Excerpt: ... from Defendant, Erik Matsuno (“Defendant”) to Plaintiff's Special Interrogatories, Set One, (“SPROG”) Nos. 1 to 70, and awarding monetary sanctions in the amount of $2,242.50 against Defendant and his counsel of record, Niral Patel. Plaintiff contends that Defendant's responses to the SPROG are deficient and evasive; that the objection that SPROG, Nos. 1, 10, 11, 12, and 13, are unintelligible due to the definition of “INCIDENT” is w...

Excerpt: ...Attorney's Fees, and Unfair Competition. Defendant argues that the FAC fails to allege facts sufficient to constitute any of these causes of action against it. Defendant also moves to strike Plaintiffs' prayer for punitive damages and attorney's fees, on the ground that they are unsupported by Plaintiffs' allegations, as well as Exhibits 2 and 4 of the FAC. DEMURRER First Cause of Action for Breach of Contract Defendant argues the Breach of Contr...

Excerpt: ... arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other doc...

Excerpt: ... served may, prior to the date for production, bring a motion under Code of Civil Procedure Section 1987.1 to quash or modify the subpoena duces tecum.” CCP §1987.1 empowers this Court to "make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such 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 protec...

Excerpt: ...n precluding Defendant from contesting liability by way of the affirmative defenses of comparative fault or assumption of risk; and/or (4) an order for monetary sanctions against Defendant and/or their attorneys of record Law Office of Anthony T. Schneider in the sum of $5,664.95. Plaintiff contends that the incident occurred on June 2, 2018, and that on June 4, 2018, Plaintiff's counsel sent a preservation of evidence letter via registered certi...

Excerpt: ... with Dr. Scott Forman, M.D., on October 29, 2021. Pursuant to Code Civ. Proc. §2032.220(a), “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff.” However, if a defendant seeks more than one physical examination of Plaintiff, Defendant “shall obtain leave of court.” [Code Civ. Proc. §2032.310(a).] Code Civ. Proc. §2032.240(a) provides, “If a p...

Excerpt: ...out January 13, 2016, he entered into a warranty contract with FCA regarding the vehicle. (Compl., ¶ 10.) Plaintiff dismissed Elk Grove from this action on April 11, 2022, without prejudice. Request for Judicial Notice Plaintiff requests judicial notice of the Ninth Circuit's opinion in Ngo v. BMW of N. Am., LLC (9th Cir. 2022) 23 F.4th 942 (Exhibit A), seven California federal court orders denying motions to compel arbitration (Exhibits B, C, D...

Excerpt: ...os. 1-3. The Court overrules and disregards all objections asserted by Defendants in their Response to the Separate Statement. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354(b). Plaintiffs' Objections to Defendants' Evidence in Support of the Opposition. The Court OVERRULES Plaintiffs' evidentiary objection Nos. 1-4 to the Declaration of Myles Sachs. The Court OVERRULES P...

Excerpt: ...contends that the Court may review in camera Plaintiff's Certificates of Merit which comply with the requirements set forth in CCP § 340.1(f)-(i) and requests that the Court find that there is a reasonable and meritorious cause for the filing of this action against DOE 3. Plaintiff also contends that the Court should grant Plaintiff's request for an in camera review of Plaintiff's Application to Amend Complaint and Certificate of Corroborative F...

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

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

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

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

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

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

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

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

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

Excerpt: ...ides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Counsel for Defendant sent Plaintiff's counsel a September 23, 2021 letter asking whether Plaintiff would stipulate to a mental health examination. (Declaration of Marc Lafer, ¶ 4.) Counsel for Plaintiff did not respond. (Id., ¶ 5.) The Court finds t...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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