Excerpt: ...rm and special interrogatories on Plaintiff on February 20, 2018. Alvanos Form Interrogatory Decl. Ex. 1; Alvanos Special Interrogatory Decl. Ex. 1. Pursuant to various extensions, Plaintiff's responses were due on April 12, 2018. Alvanos Form Interrogatory Decl. ¶ 5 & Ex. 3; Alvanos Special Interrogatory Decl. ¶ 5 & Ex. 3. Plaintiff has not served any responses. Alvanos Form Interrogatory Decl. ¶¶ 10- 11; Alvanos Special Interrogatory Decl. ...

Excerpt: ... court addresses section 128.7 motion); id. § 1005(b) (“all moving and supporting papers shall be served and filed at least 16 court days before the hearing”) (emphasis added); Cal. R. Ct. 3.1300(c) (“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”). Defendant also did not comply with section 128.7(c)(1) (“Notice of motion shall be served as provided in Secti...

Excerpt: ...nges only the legal sufficiency of the affected 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.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. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts ...

Excerpt: ...sufficiency of the affected 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.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. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been a...

Excerpt: ...tiff's job duties in May had been hired in March of 2016. In March of 2016 and May of 2016 people had been hired and they took over most of Plaintiff's job duties in May and then the remainder of her job duties in October 2016 when she demanded that she receive a raise in pay or that her job duties be reduced. Carlsen Decl. Ex. B (at 13:23-14:2). Plaintiff's Special Interrogatory No. 9 seeks the names of the individuals referred to in Defendant's...

Excerpt: ...ng, 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.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. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless the...

Excerpt: ...lowing reasons, Cross-Defendants' demurrer is sustained with leave to amend. The elements of intentional interference with prospective economic relations are: (i) an economic relationship between Cross-Complainant and a third party that probably would have resulted in an economic benefit to Cross-Complainant; (ii) Cross-Defendants' knowledge of the relationship; (iii) wrongful conduct by Cross-Defendants; (iv) by engaging in the wrongful conduct,...

Excerpt: ...he claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, ...

Excerpt: ...he requests. The court has reviewed Plaintiff's supplemental responses and finds that they moot Defendant's motion as to those forty-seven requests. California courts have recognized that requests for admission differ in purpose from other commonly used discovery devices, such as interrogatories, document demands, or depositions. City of Glendale v. Marcus Cable Assocs., LLC (2015) 235 Cal.App.4 th 344, 352. Although requests for admission are in...

Excerpt: ...t entirely of objections. SeeCal. Civ. Proc. Code § 2030.250(a) (“The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.”). If the responses contain an objection(s), the party's attorney must sign the response. See id. § 2030.250(c) (“The attorney for the responding party shall sign any responses that contain an objection.”). “The objections themselves do not...

Excerpt: ...45 Cal.App.4 th 170, 186. Plaintiff alleges, inter alia, that Defendant misrepresented to her that she required root canals on six healthy teeth that did not require root canals, FAC ¶ 30, and that Defendant knew the representations were false when made or made them recklessly and without regard for their truth. Id. ¶ 31. Plaintiff alleges that Defendant intended that Plaintiff would rely on the representations and undergo unnecessary treatment...

Excerpt: ...ed to possession of the property claimed; (2) show that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and the belief of the plaintiff of the reason for that detention; (3) describe the property and state its value; (4) provide the location of the property and whether the property or some part of it is within a private place that may have to be entered to take possessi...

Excerpt: ...Suite, Inc. and JS CJ3 LLC for alleged lack of personal jurisdiction. Defendant Cessna Finance Corporation moves in the alternative to dismiss or stay this case based on a forum selection clause in agreements between Cessna Finance and Plaintiff JS CJ3, LLC. For the following reasons, Defendant Beverlin's motion to quash is denied, Defendant Textron's motion to quash is denied, and Defendant Cessna Finance's motion to quash is granted. In light o...

Excerpt: ... that the vicarious liability allegations in the first through fifth and eighth causes of action are duplicative of the tenth cause of action. “For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee's tortious conduct was committed within the scope of employment.” Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209. A risk arises out of the employment when in the context of the particular enterprise ...

Excerpt: ...and overruled in part. “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. Accordingly, a demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice. Id. The allegations of th...

Excerpt: ...tions of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected 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.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, ...

Excerpt: ...lure to serve responses to the requests, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Plaintiff shall provide responses, without objections, to Defendant's Special Interrogatories (Set One) by May 31, 2018. Defendant's reque...

Excerpt: ... below the superior court jurisdictional amount, and the court affords the parties an opportunity to contest transfer.” Walker v. Superior Ct. (1991) 53 Cal.3d 257, 262. Having read and considered the arguments and evidence submitted by Plaintiffs and Defendant, the court cannot conclude that this case will necessarily result in a verdict below the superior court jurisdiction amount. See Small Decl. ¶¶ 2-4 & Exs. 1 & 2. Plaintiffs to give not...

Excerpt: ...ses its discretion pursuant to section 426.16(f) to hear Defendant's motion despite its filing more than sixty days after service of the complaint. The circumstances of this case are not like those in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5 th 637, which involved a special motion to strike filed after “much litigation” and against causes of action contained in an amended complaint that had also been cont...

Excerpt: ...s do not contend that service of summons did not result in actual notice in time to defend the action. See Cal. Civ. Proc. Code § 473.5(a). Section 473 applies to Defendants' motion. Defendants argue that the defaults were entered due to Defendants' mistake, inadvertence, surprise or excusable neglect. See id. § 473(b). Specifically, Defendants argue that their prior counsel failed to communicate with them and, in particular, failed to advise t...

Excerpt: ...nary injunction shall be granted without notice to the other party.”); Pacific Decision Sciences Corp. v. Superior Ct. (2004) 121 Cal.App.4 th 1100, 1110 (“Prior notice is always required before the court issues a preliminary injunction.”) (emphasis in original). A preliminary injunction may be sought by noticed motion pursuant to California Code of Civil Procedure § 1005 or by an application for an Order to Show Cause (OSC). Cal. R. Ct. 3...

Excerpt: ...nts Derek Phan and Tung Phan pursuant to California Code of Civil Procedure Section 998, and Goldstein [sic] v. Bank of San Pedro, 27 Cal. App. 4 th 899 (1994), hereby jointly offer to compromise and settle his [sic] matter as to Plaintiff Karrie Sartin upon payment to her of the total sum of $1,000.00 [one thousand dollars]. All parties to bear their own attorney's fees and costs. After Plaintiff's timely acceptance of this statutory offer by fi...

Excerpt: ...ment may be issued; (2) the plaintiff has established the probably validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance of a writ of attachment only if the plaintiff's claim has ...

Excerpt: ...r from recording or filing any documents concerning the Property. The court denied Plaintiffs' previous motion for a preliminary injunction in an April 5, 2018 order. For the following reasons, Plaintiffs' renewed motion is denied. A trial court may not consider an application to reconsider an order or renew a motion unless it is made in accordance with the requirements of California Code of Civil Procedure § 1008. Section 1008 is jurisdictional...

Excerpt: ...not serve and file Judicial Council forms MC-052 and MC-053 in support of the motion. See Cal. R. Ct. 3.1362(c), (e). Counsel also request in the March 2, 2018 motion that the court continue the May 14, 2018 trial date. That request is denied. Counsel has not provided evidence of good cause for a trial continuance, which is not addressed at all in Attorney Sobti's declaration in support of the March 2, 2018 motion. The March 8, 2018 motion is den...

Excerpt: ...intiff to file any amended complaint by December 21, 2017. See id. Plaintiff did not do so. Accordingly, Plaintiff's first and second causes of action, and the punitive damages allegations related to those two causes of action, remain dismissed. There is no need for Defendant to move separately to strike those portions of the FAC. Defendant's motion to strike is therefore denied. Defendant's Request for Judicial Notice is denied. Defendant need n...

Excerpt: ...ations regarding Defendant's intoxication at the time of automobile collision at issue in this case to allege entitlement to punitive damages at this stage. See, e.g., First Amended Complaint ¶¶ 6, 8, 9. Dawes v. Superior Court (1980) 111 Cal.App.2d 82, on which Defendant relies, supports the conclusion that Plaintiff's First Amended Complaint alleges sufficient facts to support her punitive damage prayer. Defendant to serve and file an answer ...

Excerpt: ... the court confirmed in a December 7, 2017 order. See 12/07/17 Order. On January 2, 2018, the court entered judgment in conformity with the Final Award, pursuant to California Code of Civil Procedure § 1287.4. See 01/02/18 Judgment. The Final Award, upon which the court entered judgment, states: (i) “[c]ounsel for the parties met and conferred and agreed neither party will move for costs and fees;” (ii) Defendant Zucaro “shall not recover ...

Excerpt: ...a) states that “[u]pon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” Cal. Civ. Code § 2923.7(a). The statute defines “single point of contact” as “an individual or team of personnel each of whom has the ability and authority to perf...

Excerpt: ...is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance of a writ of attachment only if the plaintiff's claim has probable validity; i.e., where it is more likely than not that the plaintiff will obtain a judgment against the def...

Excerpt: ... Superior Ct. (1984) 157 Cal.App.3d 159, 166. Plaintiffs' Complaint states sufficient allegations related to Defendants' pit bull attacking and biting Plaintiffs, and Defendants' maintenance and control of the pit bull, to allege entitlement to punitive damages at this stage. Defendants to respond to Plaintiff's Complaint by May 14, 2018. Plaintiffs to give notice. ...

Excerpt: ...nterrogatories (Set One), Amended Special Interrogatories (Set One), Amended Requests for Production (Set One), and Amended Requests for Admission (Set One). Defendants claim Plaintiff waived her objections to these four sets of discovery by serving allegedly untimely responses. For the following reasons, Defendant's motions are denied. Plaintiff's responses to these four sets of discovery were initially due on December 26, 2017. In light of the ...

Excerpt: ...bmitted in support of Plaintiff's motion sets forth the attorneys' fees and costs Defendant has incurred. See Zech Decl. ¶ 2. The amount includes $1,600 in attorneys' fees anticipated to be incurred for reviewing Plaintiff's opposition and attending the hearing on this motion. Because Plaintiff did not file an opposition, the court will not award attorneys' fees for that work. Defendant is awarded $2,400 in attorneys' fees and $525 in costs, whi...

Excerpt: ...e private entity renders her complaint uncertain, confusing and ambiguous, as does her use of “Defendants” through the complaint when it appears that particular allegations only apply to one or the other of Defendants. See Cal. Civ. Code § 430.10(f). Defendant City of Santa Ana's demurrer is sustained. Should Plaintiff desire to file an amended complaint, she must file and serve it by May 14, 2018. Defendant's unopposed Request for Judicial ...

Excerpt: ...stantially comply with Code of Civil Procedure § 2033.220. Pursuant to section 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated” the motion. Accordingly, because Plaintiff's failure to serve timely and complete responses to Defendant's Requests for Admis...

Excerpt: ...roduce documents responsive to Plaintiff's Request for Production of Documents (Set One) Nos. 2 and 7. For the following reasons, Plaintiff's motion is granted. Request No. 2 seeks documents constituting, memorializing 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 ...

Excerpt: ...alleges that Defendant misrepresented to him that he required root canals on healthy teeth that did not require root canals, Complaint ¶ 25, and that Defendant knew the representations were false when made or made them recklessly and without regard for their truth. Id. ¶ 26. Plaintiff alleges that Defendant intended to deceive Plaintiff, id. ¶ 27, and that Plaintiff relied to his detriment and was damaged. Id. ¶¶ 28, 33. Plaintiff meets the ...

Excerpt: ...Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected 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.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. Because a demurrer tests only the sufficiency of the complaint...

Excerpt: ...le an opposition. For the following reasons, Plaintiffs' demurrer is sustained in part and overruled in part. “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. Accordingly, a demurrer reaches only to the contents of the pleading and such matter...

Excerpt: ...tion is granted. Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Ellard v. Conway (2001) 94 Cal.App.4 th 540, 544. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Id.; see also OC Interior Servs., LLC v. Nationstar Mortg. (2017) 7 Cal.App.5 th 1318, 1330-31. Under section 473(d), the court may set as...

Excerpt: ...Plaintiffs move for entry of judgment based on the settlement agreement, which Plaintiffs allege Defendants have breached. Defendants did not file an opposition to Plaintiffs' motion. For the following reasons, Plaintiffs' motion is granted. In a September 6, 2016 order, the court (Judge Andrew P. Banks) granted issue sanctions against Defendants, establishing liability against Defendant Ocampo on Plaintiffs' first cause of action for financial e...

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: ...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: ...ss and overbreadth. For the following reasons, Plaintiff's motion is granted in part and denied in part. Defendant hired attorney Michael Robbins and his firm EXTTI, Inc. “to provide limited legal services in the form of a workplace investigation” related to Plaintiff's allegations. Robbins Decl. ¶¶ 2, 5-8 & Ex. A. Defendant contends that the attorney-client privilege shields all of the information and documents sought by Requests for Produ...

Excerpt: ...ued Terrazas, its former employee, and others on August 22, 2016, alleging that Terrazas and others embezzled from Avenal and otherwise misused Avenal funds. Cross-Defendants Yuan Hong Taiwan Enterprises (Yuan Hong) and Neoteric Entertainment, Inc. (Neoteric) also sued Terrazas the same day based on similar allegations. Yuan Hong alleges in its complaint that Cross-Defendant Reggie King is Yuan Hong's principal. Cross-Defendants contend Terrazas'...

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: ...6, alleging that the Controller had, in 2007, improperly paid Johannes-Surmenian one-half of the value of five properties for which Benavides had submitted a claim to the Controller. Plaintiff alleges that Johannes- Surmenian's claim to the Controller and subsequent refusal to return the proceeds she received from the State to Plaintiff resulted in more than $160,000 in damages to Plaintiff. Johannes-Surmenian subsequently filed a cross-complaint...

Excerpt: ...ling any documents concerning the Property. Having read and considered all of the documentation submitted by the parties in support of and in opposition to Plaintiffs' motion, including the parties' briefs, declarations, and exhibits, the court denies Plaintiffs' motion for the following reasons. Plaintiffs allege that Defendant's deceased husband provided a usurious loan to Plaintiffs in April 2007. The purpose of the loan was to refinance the P...

Excerpt: ...an opposition to Plaintiff's motion. If a party does not obey an order compelling further responses to interrogatories, the court may make those orders that are just. Cal. Civ. Proc. Code § 2030.300(e); see also id. § 2023.030. The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Doppes v. Bentley Motors, Inc.(2009) 174 Cal.App.4 th 9...

Excerpt: ...es, as well as the arguments of counsel at the February 8, 2018 hearing, the court grants Reliant's motion in part and denies it in part for the following reasons. The parties agree that Plaintiff's case should be arbitrated. SeePlaintiff's Opp. at 1:6-7; Plaintiff's Supp. Brief at 2:8-9. The parties dispute, however, whether Plaintiff is required to accept the American Arbitration Association (AAA) as the arbitration provider. When Plaintiff pur...

Excerpt: ...family way.'” Vinas's Compendium of Exhibits, Ex. 1 (at 15-16). Although these interrogatories refer to allegations in Cross-Complainants' Wayne Hayes and Amy Hayes's Cross-Complaint, see id. (Special Interrogatory No. 67), Cross-Complainants have filed a First Amended Cross-Complaint. The allegations to which Special Interrogatory Nos. 68 through 75 refer appear in paragraph 20 of the First Amended Cross-Complaint. Paragraph 20 alleges, in rel...

Excerpt: ...s allegedly have not exhausted required administrative remedies for that claim. For the following reasons, Defendants' demurrer is overruled. Defendants' demurrer to both causes of action based on uncertainty is overruled. Demurrers for uncertainty are disfavored. Lickiss v. Financial Indus. Regulatory Auth. (2010) 208 Cal.App.4th 1125, 1135. These causes of action are not “so incomprehensible that [Defendants] cannot reasonably respond.” Id....

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

Excerpt: ...following reasons, Defendant's motion is granted. A. Vicarious Liability California law generally imposes liability on the owner of a vehicle, albeit there is a limitation on the amount of damages that may be collected for any resulting death or injury. See Cal. Veh. Code §§ 17150, 17151. The Graves Amendment, however, precludes liability based on the law of any state against an owner that is in the business of renting vehicles, if the harm occ...