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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...