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

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

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

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

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

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

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

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

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

Excerpt: ...evails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” It is Plaintiffs' burden of proof to show the fees they incurred and that thos...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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