Excerpt: ...on that Capistrano failed to carry its burden is reversible only if its evidence was ‘uncontradicted and unimpeached.' Ferrari's evidence contradicted Capistrano's in nearly every aspect, and the trial court's ruling was based on this evidence. We therefore affirm the order denying Capistrano's petition to compel the arbitration of Koelzer's claims against it. “The trial court did not, however, rule on the issue of whether Ferrari's own claim...

Excerpt: ...ecedent voluntarily signed an Arbitration Agreement; and that the survivor claims for Elder Abuse, Negligence, and Violation of Residents' Rights are claims that fall within the scope of the Arbitration Clause. Anaheim Healthcare Center (AHC) also submits the Arbitration Agreement by way of the Declaration of Yoseeline Andalon, who has been the Admissions Coordinator at AHC since approximately October 2020, and has been employed by AHC since 2015...

Excerpt: ...n 5/17/23 1.Plaintiffs Prime Healthcare Services – Garden Grove, LLC; Prime Healthcare La Palma, LLC; Prime Healthcare Huntington Beach, LLC; and Prime Healthcare Anaheim, LLC filed a Motion to Compel Defendant Optumcare Management LLC to provide further responses to Requests for Production, Set One, Nos. 1-4, 16-19, 22-23. Plaintiff also seeks $7,000 in sanctions . Request for Production No. 1 Moving party failed to establish how the developme...

Excerpt: ...2) an act of egregious abuse, 3) anything financial about this cause of action, each of which are required for this cause of action. Issue No. 2: Plaintiffs' cause of action under W&I Code§ 15610.30 fails on the grounds that Plaintiffs cannot prove wrongful use, which is a required element of this cause of action. Pursuant to CCP§437c(f)(1): (f)(1) A party may move for summary adjudication as to one or more causes of action within an action, on...

Excerpt: ...nd that Plaintiff fails to state a cause of action for general negligence against Defendants because the appropriate cause of action against Defendants is for professional negligence. Defendants contend that, by labeling the cause of action “general negligence,” Plaintiff is attempting to circumvent the limit on non-economic damages in professional negligence actions. “It has long been established that in ruling on a demurrer, the trial cou...

Excerpt: ...esulted from the late filing, the court will consider the opposition. Where cost items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774.) Having considered the motion, opposition and reply papers, the court taxes the following costs: Item 16 (Other): - 5/17/21 chambers copy $80.09 - 3/21/22 courtesy copy $87.02 - 2/...

Excerpt: ...Interrogatories, and Requests for Admissions are GRANTED in their entirety as follows. Plaintiff's Motion to Compel Further Responses from Defendant to Plaintiff's First Set of Requests for Production is GRANTED, in part, DENIED, in part as follows. Timeliness of Motions to Compel The instant motions to compel further responses to discovery were timely filed and served on February 22, 2023. Defendant served responses to the discovery at issue on ...

Excerpt: ...costs” are recoverable. But legislative history shows it was intended to allow only fees and costs incurred on the motion to strike [not the entire litigation]. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383.) Here, the underlying successful anti-SLAPP motion was brought by Mark B. Plummer and the Law Offices of Mark B. Plummer (the “Plummer Defendants”) . There is no entitlement to attorney fees where the...

Excerpt: ...ld be governed by the FAA. La Palma has met their burden to show that a valid written agreement to arbitrate as between La Palma and Plaintiff Coco IV Chew exists. La Palma submits the Declaration of Natalie Galvez, the Admissions Coordinator at La Palma when the Arbitration Agreement between Plaintiff Coco IV Chew aka Rathaphirom IV and La Palma was executed, and the individual who signed the Arbitration Agreement as the facility representative ...

Excerpt: ...ixth cause of action in conformance with the recent controlling decision, Dhital v. Nissan North America, Inc., (2022) 84 Cal.App.5th 828, which holds that under California law, the economic loss rule does not bar a plaintiff's fraudulent inducement claims and that such claims fall within the exception to the economic loss rule. Defendant argues that Dhita/ is not binding on this Court because the Supreme Court has granted review and while review...

Excerpt: ...ature, source and extent of his cause of action." (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) A plaintiff does not need to allege evidentiary facts. (C.A. v. William S. Hart Union H.S. Dist. (2012) 53 cal.4th 861, 872; Centex Homes v. superior court (2013) 214 cal.App.4th logo, 1102.) Defendants contend that the first through eighth causes of action fail because Plaintiff has only pled conclusory allegations that parrot the language...

Excerpt: ...3-24 and paragraphs 128-133. The Court OVERRULES MCWE's demurrer on the ground that the FAA, or Nineteenth or Twentieth Affirmative defenses is uncertain. MCWE fails to specify how or why the FAA is uncertain and where that uncertainty can be found. The Court OVERRULES MWE'S demurrer to the Nineteenth Affirmative Defense (Offset for Breach of Sublease) and Twentieth Affirmative Defense (Offset for Fraud/Misrepresentation). MCWE previously demurre...

Excerpt: ...e Auto Group (2023) 87 cal.App.5th 747, 754.) "Because controversy exist. " the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement...that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the...

Excerpt: ...LC ("Plaintiff") requests that the Court take judicial notice of 13 documents. The Court GRANTS Nos. 1, 2, and 7 through 12 of the Request for Judicial Notice pursuant to Evidence Code section 452(d). The Court also GRANTS Nos. 3 through 6, and 13 of Plaintiff's Request for Judicial Notice pursuant to Evidence Code section 452(h). Although the Court grants the request, the Court declines to take judicial notice of the truth of the hearsay stateme...

Excerpt: ... amount of $2,310; and issuing a contempt sanction against Plaintiff, pursuant to Section 2023.030(e), due to his misuse of the discovery process. Defendants request, in the alternative that the Court issue an order for issue and evidentiary sanctions. The present motion was properly served on Plaintiff by U.S. Mail. However, the Court notes that there is no evidence showing that Plaintiff has affirmatively agreed to electronic service as require...

Excerpt: ...rsy. m (Gamboa v. Northeast community Clinic (2021) 72 cal.App.5th 158, 165; cal. Rules of court, rule 3.1330.) "The moving party can meet its initial burden by attaching to the motion or petition a copy of the arbitration agreement purporting to bear the opposing party's signature." (Ibid. [internal citations omitted].) "If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitrat...

Excerpt: ...e defense to the cause of action. (CCP The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima (1991) 231 cal.App.3d 367, 381-382. Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4t...

Excerpt: ...morandum of Points and Authorities filed in support of the opposition is 2 pages over the 15-page limit. The Court disregards the last 2 pages. Defendants fail to show that the demurrer is a motion for reconsideration of the Court's December 13, 2022 Order granting Plaintiff's Motion for Leave to File Amended Pleading, and thus, fail to establish that the demurrer must meet the requirements under Code of Civil Procedure section 1008. Defendants a...

Excerpt: ...nstruction, Inc. v. Bidna & Keys, APLC (2015) 238 cal.App.4th 200, 208.) The trial court engages in a two-step ptTcess to determine whether a special motion to strike should be granted. (Code Civ. Proc., S First, the court decides whether the defendant has met its initial burden of establishing a prima facie showing that defendant's acts, of which the plaintiff complains, were taken in furtherance of the defendant's constitutional rights of petit...

Excerpt: ...reliminary Injunction is DENIED in part and GRANTED in part. Plaintiff's Motion for Preliminary Injunction is DENIED as to Plaintiff's claims brought pursuant to Business and Professions Code section 17200 et seq. Business and Professions Code section 17204 requires Plaintiff to establish that it "has suffered injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code, 5 17204.) Plaintiff's moving pap...

Excerpt: ...ion to Tax Costs. Regarding attorney's fees, the Court adopts its analyses in the 4/4/22 ruling on the motion for attorney's fees in the related matter of Elmy v. Related Management Company, L.P. (case no. 2019-1105181) and the 5/9/22 ruling in the related matter of Nava v. Related Management Company, L.P. (case no. 2019-01096579). In Elmy and Nava, the defendant made a gg8 Offer for $10,001 plus attorney's fees, which the plaintiffs rejected. Th...

Excerpt: ...provide that they were served on Plaintiff on February 3, 2023, by first class mail, with a notice of hearing for February 27, 2023. February 1, 2023, plus five calendars for mail, would require service on January 27, 2023, in order to be code compliant. Therefore, insufficient notice was provided for the instant motion. The Court notes that no opposition has been filed and that Plaintiff is in pro per. Additionally, the notice of motion provides...

Excerpt: ...d as a matter of law. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146; Westly v. Board of Admin. (2003) 105 Cal.App.4th 1095, 1114.) Like a demurrer, a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. (Consolidated Fire Protection Dist. v. Howard Jarvis Taxpayers' Ass'n (1998) 63 Cal.App.4th 211, 219.) The Cross-Complaint asserts the following four causes of action: 1....

Excerpt: ...unded to each motion which is considered proper law and motion practice. In addition, a party seeking to compel further responses to interrogatories, requests for production, and requests for admission must support their motion with a meet and confer declaration showing a reasonable and good faith attempt to reach an informal resolution of the issues. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b)(2), 2033.290(b)(1).) Counsel for Plaintiff se...

Excerpt: ...ated because Defense counsel failed to appear at the May 25, 2021 hearing due to a calendaring mistake and verified responses to the disputed Requests for Admission were served on May 18, 2021. Plaintiffs' argument that this Motion is an improper attempt at reconsideration is incorrect. The June 1, 2021 Minute Order expressly states that Defendant's ex parte application was denied without prejudice to Defendant filing a noticed motion, which Defe...

Excerpt: ...ED. No opposition has been filed such that all material facts asserted by Cross-Complainants are undisputed. Cross Complainants seek to have the property sold and the proceeds divided by way of an interlocutory order. It is also undisputed that the Property “spans five acres and consists of two buildings—a main house and a secondary building—with a total of approximately 10,000 square feet of housing.” (Cross-Complainants' Separate Statem...

Excerpt: ...hat “Any Warranty Policy and Procedure Manual published by defendant and provided to its authorized repair facilities, within the State of California, for the date the subject vehicle was purchased to the present.” (See Lemon Guide, § 10.3, p. 38.) Request No. 10: A copy of the Workshop Manual specifying diagnosis and repair procedures for vehicles of the same year, make, and model as the subject vehicle. The Lemon Guide recommends that “A...

Excerpt: ...tion for judgment on the pleadings filed by a defendant on the grounds the Court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against the moving defendant. (Code Civ. Proc., § 438(c)(1)(B).) The grounds for such a motion must appear on the face of the challenged pleading or from any matter of which the Court is required to take ...

Excerpt: ...ANAHEIM”) demurs to the the 5th (Bane Act), 6th (Battery), 7th (Assault), 9th and 10th (Negligence), and 12th (Liability for the wrongful acts by public entity employees) causes of action alleged in Plaintiff Torres Sanchez' Complaint on the grounds that Plaintiff cannot maintain a civil action pending resolution of the criminal case against him in Orange County Superior Court Case No. 21NF2207 (“CRIMINAL CASE”). Government Code section 945...

Excerpt: ...t: Pltfs have pled the consideration was intellectual property for shares; Pltfs provided shares but Deft did not provide the intellectual property; The 2021 Settlement Agreement is not before the Court; What Pltfs knew and when is outside the four corners of the Complaint; Overrule the Demurrer as to this cause of action; 5th cause of action for Breach of GF and FD: Deft argues the claim is based on pre-contract activity and is a duplicate of th...

Excerpt: ...).) “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc. § 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 pr...

Excerpt: ...The Court finds that based on the evidence presented, a reasonably hourly rate for the services performed by Plaintiff's attorneys is $400 an hour. Number of Hours Billed. Plaintiff presents evidence that his attorneys at Neale & Fhima, LLP reasonably expended approximately 98.7 hours prosecuting this case (including the time on the Motion), anticipates spending an additional 4 hours to review the Opposition and prepare a Reply, and anticipates s...

Excerpt: ... a prayer for $10,000,000.00 in compensatory damages, and a cause of action for Elder Abuse against all Defendants. Also before the Court is a Demurrer to the Second Amended Complaint (SAC) by Defendant Severson Plumbing Services, Inc. (“Severson”), a Motion to Strike by Severson, and a Motion to Strike by Defendants Aliso Villas Condominium Association (“Aliso Villas”) and Total Property Management, Inc. (“TPM”). Plaintiff's Motion f...

Excerpt: ...nce: The cause of action is not sufficiently pled. The Complaint alleges that Defendants are and were in some manner strictly liable, negligent, reckless, careless, or unreasonable and/or proximately responsible for the events, happenings, and wrongful acts, failure to act, representations and omissions alleged” and “are liable to Plaintiff(s) as herein alleged either individually or collectively are, in some manner responsible for the action...

Excerpt: ...dant that caused or contributed to Plaintiff's injuries; and · The cause of action for concealment fails because Plaintiff has not established that Defendants fraudulently concealed any significant facts. On a procedural note, Defendants' Separate Statement addresses the summary judgment, only. On a motion for summary adjudication, the statement must also tie each “undisputed material fact” to the particular claim, defense or issue sought to...

Excerpt: ...Court GRANTS Cross-Defendants request for judicial notice of Exhibit B pursuant to Evidence Code section 452(h). The Court DENIES Cross-Defendants request for judicial notice of Exhibit C as the contents of a web-site are not subject to judicial notice. Demurrer: The 1st cause of action for cancellation of U.S. Trademark Reg. No. 5,960,348: Cross-Defendants contend that Cross-Complainants lack standing to cancel the trademark because it is well e...

Excerpt: ...1/21 MOTION NOS. 1 & 2 – DEMURRER AND MOTION TO STRIKE BY WONG DEFENDANTS Meet and Confer: Defendants sufficiently met and conferred under Code of Civil Procedure sections 431.41 and 435.5 to discuss the issues raised by the demurrer and motion to strike; they could not come to an agreement. (Lawrence Decls., ¶ 9.) DEMURRER: 1st COA – Wrongful Death: A claim for wrongful death is authorized by Code of Civil Procedure section 377.60 et seq. �...

Excerpt: ...��); as well as a Motion to Strike Portions of the FAC filed by Defendant, Severson Plumbing Services, Inc. (“Severson”). Late Oppositions: Oppositions were due on 11/19/21. However, Plaintiff did not file oppositions until 11/24/21 at 10:08 p.m., 10:10 p.m., and 10:12 p.m. Thus, the oppositions are untimely. However, as substantive replies have been timely filed and no prejudice is shown, the Court will consider the late oppositions. Aliso V...

Excerpt: ...eceived by Tenant from the Costco Gift Cards (see Tenant's complaint at ¶ 32(A)). 2. Issue of Duty: Tenant was entitled to deduct from Gross Sales third party fees with respect to the purchase of gift cards presented at the Premises (see Landlords' second amended cross-complaint at ¶ 8(a)). 3. Issue of Duty: Tenant was entitled to pay, and Landlord was required to accept, Alternate Rent from and after September 13, 2017 until a replacement was ...

Excerpt: ...� her attorney states only on information and belief that she is in “poor health and dying condition”. Tentative Ruling: The Motion for Preference is DENIED. Moving Party is to give notice. Motion 2: The Court finds Defendants failed to meet their initial burden of establishing an agreement to arbitrate exists. In order to meet their initial burden, Defendants purport to introduce as Exhibit A, a document entitled “Resident – Facility Arb...

Excerpt: ...rally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.” (Id. at 1252- 53.) Contact information, while personal, is not particularly sensitive, and is basic to civil discovery, especially when people are being identified as witnesses. (Id.at 1253-54.) “Nothing could be more ordinary in discovery than finding out the location of identified wi...

Excerpt: ...Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). "The 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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green ...

Excerpt: ...irement of CCP § 430.41, as it does not indicate that any meet and confer regarding the issues in the demurrer actually occurred, let alone any meet and confer by telephone or in person. Defendant's counsel, Mari Kiridjian, states that she sent Plaintiff's counsel “an email regarding FCA US' intent to file a demurrer” and asked Plaintiff “to notice counsel for FCA US if Plaintiff intends to amend the Complaint or to dismiss the fraud cause...

Excerpt: ... Exch., Inc., (1995) 11 Cal.4th 1, 18 (Waller).) Grants of coverage are to be interpreted broadly, while exclusions are interpreted narrowly and against the insurer. (Shade Foods, Inc. v. Innovative Products Sales (2000) 78 Cal. App. 4th 847, 867.) “The insurer bears the burden of proving ... the applicability of an exclusion ....” (State Farm Fire & Cas. Co. v. Martin (9th Cir. 1989) 872 F.2d 319, 321.) The court must “look first to the la...

Excerpt: ...h Ferrari did. The Agreement is signed by someone as “Facility Representative”, and by Deborah Ferrari as “Signature on behalf of the Resident and Individual”. Plaintiff also submits the form filled Declaration of Amy Magallon, Admission Coordinator for Defendant who declares that she met with “Deborah Ferrari (wife)”. After stating she met with Deborah Ferrari (and not Charles William Koelzer), she indicates “The Resident instructe...

Excerpt: ...CHAEFER properly watered the Tree post-2015 when the CITY deemed it a “City Tree”. SCHAEFER contends she properly watered it, CITY contends she did not, creating a triable issue. Here there is no evidence that the CITY planted the Tree. The Tree was on SCHAEFER's property when she moved there in 1991 and considered it “her” tree which she maintained until October 2015. CITY disputes that SCHAEFER did not have any responsibility over the T...

Excerpt: ...ant Prime, Plaintiff's employer, are protected. There is no dispute that the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Plaintiff, however, relies on Insurance Cod...

Excerpt: ...oving papers or the reply. However, based on the opposition that has been filed, it appears that the moving papers were served. The Court will presume that the reply has been properly served unless otherwise established at the hearing. The Court reminds Defendants that a proof of service must be filed. (See California Rules of Court, Rule, 3.1300(c).) In addition, as to the late-filed and late-served opposition, the court, in its discretion, may ...

Excerpt: ... to pay the monthly mortgage, interest, taxes, etc., and so Plaintiff has been paying those too. Id¶16. Plaintiff also indicates he is in possession of the property as it is his family residence. As such, pursuant to Sutton v. Warner (1993) 12 Cal.App.4th 415, 422, these facts are sufficient to establish part performance to enforce the oral Joint Venture Agreement, and complaint is not barred by the SOF. Tentative Ruling: Demurrer to the entire ...

Excerpt: ...s therein. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) As a threshold matter, Plaintiff correctly contends that Cross-Complainant failed to allege that he was duly licensed at all times during the performance of the remodel services he provided, and that it is his burden to affirmatively state and prove that he was licensed to provide the work, labor, services and materials before bringing...

Excerpt: ...A. Timory (“Timory”) (collectively, “Moving Defendants”): 2nd cause of action for negligence, 3rd cause of action for assumpsit, 4th cause of action for disgorgement (B&P § 7031), 5th cause of action for violation of B&P § 17200 et seq. Moving Defendants have met their initial burden to show that they are not the agent, partner, or alter ego of the other defendants. (D's Supp. SSUMF 28-35 [Timory Supp. Decl.].) Moving Defendants have al...

Excerpt: ...cuments. On January 6, 2021, Plaintiff served by mail Request for Production of Documents, Set Two (“RFP2”). (Vu Decl. ¶ 14, Ex. 9.) On March 2, 2021, Defendant served by mail its unverified responses to RFP2. (Vu Decl. ¶ 15, Ex. 10.) Defendant's responses to Plaintiff's Requests consisted of boilerplate objections with no production of documents responsive to Plaintiff's Requests. (Id.). Although Moving Party indicates counsel met and conf...

Excerpt: ...rests of justice. See CCP§2019.020. Here, all parties concede there was an agreement that Plaintiff's deposition would take place after the Defendants' PMK deposition. (See ROA 20, Jacobsen Decl¶5). Furthermore, there is some evidence that at an informal discovery conference on 4-26-2021, the Court indicated the PMK deposition should go before the Plaintiff's deposition. (See Decl. of Romanini ¶¶4,15, Ex.I.) Therefore, it appears sequencing h...

Excerpt: ...alifornia recorded on September 24, 1976, in the official records of the Orange County Recorder's Office pursuant to Evidence Code section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but the court does not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Plaintiffs' Request for Judicial ...

Excerpt: ...s, in the court's discretion, it will rule on the CCP § 431.30(g): “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” Here, the defenses are asserted to the “Unverified Complaint” rather than to a particular cause of action. On 10/3/19, the court previously sustained a demurrer to the origin...

Excerpt: ...or admission at issue are relevant and are not impermissibly duplicative, they are not in proper form. RFA, Set Three, Nos. 29-31 are not “full and complete in and of itself” pursuant to Code of Civil Procedure section 2033.060(d) as terms are defined by reference to the Lease. Tentative Ruling: The motion as to RFA, Set Three, Nos. 29-31, and corresponding Form Interrogatory No. 17.1 is DENIED. Special Interrogatories Tenant seeks further re...

Excerpt: ... wall which Plaintiffs also contend is part of their Property. (See Complaint, ¶¶ 10-15.) These allegations merely support claims for trespass or encroachment and concern a dispute between neighbors as to where the exact boundary between their two properties exist. Welfare & Institutions Code section 15610.30(a) defines “Financial abuse” of an elder as occurring when a person or entity does, inter alia: “(1) Takes, secretes, appropriates,...

Excerpt: ... conducted surveillance of Plaintiff; if so, date/time/place; who conducted the surveillance; who has copies of such surveillance; and the number of video hours or photographs obtained. Plaintiff contends these interrogatories seek information related to sub rosa and is discoverable pursuant to Suezaki v. Superior Court (1962) 58 Cal.2d 166. Defendant COUNTY OF ORANGE objected on the grounds of attorney work product doctrine and Evidence Code sec...

Excerpt: ...ive, summary adjudication as to the First Cause of Action for Violation of the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”) [Issue Nos. 1 and 2], the Second Cause of Action for Violation of the California Military and Veterans Code (“CMVC”) § 394 et seq. [Issue Nos. 3 and 4], the Third Cause of Action for Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”) [Issue Nos. 5 to 8], the Four...

Excerpt: ...t testimony which MOOTS Objection Nos. 48-101. Defendant's Supplemental Declarations in support of the Reply. Defendant submitted nine supplemental declarations with the Reply. This new evidence is excluded by the Court as new evidence should not be filed with the reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38.) Motion. Defendant failed to meet her initial burden of demonstrating that Plaintiffs Most Reverend Kevin Willia...

Excerpt: ...s to the 1 st cause of action for Private Nuisance, Defendants do not argue there are insufficient facts to constitute a cause of action, but rather, that this c/a is a “clone” of the 4 th cause of action for Negligence; and therefore, should be dismissed. However, Plaintiff cites to Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1222–1223, which provides, “When a pleader is in doubt about what ...

Excerpt: ...nd Tuan A. Nguyen (“Motion to Quash”) or the Motion to Strike the Cross-Complaint (“Motion to Strike”) (collectively, the “Motions”), or that the information he now submits could not, with reasonable diligence, have been discovered or produced before the hearing on March 1, 2021. (Code Civ. Proc. § 1008(a); In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468; New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213...

Excerpt: ...nt, Houshang Jalili in the amount of $51,692.66 including estimated costs of $2,000 and allowable attorney fees of $5,000 are GRANTED. Both parties agree that Section 6201(1) of New York Civil Practice Law & Rules governs whether a writ of attachment is allowed under New York law, but disagree as to the interpretation of the statute. Plaintiff contends that Section 6201(1) allows for pre-trial writs of attachment as Defendants, Buy Insta Slim, In...

Excerpt: ...20. (See Jafari Decl., ¶¶ 4 and 7, Exh. B.) Although it appears disingenuous for Defendant to contend the Motion is untimely since the parties were meeting and conferring about these requests past November 29, 2020, there is no evidence that Plaintiff granted or that Defendant requested an extension beyond the 45-day time frame to move to compel further responses to the discovery. Even assuming arguendo, the Motion was timely, the Court would d...

Excerpt: ...Mortgage Corp. (“FFC”) fails to demonstrate lack of actual notice. Indeed, Gene O'Bryan, chief executive officer for ResCap Solutions Inc. (“ResCap”), which is the sole owner of FFC, states in his declaration that he was informed of the instant action on 11/27/20 (O'Bryan Decl. ¶ 4) – yet default was not requested until 12/22/20. CCP § 473(b) states that “[t]he court may, upon any terms as may be just, relieve a party or his or her ...

Excerpt: ... Knowledgeable (“PMK”) to be deposed in accordance with Code of Civil Procedure section 2025.230. Plaintiff further moves this Court for an order awarding monetary sanctions in the amount of $2,860.00 against Defendant and its counsel of record, Erskine Law Group. APC, pursuant to Code of Civil Procedure, sections, and 2025.450, subdivision (g)(1), for Defendant's willful and unjustified failure to comply with the relevant code sections of th...

Excerpt: ...icine, LLC (“Olympia”) and Bernice Natalie Mucius-Penha (“Dr. Penha”) (collectively “Cross- Complainants)'s Second Amended Cross-Complaint (“SACC”) on the ground that the third cause of action for forgery fails to state facts sufficient to constitute a cause of action and it is uncertain. Specifically, Cross-Defendant contends that forgery is not a civil cause of action under California law. However, the SACC alleges adequate facts ...

Excerpt: ...by Defendant's counsel's “agent” – the insurance adjuster. Defendant contends that the statement was obtained on 6/11/19—not 4/16/19 and the Privilege Log inadvertently stated it was obtained on 4/16/19, the date of the accident. Defendant, however, failed to file a declaration attesting to these alleged facts. Coito v. Superior Court (2012) 54 Cal.4th 480, 494 only held that “a witness statement obtained through an attorney-directed in...

Excerpt: ...of contract allegations into the cause of action (see FAC, ¶ 15) and alleges that “[a]s a result of Defendant's wrongful acts and breach of contract as alleged herein, Defendant breached the covenant of good faith and fair dealing…”. (See FAC, ¶ 16.) Despite Plaintiff's contention to the contrary, the First Amended Complaint does not allege that Defendant failed to cooperate with and interfered with the performance of the contract it had ...

Excerpt: ...l act or omission), whichever occurs first. The statute applies to an action for malpractice as well as a breach of fiduciary duty arising out of the performance of an attorney's professional duties. [Citation.]” (Britton v. Girardi (2015) 235 Cal.App.4th 721, 732-733.) The statute of limitations may be tolled where the plaintiff has not sustained actual injury. (Code Civ. Proc. § 340.6(a)(1).) Plaintiffs have alleged facts showing that throug...

Excerpt: ...msl, ¶¶ 15 and 16 indicate that Dr. Himsl cannot absolutely rule out, to a reasonable medical probability, that the stent procedure itself caused Plaintiff's injuries. Dr. Himsl does not expressly state that the stent placement procedural did not cause Plaintiff's injuries. Therefore, Defendant has not met his burden as to whether the stent removal procedure itself caused Plaintiff's injuries. As to the second cause of action for lack of inform...

Excerpt: ...ut prejudice to plaintiff filing a properly noticed and supported motion pursuant to Code of Civil Procedure section 425.13. The complaint alleges claims for punitive damages for every cause of action except for the first cause of action for professional negligence. (Complaint, ¶¶ 30, 38, 46, 52, and paragraph 3 of the prayer for relief.) However, plaintiff's causes of action for second through fifth causes of action for intentional infliction ...

Excerpt: ... Court Fees and an Order on Court Fee Waiver. (Declaration of Scott Feig (“Feig Decl.”), ¶ 2.) Plaintiff's counsel submitted the firm's credit card in the event the court denied the Request to Waive Court Fees. (Feig Decl., ¶¶ 3-4.) The order on the court fee waiver was issued on 11/28/18, and notice from the clerk of the court to pay the mandatory filing fee was served on 12/6/18. (Defendant's RJN, Exs. C and D.) On 1/7/19, defendant file...

Excerpt: ...erior Court (2007) 148 Cal.App.4th 556, 570.) Personal jurisdiction may be general or specific. A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (See Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.) Ouning presented evidence to establish that the Court does not have general jurisdiction over it, and NuWave has not presented suff...

Excerpt: ...as to the 1 st CoA. Defendants American Golf Corporation and Root'n USA Corporation's Motion to Strike Portions of the Second Amended Complaint, is GRANTED, without leave to amend, as follows. Punitive damages are not recoverable under the ADA or the Unruh Civil Rights Act. Plaintiff is not entitled to punitive damages under the Unruh Civil Rights Act and the CA Disabled Persons Act. Civil Code section 52(a) is silent on exemplary damages and pro...

Excerpt: ... Tania filed a “Declaration of Reply to Opposition to Jahangir Baroukh's Demurrer No. 1…” on August 30, 2019. However, it appears that Defendant Tania is not an attorney licensed to practice law in California and thus, she cannot appear on behalf of Defendant Jahangir. (See Bus & Prof Code § 6125 - No person shall practice law in California unless the person is an active licensee of the State Bar.) Accordingly, the reply on behalf of Defen...

Excerpt: ...th, 9 th, and 10 th Causes of Action; SUSTAINED, with 20-days leave to amend, as to the 3 rd through 5 th and 8 th Causes of Action; and OVERRULED as to the 7 th Causes of Action as follows. As to the 2 nd cause of action for breach of implied warranty of habitability, this cause of action fails as a matter of law because Defendant was the real estate broker, not owner/landlord of the subject property at issue (See FAC, ¶¶ 3 and 4.). A breach o...

Excerpt: ... Carlos Amezcua. Plaintiff Juan Carlos Amezcua filed a request for dismissal on 3/26/19, which the court entered that same day. (ROA 93.) The Motion is CONTINUED as to Plaintiff Luis Amezcua. Pursuant to CCP § 128.7(c)(1), a motion for sanctions cannot be filed until 21 days after it has been served in order to afford the party being served with the opportunity to correct the violation. Here, it is unclear whether Defendants have served the moti...

Excerpt: ...nts contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court DENIES Defendant's request for judicial notice of Exhibits 2 through 6 on the grounds the exhibit are not properly authenticated and the exhibits are not relevant to the issues on demurrer. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4 th 26, 45, FN9; see also Gbur v. Cohen (1979) 93 Cal. App. 3d 296, 301.) As to the 1 st cause ...

Excerpt: ...s request for judicial notice of Exhibits 1 and 2 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) As to the 1 st through 3 rd Causes of Action as shareholder derivative claims, the Court OVERRULES the demurrer. The Court finds that the SAC has adequately alleged demand futility in paragraph 20 ...

Excerpt: ...y associated with the physical injuries claimed,” and that he “will not present expert testimony regarding the usual mental and emotional distress at trial in support of his claim for damages.” (Carrillo Decl. ¶ 11, Exh. J [Exh. 2 attached thereto].) Moving Parties have not demonstrated exceptional circumstances to persuade the Court to grant the motion despite the stipulation. Further, Moving Parties do not sufficiently demonstrate how De...

Excerpt: ... separate statement provide “all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Here, the “Separate Statement” submitted by the Mr. Weed does not comply with Cal. Rules of Ct., Rule 3.1345(c). It simply attac...

Excerpt: ...pp.4 th 1228, 1238). Having done so, the Court finds sufficient factual allegations to support claims for conversion, either directly or via a theory of civil conspiracy. (See ¶29, ¶65, ¶69, ¶71 and ¶74 of TAC). “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (See Quelimane Co. v. Stewart Titl...

Excerpt: ....App.3d 516, 528-530 [disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 557 & fn. 8].) Defendant, however, fails to demonstrate that all of the documents sought e.g., communication regarding Plaintiff's employment application, promotions or demotions, employment contract, performance evaluations, status of employment and/or absence or tardiness records, are directly relevant to a cause of action or d...

Excerpt: ...ependent Fire District(2015) 61 Cal. 4 th 97, 115; see also Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5 th 74.) Therefore, in non-frivolous FEHA cases, the prevailing party cost provisions are express exceptions to section 1032, and section 998 does not apply as well. The Court finds that the Judgment entered on 12/13/18 needs to be amended to reflect that Defendant is not entitled to costs as the Court does not find that Plaintiff's action...

Excerpt: ...ll of Plaintiff's claims against Defendant arise from an alleged breach of the Litigation Guarantee contract. (See e.g., FAC, ¶¶ 1, 13-17, 21-33, 36-39, 45-47, 49-53, 57- 59.) The FAC, however, fails to adequately allege the contract, i.e., the Litigation Guarantee is not attached as an exhibit to the FAC and its material terms and conditions are not adequately alleged. While Plaintiff contends that such allegations are not necessary because De...

Excerpt: ...ster Association's Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 is GRANTED. Defendant has met its initial burden of making a prima facie showing that the 1 st, 2 nd, and 3 rd causes of action arise from “an act in furtherance of a person's right of petition or free speech under the United States or California Constitutions in connection with a public issue.” (See CCP § 425.15(e).) The causes of action arise fro...

Excerpt: ...holder derivative claims, by failing to allege compliance with Corporations Code §800(d). In this instance, the Complaint alleges Defendants embezzled funds from Heyvoon, Inc. (See ¶16 of FAC). Additionally, the Complaint expressly alleges “Defendants have taken approximately $143,000 of money which belongs to Heyvoon, Inc….” (Id.). Indeed, continuous references to corporate property are included within the First through Third Causes of A...

Excerpt: ...er a jury returned a not guilty verdict and the trial court ordered Plaintiff's release on May 15, 2017. (See SAC, Page 2, Lines 7- 13 and TAC, Page 1, Lines 18- 21.) However, the Third Amended Complaint and the exhibits attached thereto, fail to demonstrate that Plaintiff provided adequate facts or notice that he was complaining about a false imprisonment which occurred AFTER the not-guilty jury verdict and order of the court on May 15, 2017. Ra...

Excerpt: ... Court Case No. BC590724, and the arguments raised by the parties on the grounds that they are not relevant for the purposes of the instant motion. Motion to Compel Arbitration: Defendant submits evidence that Plaintiff signed an arbitration agreement which requires Plaintiff's claims against Defendant in this action to be resolved by binding arbitration. (Declaration of Chelsey Banos at ¶¶ 2-3, Exhibits A-B.) Plaintiff, in opposition, does not...

Excerpt: ... attorney's fees. To the extent Plaintiff intended to seek fees pursuant to C.C.P. §874.020, there has been no showing the referenced fees were incurred for the mutual benefit of the parties, as opposed to “litigating purely controversial issues…” (See C.C.P. §874.020 and Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 433). Alternatively, to the extent the instant Motion is brought pursuant to the Settlement Agreement, the request is prem...

Excerpt: ...c. (No. 6) (collectively “Cross-Defendants”) to serve verified responses confirming full production of responsive documents; and compelling them to produce the documents response to RFP, Set No. Three, including specifically RFP Nos. 31-38 and 43; and monetary sanctions in the amount of $8,367.40 payable by Cross- Defendants and/or their counsel. Motions 2-6 are Denied without prejudice. Cross Complainants filed one motion failing to address ...

Excerpt: ...dent relief pursuant to C.C.P. §473(b) and considered the previously unfiled Privilege Log (See Exhibit 1 of October 3, 2018 Motion), the Court shall now amend the September 17, 2018 order, such as to exempt from production the documents identified on Pages 5-10 and 54-57, in connection with the following cases: (1) Jones v. SCAC and Aaron Brower (18- 975904); (2) Jones v. SCAC and Aaron Brower (No. 18- 970065); and (3) Jones v. SCAC (18- 972679...

Excerpt: ...of discovery and four distinct defendants in addition to requests for relief which were not the subject of the motion, i.e. depositions. In the future, the Court directs counsel to segregate each discovery request as it pertains to each defendant, and file appropriate motions. The Court will not entertain future motions which do not comply with this requirement. Motions seeking discovery responses in which no response has been received is a separ...

Excerpt: ...o Form Interrogatory Nos. 9.1 and 9.2, if not already provided, and pay monetary sanctions in the amount of $1,360.00 within (30) calendar days. Based on the meet and confer correspondence between counsel, it appears that Defendants' failure to timely comply with the Court's May 21, 2018 Order was not willful, but caused by defense counsel's oversight and/or unavailability. Specifically, on June 25, 2018, defense counsel advised Plaintiffs' couns...

Excerpt: ...months after entry of default and on the last day by which Defendants could seek to have default vacated. Defendant concedes he returned to the United States in December of 2017. (See ¶3 of Myong Declaration). Thereafter, Defendant merely indicates he was “trying to catch up on [his] affairs.” (See ¶4 of Myong Declaration). Additionally, while Defendant claims to have been unaware of this action, stating that service of an unrelated matter ...

Excerpt: ... timely filed by Plaintiff, and therefore the First Amended Complaint ceases to perform any function as a pleading. Defendant's Motion for Judgment on the Pleadings as to the First Amended Complaint is therefore MOOT. Defendant is ordered to file and serve an Answer within the next 10 (ten) days. Prevailing party to give notice. ...

Excerpt: ...to support this cause of action. In the event, plaintiff does not amend within 15 days, defendants are ordered to file and serve their Answer to the first amended complaint. 2.Motion to Strike MOOT in light of the court's ruling on demurrer. Plaintiff to give notice as to both motions. ...

Excerpt: ...action arises from protected activity and that the facts of this case do not deal with conduct that is “illegal as a matter of law.” Plaintiffs have not demonstrated under the second prong of the analysis that their cause of action for attempted extortion is both legally sufficient and supported by a prima facie showing of facts that they will prevail on the merits. Plaintiff never paid any money to Defendants to prevail under Penal Code §51...

Excerpt: ...arties are ordered to meet and confer regarding the same and file a Joint Statement, which identifies any documents in dispute and the basis of the disagreement, no later than August 14, 2018. This Joint Statement should provide the Court with sufficient information to resolve the issue of law or, at the least, to determine whether there exist questions of fact. (See Palmer v. Superior Court (2014) 231 Cal.App.4 th 1214, 1235). Moving party to gi...