Excerpt: ...endants Katten Muchin Rosenman LLP and Claudia Callaway's motion to apply judicial or collateral estoppel is DENIED. I. Background of CFPB Litigation This motion concerns the effect of the federal court's judgment in Consumer Financial Protection Bureau v. CashCall, Inc., C.D.Cal. No. CV 15-07522-JFW (RAOx) (“CFPB”), and more specifically, the federal court's opinion of January 19, 2018, available at 2018 WL 485963. The Court will refer to th...

Excerpt: ...l has no effect on the named Plaintiffs' individual claims. Defendant's unopposed request for judicial notice is GRANTED. The Court, on its own motion, takes judicial notice of the California Supreme Court's docket in Naranjo v. Spectrum Security Services, No. S258966. GROUNDS FOR RULING I. Rest Breaks Defendant admits a four-year statute of limitations applies because there is a UCL claim at issue. However, it contends the earliest relevant fili...

Excerpt: ...able fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (See Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 890–91.) Additional...

Excerpt: ...4th 1244, 1255 [elements].) This claim is not based solely on defendant's misrepresentation that the vehicle was in “excellent condition,” but also on its alleged misrepresentation that the vehicle had “passed a vehicle inspection” (see Compl. ¶ 13), and defendant's failure to disclose the true, substandard condition of the vehicle (see id. ¶¶ 12- 13, 16). Further, to the extent the claim is based on the misrepresentation that the vehi...

Excerpt: ...uled. 1st cause of action: misrepresentation. The demurrer to the first cause of action for misrepresentation is sustained, with leave to amend, on grounds of failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) This cause of action does not allege all of the elements of fraud with the required specificity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements]; Lazar v. Superior Court (1996) 12 Cal.4 th ...

Excerpt: ...med by plaintiff. (CCP 762.010, 762.050.) Any party may serve discovery. (CCP 2017.010.) Whether or not this defendant is in fact a proper party cannot be determined by a motion to strike. Plaintiff to give notice. 2. Plaintiff Ragland's motion for reconsideration of the court's 10-30-20 discovery order. Motion granted. The court finds that plaintiff has timely sought reconsideration; has shown new and/or different facts justifying reconsideratio...

Excerpt: ... 787-788 [“Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply. [Citation.] A willful failure does not necessarily include a wrongful intention to disobey discovery rules.”].) The 2/27/20 discovery order unequivocally orders plaintiff to produce all responsive documents to the subject requests for production within 20 days of notice, and also unequivoca...

Excerpt: ...o the other alleged breaches of the parties' manufacturing agreement claimed in the first amended cross-complaint (which form the subject of the first and third causes of action for breach of contract). (See FAXC ¶¶ 34-41.) The subject manufacturing agreement does not require Vit-Best to provide proper certificates of origin (see id. ¶ 4, Ex. 1), and DRHP fails to allege any facts demonstrating a course of dealing between DRHP and Vit-Best (or...

Excerpt: ...he privilege warranting disclosure applies. (See Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721 (Schnabel) [listing exceptions].) First, AIM contends plaintiff has impliedly waived the taxpayer privilege by making a claim of loss of business value and lost profits which directly relate to plaintiff's business valuation and income, and that therefore, the “gravamen of [the] lawsuit is so inconsistent with the continued assertion of the tax...

Excerpt: ... (2001) 25 Cal.4th 826, 850-851 (Aguilar) [same].) With respect to the first cause of action for fraudulent transfer of the subject Riverside property and noticed issue Nos. 1-3, defendants fail to establish that the value of the Riverside property was equal to or less than the value of Bahjat and Tameem's alleged debt to Harb. (See Defs. Sep. Stmt., in passim.) With respect to the second cause of action for fraudulent transfer of the Ladera Ranc...

Excerpt: ...impose a special assessment against Plaintiffs to recover fees and costs incurred in obtaining compliance with the CC&Rs. The court is not convinced that items (ii) and (iii) fall within Calif. Code of Civil Procedure, section 128.5, subdivisions (a) and (b)(1) as “actions or tactics.” A motion for sanctions may not be filed with the court until 21 days have lapsed following service of the notice of motion upon the party against whom sanction...

Excerpt: ...eir purported lack of personal knowledge. An unestablished assertion that a particular witness lacks personal knowledge of the facts of the case is insufficient to show good cause for a protective order precluding that witness's deposition. (See Code Civ. Proc., § 2025.420, subd. (b); see also Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [the burden is on the party seeking the protective order to show good cause for...

Excerpt: ...ry No. 53) Meet and confer narrowed the issue, combining Interrogatories No. 52 & 53 and limiting the scope to the identities of all former employees whose employment was terminated by the same decision makers as Plaintiff and for the same reasons as Plaintiff within the last 5 years. (Livshits Dec. Ex. 6, 10/28/20 e-mail.) Defendant seeks to further limit the information sought to ex-employees who disclosed a medical condition or disability. (Ur...

Excerpt: ...ut also her history involving erratic driving. The hearing report of 5-22-18 states in part: “Did the Respondent cause or contribute to the cause of a collision that resulted in a fatality? The department finds that the Respondent contributed to the cause of a collision based on the physical evidence regarding the damages sustained to the Mercedes Benz on the left driver side which is consistent with damage sustained to Respondent's vehicle on ...

Excerpt: ...agreement with non-party Crevier BMW, which contains the arbitration clause. However, while the existence of the lease is a prerequisite to Plaintiff's Song-Beverly Act claim, plaintiff's claims against BMW do not rely on the terms of the lease. They rely on the express warranty issued by BMW as alleged at paragraph 10 of the complaint. In support of its argument, BMW points to the case of cites Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. ...

Excerpt: ...ants' separate statement is grouped by cause of action, with between 2-3 discrete issues for adjudication set forth below, instead of setting each issue as a separate noticed issue with its own section as required by the Rules of Court. Additionally, rather than sent forth separately, each Undisputed Material Facts (“UMF”) in support of each noticed issue, most of the separate statement incorporates the preceding UMFs by reference. Failure to...

Excerpt: ... the court finds was reasonably and necessarily incurred. Plaintiffs argue that no apportionment between defendants is required. However, plaintiffs have not provided any evidence to show that apportionment is not required. Defendant Mission Pools of Escondido argues that defendants Sal Vargas dba New Vision Landscape, and New Vision Landscape, Inc., should bear a proportionate share of plaintiffs' attorney fees, on grounds of comparative and/or ...

Excerpt: ... contract typically arises upon the breach. Defendant's Undisputed Material Facts (“UMF”) 8 establishes that Avenue K was unable to pay the full balance on the loan by 07/31/07 as agreed. (See Compl. Exh. 1.) The next UMF establishes that Avenue K made payments on the loan between 07/23/07, and 03/07/11. (UMF 9.) As a general rule, part payment of a debt or obligation is sufficient to extend the bar of the statute. The theory on which this is...

Excerpt: ...s the declaration of attorney Mark. S. Rosen states: “The petition was verified by one of the parents of Student DOE and one of the parents of Student Roe.” See Rosen Declaration, ROA #45, page 2, paragraph 2. In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court...

Excerpt: ... to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Defendant has failed to meet this burden. First, contrary to defendant's contentions, plaintiffs did not expressly agree to arbitrate their claims against Kia. The arbitration agreement explicitly requires only plaintiffs and the nonparty seller to resolve “any dispute between us”— i.e., any disputes between plaintiffs and the nonparty seller (including the seller'...

Excerpt: ...material fact as to whether he made the subject misrepresentations/false promises and whether plaintiff Alan S. Inbody (plaintiff) justifiably relied on them, causing plaintiff damages. Furthermore, even if Candland had met his initial burden, which he has not, plaintiff's evidence in opposition to the motion only further demonstrates that there are triable issues of material fact with respect to these claims. Specifically: 1. Contrary to Candlan...

Excerpt: ... anti- SLAPP motion and the appeal, was whether the Burkholders' complaints to the HOA regarding potential view obstruction were made in “connection with an issue of public interest.” Ultimately, the court came out in favor of plaintiffs on this issue but defendants' position was not without support. Defendants' original motion cited various authorities involving disputes involving HOAs, which supported defendants' contention that the instant...

Excerpt: ... claim to WRCOG; 3. Plaintiff substantially complied with the presentation requirement; and 4. Plaintiff's claim is exempt from the presentation requirement under Government Code §905(h). No suit for money damages may be brought against a public entity unless the plaintiff first presented a timely claim to the entity and the entity has ruled on that claim. (Gov. Code 905, 911.2, and 945.4.) Claims for personal injury must be presented not later ...

Excerpt: ...rnia Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048 [elements of conspiracy]; AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 [complaint sufficient where it apprises defendant of the “character and type of facts and circumstances upon which (plaintiff) was relying to establish the conspiracy,” including pleading “facts and circumstances that permit a reasonable inference (defendant) was aware of the plan to defraud”].) 1. ...

Excerpt: ... judgment against Truong by way of default. The court finds Truong has willfully failed to comply with the court's discovery order of 10/16/20. Willfulness in this context means a “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance. ... ” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788 (Deyo), superseded by statute on another point as stated in Guzman v. General Motors (1984) 154 Cal.Ap...

Excerpt: ...petition or free speech in connection with a public issue. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If the moving defendant makes this showing, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim, i.e., a showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 56...

Excerpt: ...0 Cal.App.3d 868, 881.) The court declines to consider Plaintiff's declaration. The allegations against these demurring defendants based upon vicarious liability continue to be inadequately alleged. The facts necessary to allege conspiracy, aiding and abetting, and alter ego liability are absent from the 2 ndAC. As for agency, the 2 ndAC alleges in a conclusory fashion that each of the Defendants was acting as the agent for the other Defendants a...

Excerpt: ...cks foundation); Nos. 21, 23, 32 (lacks foundation, speculative); No. 24 (improper legal conclusion); Nos. 28, 31 (lacks foundation, improper legal conclusion); No. 29 (speculative); and Nos. 35-194 (lacks foundation, lacks authentication). Defendants' remaining evidentiary objections are overruled. Defendants have met their initial burden of showing that the challenged causes of action arise from protected activity. (Navellier v. Sletten (2002) ...

Excerpt: ...ysis because he was no longer a resident of California as of January 2008, and this action arises out of conduct occurring no sooner than 2017-2018, and more likely beginning in 2019. (See, e.g. Compl. ¶¶ 10, 13-18, 33, 36 [PN did not launch the subject products until 2017; BM did not exist until 2018; and Beauty Molecules failed/refused to pay for products delivered in fall 2019, and that “since then,” defendants have engaged in the miscon...

Excerpt: ...efault. CCP § 473(b); People v The North River Ins. Co. (2011) 200 CA4th 712, 721. This 6-month time limit is jurisdictional. Notwithstanding the above, the court may employ its power of equity to set aside a default if the motion is made more than six months after entry of default. Under traditional “equitable set-aside” law, a judgment is subject to set-aside on “equitable” grounds where the complaining party can demonstrate he or she ...

Excerpt: ...e of a single issue of triable fact will require that the motion be denied. Second Cause of Action. Defendants' motion attempts to affirmatively negate the element of breach for the Second Cause of Action. Thus, to negate the allegations of the Third Amended Complaint (“3rdAC”), Defendants each will have to establish that they did not: (i) disrupt CBIZ's business; (ii) soliciting CBIZ's existing and prospective clients on behalf of a competit...

Excerpt: ...tion notice, without objection, at the time of deposition, as moving party has shown good cause for production. (CCP 2025.450(b)(1).) The burden is on the deponent to justify objections. (Weil & Brown, Rutter Group, Civil Procedure Before Trial, Chapter 8E-15, Section 8:814-8:816, citing San Diego Professional Assoc. v. Superior Court (1962) 58 Cal.2d 194, 199.) Here, while RP's objection (MP Ex. 2) asserted various objections, the only objection...

Excerpt: ...or PDLL “is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under Government Code section 12940.” (Cal. Code Regs., tit. 2, § 11047; see id., § 11046(a); 29 C.F.R. § 825.702(a).) “Under the FEHA, a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship o...

Excerpt: ...as a remedy, in connection with another, valid cause of action. Plaintiff's requests for judicial notice are not considered, as they are irrelevant to the instant motions. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295.) Moving parties to give notice 3 - 4. Defendants Wells Fargo, Ocwen, and PHH's demurrers to the plaintiff's first amended complaint. Demurrers sustained in part, with leave to amend, and overruled in part, as s...

Excerpt: ...e Before Trial, Section 7:85, citing Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) First, failure to properly “label” a C/A does not render a complaint uncertain, so long as the pleading contains enough facts to apprise defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, FN 2.) Second, the claims alleged are set forth in the caption, and the parties bring...

Excerpt: ...ct (9th Cir., 2016) 823 F.3d 1011.) On the merits of Plaintiffs/Petitioners' claims, they have failed to show a likelihood of success on the merits. (See Fleishman v. Superior Court (2002) 102 Cal.App.4th 350.) Plaintiffs'/Petitioners' arguments are based upon a claim that the requirement that successful bidders for a City of Anaheim project agree to be bound by its Community Workforce Agreement violates the Privileges and Immunities Clause of th...

Excerpt: ...ares v. Braemar Country Club, Inc. (1999) 29 Cal.4th 1019]. The pendency of an appeal does not divest the court of jurisdiction to determine ancillary or collateral matters which do not affect the judgment on appeal. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4 th 180, 191). This includes setting the amount of attorney's fees already awarded in the Judgment. The court finds that, given ...

Excerpt: ...n any protected class. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355 [elements]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [FEHA claims, like all statutory claims, must be pled with specificity]; FAC at Paras. 98 and 109 [alleging discriminatory motive as conclusion only, without supporting facts].) Further, the seventh and eighth causes of action fail as to the individual defendants, as individual employe...

Excerpt: ...ecause of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.” (See Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) Defendant's only supporting evidence is its request for judicial notice. Turning to the Farmland criteria: 1. Multiple litigation designed solely to harass an adverse party. Defendant presents zero evidence as to this criteria....

Excerpt: ...l. at Ex. A [arbitration agreement].) The arbitration agreement also complies with Code of Civil Procedure section 1295, subdivision (a) (section 1295(a)). Contrary to plaintiff's assertions, the disputed “message of arbitration” is not a part of any contract, either for medical services or arbitration. The only contract before the court begins where the subject document states, in bold, capital letters: “PSYCHOLOGIST–PATIENT ARBITRATION ...

Excerpt: ...y in a case that involves the interplay of many documents and several witnesses.” Liberty National, supra at 847. Here, after litigating this case for over 2.5 years, Moving Party urges the court to disqualify plaintiff's counsel on the eve of trial. It seems a difficult task to obtain new counsel and get that counsel up to speed and prepare for trial in just 2.5 months. This situation is more extreme than in Liberty National where the court de...

Excerpt: ...tions are untimely. Plaintiffs served their responses to the remaining subject form interrogatories via email on 8/4/20, and it is these responses that remain at issue in these motions. (See ROA No. 102– Balladares Decl. ¶ 3, Ex. B; ROA No. 81–Balladares Decl. ¶ 3, Ex. B; see also ROA Nos. 103, 82 [separate statements regarding form interrogatories].) Plaintiffs' responses to these interrogatories consisted of multiple objections and, witho...

Excerpt: ...ary value in determining personal jurisdiction. (See Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) Plaintiff's complaint is unverified and therefore is not evidence to establish jurisdictional facts. Plaintiff fails to present any evidence to support general jurisdiction over Defendant. Even if a nonresident defendant's “contacts” with California are not sufficient for general jurisdiction, the defendant may still be subject to ju...

Excerpt: ...able issues of fact as to UMF #2, 4, 5, 6, 7, 14, 18, 21, 22, 23, 25, 28 and 29. Defendants claim plaintiff loses this case because he cannot prove the underlying claim for personal injuries. Defendants claim the alleged underinflated helmet was not the cause of his concussion and resulting difficulties and therefore the fact defendants failed to file a governmental claim within the period of limitations is of no consequence. Defendants argue the...

Excerpt: ...on as to when the arbitration award was served. [See 12-18-20 minute order (ROA No. 489).] MPs were ordered to do so by 1-22-21. (Id.) It appears that MPs attempted to do so on 12-24-20, but this filing was rejected by the clerk. (ROA No. 490.) However, on 1-20-21, respondents' counsel served a declaration in opposition to the instant Petition. (ROA No. 492.) That declaration admits that the award was served on or about 12-8-18. (Id. at Para. 3.)...

Excerpt: ...23, 24-33. Demand for production of documents: 4, 5. Plaintiff complains that the verifications served with the original August 5 responses are inadequate as they were “pre-dated” July 10, 2020. Plaintiff implies the verifications were signed before the responses were prepared. Therefore, plaintiff contends, the verifications were not really verifications for purposes of a motion to compel further response. Defendant contends they were signed...

Excerpt: ...34 S.Ct. 1115, 1122); see also David L. v. Sup.Ct. (Mariana C.) (2018) 29 CA5th 359, 371-372, 240 CR3d 462, 473 (citing Walden with approval and noting plaintiff may not be only link between defendant and forum) Plaintiff contends defendants are subject to special jurisdiction because Kaiser and Sun personally flew to California to communicate with AKT Franchise decision makers. Plaintiff contends “For months following the California meeting, S...

Excerpt: ...due to the existence of triable issues of fact. (CCP 437c(p)(2).) As to the first cause of action for failure to engage in the interactive process, and second cause of action for failure to accommodate, there are triable issues of fact as to: (1) whether PetVet was aware of plaintiff's need for accommodation; (2) whether Briggs and/or Proud were aware that plaintiff was disabled, and/or considered her disabled; and (3) whether plaintiff's transfe...

Excerpt: ...fect the judgment on appeal. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4 th 180, 191). This includes setting the amount of attorney's fees already awarded in the Judgment. The court finds that, given the specific factual allegations of Plaintiff's complaint, each cause of action constituted an action “…under the Lease.” (See Compl. Exh. A, ¶ 46). Plaintiffs' Complaint alleged ca...

Excerpt: ...The allegations are inadequate as to the remaining Defendants. The Demurrer to the Second Cause of Action is SUSTAINED with leave to amend on the basis that the complaint fails to allege that Defendants owed Plaintiff a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise. The Demurrer to the Third Cause of Action is SUSTAINED with leave to amend on the basis that the complaint fails to ...