Excerpt: ...substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” The standard under subdivision (d) is more specific and rigorous than under subdivision (a) which applies to litigants who are over 70 years of age. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Case law recognizes that section 36 “was enacted for the purpose of...

Excerpt: ...e documents under CCP § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) A motion to compel further responses to interrogatories must include a meet and confer declaration pursuant to CCP § 2016.040 and a separate statement. (CCP § 2030.300(b); Cal. Rules of Ct., Rule 3.1345.) Here, the evidence submitted demons...

Excerpt: ...s' attorney's fees and costs. As an initial matter, Code of Civil Procedure section 128.5(f)(1)(B) provides that a motion for sanctions based on the filing and service of a cross-complaint that can be withdrawn or appropriately corrected “shall not be filed . . . unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” Cross-Defenda...

Excerpt: ...th cause of action for private nuisance, pursuant to Code of Civil Procedure section 1008(a), based on newly discovered facts. Defendant Plaza-Irvine Owners Association (the “Association”) has filed an opposition, and Defendants, John Warren, Karen Warren, Barbara Milbert and Allen Milbert have filed a Joinder to the opposition. Plaintiffs' motion for reconsideration is filed beyond the statutory 10-day limitation period for filing a motion f...

Excerpt: ...se of Action for Breach of Fiduciary Duty “ ‘The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]' [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.) The Cross-Complaint alleges that “RAYMOND was responsible for the company's in-house accounting and bookkeeping and that in th...

Excerpt: ...unattended for 30 minutes after administering medications. (TAC, ¶ 1.) Moving Defendants submit the expert declaration of Steven T. Forman, M.D., who is board- certified in cardiovascular diseases, interventional cardiology, and venous and lymphatic medicine and who attests that he has performed hundreds of percutaneous coronary intervention procedures such as the one performed by Defendant Cobb. Dr. Forman attests that, based on his review of t...

Excerpt: ...ssues: Defendants' separate statement does not comply with California Rule of Court 3.1350(b), because it does not state verbatim the issues for summary adjudication as they are given in the notice of motion. Nevertheless, given that it is clear as to which causes of action Defendants seek summary adjudication, this defect is not prejudicial. The Court DENIES defendants' request for judicial notice of Exhibits A through D. Exhibit A is deposition...

Excerpt: ...sed on a written instrument it must be attached); (2) a showing that the property is wrongfully detained by defendant, the manner in which the defendant came into possession of the property and the reason for detention according to the plaintiff's “best knowledge, information, and belief”; (3) description and value of the property; (4) “A statement, according to the best knowledge, information, and belief of the plaintiff, of the location o...

Excerpt: ...n under Code of Civil Procedure §430.41. (See Declaration of Craig J. Erickson.) 21st Cause of Action: Aiding and Abetting Breach of Fiduciary Duties Liberatore demurs to Plaintiffs Marcos Trujillo; Elizabeth Aguiar-Gutierrez; Vicky Garza and Darryl Vergolino-Holiday (collectively “Individual Plaintiffs”) 21st cause of action for aiding and abetting breach of fiduciary duties on the grounds the Individual Plaintiffs lack standing to assert t...

Excerpt: ...on of documents results in a waiver of any objections to the requests. CCP §§ 2030.290(a) and 2031.300(a). If a party to whom interrogatories or requests for production of documents is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §§ 2030.290(b), 2031.300(b). If a party to whom requests for admission were directed fails to serve a timely response, t...

Excerpt: ...t to the extent that it contends that it cannot be vicariously liable for any defects in the vehicle caused by another. Subdivision (a) of section 30106 provides: “An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or ...

Excerpt: ...ed excision and treatment of Plaintiff's plantar warts, among other things, thus necessitating multiple additional treatments and surgeries, as well as additional hospitalizations.” (Complaint, ¶ 6.) Defendants contend that they not only complied with the standard of care in treating Plaintiff, but that the cause of action is time-barred under Code Civ. Proc. § 340.6. Defendants submit the declaration of Philip Radovic, D.P.M., who is board c...

Excerpt: ...o consider, it is not the sole test of the existence of a fiduciary relationship, otherwise, attorneys would not have fiduciary duties to their clients, except where they are holding clients' funds. “A fiduciary relationship is created where a person reposes trust and confidence in another and the person in whom such confidence is reposed obtains control over the other person's affairs.” (Lynch v. Cruttenden & Co. (1993) 18 Cal.App.4th 802, 8...

Excerpt: ... economic loss rule because Plaintiff has not alleged that there was any personal injury or property damage, and because Defendant's only duty to Plaintiff arose through their warranty contract. The Seventh Cause of Action alleges, in effect, that Defendant failed to disclose to consumers that the vehicle's diesel engine and attendant systems had numerous defects, of which Defendant became aware during the design and manufacturing process. (Compl...

Excerpt: ...ia state law – certainly none that they have cited - which would explicitly authorize the requested relief, at least in the trial court. Clearstone and Mr. Katz cite to federal case law for the proposition that amici curiae briefs may be filed at the trial court level, but these cases expressly discuss the practice as a potential vehicle for intervenors to raise issues without submitting to the court's jurisdiction. See e.g. In re Bayshore Ford...

Excerpt: ...s at issue in this motion. Accordingly, Defendant's motion is DENIED as MOOT. Defendant to give notice. MOTION NO. 2: Defendant Knott's Berry Farm LLC moves to compel Plaintiff Jennifer Spradlin to provide further responses to Defendant's Special Interrogatories, Set One, Nos. 1, 2, 4, 23, 31, and 51. Plaintiff has submitted evidence to show that on October 24, 2019, Plaintiff served via mail Supplemental Responses to Special Interrogatories, Set...

Excerpt: ...0.290(a) and 2031.300(a). If a party to whom interrogatories or requests for production of documents is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §§ 2030.290(b), 2031.300(b). Similarly, if a party to whom requests for admission were directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any do...

Excerpt: ...confer before bringing the motion. The separate statement submitted by the moving Plaintiff does not comply with the requirement in subdivision (c) of CRC 3.1345 that it provide “all the information necessary to understand each discovery request and all the responses to it that are at issue.” Subdivision (c) further provides that the separate statement provide the text of the request, interrogatory question, or inspection demand and “[t]he ...

Excerpt: ...rocedure before Trial §9:53.1a (The Rutter Group 2015) (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers. Such papers however, are not necessarily admissible evidence. Except for admissions in pleadings, matters stated in exhibits or other documents in the case file must be admissible under an appropriate exception to t...

Excerpt: ...ants and any other PERSON(S) else [sic] acting or purporting to act on her behalf or at her direction; as used herein, the terms “PERSON” and/or “PERSONS” includes any individuals(e) entity(ies), proprietorship(s), partnership(s), or corporations(s)) contend that you have not breached any of your fiduciary duties to SALON REBELLE, state all facts that support such contention. Responding Defendant's answer is: Responding Party incorporates...

Excerpt: ...that is attached to the complaint as an exhibit references all three Defendants, i.e., it identifies the parties as Defendant Salmon Run Property Management as an agent of Co-Defendant Ashby Enterprises and Plaintiffs and its last page references Co-Defendant Sachs as a manager of Salmon Run Property Management. As such, asserting the causes of action against all three Defendants does not necessarily make them improper or uncertain. Therefore, th...

Excerpt: ...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 proportionate li...

Excerpt: ...h of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach. (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402), citing CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) With respect to the first element of existence of contract, the City has...

Excerpt: ...to compel a further response to requests for admission if it finds that an objection is too general or without merit, or that an answer is evasive or incomplete. See Code Civ. Proc. §2033.290(a). The motion should be accompanied by a meet and confer declaration, and should be noticed within 45 days of the service of either the verified response or any supplemental verified response, or on or before any specific later date agreed upon in writing....

Excerpt: ... Civil Procedure §2025.420 permits the Court, upon a showing of good cause, to issue a protective order protecting the deponent from “unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” Id. at subd.(b). The protective order must be sought promptly and the motion must reflect that a good faith meet and confer occurred. Id. at subd.(a). The court has several options if it desires to issue a protective order, inclu...

Excerpt: ...ummary judgment, a defendant must either negate an element of plaintiff's claim or establish a complete defense to said claim. See Code Civ. Proc. §437c(p)(2). Both of Plaintiff's causes of action sound in negligence, which of course, consists of the elements of (1) a legal duty to use due care, (2) a breach of that duty, (3) which proximately causes, (4) plaintiff's injury. See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. It is uncle...

Excerpt: ...d reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (emphasis added). California Code of Civil Procedure Section 128.5, subdivision (f)(1)(B) requires that before bringing a motion for attorneys' fees as a sanction under this statute, the moving party must comply with a 21-day “safe harbor” provision. Specifically, Section 128.5, subdivision (f)(1)(B) states: “If the alleged action or tactic i...

Excerpt: ... and 5. Plaintiffs' motion to compel responses to RFPs from Defendant Atlas Plaintiffs also seek monetary sanctions against each defendant for conduct necessitating these motions. The motions are GRANTED. The requests for sanctions are DENIED. Failure to timely respond to interrogatories or requests for production of documents results in a waiver of any objections to the requests. CCP §§ 2030.290(a) and 2031.300(a). If a party to whom interroga...

Excerpt: ...t against it. While section 7031 may be an affirmative defense to a mechanics lien, it does not abrogate a party's right to have a case heard in the proper venue. A defendant may move to transfer venue on the ground that the action had been filed in the wrong court. (Code Civ. Proc. §§ 396b(a), 397(a).) As the moving party, Defendants must overcome the presumption that Plaintiff has selected a proper venue. (Fontaine v. Superior Court (2009) 17...

Excerpt: ...tter. The only requests in issue are: • All Documents related to or referencing communications between Fieldman, Rolapp & Associates and Refinitiv's sales or customer support representatives. (Request 1.) • Documents sufficient to show all recipients of the alerts, newsletters, releases or similar publications referenced in request 3 associated with Fieldman, Rolapp & Associates. (Request 4.) • Documents sufficient to show all registered us...

Excerpt: ...oss of consortium based on the birth of the minor Plaintiff. With respect to the moving Defendants, Plaintiffs allege that they were negligent in their care and treatment of the minor Plaintiff by failing to timely appreciate and treat the sequela of a subgaleal hemorrhage and by failing to timely intubate and fluid resuscitate her. Moving Defendants submit the expert declaration Rachel Chapman, M.D., to establish that they complied with the stan...

Excerpt: ...ssing the Cross-Action; and (3) Rendering judgment against Defendants, and in favor of Plaintiff, on Plaintiffs' First Amended Complaint and prayer for relief. In the alternative, Plaintiff moves for an order granting the following discovery and trial-setting relief: (1) Granting Plaintiff's previously-filed Motion to Compel (“Discovery Motion”) as follows (Code Civ. Proc. §§ 2023.010, 2030.300, 2031.320(a)): a. Ordering Defendants to provi...

Excerpt: ...timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanctions. CCP § 2033.280(b). On April 3, 2019, Plaintiffs served written discovery on Defendants, including requests for admission, set one, to Defendants Atlas and Nosek. Several extensions were granted, ultimately requiring responses to be served by...

Excerpt: ... Plaintiff. Defendant contends that the mailers contain protected hyperbolic speech, and are otherwise factual; further, that Plaintiff is a public figure and cannot show that the publications were made with actual malice or negligence. Plaintiff counters that the speech was not hyperbolic, and is defamatory by implication; further, that he is a private citizen for purposes of this matter, and even if not, that he has evidence that the publicatio...

Excerpt: ...rt “no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” Code Civ. Proc. §2034.220. “The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” Cod...

Excerpt: ...iser Foundation Health Plan, Inc., it is MOOT. A dismissal with prejudice was requested and entered as to it on March 21, 2018. The alternative motion for summary adjudication is defective for procedural reasons. Under subdivision (b) of CRC 3.1350, “[i]f 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 ...

Excerpt: ...e as complete and straightforward as the information reasonably available to the responding party permits.” “Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Answers to interrogatories must be “complete and responsive” and “it is not proper” to refer to other documents or pleadings in an inter...

Excerpt: ...t both of the moving Defendants. It alleges that the Defendants have a duty to use reasonable care to safeguard, protect and oversee the decedent as she came out of major surgery (FAC, ¶ 19) and that, as a result of acts and omissions of the Defendants, the decedent died (FAC, ¶ 20). Defendants contend that this cause of action is defective because it appears to be a survival cause of action, i.e., a cause of action that accrued to the decedent...

Excerpt: ... cross-complaint is untimely and that it is frivolous and without merit. A compulsory cross-complaint is one that alleges a “related cause of action,” or one that “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Code Civ. Proc. §§426.10(c) & 426.30(a). Such cross-complaints should be filed at the time the answer to the Complain...

Excerpt: ...arrett (1977) 73 Cal.App.3d 864, 872. Here, Plaintiff seeks punitive damages in connection with her First Cause of Action for Violation of the Consumer Legal Remedies Act and Second Cause of Action for Fraud. In support of her claim for punitive damages, Plaintiff alleges that she purchased a new 2017 RAM truck from MDA on 04/27/18. (Complaint, ¶ 10.) She purchased the vehicle based on representations that the vehicle's purchase would be finance...

Excerpt: ...6.00 in CourtCall, and $112.92 in travel claimed under item 13 Plaintiff's complaint contains two causes of action against for violation of the Song-Beverly Act and violation of the Magnuson- Moss Act. Defendant served a statutory offer to compromise, which Plaintiff accepted on June 16, 2018. As part of the settlement, Defendant agreed to “pay Plaintiff's costs, expenses and attorneys' fees, in accordance with California Civil Code section 179...

Excerpt: .../18, and no new agent has since been registered. (Lefler Decl., ¶¶6-7, Ex. A.) Section 17701.16(c) states in pertinent part as follows: “If an agent for service of process has resigned and has not been replaced or if the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of the court that process against a limited liability...

Excerpt: ...respectively. Pursuant to CCP §430.20(a), a party may Demurrer to an Answer, where the Answer “does not state facts sufficient to constitute a defense.” Additionally, an Answer must allege facts “as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384). Allegations “proffered in the form of terse legal co...

Excerpt: ...ts. It alleges that Plaintiffs had contracts for the rental of the real property that is the subject of the action and that the Defendants were aware of these contracts. (FAC, ¶ 131.) It alleges that the Defendants intentionally induced breaches or disruptions of these contracts, resulting in damages to the Plaintiffs. (FAC, ¶¶ 1132-133.) Defendants contend that the Plaintiffs may not maintain this cause of action because they were not the own...

Excerpt: ... or entity listed in the “master email list” and/or “Address Book” documents; 3. Retaining, using or exploiting any other documents or information which originated during the employment of any of the defendants at Plaintiff; 4. Contacting and/or soliciting for employment any employee or employees of Nations Direct; and 5. Obtaining, diverting, misappropriating and/or using in any manner any property or information originated at Nations. P...

Excerpt: ...n (CCP § 657(7)). With respect to insufficiency of evidence, defendants contend that plaintiff presented insufficient evidence to justify the damages in the amount of $20,000 for the refurbishment and construction of two 40 year old, 5 foot by 7 foot warehouse restrooms, which had their plumbing intact and capped off. Pursuant to CCP § 657, “[a] new trial shall not be granted upon the ground of insufficiency of the evidence to justify the ver...

Excerpt: ...ay of fact or theory of recovery. While the two causes of action are similar, the first and second causes of action are based upon different Government Code sections, which impose different obligations upon public entities and allow different, alternative theories of recovery. Accordingly, the demurrer as to the First Cause of Action is OVERRULED. As to the Third Cause of Action alleging negligence per se, plaintiffs concede the merits of the dem...

Excerpt: ...ed in the deposition notice. CCP §2025.450(a). Here, plaintiff served a Notice of Taking Deposition on the parties to this action by mail on 1/19/18. Pursuant to the notice, defendant was required to appear for deposition on 2/20/18. Multiple efforts were made to confirm the deposition, but defendant failed to respond to those efforts and failed to appear for deposition on 2/20/18. Plaintiff contends that defendant is a party to this action and ...

Excerpt: ... argument is that plaintiff issued an annuity to defendant's mother whereby benefits were to be paid out only while she was alive and that plaintiff continued to pay out monthly payments for two years after her death. There are no facts showing that the defendant breached any contract. Plaintiff likewise does not address the elements of a claim for money had and received, which are: (1) defendant received money; (2) the money defendant received w...

Excerpt: ...ed with malice, oppression, or fraud. Civil Code § 3294(a). Conclusory characterizations of defendant's conduct as intentional, willful and fraudulent is not sufficient. Brousseau v. Jarrett(1977) 73 Cal. App. 3d 864, 872. Here, Plaintiff has failed to make any allegations of malice, oppression or fraud. The Complaint as drafted is ambiguous and simply does not allege sufficient facts that show Defendant acted with malice, oppression or fraud. A...

Excerpt: .... Defendant has not participated in this litigation since his anti-SLAPP motion was denied on 03/20/17. Defendant also failed to oppose the present motion. The Court finds that an order imposing other lesser sanctions, such as monetary, evidence, or issue sanctions, would not result in compliance with Defendant's obligation to provide discovery under the Discovery Act. The Court also finds that Defendant's failure and refusal to provide any disco...

Excerpt: ...und that plaintiff signed an arbitration agreement and discovery in a court forum was improper. On 5-8-18, defense counsel wrote to plaintiff's counsel and stated that defendants were still contemplating bringing a motion to compel arbitration and did not provide substantive discovery responses on that basis. On 5-17-18, plaintiff's counsel wrote an extensive e- mail to counsel in an attempt to meet and confer on the discovery requests. Plaintiff...

Excerpt: ...essive and $750 is reasonable, but he provides no specific examples from recent cases. Drs. Glucksman and Young are neurologists, which is different than neurosurgery, Dr. Shah's area of practice. Furthermore, Dr. Shah presents his declaration to show that he has charged and been paid the $1,450 fee 12-15 times over the past two years. Defendants fail to meet their burden of showing that the requested fee is unreasonable for a neurosurgeon. There...

Excerpt: ...1005, and, when applicable, the statutes and rules providing for electronic service. Cal. Rule of Court 3.1300(c) requires that a proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing. Second, Code Civ. Proc. §473(b) states, in part: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the applica...

Excerpt: ...hin the past 30 days that the address is current. Additionally, the Declaration conflicts with the Proof of Service and states that the Motion was served by personal service on the client. Accordingly, it is unclear whether client has been served with the Motion at an address confirmed within the past 30 days. The Court is also concerned that withdrawal of counsel about a week before trial will be prejudicial to defendant, CreAgri, Inc. since a c...

Excerpt: .... Defendant has not participated in this litigation since his anti-SLAPP motion was denied on 03/20/17. Defendant also failed to oppose the present motion. The Court finds that an order imposing other lesser sanctions, such as monetary, evidence, or issue sanctions, would not result in compliance with Defendant's obligation to provide discovery under the Discovery Act. The Court also finds that Defendant's failure and refusal to provide any disco...

Excerpt: ...orney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have...

Excerpt: ...or an agreement to lease property for more than a year must be in writing and signed by the party to be charged. Here, plaintiffs are seeking the enforcement of a lease agreement that exceeds a year in length. As such, it does not satisfy the statute of frauds. Plaintiffs do not dispute that the statute of frauds would ordinarily bar this claim. However, plaintiffs contend that equitable estoppel exception to the statute of frauds applies. “The...

Excerpt: ... challenge under section 425.16; and (3) that a prevailing defendant must recover fees through a second motion and only if the Court finds bad faith. The standard analysis for a motion under section 425.16 is comprised of two parts: (1) first, the moving defendant must make a showing that the conduct alleged is protected by section 425.16; and (2) if the Court finds that the defendant has met this standard, the responding plaintiff must show that...

Excerpt: ...efendant responded by objecting only. Since Plaintiff is not satisfied with the responses to the form interrogatories to which Defendant responded by objecting only, Plaintiff should have filed a motion to compel further responses. See Code Civ. Proc. § 2030.300. The motion filed of plaintiff SC&P Resources, Inc. for an order compelling defendant Andrew Park to provide responses, without objections, to Special Interrogatories, Set One, is DENIED...

Excerpt: ...pp.4th 1403, the extension of time must be a specific date and set forth in writing. On 12/18/17 plaintiff's counsel, Mark Didak, sent email correspondence to defense counsel, Terrence Moore, which stated in pertinent part, “Also, can we extend the current December 29 deadline for bringing any discovery motions to, say January 12, or even later? That way I don't have to rush to preserve our rights when, perhaps, we won't have to bring motions a...

Excerpt: ... limitations under CCP, because the FAC alleges that Plaintiff slipped and fell on 12/22/15. Thus, Plaintiff should have filed his FAC on or before 12/22/17, but did not file his FAC until 4/02/18, which was more than 2 years after he fell and injured himself. On 12/6/17, Plaintiff filed his Original Complaint alleging a single cause of action for premises liability, alleging that on or about 12/22/15 he slipped and fell in standing water at 1970...

Excerpt: ...ry relief claim. In addition, the claims set forth in the second through fourth causes of action appear to belong to the corporation and not the individual cross-complainants. The fifth cause of action purports to seek indemnity from Nardone for damages against Nardone. Finally, the sixth cause of action asks for several different declarations without any clarity as to which cross-complainant is asking for them. The motion to strike is off-calend...

Excerpt: ...nied 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-merit and interim-harm factors; the greater the plaintiff's showin...

Excerpt: ... also argues that (2) Plaintiff has no evidence as to how long the liquid was present on the ground. This is also shown by Plaintiff's deposition testimony and her discovery responses. (Fact 4.) Therefore, Wal-Mart argues that Plaintiff cannot show that Wal-Mart created the dangerous condition or that Wal-Mart had actual or constructive notice of the existence of the dangerous condition. Furthermore, Wal-Mart argues that it has a store surveillan...

Excerpt: ...nts or things in the demanded category that are in the responding party's possession, custody or control will be produced (except to the extent of any objections). Here, the response does not state whether all documents in Defendant's “custody or control” were/will be produced. Accordingly, the Court GRANTS the motion to compel further responses to these Requests. Motion to Compel Further Responses to RFP Nos. 38-67. Defendant responds to eac...

Excerpt: ...a different motion and procedure than what was filed here. Accordingly, the instant motion is denied. The motion filed by plaintiff SC&P Resources, Inc. for an order deeming Plaintiff's Request for Admissions, Set One, propounded on defendant Andrew Park as admitted is GRANTED as to nos. 1-4, and DENIED as to nos. 5-24. Defendant's responses to nos. 1-4 were not verified, so Plaintiff's request as to these Requests is granted. No verification was...

Excerpt: ...th below. The motion to strike is DENIED as to the first cause of action for extortion because that claim is not based on any allegations of protected speech or petitioning activity within the meaning of CCP 425.16 (e). The first cause of action alleges that NH Investments and Ochoa conspired with Guerrero and Ceja to obtain improper access to the trash dumpster through threats of violence and acts of violence, in violation of PC 518 and 519. As ...

Excerpt: ...otice as to the existence of Exhibits A through C, but declines to take judicial notice of the contents, facts and information contained therein. Exhibits A through C are neither regulations nor legislative enactments issued by or under the authority of a public entity of the United States. Evid. Code §452(b). These exhibits are also not published rules or procedures followed by an entity or organization as asserted by Minerva. From the face of ...

Excerpt: ...he defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action. Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512. Defendants contend that the elements of the existence of a threshold economic relationship, the damage she suffered as a result of defen...

Excerpt: ...to the Complaint is filed. SeeCode Civ. Proc. §428.50(a). Because Doky failed to file the proposed cross-complaint when it filed its answer, it is barred from bringing a subsequent lawsuit to prosecute its claims if the claims are not pled here. See Code Civ. Proc. §426.30(a). Under Code of Civil Procedure §426.50, a defendant may seek leave to file a compulsory cross-complaint that was not filed at the time of the answer “whether through ov...

Excerpt: ...a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the ...

Excerpt: ...dacted to “J. S.” Defendant does not have to disclose and may redact the full names, addresses, signatures, phone numbers, or any other identifying information of the Association's members who submitted the annexation ballots. The motion of defendant Trabuco Highlands Community Association for a protective order regarding production of the membership list is similarly GRANTED. Defendant may redact the full names, but should leave the first in...

Excerpt: ...lt and Notice of Trustee's Sale were recorded in 2016, the statute was in effect. Under Civil Code §2923.55, prior to recording a Notice of Default, a servicer/lender has to either make contact with the borrower to explore options to avoid foreclosure, or attempt with due diligence to contact the borrower for that purpose. The specific steps required, including sending a letter containing certain information, follow-up phone calls, etc., are del...

Excerpt: ...roperty claim(s) by a preponderance of the evidence. (Code Civ. Proc., §§ 405.31, 405.32; Prob. Code, § 1000.) Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion to both show the existence of a real property claim and the probable validity of that claim. Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647; Code Civ. Proc., § 405.30. Amotion for expungement can be made at any time af...

Excerpt: ... intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action. Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512. More specifically, the third element of a claim for intentional interference with prospective economic relations requires that the interfering conduct be wrongful by some legal measure ...

Excerpt: ...t to the first element, Plaintiffs sufficiently allege that the Broker Defendants misrepresented to them that the new Owner Defendants would “honor the Initial Lease and give to Plaintiffs a new long term lease through December 2022 . . .” (FAC ¶ 66.) Specifically, Plaintiffs' allege that during a meeting in early October 2017, attended by the Owner Defendants and the Broker Defendants, defendant Dryzyga, the broker acting on behalf of the d...

Excerpt: ..., with Dr. Harrington and Al Thani each receiving a 40% interest. (2AXC at ¶¶ 87-89.) This agreement was later confirmed in writing. (Exs. C, D.) Dr. Harrington also confirmed in writing that Khoury had power of attorney to negotiate on his behalf with investors in Qatar, where Khoury was sent to recruit investors. (Ex. B; 2AXC at ¶¶ 57-64.) It is further alleged that Khoury fully performed under the contact, but Global and Doug Harrington al...

Excerpt: ...ity, based on comparative negligence or comparative fault. Parties to a settlement are entitled to a judicial determination that a settlement has been made in good faith. Code Civ. Proc. § 877.6(a)(1). The factors to be considered in determining whether a settlement has been made in good faith include: (1) a rough approximation of the plaintiff's total recovery and the settling tortfeasor's proportionate liability; (2) the amount paid in settlem...

Excerpt: ...default. On 2/16/18, Plaintiff took Defendant's default. Mitchell's declaration states that has been incarcerated since 7/13/16 and he states that he had limited access to legal assistance and believed, incorrectly, that he could file his answer upon his release from custody. Accordingly, the court finds that defendant has shown good cause for relief, based on mistake or excusable neglect. Plaintiff has filed no Opposition. The motion to set asid...

Excerpt: ...f successive representation of a former and a current client is not relevant, however, unless there is a former attorney-client relationship. . . . The primary concern is whether and to what extent the attorney acquired confidential information. . . . [A]n attorney may be subject to disqualification when the attorney owes a duty to a nonclient to preserve confidential information—i.e., a confidential nonclient relationship. . . . The party seek...

Excerpt: ... Rader are OVERRULED. Plaintiff's Request for Judicial Notice filed May 11, 2018 is DENIED. Judicial notice of documents in the Court's file is not required. The Court has fully considered the supplemental briefing submitted ordered by the Court for Motion to Strike [Anti-SLAPP motion]. After full consideration, the Motion is DENIED in part and GRANTED in part. The Motion is DENIED as to the 1st, 2nd, 3rd, and 6th causes of action because the Mot...

Excerpt: ...d motion filed by plaintiff Balboa Capital Corporation to move to compel defendant Tederhi Usude to respond to Form Interrogatories, Set No. One, Special Interrogatories, Set No. 1, and Inspection Demands, Set No. 1 is GRANTED. The aforementioned discovery requests were served via mail on 11/15/17. No responses have been forthcoming. Defendant Tederhi Usude has thus waived any objections to the discovery. See Code Civ. Proc. §§2030.290(a) & §2...

Excerpt: ...dants Travis Marshall Patterson and Bizwise Realty Inc. argue that the requests are procedurally improper and cannot be granted for at least three related reasons set forth below in sections A-C. A. Must Completely Dispose of Cause of Action First, the motion cannot be granted as to either claim because the motion would not completely dispose of a cause of action, as required by CCP 437c (f)(1). CCP 437c (f)(1) provides that “A party may move f...

Excerpt: ...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…” Here, the issue stated in the separate statement is nothing like the statement in the notice of motion. Both identify the Sixth and Seventh COA's as the focus of the motion. But the notice of motion states that the issue of indemnity rests solely upon a judicial interpretation of...

Excerpt: ...ered to provide a further response. Plaintiff's Motion to Compel Defendant M&M&M Castle Care's Further Responses to Special Interrogatories, Set One is GRANTED. Defendant is to file a further response within 20 days. Motion No 2: Plaintiff seeks an order compelling defendant M&M&M Castle Care to provide further responses, without objection, to Request for Production, Set One, Nos. 1, 5, 6, 8, 13, 14, 15, 16, 18, 23, 25, 38 and 40. Request No. 14:...

Excerpt: ...r the responses to such a request must be accompanied by a separate statement.” Rule 3.1345(a)(2) further provides that a separate statement must be filed with a motion “[t]o compel further responses to interrogatories.” Accordingly, Plaintiff's motion to compel further responses is procedurally defective. Defendant Bos' counsel requests sanctions in the amount of $1,950 for having to oppose Plaintiff's motion. Defense counsel contends that...

Excerpt: ... Optical Surplus Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 782-783.) The court DENIES the motion to quash, for the reasons set forth below. In particular, CHOC Mission fails to carry its burden to show that Plaintiff knew that CHOC Mission was a legal entity separate and distinct from CHOC (Children's Hospital of Orange County). (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169-1171.) It is not enough for CHOC Mission to show that Plaint...

Excerpt: ...imultaneous representation case where attorney did have confidential information); Cf. Adams v. Aerojet-General Corp.(2001) 86 Cal.App.4th 1324, 1336, fn. 1.) “Every court shall have the power . . . to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (CCP 128 (a)(5).) In deciding a disqualifica...

Excerpt: ... requested sanctions. Pursuant to California Rules of Court, Rule 3.1348, “the court may award sanctions . . . in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed . . .” Accordingly, sanctions may be awarded against Plaintiff even though they she has not filed an opposition. However, sanctions are not justified here since Plaintiff's attorney recently substituted out of the case – De...

Excerpt: ... that they “received no phone call or written communication to access their financial situation or explore alternatives to a foreclosure” (FAC, ¶ 118)  that they were not designated a single point of contract or with a toll free number to call to explore their options (to prevent foreclosure) (FAC, ¶ 119)  that, had they received communications, they would have engaged in an exploration of alternative solutions to a nonjudicial forecl...

Excerpt: ...junction should issue. See O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481. He may do so through a verified complaint and affidavits. See Code Civ. Proc. §527(a). In an injunction hearing, documents must usually be authenticated to count as admissible evidence. See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526. Plaintiff submitted no admissible evidence. His Complaint is unverified, and he submits no declarations, aside fr...

Excerpt: ...junction should issue. See O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481. He may do so through a verified complaint and affidavits. See Code Civ. Proc. §527(a). In an injunction hearing, documents must usually be authenticated to count as admissible evidence. See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526. Plaintiff submitted no admissible evidence. His Complaint is unverified, and he submits no declarations, aside fr...

Excerpt: ... 425.13. Code Civ. Proc. § 425.13(a) provides that: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the ...

Excerpt: ...susing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds. [Citation.] In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there mu...

Excerpt: ...sn. (1988) 205 Cal.App.3d 1415, 1422, which is cited in the opposing papers: “In general, ‘[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.' [Citation.] A critical limitation on this rule is that one who confers a benefit officiously is not entitled to restitution. ‘It must ordinarily appear that the benefits were conferred by mistake, fraud, coercion or request; otherwise, th...

Excerpt: ...o the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.�...

Excerpt: ... whether the discovery responses that were provided are sufficient and responsive. Accordingly, the Plaintiff's instant motion is premature. The Court also declines to issue monetary sanctions because Plaintiff failed to comply with California Code of Civil Procedure §2023.040. Defendant to give notice. ...

Excerpt: ...ter service of the 3rd Amended Complaint. “Because the anti-SLAPP statute is designed to resolve these lawsuits early, but not to permit the abuse that delayed motions to strike might entail, we conclude, as did the Court of Appeal, that, subject to the trial court's discretion under section 425.16, subdivision (f), to permit late filing, a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that ...

Excerpt: ...e documents demands and, thereafter, on 09/08/17, Plaintiff granted Defendant an open ended extension of time to respond to the document demands subject to notice of termination of extension by Plaintiff with 2 weeks for Defendants to respond after termination. On 12/19/17, Plaintiff's counsel sent Defendants' counsel an email asking for discovery responses by 01/02/18 (i.e. within 2 weeks from the demand). To date, Plaintiff has not received a w...