Excerpt: ...nce that extrinsic fraud exists in the form of a falsified proof of service of summons. Defendant Henry was not evading service, was never served, and did not learn about the suit until 07/2017 when a levy was placed on his personal bank account. He then retained an attorney and moved to set aside default within a reasonable time. Plaintiffs are not entitled to the presumption of facts stated in the proof of service. (Evid. Code, § 647.) Further...

Excerpt: ... title to the property in dispute. . . .' The plaintiff may recover only upon the strength of his or her own title ... and not upon the weakness of the defendant's title.'” Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195. Although Plaintiff Weinada obtained a constructive trust over the title of the Trotter property, that Judgment was not binding on Defendant Tianwu.Therefore, the prior Judgment does not have res judicata or collateral estop...

Excerpt: ..., subd. (b).) In addition, tort damages are not recoverable for economic losses unaccompanied by physical damage. (Aas v. Super. Ct. (2000) 24 Cal.4th 627; Erlich v. Menezes (1999) 21 Cal.4th 543, 550–554.) Defendants to give notice. ...

Excerpt: ...not proper in the regular conduct of the proceeding. (Barquis v. Merchants Collection Association (1972) 7 Cal.3d 94, 103-104; Cross-Compl. ¶¶ 54-57, 59.) Sixth Cause of Action (Malicious Prosecution). The Cross-Complaint does not adequately plead facts showing any action was commenced against the senior Cross- Complainant Michael Webster. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782.) Ruling Motion 2: Cross-Defendant Cate's motion to strik...

Excerpt: ...Yessenia's”) and Jaime Silva. Responding Party Plaintiff David Arrighi dba Black Diamond Concrete. Ruling Motion 1: Defendant Wesco's Motion to Determine Good Faith Settlement is CONTINUED to 5/14/18 at 10:30 a.m. in Department C26for the parties to address the effect of the First Amended Complaint on the negotiated settlement. Moving party to give notice. Ruling Motion 2: Defendant Wesco's Motion for Summary Judgment is denied. Defendant Wesco...

Excerpt: ...e plaintiff or excuse for nonperformance, breach by the defendant and damages.” First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745. Plaintiff alleged sufficient facts to state a cause of action in the first amended complaint. FAC, page 5. The FAC does not show that a breach could not occur in 2017. The agreements attached as Exhibit A to the FAC include automatic renewal provisions. FAC, Exhibit A, page 2, section 10, page 3,...

Excerpt: ... causes of action, with 30 days' leave to amend. First-Third Causes of Action (Breach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant). The Court previously overruled Defendant's demurrer to these causes of action. The new allegations in the TAC do not affect the court's prior ruling or analysis. Fourth Cause of Action (Intentional Interference with Contractual Relations). This claim is not preempted by CUTSA to the extent it pl...

Excerpt: ..., Writ of Attachment, and Temporary Restraining Order. Moving Party Plaintiff Jessica M. Costa. Responding Party Defendant Holden Johnston. Motion 4: Application for Right to Attach Order, Writ of Attachment, and Temporary Restraining Order. Moving Party Plaintiff Jessica M. Costa. Responding Party Defendants Luis Ibarra and Karina Carrillo Ibarra. Ruling Motion 1: Defendants' demurrer to the first cause of action for fraud is SUSTAINED as to Def...

Excerpt: ...f Joanne H. Tagami. Ruling Motion 1: The unopposed demurrer by Defendants Deutsche Bank National Trust Company Americas, as Trustee for Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QO1 (erroneously sued as “Deutsche Bank National Trust Company, as trustee) and Nationstar Mortgage LLC (erroneously sued as “Nationstar Mortgage, LLC, as loan servicer) to the Second Amended Complaint (“SAC”) is SUSTAINED without leave to amend...

Excerpt: ...ns are OVERRULED. Good Cause The court finds that the 9/22/17 letter attached as Exhibit 8 to declaration of Mary Tanagho Ross provides a sufficient a good cause showing for RFP Nos. 26-43. Duplicative Requests Plaintiff argues that the requests in Defendant's second request for production are duplicative of Defendant's previous requests. Defendant's prior requests broadly sought all documents relating to Sullivan's billing records, payments made...

Excerpt: ...008) 167 Cal.App.4th 567, 625; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1192-1193; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160. Plaintiff has not shown additur would be appropriate. Defendant shall give notice. ...

Excerpt: ...nts. There is no conflict of interest, because there is no attorney-client relationship. The In re Baird case is completely unrelated to the issues in this case. The case management order does not create an attorney-client relationship between Attorney O'Connor and the other attorneys in the In re Baird product liability case. There has been no confidential communication between Brenes or the Brenes' clients and Attorney. “Our courts recognize ...

Excerpt: ...t as to the truth and legal interpretation of the document. Request for Judicial Notice: The initial issue is to what extent should the court take judicial notice of the prenuptial agreement? Since the agreement was recorded, the court will take judicial notice of its existence. However, the court cannot take judicial notice of the truth of the contents and the legal interpretation of the agreement. “Judicial notice may not be taken of any matt...

Excerpt: ...t in issue. (CCP § 431.30(b)(1); Adventec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.) The Second Affirmative Defense (Statute of Limitations) is also adequately pled, given the answer properly cites CCP Section 343. (CCP § 458.) Finally, the demurrer fails to specify the allegedly uncertain aspects of answer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797 [disapproved on other grounds in ...

Excerpt: ...t City of Westminster. Responding Party Plaintiff Tami Piscotty. Ruling Motion 1: Defendant City of Westminster's Demurrer to the First Amended Complaint is OVERRULED. (CCP § 430.10(e), (f).) Plaintiff here alleges that similar acts of retaliation and/or discrimination began in 2008, have occurred with reasonable frequency, and have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.) Read in the light most f...

Excerpt: ...: The Motion for Judgment on the Pleadings is GRANTED without leave to amend. Introduction: This case has been pending for 3 ½ years. In January 2018, the case trailed for several days. The trial is now re-set for March 19, 2018. Common Law Motion for Judgment on the Pleadings: Although the time has passed for a statutory motion, Defendant may make a common law motion for judgment on the pleadings. “'A motion for judgment on the pleadings may ...

Excerpt: ...ice. ...

Excerpt: ...apter, the maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order shall not exceed the lesser of the following: (1) Twenty-five percent of the individual's disposable earnings for that week. (2) Fifty percent of the amount by which the individual's disposable earnings for that week exceed 40 times the state minimum hourly wage in effect at the time the ea...

Excerpt: ...he procedural element focuses on the existence of oppression or surprise and the substantive element focuses on overly harsh or one-sided results. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114. To be unenforceable, a contract must be both procedurally and substantively unconscionable, but the elements need not be present in the same degree. The analysis employs a sliding scale: “…the more substantively opp...

Excerpt: ...es that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” On 6/28/17, Plaintiffs filed their Memorandum of Costs, which was served by mail. The Motion was timely filed on 7/18/17, which was twenty (20) days later. Prevailing Party: Pursuant to Code Civ. Pro...

Excerpt: ...rty shall pay its own attorneys' fees and costs. Since the tenancy was not forfeited, Section Thirty-Seven for Litigation applies. Under the facts of this case, each side is responsible for its own attorney fees. Pursuant to Civ. Code, § 1717 (b) (1), the court shall determine who is the party prevailing on the contract. The party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The cour...

Excerpt: ...anation.” Womack v. Lovell (2015) 237 Cal.App.4th 772, 787. In the original complaint, Plaintiff Erwin sued his client Ed Gabrin. Plaintiff was a party to the two oral contracts. In the First Amended Complaint, Plaintiff alleged that he was a third party beneficiary instead. Plaintiff failed to explain the reason for this substantial change. Rules of Professional Conduct, Rule 3-300: California Rules of Professional Conduct, rule 3–300 subjec...

Excerpt: ... Nader Nagy, Magda Giwargi did not have standing to sue for alleged violation of Beter Nashed's constitutional rights (Second Cause of Action): Both Plaintiffs filed an affidavit under CCP 377.32. Therefore, they are permitted to pursue this claim supported as successors-in-interest. They are not making claims as individuals. Plaintiff Nader Nagy sued as the successor in interest of decedent, Beter Nashed. (SAC, page 1, line 26- page 2, line 2). ...

Excerpt: ...a Defendants are ordered to meet and confer with Plaintiff and to submit a detaileddeclaration outlining the parties' meet and confer efforts as to each of the issues raised by the demurrer. (Code Civ. Proc., § 430.41.) The Ibarra Defendants shall file the declaration at least 9 court days before the continued hearing date. No further briefing is permitted. Pursuant to Code of Civil Procedure section 430.41(a), effective 01/01/16, before filing ...

Excerpt: ...rst Cause of Action for Breach of Contract The FAC does not adequately allege the existence of a contract. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) The Complaint alleges that Plaintiff's counsel spoke with Defendant (FAC ¶ 11), and that conversation appears to be basis of the agreement—but there is no allegation counsel had authority to enter into the agreement on Plaintiff's behalf. Even if counsel had authority to enter int...

Excerpt: ...clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Plaintiffs' FAC is not organized in the traditional manner. The FAC alleges 16 causes of action, labeled as “Counts.” Each “Count” is asserted twice, once by each Plaintiff. Defendants demur to both sets of Counts 1 through 16 of the FAC on the ground that the FAC is ambiguous and unintelligible because half of the 32 cou...

Excerpt: ... Action: Previously, Defendants did not demurrer to the Second and Tenth Causes of Action of the First Amended Complaint. The Tenth Cause of Action has not been re-labeled the Sixth Cause of Action. Code Civ. Proc., § 430.41(b) provides that “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answ...

Excerpt: ...to each topic (Similar to Form Interrogatory No. 17.1). Plaintiff did not repeat the topics, but used the same format. Code Civ. Proc., § 2030.090 (b) requires a showing of good cause, which has not been shown. Code Civ. Proc., § 2030.090 (a) requires that the protective order motion must be made promptly. Plaintiff propounded the Special Interrogatories (Set Two) on 12/7/17. Defendant did not act promptly, because it waited until 1/9/18 to fil...

Excerpt: ...imely and submits new evidence. Cross-Defendants may file and serve a supplemental response, no longer than 5 pages, to the new evidence no later than March 22, 2018. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538. Abdoun and cross-defendant Sabrina Beg are ordered to appear at the hearing to present oral testimony regarding their relationship, if any. Cross-Defendants to give notice. Case Management Conference ...

Excerpt: ...ation agreement. This includes the burden of demonstrating that a resident's purported agent had the authority to sign the arbitration agreement on behalf of the resident where, as here, it has been signed by such an agent, specifically, Decedent's son, Plaintiff Jeff Doyle (“Doyle”). (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6.) On 3/10/16, Doyle signed the Residence and Care Agreement, including Section I.3., an ar...

Excerpt: ...to the first, second, third, and fourth causes of action based on the defense of in pari delicto is sustained. Although an exception to the in pari delicto defense exists when the parties to a fraudulent transaction occupy a fiduciary relationship and the fiduciary would personally profit from the wrongdoing (Sontag v. Denio (1937) 23 Cal.App.2d 319, 323–24; Clark v. Millsap, 197 Cal. 765, 783), Plaintiff does not allege sufficient facts to est...

Excerpt: ... separate paragraph and state whether it applies to the entire complaint or to specified causes of action. Based on the memorandum of points and authorities, the court will proceed based on the assumption that Defendant intended to specially demur for uncertainty to the 2 nd- 5th causes of action and also specially demur to the 5th cause of action on the grounds it is duplicative. Defendant's special demurrers for uncertainty to the Second – Fi...

Excerpt: ...Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services. Motion 4: Demurrer to First Amended Complaint. Moving Party Zions Bancorporation and ZB, N.A. Responding Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services Motion 5: Strike Punitive Damages.Moving Party ABE Corporation dba Fairview Shell. Responding Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services Ruling 1: Defendant AB...

Excerpt: ...Sullivan Group of Court Reporters f.k.a. Sullivan and Hargreaves Court Reporters. Motion 3: Compel Production of Documents Pursuant to Business Records Subpoena. Moving Party Plaintiff/Cross- Defendant The Sullivan Group of Court Reporters f.k.a. Sullivan and Hargreaves Court Reporters. Responding Party Third Party Huntington Court Reporters & Transcription, Inc. (“Huntington”). Motion 4: Leave to File Amendment to Complaint. Moving Party Pla...

Excerpt: ...20) days, Plaintiff and her attorney shall pay sanctions in the sum of $1,335.00 [($318.75 per hour x 4 hours) + $60.00 filing fee]. The requested sanctions were reduced by three hours, because there was no Opposition or Reply. Motion No. 2: Defendant's Motion for Terminating Sanctions is DENIED.The court orders Plaintiff to comply with the court's previous orders of previous discovery orders of April 24, 2017 and October 2, 2017. For failure to ...

Excerpt: ... to March 19, 2018 at 10:30 a.m. in Department C-26. Paramount is ordered to produce evidence of the costs it incurred in taking the depositions of Steve Martin and Brian Bergmark. No further briefing is permitted. Motion 2: Motion to Tax Costs. Moving Party: Paramount Petroleum Company (“Paramount”). Responding Party: Sully Miller Holding Company (“Sully Miller”). Opposition filed. Ruling Motion 2: Paramount's Motion to Tax Costs is gran...

Excerpt: ...Pacers Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690 [trial courts have the discretion to stay a civil action when a criminal matter is pending.]) All other discovery as to third party witnesses and documents is not stayed. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 310 [the trial court may devise a solution that fairly accommodates the interests of all parties and the judicial system in light of circumstances].) A status hearin...

Excerpt: ... under Civ. Proc. Code § 473 (b). Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 620. The requirement to submit an answer or other pleading applies to the discretionary portion of the statute. When the court grants a relief under the mandatory portion of Civ. Proc. Code § 473 (b), “[t]he court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory lega...

Excerpt: ... GRANTED. (CCP § 473(d).) The default judgment against Defendant Laterza is void as a matter of law due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1443-44.) Plaintiff attempted to serve Defendant by substituted service at Defendant's work, but did not locate or use the correct work address. Within 15 days of service of the notice of ruling, Defendant sha...

Excerpt: ...lance footage at issue. Thus, Plaintiff's motion is moot as to the video. Defendants have met their burden to establish the incident report at issue is protected from disclosure by the attorney-client privilege. (Evid. Code § 405; D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 736; Soltani-Rastegar v. Super. Ct. (1989) 208 Cal.App.3d 424; Payless Drug Stores, Inc. v. Superior Court (1976) 54 Cal.App.3d 988.) Here, the incident report ...

Excerpt: ...nted as to Issue Nos. 2, 3, 4, and 5 and denied as to Issue Nos. 1 and 6. Cross-Defendants' requests for judicial notice are granted. Cross-Complainants' objections to evidence submitted in support of Cross-Defendants' motion for summary judgment/adjudication are overruled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entit...

Excerpt: ...ow that there are triable issues of material fact on whether the parties entered into a contract. In the County's Separate Statement, it listed only eight facts These facts do not established that a contract was never formed. The Union representatives were consulted on the job sharing agreement. (UMF 28). Ms. Kiddy signed on behalf on the County. (UMF 30). After Plaintiff signed the agreement, the County implemented it. (UMF 31). Plaintiff was ne...

Excerpt: ...ppeal, and the Commercial Guaranty signed by Defendant provides for the recovery of reasonable attorney's fees. (Civ. Code § 1717(a); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiff does not provide evidence to establish the reasonableness of counsel's rates. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084.) The court, thus, reduces the recoverable hourly rate for counsels Hurwitz and Lallas to $450 per hour. Based on t...