Excerpt: ...enal Code and Intentional Interference with Prospective Economic Advantage, respectively. As an initial matter, the court does not find the FAC to be uncertain. This is true for all of the Moving Defendants. A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are direct...

Excerpt: ... motion. The “completed and accepted doctrine” provides that when a contractor's work has been completed and accepted by the property owner, the contractor is no longer liable to 3 rd parties for injuries that may occur as a result of the condition of the work, even if the contract was negligent in carrying out the contract. Jones v. P.S. Development Co. Inc. (2008) 166 Cal. App. 4 th 707, 717 (disapproved on other grounds, Reid v. Google, In...

Excerpt: ...c. § 438(c)(1)(B)(ii). As in with a demurrer, the grounds for judgment on the pleadings must appear on the face of the complaint or be based on facts that the court may judicially notice. Code Civ. Proc. § 438(d). Extrinsic matters may not be considered; the pleading under attack must be accepted as true. Id. Cal. Prac. Guide, Civ. Proc. before Trial (Rutter 2013) 7:322. 1st cause of action for breach of contract “A cause of action for breach...

Excerpt: ... asserting it was untimely filed. Plaintiff cites no authority which addresses the timing of such Motions. Nonetheless, the Court finds the Motion was reasonably brought, within a month and a half of Defendants' Answer and prior to any significant litigation in this action. (Global financial Distributors Inc. v. Superior Court (2019) 35 Cal.App.5 th 179, 192-193). Additionally, Maryland is a suitable forum for this action, given Defendants' conse...

Excerpt: ...equesting production in connection with this deposition). Plaintiffs may renew this motion after the deposition, with a separate statement and a record of (i) what Sunbelt has and has not produced and (ii) meet and confer attempts for the specific requests. Plaintiffs are awarded monetary sanctions of $7,785.00. The court declines to award greater sanctions at this time as does not appear that lesser sanctions will be futile. Should they prove to...

Excerpt: ...panish, was provided to the Plaintiff. Plaintiff signed the agreement. (Mercado Decl. at ¶¶ 4, 5, Exhs. A, B.) The agreement is governed by the Federal Arbitration Act and is broadly-worded to apply “to any dispute arising from or relating to the Employee's [] application for employment, employment, or termination of employment.” (Taylor Decl. at p. 3.) At the outset, the Court notes that Defendant's objection to the entirety of Plaintiff's...

Excerpt: ...ed to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complain...

Excerpt: ...e defective. The proof of service for the motion was filed on December 6, 2019, but it was dated and executed on December 8, 2019. (ROA 67.) The proof of service for the declaration accompanying the motion was also filed on December 6, 2019 but dated and executed on December 9, 2019. (ROA 68.) These are not sufficient proofs of service. The proof of service could not possibly have been executed on 12/8/19 or 12/9/19. Nor could the declarant truth...

Excerpt: ...equest, or receive, the Court's permission to exceed the page limit. Cal. R. Ct. Rule 3.1113(e). Additionally, the Court declines to rule on Defendants' objections to Plaintiff's evidence, as they are not dispositive of the ruling on the motion. Merits Plaintiff brings three causes of action against Defendants, including: (1) retaliation (Labor Code § 1102.5); (2) wrongful termination in violation of public policy; and (3) unfair business practi...

Excerpt: ... the FAC alleges Connie and Lisa made sexual comments “almost daily” but stops short of alleging those comments continued “almost daily” from 2012 up until the date Plaintiff resigned in 2019. The court does not read the FAC in such a limiting way. The FAC, at a minimum, implies that the harassing conduct continued. The continuing violation doctrine may be implicated as well. The Court “will not sustain a demurrer unless the basis for t...

Excerpt: ...es: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213. Separately, Code Civ. Proc. § ...

Excerpt: ...ged. (Code Civ. Proc., § 426.15(e) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67.) If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least “minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Plaintiff alleges a number of cl...

Excerpt: ...t's disposition of the motion. In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. The noticed issues for summary adjudication must then be stat...

Excerpt: ...the trial for this case was continued roughly 30 days before it was to commence. But for this fortuitous continuance, this case would have proceeded to trial without the corporate defendant who would have likely been dismissed at the inception. Court also notes that $250 sanction remains unpaid and outstanding against Plaintiff's counsel for failure to appear at the MSC. The Court orders this sanction paid within 10 days. Court is inclined to dis...

Excerpt: ...cation for an order sealing the record. The motion or application “must” be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” Cal. R. Ct. Rule 2.551(b)(1). The court may order that a record be filed under seal only if it expressly finds facts that establish that: there exists an overriding interest that overcomes the right of public access to the record; the overriding interest supports seali...

Excerpt: ...efendant's second supplemental responses to the interrogatories. Pursuant to Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409, it is within the Court's discretion as to whether to provide a ruling on the motion based on the further responses. Given the time and effort that has been put into the briefings and recent meet and confer efforts by the parties, the Court exercises its discretion and p...

Excerpt: ...he reasons set forth below. DEF Equaltox, LLC, Cranford L. Scott, MD and Cranford L. Scott, MD, Inc. 2. Motion to Strike Defendants Equaltox, LLC, erroneously sued as Equaltox, Inc., Cranford L. Scott, MD, Cranford L. Scott, MD, Inc., and Smensa seek an order striking paragraphs 53, 60, 68, 84, and 91 from the TAC and paragraph 6 from the prayer in the TAC. Defendants contend Plaintiffs have not shown they are entitled to attorney's fees pursuant...

Excerpt: ...ontractor, to install the fire sprinkler system for the tower. (See SSUF No. 2). Further, it is undisputed that Plaintiff “only took directions regarding his work on the Project including safety protocols, directly from his supervisor at APEX, Paul.” (See SSUF No. 13). It is similarly undisputed that “[m]oving defendants were not the employers of Plaintiff Losey [and] [m]oving defendants had no part in training, equipping or directing the m...

Excerpt: ... Code Civ. Proc. § 2032.320(a). “Good cause” generally means there is a showing of both “relevancy to the subject matter” and “specific facts justifying discovery.” Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 8:1557 (original emphasis) (citing Vinson v. Superior Court (1987) 43 Cal.3d 833, 840). Here, moving defendants have shown “good cause” for an order for leave to take a neuropsychological examination of plaintiff. Plaintif...

Excerpt: ...g on. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. The noticed issues for summary adjudication must then be stated, verbatim, in the separate statement. CRC 3.1350(b). The court did not consider new evidence submitted on reply. Generally speaking, new evidence may not be submitted on reply in support...

Excerpt: ... under section 391.7 is granted. Defendant's request for Plaintiff to furnish security under section 391.3 is denied. Defendant's request for judicial notice of Exhibits B through S is denied, because the copies of these exhibits filed by Defendant are illegible. Evid. Code § 453(b). However, the Court exercises its discretion to take judicial notices of the matters specified therein, i.e., the dockets sheets from this Court, in ruling on this m...

Excerpt: .... Ninth cause of action – Derivative – Conversion; 7. Tenth cause of action - Derivative – Declaratory Relief; 8. Eleventh cause of action – Derivative – Unjust Enrichment; and 9. Twelfth cause of action – Derivative – Constructive Trust. The demurrer by SC&P is sustained in full with 20 days leave to amend. The demurrer by Park is overruled as to the 7 th cause of action for fraud, and sustained with 20 days leave to amend as to th...

Excerpt: ...ard prejudgment interest in all noncontract cases “and in every case of oppression, fraud or malice” … hence in all unliquidated tort actions. This has been characterized as a “necessary element of compensatory damages to insure a plaintiff is made whole” and hence part of plaintiff's “actual damages”; it represents the accretion of wealth that money or particular property could have produced during a period of loss (between the tim...

Excerpt: ... the CDC's website about preventing construction falls. The court overrules Plaintiffs' objection nos. 1-29 to RDO's evidence. The court sustains objection nos. 1, 2, 4-7, 9-18 to the Declaration of Brad Avrit and overrules objection nos. 3, 8, The Privette v. Superior Court (1993) 5 Cal.4th 689 line of cases modifies the general tort rules under Civil Code section 1714. Plaintiffs' argument that a duty of care exists under Biakanja v. Irving (19...

Excerpt: ... attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Ca...

Excerpt: ...larly, Objection No. 2 to the Declaration of Michael Overturf is SUSTAINED, for lack of foundation. Mr. Melendes offers insufficient foundation to testify to the conduct of all Maranatha employees, at the Del Amo Project site: While Mr. Melendes declares he is the “individual principally involved on behalf of Maranatha….regarding the Del Amo Motorsports project,” as noted by Plaintiff, he does not declare that he managed the work performed,...

Excerpt: ...event involves an additional egregious component— ‘oppression, fraud, or malice.' (Civ.Code, § 3294, subd. (a).)” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712. “[T]he Legislature has made it more difficult for plaintiffs to plead and prove such claims,” (id. at p. 712) including by amending section 3294 in 1987 “by increasing the plaintiff's burden of proving punitive damages at trial to ‘clear and convincing ...

Excerpt: ...., goods sold, work done, etc., and (3) nonpayment.'” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460. To state a cause of action for money had and received, Plaintiff must allege Defendants “are indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.'” Id. “Th[e] common count [of money had and received] is available in a great variety of situations and lie...

Excerpt: ... of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court ...

Excerpt: ...ed section 474 to mean that plaintiff must be not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant. General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594. This requirement is satisfied even if plaintiff's lack of knowledge is due to his or her own negligence; “section 474 does not impose upon the plaintiff a duty to go in search of facts she d...

Excerpt: ...e motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. ...

Excerpt: ... 2nd cause of action for unfair business practices The UCL (B&P Code § 17200, et seq.) prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” A party only has standing to assert a Section 17200 claim if he or she has (i) “suffered injury in fact,” and (ii) lost money or property as a result of such unfair competition.” (Bus. & Prof. Code § 17204; see also Kwikse...

Excerpt: ...71). This privilege should be differentiated from the privilege protecting confidential marital communications. (Evid. Code § 980). The privileges are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal. App. 3d 706.) Here, the court finds that both apply. Plaintiff argues in Opposition that she discussed the ongoing alleged harassment and hostile work environment with witness Mrs. Hulme as it was occurring. But Mrs. H...

Excerpt: ... Plaintiff's supplemental request for judicial notice filed on 6/7/19 is DENIED. (See Evid. Code § 453 (“trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.”).) The Court did not consider Plaintiff's reply papers filed on 6/7/19, in r...

Excerpt: ...videntiary sanctions, or instructions to the jury, were to be fashioned. Failing to respond to an authorized method of discovery is a misuse of the discovery process. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516. Imposition of sanctions for misuse of discovery lies within the trial court's discretion. Doppes v. Bentley Motors, ...

Excerpt: ...ed. The general demurrers to the third cause of action for intentional infliction of emotional distress and fifth cause of action for public nuisance are sustained with 15 days leave to amend. The Court declines to consider Defendant's reply papers, because they were not filed “at least five court days before the hearing,” nor were they served by a method “reasonably calculated to ensure delivery to the other party or parties not later than...

Excerpt: ...e basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care,...

Excerpt: ...correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc. § 473(a)(1).) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) This liberality only applies ...

Excerpt: ... his alleged breach of contractual obligations by “misusing confidential information in violation of his legal duties” to Plaintiff. (Compl. at ¶ 3.) Defendant's alleged wrongdoing resulted in Plaintiff losing “at least one deal,” and put Plaintiff at risk “of losing further deals.” (Compl. at ¶ 4.) Although the Plaintiff framed the alleged breaches under the 2018 Offer Letter between the parties, the Court finds that the alleged br...

Excerpt: ...mmary adjudication. The court will hear from counsel. California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461. This liberality only applies so long as there is no prejudice to the opposing party. Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564. If the party seek...

Excerpt: ...other policies limiting discoverability. [See, for example, Code Civ. Proc., § 2017.010 (privilege), Code Civ. Proc., § 1985.3 (consumer's right to privacy)]. In addition, deposition subpoenas may be attacked as unjustly burdensome and oppressive. [Code Civ. Proc., § 1987.1]. Plaintiff argues in Opposition that it just wants bank records relating to deposits and disbursements of funds in Sub-Account 900118 only. Thus, Plaintiff agrees to withd...

Excerpt: ...rning their home contact information. See County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 927 (“home contact information is generally considered private” and employees “have a legally protected privacy interest in their home addresses and telephone numbers”). On the other hand, Plaintiff insists he does not intend to initiate improper communication with these employee witnesses (see Cal. R. Ct. R...

Excerpt: ...t. It is not clear exactly what is being sought as the notice of motion is to compel responses. However, in combing through all of the documents, it appears that what Plaintiff is actually seeking is an order compelling further responses and Defendant's production of certain documents. CRC, Rule 3.1110(a) states that a “notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the ...

Excerpt: ...s a modification of the court's 1/17/19 order. “[A] motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 9:324.1, p. 9(I)–124 (rev. # 1, 2011).)” Powell v. County of Orange (2011) 197 Cal. App. 4 th 1573, 1577. When proper grounds are presented, a court ...

Excerpt: ...nd all employment records ... including ... employer's personnel file, claim file ... employment file ... a printout of all electronic mail between [Plaintiff] ... and the Employer ... all written evaluations and documents of employment, employment application or contract for services... all employment documents relating to services performed ... pre-employment exam records ... " and " ... customer complaint reports, reprimands, records of discip...

Excerpt: ...rvice. The Court hereby considers the merits of Plaintiff's motions. The Court reminds the parties that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247. A self-represented litigant is not entitled to any greater consideration than other liti...

Excerpt: ...t is held to “open” defaults only when it makes substantive changes in the claims asserted. For example, increasing the damages demanded. [Leo v. Dunlap (1968) 260 CA2d 24, 27.] Here, Plaintiff's First Amended Complaint changes the amount of damages from $43,546 to $59,201. Thus, the filing of the First Amended Complaint with substantive changes opens the default. There is no filed Proof of Service for the First Amended Complaint. Thus, the c...

Excerpt: ..., the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” The statute defines “malice” to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and oppression to mean “despicable conduct that subject...

Excerpt: ...mination. Code Civ. Proc., § 2032.310(a). A motion to obtain discovery by means of a mental examination must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination…and be accompanied by a meet and confer declaration under Section 2016.040.” Code Civ. Proc., § 2032.310(b). “Notice of the motion shall b...

Excerpt: ...s. Parties shall select a date and advise the court at the hearing. Plaintiff's Counsel has agreed to take the deposition in Orange County this time. Defendant is ordered to pay sanctions in the amount of $2,110 within 30 days to compensate Plaintiff for having to seek court intervention. When a deponent refuses to answer a deposition question, the deposing party may continue to examine the deponent regarding other matters, and subsequently move ...