Excerpt: ...move to augment their expert witness list to add Dr. Laura Audell as a retained defense expert pain management specialist. The court has read and considered the briefs, declarations and other evidence submitted in support of and in opposition to Defendants' motions. Defendants submitted with their reply various exhibits that had not yet existed at the time Defendants filed their motions (e.g., transcripts of depositions not taken until after Defe...

Excerpt: ...lege that Defendant McMahon, Plaintiff S.P.'s “zero period” instructor at GFHS, “had a policy” of not marking students absent from zero period as long as the students attended on Fridays. TAC ¶¶ 15-16. Plaintiffs allege Defendant Landsiedel, the school principal, knew about McMahon's alleged policy. Id. ¶ 16. Plaintiffs allege that numerous times during the second semester of 2016, after Plaintiff M.D.A. dropped S.P. off at school, S.P...

Excerpt: ...on must demonstrate that it is entitled to summary judgment on both of Plaintiffs' causes of action. Flatiron has not done so. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling...

Excerpt: ...aracterization of her claimed damages and the evidence and arguments submitted in support of Defendant's motion do not otherwise demonstrate that the Walker standard is met here. Plaintiff to give notice. ...

Excerpt: ...fected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Furthermore, “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice a...

Excerpt: ...writ proceeding. Pursuant to section 1094.5(b), the inquiry extends to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Cal. Civ. Proc. Code § 1094.5(b). Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or t...

Excerpt: ...g on December 29, 2017; the court (Judge Robert Moss) requested supplemental briefing and continued the motion hearing to January 26, 2018. On January 26, 2018, the court issued a tentative ruling on Trustee Doan's motion and held argument; following argument, the court requested further supplemental briefing and continued the motion hearing to March 2, 2018. The case, including Trustee Doan's motion, was thereafter transferred to this court and ...

Excerpt: ...e following reasons, Defendants' motions are granted. Plaintiff failed to appear for a defense medical examination noticed for January 4, 2018. Plaintiff did not serve objections to the noticed date or otherwise communicate to Defendants that he would not appear. Defendants have rescheduled the medical examination for April 26, 2018. Plaintiff is ordered to appear on April 26, 2018 at 9:00 a.m. at the offices of Steven Nagelberg, M.D., 10800 Para...

Excerpt: ...zing or referring to any communications Royal Pacific had with Defendant Christopher A. Calderon since January 1, 2016 concerning Royal Pacific's hiring of Calderon. Request No. 7 seeks documents reflecting or referring to compensation and benefits Royal Pacific offered Calderon to become employed at Royal Pacific. Royal Pacific objected to both requests on various grounds and stated that it could not produce any responsive documents because “i...

Excerpt: ...nsurance Company's summary judgment motion under seal. Defendant's summary judgment motion is scheduled for hearing on March 22, 2018. Defendant Scottsdale Insurance Company designated some of the documents Plaintiffs seek to file under seal “confidential” pursuant to the Protective Order in this case; Plaintiffs designated other of the documents they seek to file under seal “confidential” pursuant to the same order. Defendant did not fil...

Excerpt: ...ts, which were filed without leave of court and violation of the California Rules of Court. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Civ. Proc. Code § 437c(c). For the following reasons, Defendant's motion for summary judgment is granted. In her third cause of action, Ogle a...

Excerpt: ...any evidence supporting this assertion. Moreover, Defendants also state that “Defendants stand ready to produce the Person Most Qualified and service personnel from Premier Chrysler Jeep of Placentia at a mutually agreeable date and time for deposition so long as those depositions take place at the dealership.” Id. at 2:17-19. Thus, while Defendants appear to contend that these deponents are not party- affiliated witnesses, Defendants also st...

Excerpt: ...ck Eisen in its responses to Special Interrogatory Nos. 2, 4, 6, 8 and 10. After Plaintiff filed this motion, Defendant agreed to produce Eisen for deposition and to accept a subpoena on his behalf. Defendant also provided Plaintiff with second supplemental responses to Special Interrogatory Nos. 2, 4, 24, 32 and 34 on March 7, 2018. Plaintiff did not address these issues or interrogatories in his reply. Accordingly, the court finds Plaintiff's m...

Excerpt: ...intiff to give notice. Plaintiff SP Star Enterprises, LLC's Motion to Compel Further Responses to Special Interrogatories Plaintiff SP Star Enterprises, LLC, moves to compel further responses to Special Interrogatories (Set Two). Plaintiff's motion is granted. Defendant Madain must provide further, complete responses to Special Interrogatory Nos. 71, 83, 85, 86, 90, 91 and 97. These interrogatories are within the scope of discovery. Defendant Mad...

Excerpt: ...rise, mistake or excusable neglect. Defendants argue that the court should set aside the defaults and default judgments entered against them. See Cal. Civ. Proc. Code § 473.5. Defendants submitted a proposed answer to Plaintiff's First Amended Complaint with their motion. See Stopani/Laguna Decl. Ex. A. For the following reasons, Defendants' motion is granted. The court finds Defendants made their motion within the time period specified in secti...

Excerpt: ...Co., Inc. v. Harrison(1981) 125 Cal.App.3d 436, 442. Here, the TAC seeks, inter alia, damages of $2,085,488.22, including $267,800.00 in attorneys' fees. TAC at 64-66 (Prayer for Relief). This is a material change from the Second Amended Complaint (SAC), which sought various types of alleged damages “according to proof at trial,” injunctions, and costs and attorneys' fees. SAC at 64-66 (Prayer for Relief). Defendant is therefore entitled to r...

Excerpt: ...actual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Furthermore, “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alte...

Excerpt: ....4th 1422, 1428. Plaintiff shall file and serve the proposed Second Amended Complaint attached as Exhibit A to the McDougall Declaration by March 26, 2018. Plaintiff to give notice. ...

Excerpt: ...tatement shall “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” Rule 3.1350(d) states that the separate statement of undisputed material facts in support of a summary judgment or summary adjudication motion must identify “[e]ach supporting material fact claimed to be without dispute with respect to the cause of action . . . that is the subject of the motion.” Plaintiff's Separate Statem...

Excerpt: ...is sustained in part and overruled in part. Plaintiff alleges four causes of action in the SAC: (i) breach of Governing Documents; (ii) declaratory relief; (iii) abatement of nuisance and nuisance per se; and (iv) intentional interference with contractual relations. Plaintiff alleges Defendants have harassed one of Plaintiff's employees and have violated Plaintiff's rules by constructing an unauthorized patio cover in violation of Covenants, Cond...

Excerpt: ...on against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced with one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. Cal. Civ. Proc. Code § 340.6(a). Under secti...

Excerpt: ...anted Mercury's summary judgment motion because Plaintiff filed her lawsuit after the one-year limitations period set forth in Plaintiff's policy with Mercury had expired. As discussed below, there is substantial evidence to support the decision. Plaintiff's policy with Mercury contains a one-year limitations period: "Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started ...

Excerpt: ... Special Interrogatory Nos. 36 through 148. See Cal. Civ. Proc. Code § 2030.040(b); Plaintiff's Opposition at 6:10-9:20. Several of these interrogatories seek facts, witnesses and documents supporting Defendant's thirty-one affirmative defenses (Nos. 59 through 148) and the other interrogatories cover appropriate areas of discovery (e.g., Nos. 44 through 46, seeking information supporting Defendant's contention that the alleged public disseminat...

Excerpt: ...nt of Undisputed Facts, Nos. 2, 4, 7, 11-12, 15, 16, 19, 28-30 & 33-34. Defendants showed a triable issue of material fact with respect to each of these causes of action – the amount owed. SeeDefendants' Opposing Separate Statement of Disputed Facts, Nos. 12, 13, 19, 20, 34 & 35. Plaintiff's motion is therefore denied as to Plaintiff's first, second and fifth causes of action. Plaintiff met its burden of demonstrating it is entitled to summary ...

Excerpt: ...dication is denied. The court (Judge David T. McEachen) previously denied Defendant's motion for summary judgment on statute of limitations grounds, finding that “there is a disputed fact as to when Fantastic Path knew or should have known that the Second Deposit was released.” 07/28/17 Order. Plaintiff, in seeking summary judgment and summary adjudication in its favor on its first and second causes of action, implicitly (if not explicitly) a...

Excerpt: ...e deemed to constitute “new litigation” subject to that order. In the alternative, Defendant requests an order that it need not respond to future motions filed in this case until the court initially determines whether the court has jurisdiction to consider the motions. For the following reasons, Defendant's motion is denied. California Civil Procedure Code § 391.7 states that “the court may, on its own motion or the motion of any party, en...

Excerpt: ... identified in response to Form Interrogatory Nos. 12.1(d), 12.2(d), 15.1(b) and 17.1(c). Defendant has agreed to produce each of the individuals who is still employed by Defendant and to accept deposition subpoenas on their behalf. Additionally, Defendant has provided Plaintiff's counsel with the last known contact information for the three individuals Plaintiff seeks to depose who are no longer employed by Defendant. Plaintiff did not address t...

Excerpt: ...y of the specific allegations in each cause of action refer only to a single “Defendant.” Plaintiff's explanation in her opposition that any given allegation “ultimately applies to one or both of the Defendants” illustrates the ambiguity. Defendants cannot be certain which causes of action are alleged against which Defendant, which prevents Defendants from reasonably responding to the Complaint. Plaintiff must file and serve an amended co...

Excerpt: ... any future motions to strike or motions for judgment on the pleadings. Plaintiff's Complaint pleads sufficient facts to support a claim for fraudulent concealment. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 292. Plaintiff alleges the existence of a fiduciary relationship (Complaint ¶ 6), that Defendant concealed certain facts regarding Plaintiff's dental trea...

Excerpt: ... Ex. 3 (“I Pancho Odal Yarra . . . agree that Jocylin Dumapias Lopez is hired for $150/day beginning Aug. 8, 2016.”). Plaintiff's and Defendant's Requests for Judicial Notice are granted. Plaintiff to give notice. Defendant Pancho Odal Yarra's Motion to Strike Portions of Plaintiff's Complaint Defendant Pancho Odal Yarra moves to strike portions of Plaintiff Jocylin Lopez's Complaint. Yarra's motion to strike is denied. As an initial matter, ...

Excerpt: ...the company in conformity with the articles of organization or the operating agreement and that dissolution is reasonably necessary for the protection of the rights or interests of the complaining member. Plaintiff alleges these grounds in the FAC, but Plaintiff also alleges that dissolution is necessary because the members are deadlocked. See FAC ¶ 30. Paragraph 10.9 does not even purport to waive a right to seek judicial dissolution in the eve...

Excerpt: ... any future motions to strike or motions for judgment on the pleadings. Plaintiff's Complaint pleads sufficient facts to support a claim for fraudulent concealment. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 292. Plaintiff alleges the existence of a fiduciary relationship (Complaint ¶ 7), that Defendant concealed certain facts regarding Plaintiff's dental trea...

Excerpt: ...owing: Physical examination at 26732 Crown Valley Parkway, Suite 561, Mission Viejo, CA 92691 on April 5, 2018 at 9:00 a.m. Physical examination at 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660 on April 2, 2018 at 1:30 p.m. Civil Procedure Code section 2032.220(a) provides that any defendant may demand one physical examination of a plaintiff seeking damages for personal injuries. A defendant desiring a second physical exam must file a ...

Excerpt: ...e § 2031.300(b). By failing to serve timely responses, Plaintiff waived “any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” Id. § 2031.300(a). Defendant served Requests for Production on Plaintiff in May 2017. Kraemer Decl. ¶ 2 & Ex. A. After receiving no responses, Defendant provided Plaintiff with an unsolicited additional ten days to re...

Excerpt: ...ntiff's motion. For the following reasons, Plaintiff's motion is denied. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his or her claim and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct...

Excerpt: ...tions for summary judgment and summary adjudication are denied. Nationstar first argues that the court should grant summary judgment as to Plaintiff's entire case because all of Plaintiff's claims fail for lack of recoverable damages. Nationstar met its initial burden by setting forth evidence that Plaintiff agreed to a limitation on its available damages in the Short Sale Agreement. The Short Sale Agreement states: 14.B. SELLER DEFAULT. BUYER AN...

Excerpt: ...viously agreed to dismiss that cause of action. Opposition at 6:18- 20. The indemnity and contribution/apportionment claims alleged in the second, third and fourth causes of action are based on potential liability for alleged construction defects. There can be no indemnity without liability. City of San Diego v. United States Gypsum Co. (1994) 30 Cal.App.4th 575, 587-589. As a result, an indemnity claim requires that the complainant have paid a c...

Excerpt: ...aint].” Complaint paragraph 5. This allegation is insufficient to support causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, negligence, and violation of California Business & Professions Code section 17200. There are no allegations of any relationship between Plaintiff and the Leeor Defendants (contractual or otherwise), any misrepresentation by the Leeor Defendants, any duty or breac...

Excerpt: ...f to comply with Plaintiff's responses to Pacific Transformer's Requests for Production Nos. 8, 18 and 19. Defendants also seek sanctions. Plaintiff does not oppose these motions, but opposes Defendants' request for sanctions. Based on Plaintiff's non-opposition, Defendants' motions are granted. Plaintiff shall produce any responsive documents not yet produced by March 15, 2018. Defendants' request for sanctions is granted. See Cal. Civ. Proc. Co...

Excerpt: ...s court. “The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. ‘The order of the appellate court as stated in the remittitur, ‘is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if...

Excerpt: ...ordance with California Rule of Court 2.550, the court finds that the nature of the documents Scottsdale seeks to seal, i.e., an insurance application and correspondence between Plaintiffs and Scottsdale related to insurance coverage, supports sealing the documents due to the confidential information set forth in such materials. In addition, the proposed sealing is narrowly tailored and extends only to certain exhibits submitted by Scottsdale in ...

Excerpt: ... while these motions were pending, Defendant served supplemental responses to these requests. As described below, Plaintiff's motions are granted in part and denied in part. The court has reviewed all of the materials submitted in support of and in opposition to these motions, including Defendant's supplemental responses. Defendant is ordered to send a letter to Plaintiff by February 22, 2018 stating whether Defendant has withheld any documents o...

Excerpt: ...et profits of her law firm for the years 2010 through 2014. Plaintiff responded to each of these interrogatories by referring to tax documents that Plaintiff would produce reflecting the law firm's profits on an annual basis. Special Interrogatory Nos. 39 through 42 ask Plaintiff to provide the business expenses for her law firm for the years 2010 through 2013. Plaintiff responded to each of these interrogatories by referring to tax documents tha...

Excerpt: ...e in confusing the various advertisements Defendants have published. This error did not cause any significant effect on the pleading. In the declaration of Proud Usahacharoenporn, there was adequate explanation for this mistake. Plaintiff's first cause of action sufficiently alleges breach of contract, as Judge Crandall previously concluded in connection with Defendants' prior demurrer. See Constructive Protective Servs, Inc. v. TIG Specialty Ins...

Excerpt: ...her motion and her supporting papers by mail was January 12, 2018. Plaintiff's proof of service states that she served her motion and supporting papers by mail on January 15, 2018; Defendant argues that Plaintiff in fact did not serve her motion and supporting papers until January 16, 2018. Either day was insufficient. As a result, the hearing on Plaintiff's motion is continued to April 5, 2018 at 1:30 p.m. in Department C13. Defendant shall file...

Excerpt: ... through 13, 15 through 19, 21, 23, 26 through 28, 33 through 35 and 46 from Defendant Sares Regis Management Company (Sares) and Defendant Greystar, L.P. (Greystar). Plaintiff also moves for sanctions against Sares and Greystar. The court has reviewed all of the materials submitted in connection with Plaintiff's eight discovery motions, including the parties' briefs, separate statements, correspondence, and the discovery requests and responses a...

Excerpt: ... to section 425.16(e)(1). Defendant also argues that Plaintiff cannot prevail in his defamation suit against Defendant because the statements made in the Victim Impact Statement are privileged. For the following reasons, Defendant's motion is granted. Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under...

Excerpt: ... Superior Ct. (2003) 114 Cal.App.4 th475, 480-81 (financial records are protected by individual's right to privacy); Valley Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 (individual has right to privacy in his or her confidential financial affairs). Plaintiff has not identified countervailing interests that outweigh Defendant's privacy interests in his financial records with respect to much of the information sought by the subpoenas. See...

Excerpt: ...dants. Both of these causes of action also include, respectively, a conclusory allegation that (i) Defendants' conduct “was the result of willful and wanton acts or omissions and/or done with a conscious disregard for the safety of the users of the Product involved in the ACCIDENT,” FAC ¶ 37, and (ii) Defendants' acts were done “willfully, wantonly and/or with a conscious disregard of others.” Id. ¶ 47. In order to survive a motion to s...

Excerpt: ...orizon facility for an event sponsored by Defendant. Defendant initially objected to this interrogatory and responded “hotel venue vendor;” in its supplemental response, Defendant objected again and responded that it “is not ‘affiliated' with Horizon Resort & Casino” and that Defendant “has used Horizon as a hotel venue vendor on two occasions.” Plaintiff's motion to compel is granted. Interrogatory No. 1 seeks relevant information....