangerous condition of the property alleged by Plaintiff (No. 1); the location of the dangerous condition (No. 2); all fact, documents, and witnesses to support Plaintiff's dangerous condition contentions (Nos. 3-5); a description or identification of the warnings, sign postings, and main...

Excerpt: ...2 are all allowable recoverable costs pursuant to C.C.P. section 1033.5(a)(1), (a)(3)(A), (a)(4), and (a)(11). As such, the burden was on Plaintiff to show that those costs were unreasonable or unnecessary which Plaintiff failed to do. (Jones v. Dumrichob (1988) 63 Cal. App. 4th 1258, 1266 [“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the p...

Excerpt: ... Action for Breach of January 6, 2017 Finance Agreement: The elements of a breach of contract claim are (1) contract formation; (2) plaintiff's performance; (3) defendant's breach; and (4) resulting damages. See M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 274. Leaf has submitted evidence to show that Moran DDS admitted to signing the Finance Agreement with Moran DDS dated January 6, 2017 (“January FA”) (SSUF 1, 2, 5.) Leaf h...

Excerpt: ...ms that the so-called Privette doctrine precludes liability against it. As with the original Complaint, the FAC alleges causes of action for general negligence and premises liability based on the death of Plaintiff's decedent, Jerry Corcoran, on 07/14/16 from a bee sting. In the previous pleading, it was established that decedent was an employee of now-dismissed defendant Altfillisch Contractors, Inc. (“ACI”), and was on defendant's construct...

Excerpt: ...ow Instructions, attached and incorporated into the Complaint as Ex. “C.” This document establishes that Gutierrez, as Lee's broker, was not a party to that agreement. Further, generally, a broker is not liable for a principal's contracts. “[P]rovided the agent has actual or ostensible authority to bind the principal, the principal is identified and the agent's capacity is sufficiently indicated, only the principal and not the agent has lia...

Excerpt: ... plaintiff to furnish a bond to institute or maintain the action. It further provides that the motion must be based on one or both of the following grounds: (1) that there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint will benefit the corporation or its shareholders; and (2) that the moving party, if other than the corporation, did not participate in the transaction complained of in any capacity...

Excerpt: ...ed have been completely adjudicated by the Court, citing Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545. They argue that such an interim judgment or order is directly appealable as a collateral final judgment where: (1) the judgment or order is final as to the collateral matter; (2) the subject of the judgment or order is collateral to the general subject of the litigation; and (3) the judgment or order directs the payment of money by the appe...

Excerpt: ...yptus tree that fell on their vehicle was a dangerous condition on Homeowners' property, for which it is liable. Homeowners' notice of motion states that it did not breach a duty to Plaintiffs because it (1) had no notice of a defective or dangerous condition, (2) there was no opportunity for it to warn or cure the condition, and (3) Plaintiffs' damages were the result of an act of God. Summary judgment is to be granted if all submitted papers sh...

Excerpt: ...ion, Inc.'s Complaint. Code Civ. Proc. §§ 430.10(e) and (f). Defendants' request for judicial notice of Ex. A is GRANTED. First Cause of Action for Breach of Contract: “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, ...

Excerpt: ...ted evidence to show that this matter was previously removed to federal court where SLS filed a motion for judgment on the pleadings. (Declaration of Andrew Mase (“Mase Decl.”), ¶ 5.) While SLS's motion for judgment on the pleadings was pending, Plaintiff and SLS stipulated to dismiss the federal claims from the First Amended Complaint and to remand the case to state court where Plaintiff could file a SAC. (Mase Decl., ¶ 5.) On 05/28/19, Pl...

Excerpt: ...verified responses/objections to each set somewhere around 03/11/19. (It is unclear to the Court exactly when, because Plaintiff's counsel does not attach proofs of service to same.) (See Mokri Decl., Exs. E-H.) Plaintiff provided a mixture of unverified responses and objections to the Form Interrogatories, Special Interrogatories, and RPDs. However, her responses to the RFAs consisted entirely of objections. (Id., Ex. G.) On 06/02/19, Plaintiff ...

Excerpt: ... 187 grants to every court the power to use all means to carry its jurisdiction into effect, even if those means are not specifically pointed out in the Code. NEC Electronics v. Hurt (1989) 208 Cal.App.3d 772, 778. This section grants the Court the authority to amend a judgment to add additional judgment debtors. Id. Judgments are often amended to add additional judgment debtors on the grounds that a person or entity is the alter ego of the origi...

Excerpt: ... case, and harassing given the proximity to the parties' mediation. In order to obtain a protective order with respect to both special interrogatories and RPDs, a responding party must “promptly” move for one upon good cause shown, and the motion must be accompanied by a meet and confer declaration. See Code Civ. Proc. §§2030.090(a) & 2031.060(a). Here, Defendant concedes that the discovery was served on 04/29/19. Yet, Defendant did not eve...

Excerpt: ... section 2698 provides: “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and o...

Excerpt: ... (1993) 14 Cal. App. 4th 1595, 1606-7, the court found that any claim against an employer for negligence in connection with alleged sexual harassment and wrongful termination of the employee was barred by the workers' compensation exclusivity principle. Further, in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 152, the court concluded that “when the employee's claim is based on conduct normally occurring in the workplace, it is...

Excerpt: ...ctors or officers and failed to allege facts which demonstrate “foreseeability of harm.” Defendant cites no authority within this portion of its Demurrer and does not establish the allegations it asserts are missing, or are required elements of either claim. “Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” (See Plotnik v. Meihaus (201...

Excerpt: ...otherwise. The First Amended Complaint alleges that moving Defendant was the loan servicer for Plaintiffs' loan “from approximately mid-2016 through mid-2017.” (FAC, ¶ 23.) It alleges that, during the time that moving Defendant serviced the loan, it “demonstrated a lack of due care by reviewing Plaintiffs only for HAMP loan modification of the loan despite the fact that Plaintiffs' original loan amount of $763,000.00 put them over the limi...

Excerpt: ...edical battery and the Fourth Cause of Action for intentional infliction of emotional distress. Regarding the Phan Defendants, their demurrers to all previously pleaded causes of action have already been overruled. However, since Plaintiff Caryn Jordan amended the complaint to add the sexual battery cause of action, the Court's previous ruling does not foreclose the Phan Defendants from filing a demurrer to that new cause of action. 3rd COA – S...

Excerpt: ... 2019 and that the Court entered an order on that stipulation. She therefore contends that the filing of the instant demurrer is a breach of that agreement as well as the Court order and constitutes sanctionable conduct. Plaintiff contends that consideration was given for the stipulation because the motions were pending and there was a possibility that the Plaintiff would be given leave to amend on the motion for Judgement on the Pleadings, which...

Excerpt: ...e documents responsive to the moving party's requests for production. Moving party contends that Vietface Media Group, LLC has not produced two groups of documents: (1) the PlayBox records; and (2) accounts receivable and income records. Moving party contends that Vietface Media Group, LLC only produced PlayBox records that go back to August 2017 and that additional records are necessary to prove embezzlement and damages. It contends that Vietfac...

Excerpt: ...ation was based on an Employment Agreement dated December 2017 which contains an arbitration provision. (Notice of Lodging, Ex. 1.) The parties do not dispute that the December 2017 Employment Agreement was never signed by either Hanrahan or CAC. CAC argues that Hanrahan and CAC continued to negotiate the provisions of the Employment Agreement and CAC sent Hanrahan a new draft of the Employment Agreement on March 29, 2018. (Declaration of Andrew ...

Excerpt: ...ing evidence that the defendant has been guilty of oppression, fraud, or malice, as those terms are defined in subdivision (c) of the Code section. Both “malice” and “oppression” require either an intent to injure, or evidence of “despicable conduct.” Id. at subds.(c)(1) & (2). Regarding “fraud,” Plaintiff must allege “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the int...

Excerpt: ...eclared that “trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.” See Adams v. Paul (1995) 11 Cal.4th 583, 593 (quoted in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1211). Defendants' contention is that the appeal of the underlying judgment in this case could either substantially impact or moot altogether the claims made by Plaintiffs in this case. Plain...

Excerpt: ...se of action for breach of contract, seeks the same damages and is therefore improper, citing Careau & Co. v. Security Pacific Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371. Careau held that a breach of the implied covenant involves something beyond breach of the contractual duty itself and involves unfair dealing rather than mistaken judgment. Id. at p. 1394. It stated that the allegations “must show that the conduct of the defendant, whether o...