Excerpt: ...utory premise for reconsideration. The court is consonant of the severity of the issue sanctions imposed by the making of Recommendation No. 11 an order. But reconsideration is a statutory remedy, permitted only where a proper showing is made, and the defendants have not made it here. Even were the court to address the issues raised, none have merit. As the Discovery Referee aptly pointed out in his statement as to why issue sanctions should be i...

Excerpt: ...and the trust deed was valueless because it was subordinated to a first trust deed that was for more than the property was worth. The plaintiff asserts it was defrauded into purchasing (in a non-judicial foreclosure sale) a subordinated, and worthless, trust deed because of the misrepresentations. The Basis for Defendant's Demurrer Most of the issues raised by the demurrer (the causes of action are duplicative of the second and third, plaintiff c...

Excerpt: ... appears that Tyner and Dubrovski are only charged in the third and fourth causes of action for retaliation against the plaintiff for requesting accommodations, and for creating a hostile work environment in violation of FEHA. As to the third cause of action, the plaintiff has raised a triable issue of material fact: she claims her termination was in retaliation to her request for a leave of absence, which could be considered a protected activity...

Excerpt: ...en. It provided undisputed evidence that the defendant asked for the ring; she knew she either had to pay for it or return it; the defendant did not pay for it and did not return it, claiming it had been misplaced in the house; and the diamond ring was CGL appraised at over $62,000. Without providing a declaration in opposition or a statement of disputed and undisputed facts (in violation of the Rules of Court), the defendant argues summary adjud...

Excerpt: ...The court exercised its discretion after reviewing the file and how the issues in the case affected those parties and the duty-to-defend question. Thus, the mere fact that the court denied the other motion is not necessarily informative here. The court must again review the issues in light of where the case stands now as to these parties. As a preliminary matter, at the end of its points and authorities in opposition Ninyo & Moore suggests it nee...

Excerpt: ... subpoenas appear to be identical and the arguments raised are the same as to each, the court intends to overlook the procedural problem and rule on the merits this time. Inadequate Meet and Confer The parties did not engage in a meaningful meet and confer as required by the discovery statutes. True, they had an oral conversation. But it is clear from the declarations that they did not engage in the type of meet and confer that is contemplated by...

Excerpt: ...ture of the action, the fact that the plaintiff's deposition has been, or should be, completed shortly (Query: Was it taken February 8?), and the court's lighter calendar in April and much heavier calendar in June of 2022. In its reply, defendant Prompt Delivery continues to fault the plaintiff's counsel for failing to notify it timely of the prior trial date. Given the defendant filed its answer to the complaint on October 8, 2020 (ROA 10)—wit...

Excerpt: .... Moreover, there is evidence from Jonathan Reynolds, an employee of cross-defendant Van Nuys Sheet Metal, that he did not sign the ticket until after the incident, and there is deposition testimony of Charles Kent, the Person Most Knowledgeable from Van Nuys Sheet Metal, that there was a custom and practice regarding the signing of these tickets which was not followed that night. If the ticket was not signed by an authorized agent, or was not si...

Excerpt: ... the opposition thereto. Demurrer A. First through Fifth Causes of Action The First Cause of Action is for Violation of the Fair Employment and Housing Act (“FEHA”). It alleges that the defendants discriminated against the plaintiff “based on gender, race, pregnancy and/or disability/perceived disability.” Each of the next four causes of action also allege violations of FEHA. The Second Cause of Action is for “harassment based on gender...

Excerpt: ...s the motion, as to it, is GRANTED, as to the Fifth Cause of Action for breach of implied warranty. (See ROA 397, 2:3-5; 4:8-9; 7:3-5.) California Motorcycle Accessories, Inc. The plaintiff does not oppose the motion for summary adjudication as to defendant California Motorcycle Accessories, Inc., only insofar as it relates to the undisputed fact that this defendant did not issue any warranty. As to that issue, the motion is GRANTED. (See ROA 397...

Excerpt: ...e was initially treated by defendant Dr. Lorraine Sunday. During physical therapy he suffered further spinal injury. He underwent a cervical MRI and was referred to Field, an orthopedic surgeon, for “failure to progress.” The MRI showed “several levels of disc protrusions with compression of the cord.” Field saw the plaintiff one time on October 27, 2016. He took a written and oral history, conducted a physical examination, and reviewed t...

Excerpt: ...Fiber, LLC, breached the Pole License Agreement and refused to accept SCE's tender of defense. The motion is DENIED. Procedural Irregularities This is the second time that Southern California Edison Company has sought summary adjudication of issues on its cross-complaint as to this cross-defendant. The first time the summary adjudication of issues motion was denied without prejudice; there were numerous procedural errors. Although this second mot...

Excerpt: ...of the procedural posture of the case, the facts proved, and the court's final ruling. As the minute order makes clear, the court had concluded that the defendants were entitled to judgment as a matter of law on the summary judgment motion on the ground that the action was barred by the applicable one-year statute of limitations. Thus, the court's order after hearing was to grant summary judgment. However, the court recognized (as explained in it...

Excerpt: ...n. I. Motion of Defendant Susan Su Chun Wu Defendant Susan Su Chun Wu filed a motion for summary adjudication of issues as to complaint filed by plaintiffs Yoshinori Senga, Sakiko Ogura, and Yasuhiro Senga. 1. First Cause of Action quiet title as to real property located at 203 Nashville Avenue, Huntington Beach. DENIED. Quiet title was pled as to three properties. (See Para. 159 of Second Amended Complaint.) The defendant fails to explain how th...

Excerpt: ...k Linskey M.D. made by any UCI Resident from August 1, 2017 to present. 3. IDENTIFY every Medical Executive Committee (MEC) Incident Report by IR number that involves Mark Linskey M.D. during the period January 1, 2015 through the present time. 4. IDENTIFY all facts that form the basis for each Incident Report involving Mark Linskey M.D. for the period beginning January 1, 2015 through the present time. 5. IDENTIFY all witnesses with knowledge of...

Excerpt: ...tter should be heard by him. But at the prior hearing the parties, without appearing and without argument, submitted on the tentative. The tentative did not offer an opinion on the merits but advised the parties that supplemental briefing on a point not raised by them in their briefs would be helpful. Under these circumstances, the court concludes that it may rule on the motion in the first instance.) Joslin argues that he is not a Member of the ...

Excerpt: ...e cross-complainant's motion for leave to file a second amended cross- complaint. The motion for leave to amend is also on this law and motion calendar, infra. It appears from the declaration of attorney Klein that the that the testimony of these witnesses may be relevant to the current first amended cross-complaint. The court has read and considered all the papers and finds the arguments of the plaintiff without merit. The motion for a protectiv...

Excerpt: ...4:9-10.) May has diabetes and uses a rolling basket. While the plaintiffs were shopping at the back of the store, a “security guard” named “Marie” approached and accused Drake of stealing. The security guard frisked him without his consent and tried to make him stand up, which he could not do. He injured his foot attempting to comply. When May approached to find out what was going on, the security guard accused her of stealing and went th...

Excerpt: ... Douglas Ames, or, in the alternative, to prioritize the liens is GRANTED in part and DENIED in part. The motion to amend the judgment to add costs (but not attorney fees) is GRANTED. To the extent the motion may not have provided adequate notice, the defect was waived by Ames when he filed opposition thereto. To the extent Ames argues the proposed amendment conflicts with this court's prior rulings, he is incorrect. The court awarded costs and d...

Excerpt: ... a question of law for the court to resolve. This is a close case. Although the three cases cited by the parties provide guidance, they are not dispositive. For example, in Fire Insurance Exchange v. Hammond (2000) 83 Cal.App.4th 313 the lease agreement did not include provisions for fire insurance. Here, on the other hand, the lease provides that both the lessor and the lessee are required to obtain fire insurance. A review of Paragraphs 1.7, 3....

Excerpt: ...appear to allow the proper discharge of water. The court is not persuaded that Buchanan v. Los Angeles County Flood Control Dist. (1976) 56 Cal.App.3d 757 controls here. The facts in that case are substantially different. Among other differences, there the Flood Control District artificially diverted water into a wash and allowed it to flow down it at 8 to 9 feet above grade. Here, the evidence suggests there was a “puddle” that the plaintiff...

Excerpt: ...re no allegations that the School District's conduct was directed toward the plaintiffs, and thus no cause of action has been stated. Although such allegation is a general element, there is an exception to that rule when the defendant is aware of the danger but acts in reckless disregard of the plaintiff while knowing the probability that such conduct will cause the plaintiff severe emotional distress. Here, the allegations are that defendant Sch...

Excerpt: ...he responses contained objections. • 8-20-2021 Attorney Fasel sent to opposing counsel a meet and confer letter. • 9-17-2021 Plaintiff served Amended Responses which contained objections or were not answered. • 10-5-2021 Attorney Fasel sent another meet and confer. • 10-12-2021 Plaintiff's counsel responded. At issue herein are the following: RPDS Nos. 14-16, 26-52; RFAs Nos. 1, 2, 4-6, 10, 31; Form Rogs Nos. 17.1 as it relates to RFAS 1,...

Excerpt: ... had legitimate business reasons for the adverse employment action, and Plaintiff cannot show those reasons were pretextual. (Undisputed Material Fact Nos. 1-30.) In order to establish a prima facie case, Plaintiff must show that he was: (1) suffering from a disability; (2) otherwise qualified to do his job; and (3) subjected to an adverse employment action because of his disability. Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 344- 45 (2008)...

Excerpt: ...4 Cal. App. 5th 1030(2d Dist. 2018)] Defendant's specific argument herein is that “where the only evidence is that the liquid or grape may have been on the floor for approximately 6 to 7 minutes or less, it must be held that it is insufficient to support an inference that the Defendants failed to exercise reasonable care.” See Motion page 17:17-20. In support of that argument, Defendant cites to Girvetz v. Boys' Market, Inc. (1949) 91 Cal.App...

Excerpt: ...f a statute. It alleges the basic elements of negligence and therefore the demurrer is overruled. Second Cause of Action for Negligence Per Se The violation of a statute, regulation, or ordinance that establishes standards of appropriate conduct may constitute negligence per se if the violation was the cause of the plaintiff's harm. However, this cause of action fails to identify the statute, regulation, or ordinance that the defendants violate�...

Excerpt: ...cause it cannot prove damages. The plaintiff cannot foreclose on the property to satisfy the monetary penalties/reimbursements imposed here under section 5725, subdivision (b), of the Davis-Stirling Act. This argument misses the mark. A statutory cause of action may be stated whenever a transfer is made by the debtor with the intent to hinder, delay, or defraud any creditor, and which causes the creditor actual harm. Here, the second cause of act...

Excerpt: ... their case. Simply by way of example, when counsel for the defendant finally paid the sanctions, it included on the receipt the case name as “Bonilla v. Balboa Inn, LLC, et al—fckyou.” Even so, as of the date the motion was filed the defendant had not complied with this court's prior order. Defense counsel offers numerous excuses as to why his office failed to comply; but generally, he pins the blame on others, including a former associate...

Excerpt: ...on which a party bases its contention that it is not an unqualified admission. Defendant Sourced Energy denied the Requests for Admissions. Its interrogatory responses are not evasive, and they are code compliant. As for Form Interrogatory No. 12, the motion attempts to force the defendant to admit that the mere lack of a driver's license, and not some other negligence, was the “cause” of the accident when, in fact, it could just be that Rios...

Excerpt: ...de section 68561 states that an interpreter in court proceedings (which includes oral depositions) must be certified by the California Judicial Council. Kartouche conceded on the record at the deposition in sworn testimony that he has not been so certified. That said, nothing here should be construed as a comment on Kartouche's general qualifications. It is apparent from the record that he is certified interpreter in federal court and has been al...

Excerpt: ... merits. It believes that if given an opportunity, Dr. Lee can correct this oversight. (In the reply, the court is advised that a correction to the declaration will be filed prior to the hearing.) The court overrules the remaining evidentiary objections, as well. 1. Declaration of Dr. Lee The defendants met their initial burden as to standard of care and causation, and thus the burden shifted to the plaintiff. Dr. Lee declares that based on his b...

Excerpt: ...ecause the parties understood the operative complaint to be the amended complaint, the court will consider the motion for summary adjudication on the merits.) Background This is an employment law case. The third cause of action is for age-based discrimination; the fourth cause of action is for failure to prevent discrimination; the fifth cause of action is for wrongful termination in violation of public policy; and the sixth cause of action is fo...

Excerpt: ...IED without prejudice. A motion for judgment on the pleadings is reviewed in the same manner as a demurrer. There is a liquidated damages clause in the agreement and thus each of the challenged counts states a cause of action. Moreover, the liquidated damages claim is only part of the damages sought, and thus the motion to strike impermissibly seeks to strike those causes of action that the motion impliedly admits are viable as to the other damag...

Excerpt: ...t meet his burden of proof. At best, he “believes” this defendant has had other monetary or financial transactions within this state and has visited here several times since 2007. b. Personal Jurisdiction The plaintiff asserts the court has personal jurisdiction over this defendant because Singh loaned money to defendant Global, a California corporation. Singh has received money in repayment from checks written in California and any enforceme...

Excerpt: ...dants may have had in the property was extinguished by payment in full of the underlying debt. This motion was originally calendared for August 12, 2021, but the court questioned whether a quiet title action could be determined on a summary judgment motion given that a quiet title action could not be determined on default by way of a 585 packet; a hearing was required. (ROA 707.) The parties were given the opportunity to file additional points an...

Excerpt: ...ny California (or Georgia) cases that have so held. (The reference to Georgia is based on the court's understanding that the business is located in Georgia.) Because this is a motion for summary adjudication of issues, the court's role is limited to determining if there is a triable issue of material fact. Impossibility of performance is a legal excuse, and a valid defense, to a cause of action for breach of contract if there are facts to support...

Excerpt: ...m they have the right to use Lot A as an access road to Stonehaven Drive, and that the city is frustrating that purpose. The plaintiffs claim that Lot A was never dedicated as open space but was set aside to prohibit the construction of residences on it. The city claims that Lot A was dedicated (and accepted) as open space and that an access road would be inconsistent with the 1987 approvals. The plaintiffs also claim they have an easement over i...

Excerpt: ...nknown what other water source there could be for that drain. There is also a factual dispute as to whether there are other contributing water sources, such as the many residences along the street upstream from where the plaintiff slipped and fell. But neither of these factual disputes appear material to whether the release of water into the street drainage system created a dangerous condition as to the plaintiff. For example: Is there any eviden...

Excerpt: ...y incorporates the first 42 facts and evidence in support. Therefore, instead of analyzing each of the 18 issues, the court treats each cause of action as an issue for adjudication. First Cause of Action—Medical Leave Discrimination The plaintiff concedes this cause of action has no merit, and thus the motion is GRANTED. Second Cause of Action—Medical Leave Retaliation The plaintiff claims he was retaliated against for exercising his right to...

Excerpt: ...ourt Delay Reduction Act, the parties should consider this trial date certain and firm. Discovery Requests The plaintiff requests a six-month continuance of all discovery matters. The plaintiff submitted to the court a letter from his physician dated February 9, 2021 (see ROA 156) wherein she states that the plaintiff, who is self-represented, “is suffering from multiple health problems at this time. He needs an accomodation [sic] to delay any ...

Excerpt: ... are not referenced in the supporting evidence, and in Nos. 19-21, 27-28, and 31, simply refer to the “Dabcevic Dec.” without identifying which portion of the declaration is relied on. b. Objections Oh's objections to the declaration of Matthew Bauer (Nos. 1-7) are not material to the disposition of the motion. Thus, the court declines to rule on them. Oh's objections to the declaration of Christina Cigliano (Nos. 8-13) are OVERRULED. Oh's ob...

Excerpt: ...go, depression and insomnia, and other relevant neuropsychiatric symptoms.” (Mot., 2:17-18.) The curriculum vitaes of Dr. Rosenberg and the psychologist, Dr. Filoteo, which are attached to the motion, indicate that Dr. Rosenberg is a neuropsychiatrist and that Dr. Filoteo is a neuropsychologist. In his opposition, the plaintiff objects—in part—to the motion to compel on the ground that he is not claiming any psychiatric (nor any unusual psy...

Excerpt: ...us they had not been placed on notice. The plaintiff put in evidence the fact that there had been several car break-ins in the complex parking area, there had been a domestic violence incident between residents in the same unit, and one resident (with a known mental illness) had threatened other residents, including pointing a firearm at another resident. He also suggested this area of the city was dangerous; other residential complexes had put i...

Excerpt: ...m of constructive termination.) Whether he was actually terminated is a question of fact that cannot be determined on demurrer—unless it is clear from the allegations made that, as a matter of law, he was never terminated. Here, when the allegations of the amended complaint are read as a whole they are sufficient to state a cause of action. Motion to Strike The motion of the defendant to strike portions of the first amended complaint is GRANTED...

Excerpt: ...ady agreed on a date and time (pursuant to the minute order of July 22, 2021, the parties agreed to take Vich's continued deposition on August 11, 2021), these depositions shall be set within 20 days. The deponents do not challenge the right of the cross-complainants to take their continued depositions. They only complain that the new deposition dates had not been mutually agreed upon. The court finds that sanctions would not be in the interest o...

Excerpt: ...joint statement was filed. But as pointed out by the plaintiff's counsel, and as acceded to by the counsel for the Wurzburg defendants, there were several mistakes in it caused by the Wurzbergs' counsel. The court has reviewed the declarations submitted by counsel. The court accepts the representations of counsel that these mistakes were inadvertent only, and she apologizes for them. The court concludes that no further action on its part is neces...

Excerpt: ... plaintiff asserts a claim for fraudulent transfer. Such a claim is a real property claim for the purposes of a motion to expunge a lis pendens. (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648-649.) 2. Probable Validity of Claim The court finds that the plaintiff established the probable validity of her claim for fraudulent transfer by the preponderance of the evidence. She presented sufficient evidence to support an inference of fraudulent...

Excerpt: ...ecause of his race and sex, that he was dismissed from his job because he disclosed and complained about unlawful activities within the Program, and that he was not afforded the full complement of due process rights and protections due to him. In his second amended complaint, he alleges six causes of action (listed by their cause of action numbers in the amended complaint; the first cause of action was dismissed by court order): 2. Discrimination...

Excerpt: ...s void].) Arguments made by the defendants and their counsel to undermine the holding in Moore are frivolous. The motion for attorney fees and costs against attorney Randy Vogel is DENIED. In his opposition to the attorney fees request against the plaintiff, Vogel suggests that the request for attorney fees against him is sanctionable conduct. However, Vogel is represented by counsel who did not make a request for an award of sanctions in Vogel's...

Excerpt: ... matter to allow the parties to comply, having reviewed the merits of the demurrer and being fully familiar with the facts of the case, the better course is to hear the matter. 2. The opposition papers exceed the page limitation prescribed in California Rules of Court, rule 3.1113(d). Although the court could simply refuse to consider the opposition because of its excessive length (Cal. Rules of Court, rule 3.1300(d); see Weil & Brown, Cal. Prac....

Excerpt: ...the public policy states that the parties “and their attorneys must not include, or must redact” those identifiers and other private information “from all pleadings and other papers filed in the court's public file [] unless otherwise provided by law or ordered by the court.” The defendant's filings included personal identifying information the plaintiff states are not otherwise available on the Internet. A review of the offending documen...

Excerpt: ...art of her duties she was required to clean the bathroom where the incident took place. 3. The day before the incident, plaintiff entered the bathroom and there was a “locker” on the wall. She did not clean the bathroom that day. (At her deposition, she spoke Spanish and described it instead as “boxes.” However, her counsel, who speaks Spanish, said she meant to say “lockers,” and this was confirmed when she was asked by defense couns...

Excerpt: ...ars of the incident. (See Code Civ. Proc., § 335.1 [statute of limitations for personal injury action is 2 years].) Defendant plead as an affirmative defense that the action was barred by a 1-year limitations period contractually agreed to at the time the residential lease was signed by plaintiff. Initially, the court notes the lease provision may be misleading. For example, the lease agreement does not state that the statutory limitations perio...

Excerpt: ... “to contest the wrongful judgment.” But the only extant document in the file is the clerk's rejection. (RAO 190.) Fan made several other requests to bring her claims as to the alleged wrongfulness of the judgment to the court's attention, but they were all rejected by the clerk's office for noncompliance with the Rules of Court. On March 26, 2021, Fan filed a motion to vacate what she termed a “wrongful” judgment. (ROA 205.) Apparently, ...

Excerpt: ...he corporation. The form complaint alleges one cause of action for breach of contract against both the corporation (as signer on the agreement) and the individual defendants, as guarantors of it. (See BC-1(a) “written agreement was made between Plaintiff and MRP Creations, Inc., and was guaranteed by Stephen F. Frost, Tracey J. Frost”].) Attached to the complaint as exhibits are copies of the SBA Agreement and the guarantees. However, the fir...

Excerpt: ....” She was simply the Good Samaritan who found the plaintiff minor (a “Lower”) drowning and saved her. The plaintiff speculates that because Jimenez was substantially older than the other HSC counsellors at the public pool that day, and because someone made the decision to allow the “Lowers” to swim in the main pool as the kiddie pool was closed, it was most likely her. But speculation is not a basis on which to find a triable issue of ...

Excerpt: ....) However, the motion was not filed until January 13, 2021. The 60-day deadline is mandatory. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 320- 321.) Failure to file a timely motion forecloses any further relief. Further, the plaintiff failed to engage in a meaningful meet and confer as outlined in defendant's opposition, and on that ground the motion could also be denied. Merits Even if the motion had been timely and could be heard on the ...

Excerpt: ...t rents, if any, would be owed if a separate lease agreement for additional rooftop space to meet FCC regulations was signed by Verizon. But there are also allegations Landmark is threatening the plaintiff with litigation and claims for monetary damages if as a result of its claims Verizon fails to renew its lease. It is further alleged that if Verizon does not renew the lease Landmark will locate another tenant to conduct the same operations wit...

Excerpt: ...�� is incomplete. The contention that the plaintiff abandoned his job may be included within the definition of the term “termination.” As for Form Interrogatory No. 208.2, Don Jefe's response does not respond to the initial question. It asserts the defendant responded on September 11, 2020 as “Unknown and this information is equally and more readily available” to the plaintiff in response to Form Interrogatory No. 208.1 and appears to rel...

Excerpt: ...t North Hills requested the City of Brea to enforce the speed limit within the association or that plans were made to request speed limit signs or stop signs be placed along Berry Street is not evidence that North Hills had actual knowledge of a dangerous condition. The plaintiff's evidentiary objections set forth in their response to the separate statement are OVERRULED. The separate statement is not evidence. Any evidentiary objections must com...

Excerpt: ...kanska that would give rise to a duty of disclosure on Skanska's part. Thus, no cause of action has been stated here. (See Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.) According to the amended cross-complaint, SANDAG as the owner transacted with HDR directly for the engineering services on the project. SANDAG also contracted with Skanska to act as the contractor. However, there was no contract between Skanska and HDR. Moreover, SANDAG...

Excerpt: ...easonably incurred by the buyer in connection with the commencement and prosecution of such action.” The court reviewed each entry of the plaintiff's billing statement and, except for the final entry that claims 6.5 hours for review and preparation of a reply, time to appear at the hearing on the motion, and time to collect the fees and costs award, finds the time listed was actually expended and reasonably incurred. The final entry is reduced ...

Excerpt: ...lem festered until the eve of trial when the case was assigned to Judge Glenda Sanders. First-chair defense counsel stated that he had never seen the notes, only his associate had. It was further represented that the associate attorney, Mr. James Irey, honestly believed that the notes were the work product of first-chair defense counsel, Harry Safarian. The parties eventually entered into the following stipulation before Judge Sanders: Attorney J...

Excerpt: ... E. Robinson), and her former spouse's mother (Patricia Strang) for fraud, breach of fiduciary, and other causes of action that she alleges resulted in an unequal division of community property in the dissolution proceeding. a. Defendant's Request for Judicial Notice Defendant Robinson filed a request for judicial notice in conjunction with the anti-SLAPP motion. The request to take judicial notice is GRANTED. b. Plaintiff's Requests for Judicial...

Excerpt: ... Dahle to assist them in determining the viability of their business venture and to become a long-term partner. On August 1, 2016, Dahle presented Miano and McNary with a “Consulting and Advisory Services Agreement.” In addition to becoming the team leader in development of the business opportunities, he agreed to perform: 1. “Legal”—Item 3(h) 2. “Providing general legal, financial, and investment banking consultation services”— I...

Excerpt: ...of guardian ad litems), she cannot act as the plaintiff's attorney. This case (as well as the other litigation between the parties and others) has a complex history. For purposes of these three motions only, the court will set out its understanding of the pertinent historical facts: On July 22, 2015, the plaintiff filed a complaint for fraud and other causes of action against defendant Mohammad Rahgoshay. Although she initially filed as a self-re...

Excerpt: ...aw action—and has the defense files. Defense counsel here has advised the court it is aware of the contents of those files because a “former attorney” of Gordon & Preis told defense counsel that an independent psychiatric medical examination had been conducted and the firm's files contained an unflattering IME report. However, the court has now been advised by plaintiff's counsel here that Joseph Preis of Gordon & Preis has advised that no ...

Excerpt: ... the court, constitute a ground for denial of the motion. (See Wilson v. Blue Cross of Southern Calif. (1990) 22 Cal.App.3d 660, 671.) The court denies the motion on procedural grounds. Merits, in the Alternative Although the court is denying the motion on procedural grounds, the court would deny the motion on the merits, as well. 1. Proper Party Defendant? The named defendant is George J. Roth, as Trustee, etc., who everyone agrees is dead. It i...

Excerpt: ... belief that defendant Mark Starr was a resident of Westchester, New York, and that defendant Hunting Ridge, Inc., was a corporation with its principal place of business in Westchester, New York. The complaint alleges that Johnson is an avid car collector who saw an Internet advertisement for a 1972 Porsche 911 RS Carrera Tribute with only 12,716 miles on it— what he described as a rare find—offered for sale by Huntington Ridge Motors. Johnso...

Excerpt: ... could, if necessary, produce additional evidence on appeal. Rule 8.278(d)(1)(C) of the California Rules of Court limits recovery of these costs to ”[t]he cost to produce additional evidence on appeal.” (Italics added.) Neither side cites controlling authority on this point and the court was unable to discover any on its own. However, the court reads this subsection to allow such costs only if additional documents were actually produced pursu...

Excerpt: ...gued that under the arbitration provision AAA is the default arbitration service if the defendant disapproves the plaintiff's selection. The plaintiff countered that it would only select JAMS and the defendant waived any challenge to its selection because it did not timely object. Although the plaintiff does not use these words, essentially he argues that the arbitration selection process in the agreement is procedurally unconscionable if he has ...

Excerpt: ...December 28, 2019, a Saturday; the filing of the cost bill the following Tuesday, December 31, 2019, or two court days thereafter, was thus timely. The defendant failed to meet his burden to show that the costs were unreasonable or unnecessary because no evidence was submitted in support. The “declaration” of attorney Carl Pentis filed with the motion was not filed “under penalty of perjury” (Code Civ. Proc., § 2015.5), and thus the moti...

Excerpt: ...LC, after the loan servicing was transferred. 2. Other Causes of Action The motion of this defendant for judgment on the pleadings as to the remaining causes of action is DENIED. Nearly 25 years ago the plaintiff and his then-spouse (a defaulted defendant here) were involved in a marital dissolution. During the distribution of assets and debts, a dispute arose over encumbrances placed on certain real property by the wife. The issue was litigated ...

Excerpt: ...l be filed (Code Civ. Proc., § 404), or nothing will be done. Demurrer (HDR Engineering) The demurrer of defendant HDR Engineering, Inc., to the second, fifth, and sixth causes of action of the first amended complaint (ROA 32) is OVERRULED with 15 days to answer. Second Cause of Action (Negligent Misrepresentation) Each element of a cause of action for negligent misrepresentation generally must be alleged with a specificity that shows how, when,...

Excerpt: ...no longer good law for the reasons articulated in Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261 at pages 1270 through 1278. Moreover, nothing in Steiner suggests that the obtaining of a writ of attachment limits remedies in tort as against other parties. Here, the proposed amended complaint adds a third party (albeit the spouse of the original defendant) and makes at least one other substantive change. The general rule is that in...

Excerpt: ...rounds upon which the motion will be made” and specify “the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict.” Although the statute is explicit, at least one appellate court has held that the “notice of motion” to vacate may be sufficient to meet the statutory criteria if it adequately meets section 663a's...

Excerpt: ...otions meet the first prong. The third cause of action alleges protected activity under the First Amendment; i.e., the filing of an FPPC complaint during an election campaign about election activity. It is further undisputed that the third cause of action must be stricken because the filing of an FPPC complaint, even one that may contain false allegations, is protected speech that may not be subject to judicial oversight. The first two causes of ...

Excerpt: ... it. Each side then explains what the various marks, and absence of marks, meant relative to that paragraph and the agreement. The plaintiff even accuses defendant Wendy Alexander of submitting a fabricated version of the agreement with a check mark next to Paragraph 6.6. She demands that Alexander bring the original to court, and she proposes to testify at the law and motion hearing, apparently to prove the document was altered. Alexander oppose...

Excerpt: ... of interest and acted in bad faith in approving the Consulting Agreement, thus abrogating the Rule. Fourth and Fifth Causes of Action for Accounting The primary argument is that the plaintiff does not plead she does not have access to the corporate records, or that her claims can only be addressed by an accounting. It is clear from a fair reading of the amended complaint that the plaintiff asserts she does not have access to the corporate books ...

Excerpt: ...ifornia, resulted in the plaintiff transferring money that ultimately went to the defendants here in California. For purposes of pleading, the allegations are sufficient to establish Orange County as a proper venue. The ten causes of action are sufficient pled to withstand the demurrer. Motion to Strike The motion of the defendants to strike punitive damages and other allegations from the Complaint is DENIED. Sufficient facts are stated that woul...

Excerpt: ...o carry out normal activities. The plaintiffs alleged the deceased had a “mental limitation that restricted her ability to carry out normal activities and to protect her rights.” (Third Am. Complaint, 8:25-27; RAO 146.) The motion for summary adjudication suggests the deceased was not a dependent adult because she had no limitations that would prevent her from carrying out her normal activities. It says she “was able to walk, feed herself, ...

Excerpt: ...ourt may not impose issue, evidentiary, or terminating sanctions for a party's failure to pay sanctions. It may impose such sanctions only for the failure to provide further verified responses. That said, the Court is concerned because prior filings suggest the primary defendant is in prison in Vietnam and may be unable to provide the further responses. On the other hand, the defendants are represented by counsel and counsel has failed to explain...

Excerpt: ...e. The responses comply with the requirements of Code of Civil Procedure section 2033.220, Subdivision (c). The plaintiff complains that the defendants or their attorney had access to information (such as the CHP Report) that was readily available and intentionally chose not to use it before responding. But a court cannot order a further response to a request for admission that has been unqualifiedly denied, even if the facts involved are unquest...

Excerpt: ...ual statements within the review, and the defendant failed to take down the entire review when asked to do so. First prong It appears the subject matter meets the first prong of the anti- SLAPP test: the submitting of a Yelp review is clearly in furtherance of a party's First Amendment right. (Code Civ. Proc., § 425.16, subd. (b)(1).) Second Prong The critical issue appears to be whether the plaintiff—a for- profit, post-secondary school—is ...

Excerpt: ...ird Cause of Action for products liability. Evidentiary Objections The defendant's evidentiary objections to the declaration of Nadia Bayazid is SUSTAINED as to Nos. 1, 2, and 3, and OVERRULED as to Nos. 4 and 5. Request for Judicial Notice The defendant's Request to take Judicial Notice of Exhibits 1 and 2 is GRANTED. The defendant's Request to take Judicial Notice of certain unpublished federal District Court opinions (Exhibits 3, 4, and 5) is ...

Excerpt: ...o the Third Amended Complaint. (See ROA 254, 257.) On April 22, 2019, defendant Preferred Hotel Group filed an ex parte request to continue the then trial date of May 20, 2019 (see ROA 264), on the ground that it had been recently brought in and had a right to file a motion for summary judgment. The Court granted the ex parte request and set the current trial date of October 21, 2019. This date was selected in open court with the assistance of co...

Excerpt: ...for example, the defendants had conflicts of interest and entered into the Consulting Agreement in bad faith. Fourth and Fifth Causes of Action The defendants fail to point out where in the Second Amended Complaint the plaintiff alleges a specific damage claim. Thus, causes of action for accounting are proper. Sixth Cause of Action This cause of action is not barred by the two-year statute of limitations because it relates back. This cause of act...

Excerpt: ...ther allegations from the Complaint is DENIED. The basis of the motion is evidence outside the confines of the Complaint and not otherwise subject to a request for judicial notice. Notice Notice for the three motions above shall be given by the plaintiff. Order to Show Cause re Sanctions No tentative. Defendant Dao, a self-represented attorney, should be prepared to explain why he has, for the second time, filed a motion months out when there wer...

Excerpt: ... plaintiff may plead inconsistent claims. But when there is a cause of action for breach of contract, the plaintiff is precluded from also alleging a separate cause of action for quasi-contract that does not deny the existence of the contract. (See Klein v. Chevron U.S.A., Inc. (2012) 212 Cal.App.4th 1342, 1389-1390.) Fifth Cause of Action—Fraud There are no facts alleged that would support a claim that the defendant had no intention of perform...

Excerpt: ...ht to bring this action. But as indicated below, the Court will not take judicial notice of “Exhibit 3” to the Complaint: such an “exhibit” was not attached to what was filed with the Court. Even so, the parties agree as to the language of the assignment. A fair reading of the assignment from Downey Savings could be that while the plaintiff is not entitled to receive the percentage rents, it is entitled to one-third of the percentage rent...

Excerpt: ...d Complaint was to be filed within 10 days of the order. A “proposed” Fourth Amended Complaint had been “received” by the Court on March 6, 2019 (ROA 148); i.e., six days earlier, but that pleading was never filed, only received, and no subsequent amended complaint was filed with the Court in accordance with the Court's March 12 order. In the interests of justice, and because the parties appear to accept the amended complaint received Mar...

Excerpt: ...ent inducement” and “concealment,” and seeks general as well as punitive damages. This is the heart of the Complaint. They allege the defendant manufacturer knew that: (a) the transmissions were defective; (b) these safety defects are not repairable; (c) the defects were not publicly known; and, (d) the defects in this vehicle were not disclosed but actively concealed from the plaintiffs at the time of the dealer sale and repair attempts. T...

Excerpt: ...Sue letter and are barred by the applicable statute of limitations. Those arguments have merit as the Second Amended Complaint is now pled. The plaintiff has attempted to resolve that issue by procuring an amended Right-to-Sue letter which he has now filed with the Court. (ROA 118.) Because there is a jurisdictional burden on the plaintiff to plead the timely filing of a sufficient complaint with the Department of Fair Employment and Housing, the...

Excerpt: ...eferred the matter to arbitration. All court proceedings were stayed pending the arbitration award. On May 3, 2019, the plaintiff filed a motion to vacate and set aside the stipulation and order on the ground plaintiff's counsel mistakenly, inadvertently, and excusably believed the defendant would pay the arbitration fees pursuant to Armendariz. (Code Civ. Proc., § 473.) Counsel says he first became aware that JAMS would require his client to pa...

Excerpt: ... State Bar has concurrent jurisdiction. (Cal. Rules of Court, rule 9.40(f).) If it is true that attorney Reiland failed to advise the Court and the State Bar of his professional move, that would appear at best to be an ethical lapse by Robert Reiland and Mario Palencia better addressed by the State Bar. Finally, the Court notes that neither Robert Reiland nor his supervising California attorney, Mario A. Palencia (SBN 300315), have filed oppositi...

Excerpt: ...of Service on Summons and Complaint, service on Saif Almarri was by substituted service on his wife. Service was not complete until 10 days after mailing, or May 9, 2019. Because the hearing was set for May 30, 2019, service had to be completed by May 7, 2019. Thus, Almarri did not receive adequate notice. There is No Showing of a Contract The documents attached to the declaration of Dr. Leaf are an e- mail thread and a general proposal of what i...

Excerpt: ...ounds. Summary Judgment The defendant does not appear to meet its initial burden because it does not address one of the bases for the complaint; i.e., that the defendant did not advisethe plaintiff of his legal options as to the right to seek damages for breach of contract. Where does the defendant even deny this allegation? The motion argues instead that the defendant's filing of an amended complaint that includes a cause of action for breach of...

Excerpt: ... facts are alleged. Demurrer to Cross-Complaint The demurrer of cross-defendants Summerset Mobile Estates and Mobile Modular Development, Inc., to the First Amended Cross-Complaint is SUSTAINED as to First Cause of Action, and OVERRULED as to the Second, Third, Fourth, Fifth, and Eighth Causes of Action with ten days leave to amend. Motion to Strike/Demurrer The motion of cross-defendant Deborah Fernandez to strike the First Amended Cross-Complai...

Excerpt: ...be used to pay the mortgages on the respective properties, but the defendant kept the money instead. Such a theory is outside the terms of the arbitration agreement. The defendant counters that he was hired to represent the plaintiff in court. (See Reply 2:11-12.) But there is no indication any lawsuits were filed or that he took any action to maintain any litigation. It is not even clear reading the agreement that litigation was the focus of the...

Excerpt: ...n the stock market with the gains used to pay the property taxes. In his motion, the defendant concedes this second option, and no evidence is presented showing when the plaintiff became aware the HELOC funds had not been used for this other purpose. The defendant thus did not meet the initial burden to show these causes were time-barred. The suggestion that the plaintiff was on notice that the funds had not been invested in the stock market beca...