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