Excerpt: ...stitutes a failure to state a cause of action. 2. Libel Per Se: As pled, it appears the alleged defamatory statements were made after a default was entered but before any default judgment had been entered. Without any judicial findings of fraud, statements made in reliance solely on the entry of default are actionable. 3. Defamation: Same as Second Cause of Action. 4. Declaratory Relief: This claim is identical to the defamation count which provi...

Excerpt: ...dividual capacity, and then derivatively, and the latter complaint is not necessarily barred. (See Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 222-223 [later derivative complaint not barred].) Although there is a final judgment in the 2014 case, unlike Favila where there was no prior judgment, claim preclusion still does not apply because the claims may involve different primary rights, and some of the alleged bad acts occurr...

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Excerpt: ...rence The court intends to continue the Case Management Conference 60 days. Notice The plaintiff shall give notice. ...

Excerpt: ...so fails to include a statement of the facts constituting the cause of action in ordinary and concise language (Code Civ. Proc., § 425.10), and fails to identify the particular causes of action and who each cause of action is against (Cal. Rules of Court, rule 2.112). Motion to Strike The motion to strike is MOOT. The defendants shall give notice. ...

Excerpt: ...r these pleaded facts. The demurrer to the First Cause of Action for quiet title must be sustained because the owner of an equitable interest, as here, cannot maintain a quiet title action. (See Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.) The demurrer to the Second Cause of Action must be sustained because Velocity Support Services received a Certificate of Relief from the State. The Tax and Revenue Code sections cited are not appl...

Excerpt: ...ence is CONTINUED to July 11, 2018, at 8:30 am. It does not appear that all parties have appeared in the action. All parties are ORDERED to file new Case Management Conference Statements prior to the new hearing in accordance with the Local Rules. The defendant shall give notice. ...

Excerpt: ...$100,000 by the end of trial. It is undisputed the plaintiff failed to obtain a more favorable verdict—it was a 12-0 defense verdict. The burden was on the plaintiffs to show that the offers were not made in good faith. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) It failed to meet its burden. The court further finds the offers were reasonable. They were made nearly three years after commencement of the action in 2013;...

Excerpt: ...ficient to support a claim that this was despicable conduct under Civil Code section 3294. Defendant Parker Kirsten shall file an answer to the complaint within 10 days. The plaintiff shall give notice. ...

Excerpt: ...at it is entitled to disgorgement of any profits Bridgemark may have earned due to its operation of the wells which it was required to abandon. It concedes it is not entitled to disgorgement of profits for its contract claims, but contends it is entitled to disgorgement pursuant to its trespass claim and cites Civil Code section 3334, subdivision (a). But that code section says nothing about “disgorgement,” and the moving party fails to provi...

Excerpt: ...e defendant Ford Motor Company filed a motion to compel a vehicle inspection. It appears that the vehicle was last in the possession of the defendant and it has since been sold at auction. Under those facts, it must be assumed the defendant knew, or should have known, at the time the vehicle inspection request was made and the motion to compel was filed that the plaintiff did not have the vehicle. The motion is DENIED. The motion appears to have ...

Excerpt: ...e a cause of action against this defendant for the reasons discussed in prior hearings. In reviewing the demurrer and the efficacy of the amended complaint in alleging a duty, the court also considered the Biajanka factors. (Biajanka v. Irving (1958) 49 Cal.2d 647, 650.) The defendant shall give notice. ...

Excerpt: ... case of SEC v. Hickey (9th Cir. 2003) 322 F.3d 1123. Roger Torriero The demurrer of defendant Roger Nello Torriero to the first, third, sixth, and seventh causes of action is OVERRULED with ten days to answer. The defendant attempts to defeat these causes of action with material that is neither in the complaint nor the proper subject of a request for judicial notice. The allegations in the complaint support the claims alleged in these causes of ...

Excerpt: ...y enforce such a mandatory provision, unless it concludes that enforcing the mandatory forum selection clause would be unreasonable or unfair under the circumstances. The first question is whether there is a suitable alternative forum? The forum selection clause here sets venue of litigation in the courts of New York. But the defendant suggests the New York state courts will not take this matter because it does not rise to the $1 million threshol...

Excerpt: ...ission of a separate statement is “so that no person is required to review any other document in order to determine the full request and the full response.” The court is aware that much of the information required by the separate statement is included within the motion, the declarations of counsel, and various documents attached to counsel's declaration. That said, the failure to submit a separate statement is a violation of the Rules of Cour...

Excerpt: ...” the proposed second amended complaint when it was first presented. The filing was without legal authority, and thus the second amended complaint purportedly “filed” January 31, 2018, is STRICKEN. The plaintiff shall file the second amended complaint within 10 days. Motion to Compel Depositions The unopposed motion of plaintiff to compel the depositions of two non-party witnesses, Diem Vu and Ky Vu, are DENIED. The first problem is that th...

Excerpt: ...er conducting an evidentiary hearing, and pursuant to University rules and regulations, made recommendations to the Chancellor of the University about a grievance filed by the plaintiff. Those proceedings are subject to the deliberative process privilege. (See Labor and Workforce Development Agency v. Superior Court (2018) 19 Cal.App.5th 12.) The court finds that defendants have met their burden to show that the nondisclosure of the deliberations...

Excerpt: ...and thus it would have to be denied pursuant to Code of Civil Procedure section 2025.410. (The court further notes that in ruling on the motion for a stay it is notruling on whether the attorney-client privilege applies under these facts. That is a bridge too far under these circumstances. (Finally, and most puzzling, the question the plaintiff corporation seems to pose by this legal malpractice litigation is this: Who owns it? This discovery dis...

Excerpt: ...y fees in its complaint. In support of his argument, the defendant cites a case out of the Fourth District Court of Appeal, Division Three: Manier v. Anaheim Business Center Co. (1984) 161 Cal.App.3d 503. Whatever may have been the reach of Manier when it was first decided, more recent California Supreme Court precedent has effectively overruled it. (See, e.g., Sessions Payroll Management, Inc. v. Noble Constr. Co., Inc. (2000) 84 Cal.App.4th 671...

Excerpt: ...ice of the notice of ruling of the Case Management Conference (which set the court trial date) was filed showing service on defendant's counsel. Counsel's concern that he never received notice of trial does not carry much weight given the presumption of Evidence Code section 664 and the fact it appears he elected not check the court's file for over five months after the answer was filed, but did, serendipitously, check it on December 27, 2017, th...

Excerpt: ...gs. The plaintiff shall give notice. ...

Excerpt: ... motion states it is only being brought by defendant Gladys Ross. Which is it?) The motion is legally ineffective because Code of Civil Procedure section 663 is inapplicable in situations where, as here, the allegation is that the proof of service was not adequate. Section 663 applies where the default judgment exceeds the prayer or is entered without a required statement of damages. (Weil & Brown (TRG 2017) Civil procedure Before Trial, Para. 5-...

Excerpt: ...attorneys' lien has priority over the liens recorded by Liberty Mutual Insurance Company and Commercial Bank of California on November 10, 2016, and January 17, 2017, as a result of the federal bankruptcy proceedings. (Waltrip v. Kimberlin (2008) 164 Cal.App.4th 517, 525 [“An attorney's contractual lien is created and takes effect when the fee agreement is executed,” and, “[w]here there are competing liens, the general rule is that, all thi...

Excerpt: ...ion The first cause of action is for conversion. Plaintiff's claim is based on an allegation that the defendants “breached” the “50% ownership written contract.” “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, ‘courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a so...

Excerpt: ...ts, and that the bone grafts might not hold the implants. These two facts are sufficient to state a cause of action for lack of informed consent. Defendants also assert that this cause of action is duplicative of the first cause of action for dental malpractice, and as such, the demurrer should be sustained. The argument is unpersuasive: The first and second causes of action are distinct in that they allege different conduct. Moreover, they are s...