Excerpt: ...ct or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Moving Cross-Defendants contend that any representation of the Cross-Complainan...

Excerpt: ... trial, and set a new trial date of 12/02/19. While the Court kept the present motion on calendar, it ordered the parties to meet and confer regarding the outstanding discovery issues. It is unclear as yet whether such efforts have been undertaken by the parties, but as a practical matter, such efforts would go a long way to resolving the issues presented by this motion. The Court addresses the substance of the motion nonetheless. The motion conc...

Excerpt: ...omplaint was untimely when filed on 05/10/19 (albeit by one day). Additionally, Plaintiff argues that the Cross-Complaint is inconsistent with Khalili's previous contention that Plaintiff is not the successor-in-interest to the decedent, Tony Steed. At the outset, the Court presumes that Plaintiff seeks to strike the entirety of the Cross-Complaint because Plaintiff has not, in the notice of motion, “quoted in full [any] portions” of the Cros...

Excerpt: ...lel criminal proceeding should be made 'in light of the particular circumstances and competing interests involved in the case.' This means the decisionmaker should consider 'the extent to which the defendant's fifth amendment rights are implicated.' In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and ...

Excerpt: ...wife, Martha Ward, must be added as a defendant, and has agreed to do so. Therefore, any demurrers based upon her status as an indispensable party are MOOT. Further, the Court finds the demurrers to the First and Section Causes of Action based on the Statute of Frauds to be procedurally improper. “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any por...

Excerpt: ... action is for breach of fiduciary duty and is brought by individual Plaintiffs Michael Alladawi and Nour Khedraki against moving Defendants John Warren and Barbara Milbert and several Co-Defendants. The moving Defendants contend that this cause of action is defective because there are no facts showing that they owed a fiduciary duty to these Plaintiffs or that they breached one. Before a person can be charged with a fiduciary obligation, he or s...

Excerpt: ...n or free speech under the United States Constitution or the California Constitution in connection with a public issue. Bergstein v. Stroock & Strook & Lavan LLP (2015) 236 Cal.App.4th 793, 803. The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271. In the first step, the defendant bringing an anti-SLAPP motion must make a...

Excerpt: ...a Group, LLC, Viet Performing Arts Center, Inc., Vietface Shopping Networks, Inc., and Vietface Foundation, Inc. purport to join the motion and alternative motion. However, there is nothing before the Court discussing the propriety of the joinder, and a Court may not grant a party's motion to join another party's summary judgment motion unless the joining party has submitted its own separate statement with the joinder. Frazee v. Seely(2001) 95 Ca...

Excerpt: ... resulting damages to plaintiff. (Reichert v. General Insurance Co.(1968) 68 Cal. 2d 822, 830.) Here, Plaintiff has established a prima facie case by showing that each element for a breach of contract cause of action has been met. There was a contract between Reprime and Assignor for the lease of equipment ( the “Lease”). (UMF 1-3.) Thereafter, Assignor sold/assigned the Lease to Plaintiff (the “Assignment”). (UMF 4-5.) Assignor and Plain...

Excerpt: ...et the standard of care in performing the procedure, and that their conduct did not cause Plaintiff's injury. Dr. Ruffalo attests that he has reviewed Plaintiff's treatment records from University of California Irvine, and the records reviewed are attached to the motion. Medical records may be used as the basis for an expert medical opinion, but they must be attached and properly authenticated. Otherwise, an expert medical opinion lacks an eviden...

Excerpt: ...named in the Tenth Cause of Action. The Tenth Cause of Action names “all Defendants.” But at best, Plaintiff directs his motion only to Inc. and perhaps also the conduct of Phillip Fusco. There is no evidence presented against Shokoufeh Fusco, Stephen Fusco, or Antonio Bevaqua. The Court notes three other problems that are not addressed by the parties in the briefing. First, Stephen Fusco and Antonio Bevaqua, though named as Doe defendants on...

Excerpt: ...ce, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821. A demurrer lies where “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied in fact.” Code Civ. Proc. § 430.10(g). Here, Defendant argues that Plaintiff's breach of contract cause of action (1) fails to allege that a co...

Excerpt: ...actor in Dynamex Operation West v. Sup. Ct. (2018) 4 Cal.5th 903.” Plaintiff's Notice of Motion, Pg. 2. Defendant Vo has filed a Notice of Joinder of Plaintiff's Motion for Summary Adjudication. Rules of Court, Rule 3.1350(b) states, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be sta...

Excerpt: ...e foreclosure process. Specifically, this cause of action alleges that the Defendant “authorized and/or initiated foreclosure proceedings without first properly notifying Plaintiffs” as required by Civ. Code § 2923.5 (SAC, ¶ 70), that it did not comply with the publishing and posting requirements and did not contact Plaintiffs to assess their financial situation (SAC, ¶ 71), did not advise Plaintiffs of the right to request a subsequent me...

Excerpt: ... not drawn or filed in conformity with the laws of this state or rules of this court because Defendant Jaques has not been sued in this matter in her capacity as trustee of the Trust, but solely in her individual capacity. However, the demurrer was not only filed on behalf of Defendant Jaques in her capacity as trustee, but also on her own individual behalf, as well as on behalf of Defendant O'Leary. As such, the Court cannot strike the entirety ...

Excerpt: ...pon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands..” Id. at subd.(a). Where a deposition is sought, Code of Civil Procedure §2025.420 permits the court, upon a showing of good cause, to issue a protective order protecting the deponent from “unwarranted annoyance...oppression ...

Excerpt: ...d States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118. Willful misconduct is not a separate tort from negligence, but rather “‘“‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care' [citations].”'” [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and d...

Excerpt: ... are for negligence and vicarious liability and for negligence per se. Both are based on an injury that Plaintiff suffered on March 6, 2017, when he was a 15-year-old freshman at Mission Viejo High School. (Complaint, ¶ 4.) The complaint alleges that, on the day of the incident, Plaintiff was participating in a practice with the school's track and field club when, while in the process of retrieving a shot put he had thrown, he was struck in the ...

Excerpt: ...tion under Section 2025.410, fails to appear for examination” or produce documents requested in the notice. Id. at subd.(a). The motion must state good cause for the production of any documents specified in the notice, and also must be accompanied by a meet and confer declaration or evidence that the moving party has contacted the deponent about any nonappearance. Id. at subd.(b). If a deponent believes a deposition notice is defective, it must...

Excerpt: ...ifurcate on 5/16/19. At that time, the Court found that Defendants' proof of service was defective on its face and that Defendants had failed to present evidence of proper service. The Court continued the matter to 6/27/19 and gave the parties the option to file supplemental briefs. Plaintiff Secrest Construction of California did not file a supplemental Opposition, but Defendants filed a supplemental Reply on 6/13/19. B. Whether Bifurcation Woul...

Excerpt: ...th Lakes Land Acquisitions, LLC v. Town of Mammoth Lakes(2010) 191 Cal. App. 4th 435, 463. Plaintiff contends that all of these elements have been established by the request for admissions that were deemed admitted by the Court on 2/7/19. There is a valid contract between the parties for student loans and Defendant promised to repay all student loans. SS, 1- 2. Plaintiff performed pursuant to the contract by making student loans to Defendant in t...

Excerpt: ...n. In support of its motion to set aside the default, TRD makes the following arguments: (1) TRD was not properly served with the Complaint; (2) TRD lacked actual notice of the action; (3) relief should be granted under CCP § 473(b) based on TRD's mistake, inadvertence, surprise, or excusable neglect; and (4) Plaintiff's counsel violated California Attorney guidelines of Civility and Professionalism. (1) Service of the Complaint on TRD: TRD cont...

Excerpt: ...ruction Co. v. City of San Bernardino (1995) 32 Cal. App. 4th 687, 704. Section 1983 applies to persons acting “under color of” state law, and normally does not apply to private actors. (See Flagg Bros., Inc. v. Brooks (1978) 436 U.S. 149, 155–156.) “A private individual may be liable under section 1983 if she conspired or entered joint action with a state actor. [Citation.]” (Franklin v. Fox,312 F.3d 423, 441 (9th Cir.2002).) See, Dwig...

Excerpt: ...depose Toyota's Person Most Knowledgeable to obtain relevant information regarding how Toyota handled his warranty claims under the Act. (See McGaffey Decl. at Ex. B, Notice of Deposition.) In particular, Plaintiff argues that in order to recover a civil penalty of twice the amount of damages for his claim under Civil Code 1793 (c), he must prove that Defendant's failure to replace the vehicle or make restitution to him was willful and was not th...

Excerpt: ...evelop the property. The motion substantially complies with California Rule of Court 3.1324. The motion does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). However, the motion includes a serially numbered proposed amended pleading. It also states the effect of the amendment, which is to add Fifth and Sixth Causes of Action. It states that it is in furtherance of justice to add all causes...

Excerpt: ...pose to add to their 2AXC. In his declaration at paragraph 10, Cross- Complainants' counsel Douglas Wade states that Cross- Complainants propose to add a claim for Negligent Misrepresentation. But in their motion at page 7, lines 17-20, Cross-Complainants state that they have added two causes of action for Intentional Interference with Prospective Economic Relations and Misappropriation of Trade Secrets. Accordingly, it is uncertain as to what Cr...

Excerpt: .... Superior Court (1992) 2 Cal.4th 1064, 1971-72, there is no recognizable independent claim for NIED. In Burgess the court stated that: “We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existenc...

Excerpt: ...d the Terms By Confirming Receipt of Equipment That Was Not Received and Failing to Make Payments Thereunder; (4) Plaintiff Was Damaged; And (5) The Contract Was Not Cancelled. Issue No. 2: The Twelfth Cause of Action (Breach of the July 14, 2017 Finance Agreement) Against Vision One, Because There Is No Genuine Issue That: (1) Vision One Ratified Terms of the Contract And/Or is Estopped; (2) The Contract Terms Required Plaintiff to Finance Equip...

Excerpt: ...efined in Section 1161 of the Code of Civil Procedure:” . . . “(b) If it appears from the complaint or affidavit, or otherwise, that the superior court or court location where the action or proceeding is commenced is not the proper court or court location for the trial, the court where the action or proceeding is commenced, or a judge thereof, shall, whenever that fact appears, transfer it to the proper court or court location, on its own mot...

Excerpt: ...ting of the pecuniary loss suffered by the heirs. [Citations.]' [Citation.]” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. Defendants argue that Plaintiff's wrongful death claim fails because Plaintiff has not pleaded a causal link between the decedent, Bertil Osbeck's (“Decedent”), injury and his death. Defendants contend that because wrongful death claims are statutory in nature, specificity in the pleadings is required...

Excerpt: ... the present motion, as well as $21,646 in expert witness fees. Plaintiff seeks the award pursuant to Civil Code §3426.4. Defendants oppose the motion, not because they do not believe Plaintiff is entitled to fees under Civil Code §3426.4, but because the amounts sought by Plaintiff are unreasonable. Under Civil Code §3426.4, where there is “willful and malicious misappropriation…the Court may award reasonable attorney's fees and costs to ...

Excerpt: ...angerous condition on the floor of the store at the time of the incident. Second, that Plaintiffs are unable to prove that a dangerous condition on the floor of the store caused their fall. The Court notes that Plaintiff Allen Franz has been dismissed from this lawsuit without prejudice, because said Plaintiff passed away after filing the lawsuit, and no steps were taken under Code of Civil Procedure §377.31 to substitute in a successor plaintif...

Excerpt: ...iability fails as a matter of law because it is expressly preempted by federal law, including by not limited to, 21 U.S.C. § 360k(a) 3. Plaintiffs' failure to warn claims fail because they are barred by the Learned Intermediary Doctrine. A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit; i.e., that, as to each cause of action, one or more e...

Excerpt: ...nd fixing the amount of attorney's fees to which they are entitled as the party prevailing on the contract in this action. The motion also requests that the monetary sanctions under CCP §128.5 awarded by the Referee, be extended to the entire proceeding from the date of the filing of the Petition for Alternative Writ to the final proceedings re fees and costs, in addition to those the Court has awarded per the recommendations of the Referee for ...

Excerpt: ...dered on its own merits. CRC 3.1332(c). Rule 3.1332(c)-(d) states the factors the Court should consider in evaluating whether good cause exists. Here, Defendants seek a trial continuance due to the sudden and departure of all but one member of defense counsel's litigation team. The departure of these attorneys has caused an extreme burden on the sole remaining member of Defendants' litigation team. Pursuant to the Declaration of Daniel Watts, Ste...

Excerpt: ..., Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. If the moving party meets his or her burden of demonstrating “good cause,” the burden shifts to responding party to justify any objections made to the document production. See, Kirkland v. Superior Court(2002) 95 Cal.App.4th 92, 98. Plaintiff contends that these disputed requests all generally relate to records concerning the perpetrator student at issue, Cameron, wh...

Excerpt: ... is made in good faith, the Court must determine whether “the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.” Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1984) 38 Cal.3d 488, 499. In making such a determination, the Court considers the following factors: (1) a rough approximation of plaintiffs' total recovery and the settlor's prop...

Excerpt: ...al date has been set and that discovery is ongoing. (Nassiri Decl. at ¶ 6.) Shapiro represents that she now believes she suffered property damage caused by Puroclean's negligence. This belief is based upon “recent” information obtained from her expert, a licensed general building contractor, who completed his professional estimate and opinion in late Nov. 2018. Accordingly, Shapiro seeks to add a second cause of action for General Negligence...

Excerpt: ...n notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” The Court heard the motion for summary judgment on February 7, 2019, and took it under submission. In so doing, the Court invited the parties to file supplemental briefing, limited to five pages, which addressed specif...

Excerpt: ... numbered copy of the amended pleading, the motion itself does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). While counsel submits a declaration under subdivision (b), and that declaration states the effect of the amendment, it does not state why the amendment is necessary and proper. Neither does it identify when the facts giving rise to the amendment were discovered nor the reason for...

Excerpt: ... motion. At the hearing on this motion the parties submitted to the tentative ruling and that tentative became the final ruling of the Court. Prior to the hearing, at 12:29 p.m. on 11/8/18, the Saldivar Defendants filed their cross- complaint. Ms. Rodriguez contends the Cross-Complaint is untimely because it was prematurely filed. However, Ms. Rodriguez fails to assert any prejudice that she has incurred as a result of the prematurely filed cross...

Excerpt: .... v. Superior Court (2008) 159 Cal. App. 4th 273, 286 (citing Cal. Civ. Proc. Code § 367). Standing is a threshold issue. Id. The Third Amended Complaint contains 3 causes of action. They are: Breach of promissory note; money lent; and complaint to set aside fraudulent transfer. In order to establish a contract, Plaintiff must establish that she is either a party to the contract or that she has standing for some other reason. Pursuant to the Not...

Excerpt: ...d Defendant with Oppositions to the motion for judgment on the pleadings and motion to strike. But the Court notes that Plaintiff has not filed the Oppositions with the Court. On or about 5/13/2019, the Court received courtesy copies of Plaintiff's Oppositions which were read and considered. Whether A Non-Attorney May Represent Estate Defendant Hospital argues that a person may not practice law in California without a license (Bus. & Prof. Code 6...

Excerpt: ... it 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 judgment on the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Pro...

Excerpt: ...states that each of the affirmative defenses fails to allege “facts sufficient to constitute a defense and [is] uncertain.” However, this defect was not raised by Defendant, and in the end, it does not impact the analysis. Where affirmative defenses are “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in t...

Excerpt: ...rrington M.D., attorney Taylor Bentley drafted false documents offering to sell prospective investor Ahmed Ewais shares in GDBC. But the documents falsely stated that Khoury held a 15% interest in GDBC and falsely concealed Khalid Bin Jabor Al Thani's 40% interest in GDBC. Because the false offerings were illegal under Qataran law, Khoury was arrested and forced to pay $400,000 in bail money to get out of jail. The Weintraub Cross-Defendants argu...

Excerpt: ...submitted any evidence to show that any supplemental responses were served on Plaintiff. Accordingly, the Court considers the merits of the motion. Interrogatory no. 15.1 asks for identification of facts, names and contact information of witnesses, and documents supporting denials of material allegations and affirmative defenses. Defendant's response provides reasons why denials and affirmative defenses were pleaded by Defendant, but fails to add...

Excerpt: ...A party opposing arbitration, on grounds like waiver, bears the burden of proof. Id. A party may file a petition to compel arbitration based on a written arbitration agreement. See, C.C.P. § 1281.2. The moving party must prove by a preponderance of the evidence the existence of an arbitration agreement, and that the dispute is covered by the agreement. See, Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413. Petitioner'...

Excerpt: ...emises liability and general negligence. It alleges that, on February 25, 2017, Plaintiff was injured at the moving defendant's supermarket in Santa Ana as a result of a dangerous and defective condition in the store. Although the complaint alleges that the Plaintiff fell as a result of a spill of a foreign substance that accumulated in the walkway, her deposition testimony indicates that the incident involved Minute Maid lemonade bottles falling...

Excerpt: ...n April 12, 2019, dismissal without prejudice was entered as to Defendant Portable Machine Works, LLC. Accordingly, Plaintiffs' motion for summary judgment or, alternatively, for summary adjudication as to the first cause of action for breach of contract and second cause of action for account stated against Defendant Portable Machine Works, LLC is MOOT. Third Cause of Action against Defendants Judith Imbraguglio and Deborah Accardo: “A party mo...

Excerpt: ... and based on a settlement agreement entered into between Wells Fargo and Todd Fligner in November 2016 whereby the parties agreed that Todd Fligner would dismiss a pending case in consideration of Wells Fargo reviewing him for a loan modification. Wells Fargo contends that Plaintiffs cannot enforce the settlement agreement because the prior case was brought by Todd Fligner as an individual and the settlement was entered into by him and signed in...

Excerpt: ...e Court to sustain their demurrers to the Sixth Cause of Action for violation of 42 U.S.C. §1983, the Seventh Cause of Action for tortious interference with contract, the Eighth Cause of Action for quiet title, the Tenth Cause of Action for intentional infliction of emotional distress, the Eleventh Cause of Action for negligent infliction of emotional distress, and the Twelfth Cause of Action for declaratory relief. On 01/24/19, the Court sustai...

Excerpt: ...ud because there is no triable issue that Nationstar made a false statement that Plaintiff relied upon, and Plaintiff has no damages. Further, Nationstar does not owe Plaintiff a fiduciary duty; (2) Plaintiff cannot prevail on his cause of action for violation of the Fair Debt Collection Practices Act because he released Nationstar of all liability as to these claims in a prior settlement agreement, he has failed to allege any actionable conduct,...

Excerpt: ...on exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the employer may show the employee does not possess evidence needed to support a prima facie case and also cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, present evidence conclusively negating an element of the ...

Excerpt: ...“if it determines that an agreement to arbitrate the controversy exists, unless it determines that” certain circumstances are present, such as waiver of the right to arbitrate, or the presence of third parties in the lawsuit. The petition is to allege “the existence of a written agreement to arbitrate the controversy,” and also that the other party “refuses to arbitrate such controversy.” In addition, pursuant to California Rule of Co...

Excerpt: ... but not limited to any sewer studies, environmental impact reports, drainage studies, site plans, bridge/culvert designs, grading/utility plans, wetland impacts, tentative maps, and landscaping plans.” Plaintiff argues that the documents requested by Request No. 7 are relevant because the issue of entitlements and permits is part of one of the contracts, Auburn Modification Memorandum, at issue in this lawsuit. Specifically, Plaintiff contends...

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

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

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

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

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

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

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

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

Excerpt: ...to quiet title must be verified and must include: (1) a description of the property including both its legal description and its street address or common designation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverse claims as against which a determination is sought; (4) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of ...

Excerpt: ...e motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Defendants argue that allowing the amendment will not pr...

Excerpt: ...ision which appears on pages 3 and 4 of the Terms and Conditions of the contract states in its entirety: “Arbitration of Disputes. Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be resolved by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association and judgment upon any award rendered by the arbitrator(s) may be entered in any c...

Excerpt: ...o the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following: (1) The text of the request, interrogatory, question, or inspection demand; (2) The text of each response, answer, or objection, and any further responses or answers; (3) A s...

Excerpt: ...e court is required to take judicial notice. See, CCP § 437(a). Specific facts, not a mere restatement of law, must be pled to support such a prayer for punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. The facts contained in the FACC are nothing more than generalities and legal conclusions. T...

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

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

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

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

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

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

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

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

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

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

Excerpt: ...formation at the first hearing. Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1200. On 12/13/18, the Court denied Plaintiff's motion for judgment on the pleadings on alternative grounds. The first ground for denial was that Defendant had filed a supplemental verification signed by Defendant's officer, which rendered Plaintiff's challenge to Defendant's Answer moot. The alternative ground for denial was that Plaintiff failed to engage in...

Excerpt: ...f that she had three cavities that needed immediate treatment, including fillings on teeth numbers 29 and 30. (Complaint, ¶ 15.) Plaintiff alleges that she did not agree to this treatment and took her x-rays to a different dentist who examined her and told her that she did not need any treatment. (Complaint, ¶ 16.) Plaintiff alleges that Defendants' conduct amounted to a violation of subdivision (a)(15) of Civ. Code § 1770 and that she suffere...

Excerpt: ...aint in this matter filed by Plaintiff A&R Wholesale Distributors, Inc., in essence, alleges that Carson breached the parties' lease agreement and attempted conversion of Plaintiff's property when it refused to allow Plaintiff to remove a refrigeration unit from the leased premises upon vacation. Gold Star is not a Plaintiff in the underlying complaint. The Cross- Complaint is against Gold Star only, and alleges that Gold Star acquired all of the...

Excerpt: ...also contend that the complaint does not contain the essential allegations to support an alter ego theory. Defendants' third argument, that the complaint does not sufficiently state damages, has been withdrawn, according to the reply. With regard to the first argument, Constructive discharge occurs when an employer's conduct effectively forces an employee to resign. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244. Although the employee...

Excerpt: ...ues that decedent was its employee, and was on Defendant's construction site, acting in the course and scope of his employment on the date that he was attacked by the bees. Defendant asks that the Court take judicial notice of records from the Workers' Compensation Appeals Board (“WCAB”), including an Order Approving Compromise and Release, signed by Workers' Compensation Administration Law Judge Robert Mays on 08/17/17. (RJN, Ex. 1.) This or...

Excerpt: ... plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749. The Court employs a more probable than not standard. Robbins v. Superior Court (1985) 38 Cal.3d 199, 206. Further “[t]he trial court's determination must be guided by a “mix” of the potential-mer...

Excerpt: ...substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” Subdivision (a)(1) of Section 418.10 reads: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: . . . (2...

Excerpt: ...ce in addition to a written objection, where it is contended that the deposition notice fails to comply with the statutory requirements. See Code Civ. Proc. §2025.410(c). Such a motion must be accompanied by a meet and confer declaration. Ibid. Rule 3.1010(a) provides that a party may take a deposition if it “makes all arrangements for any other party to participate in the deposition in an equivalent manner.” “An oral deposition shall be s...

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

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

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

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

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

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

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

Excerpt: ...perior Court (2008) 159 Cal. App. 4th 273, 286 (citing Cal. Civ. Proc. Code § 367). Standing is a threshold issue. Ibid. The Second Amended Complaint contains 3 causes of action. They are: Breach of promissory note; money lent; and complaint to set aside fraudulent transfer. To allege breach of contract (promissory note), Plaintiff must allege: (1) the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; an...

Excerpt: ...d it that a voluntary dismissal would not leave it liable for attorney's fees, and GXP has submitted Mr. Benneville's declaration attesting to his mistaken advice. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shal...

Excerpt: ...ny and all documents and records pertaining to employment [of plaintiff Quiroz], including but not limited to, pre- employment applications, job evaluation and performance documentation, payroll and/or salary records, (including pay reviews and/or pay raises, weekly/quarterly/annual payroll records and W-2 forms (where applicable), attendance records, tax, union and benefit records, contracts, time sheets, time cards, attendance records and any a...

Excerpt: ... of $180, plus accruing attorneys' fees and costs. Plaintiff further requests an Order that Plaintiff is awarded reasonable attorney fees and court costs according to proof. A motion for summary judgment shall be granted only if it disposes of the entire action. (See Code Civ. Proc., § 437c(c).) Here, Plaintiff's verified complaint consists of four causes of action. Plaintiff's motion for summary judgment only addresses two of the four causes of...

Excerpt: ...gment on the cause of action.” Code Civ. Proc. § 437c(p)(1). Once the plaintiff meets this burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. § 437c(p)(1). The elements of a claim for unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. Lectrodryer v. Seoul Bank(2000) 77...

Excerpt: ...party to amend any pleading....” Code Civ. Proc., § 473(a)(1). “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.” P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345. “In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is pe...