Excerpt: ... would have standing to bring the motion as to the Cross-Complaint, but that is what the notice of motion says. The motion could probably be denied on this ground alone—i.e., the wrong parties (the “plaintiffs”) are bringing the motion. The Cross-Complaint is equally confusing. It lists only one cross-defendant; i.e., “Jaswinder Singh Grover as Trustee of the Grover Family Trust dated March 22, 2004.” He is listed that way in the captio...

Excerpt: ... to tax costs is GRANTED in part, striking a total of $14,689.43. The Court finds the total allowable costs are $2,157.74. The plaintiff does not oppose taxing item Nos. 2, 8, 11, 12, and 14. Thus, they are STRICKEN. As to item No. 1, the Court STRIKES $210 on the ground the plaintiff posted jury fees after the defendant's 998 offer had expired and allows only $435. As to item No. 4, deposition costs, the Court STRIKES $2,815.81 and allows only $...

Excerpt: ...iffs; but the court consolidated them into one, so there is only one complaint) is based on two separate factual situations: The first and second causes of actions allege the plaintiffs were stalked and harassed by staffers of the Hertzberg campaign at the direction of the Hertzberg and Fukushima; and the third cause of action seeks damages because Fukushima filed a complaint against them with the FPPC and it was done with malice. The plaintiffs ...

Excerpt: ... governmental agency denies a government tort claim the timely filing of anything other than the actual lawsuit renders the action time-barred. Orr is not helpful. In that case, the plaintiff filed a motion to preserve testimony and then, after the six months had run, filed the lawsuit. The appellate court reviewed the language of the statute and concluded that a motion to preserve testimony was not a “suit.” Here, on the other hand, the cros...

Excerpt: ...hey contain objections that have been waived, and they are not in substantial compliance with the Discovery Act, the Court “has no discretion and must grant the motions.” (Reply, 6:24-25; italics added.) The plaintiff cites Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390 for the proposition that the Court must hear the motions precisely because the responses are conclusory and not code-complian...

Excerpt: ...der the employer's liability provisions. Further, if he had alleged employee status, his claims would have been covered under Worker's Compensation laws, and thus would have been excluded under the policy. From this, the defendant concludes it had no duty to defend and thus no liability in this action. The plaintiff suggests there was extrinsic evidence of Remeyer's employment status available to the defendant at the time the prior lawsuit was fi...

Excerpt: ...was timely served on the defendant. The opposition finally reached this Court the day before the hearing, and the Court issued a corrected tentative suggesting it intended to continue the hearing to allow the matter to be fully briefed. Counsel for the moving party did not show at the scheduled hearing. Thus, and with the concurrence of plaintiff's counsel who did appear, the Court took the matter under submission to review the late-filed opposit...

Excerpt: ...s not entered into freely and voluntarily with knowledge of the venue provision. In short, the defendant did not meet its burden. The defendant then suggests the Reseller Agreement does not apply because, it alleges, the goods were stolen by a former employee of the third-party buyer. That goes to the merits of the action, which is inconsistent with the specially-appearing stance position of the defendant. Further, theft by a third person, even i...

Excerpt: ...t Cause of Action (§ 1983 Action) There is no cause of action against the University under 42 U.S.C. § 1983. The University is an arm of the State. (See Miklosy v. Regents of the Univ. of California (2008) 44 Cal.4th 876, 889-890.) An arm of the State is not a “person” under the statute and cannot be sued. (See, e.g., Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66-67.) Third Cause of Action (FEHA Claim—Sex) The sexual-orien...

Excerpt: ... were made within the scope of the function of the peer review body. This same argument was rejected by the Court of Appeal in Chundu v. Cork (Nov. 19, 2018), G055362, albeit in response to an anti-SLAPP motion. At that time, the Court of Appeal stated that Cork had not produced any evidence that her comments were made as part of an official peer review proceeding, in part because she denied there was a peer review investigation. (See ROA 238.) T...

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: .... The Second Amended Complaint substitutes out the minors and introduces a new party—a trustee of a newly-created trust that claims it is a non-contingent beneficiary based on a new transfer. The order granting the motion for judgment on the pleadings with leave did not allow the substitution of a new party plaintiff. Whether to allow the substitution of a party plaintiff is discretionary with the Court and must be made by separate application....

Excerpt: ...ness. (See Code Civ. Proc., § 2031.230.) Because the discovery is proper, the burden shifts to the responding party to justify its objection or failure to respond fully. The opposition to the motion tells the Court the electronic records were destroyed by an unnamed outside vendor at an unspecified time in response to an unspecified federal mandate to upgrade business computers. It further asserts it searched an attic and another document reposi...

Excerpt: ...s of the demurrer, the Court must accept those allegations as true. It is further alleged these defendants had been made aware of prior conduct by defendant Thomas. (See Paras. 22, 23, and 29.) Second Cause of Action (Negligence Per Se): OVERRULED. These defendants are mandatory reporters who were on notice of the actions of Thomas, both from the prior report from a different party and the earlier report from the plaintiff. (See Paras. 46-47.) Th...

Excerpt: ...urt, rule 3.1350(b). Thus, the presence of any triable issue of material fact requires denial of the motion. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Weil & Brown, Cal.Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2018) § 10:88.) Had notice been properly given, the defendants might be entitled to summary adjudication of issues as to the Third, Fourth, and Fifth Causes of Action. But there is a triable issue of material fact as to...

Excerpt: ...rial date. (See Cal. Rules of Court, rule 3.1332(a).) Motion to Modify/Quash Deposition Subpoenas The motions of defendants Susan Su Chun Wu and Samuel Wu, and cross-complainant SC Enterprises Investment, LLC, to modify or quash certain deposition subpoenas are, at the request of the parties, OFF CALENDAR. (See ROAs 307, 310.) Motion of Non-Party Witness Charles Ting The motion of non-party witness Charles Ting for a protective order for himself ...

Excerpt: ...intiff's agent in trying to save his properties from foreclosure. He gave the defendants over $100,000 and instead of using this money to pay the lender the defendants converted it to their own use and the properties were lost. It does not allege that the defendants were acting in any professional capacity. An attorney cannot convert an otherwise timely action into one that is time-barred under section 340.6 simply by saying in the text of a demu...

Excerpt: ...mitations had not really run, is little more than an attempt to re-argue the first demurrer. Because the motion was brought more than five months after service of the Notice of Ruling on the demurrer, it is untimely. (Code Civ. Proc., § 1008, subd. (b).) Even if the Court were to consider the motion on the merits, it would be denied. Motion to Compel Deposition The motion of defendant Steven C. Dennis, M.D., to compel the deposition of the Perso...

Excerpt: ...conjecture based apparently on a very broad reading of a part of defendant Huerta's apology letter. The same is true of plaintiff counsel's representation that the title of these documents is “code” for something defendant Stater Bros. wishes to hide. There is no evidence to support that claim, either. On the other hand, the submission by the defendant of declarations by the Person Most Knowledgeable in opposition to the discovery motion, ess...

Excerpt: ... that the arbitrator “granted leave” to allow the plaintiff to file this motion. But any motion to compel the deposition of a third party must first be heard by the arbitrator. (Berglund v. Arthroscopic & Laser Center of San Diego, L.P. (2008) 44 Cal.4th 528, 533-538; see Uber Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 959.) The role of the superior court, on the other hand, is to review the arbitrator's ruling. Nothing in th...

Excerpt: ...added in order to defeat the defendants' pending summary judgment motion. But the plaintiff asserts, and the declaration of attorney Mark Simowitz underscores, that the additional facts—including allegations that the defendant attorneys hid pertinent facts from the plaintiff—were only discovered as part of 11,194 pages of discovery produced January 22, 2019, well after the summary judgment motion was filed. None of the authorities cited by th...

Excerpt: ... therein. Because the plaintiffs did not meet their burden to show in the motion for summary judgment that the matter was at issue and there was no triable issue of material fact, the motion must be denied. Thus, the Court does not address the affirmative or other defenses raised. The belated attempt by the plaintiffs to address the affirmative defenses in their reply is procedurally improper and must be rejected. Merits Even if the Court were to...

Excerpt: ...reasonable fee altogether”].) The fee declaration by attorney Hailyn Chen states that this matter was handled pursuant to an “alternative fee arrangement,” but that her standard hourly rate in 2018 while this matter was pending was $850 per hour. Is there any evidence that that is a reasonable hourly fee for like work in Orange County? In his opposition to the motion for attorney fees, the plaintiff suggests the defendants are not obligated...

Excerpt: ...es a claim for loss of consortium. The defendants do not cite any case that addresses that specific issue. Both Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274 and Lantis v. Condon (1979) 95 Cal.App.3d 152 simply hold that this cause of action is not derivative to the other spouse's injury and damages. The plaintiff shall give notice. ...

Excerpt: ...is evidence the harassment occurred on a “daily basis while [she] was at work.” (See Paragraph 7 of the Plaintiff's Declaration; Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278-279.) The defendant relies heavily on evidence Plaintiff had pre- existing mental health issues. (See Separate Statement of Undisputed Facts Nos. 39-40.) However, evidence of pre- existing conditions does not establish, as a matter of law, a lack...

Excerpt: ...ved for the jury if reasonable men could differ (see Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499), and particularly when it is combined with a claim for breach of implied warranty of habitability (see Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922). Here, the failure to repair knowingly harmful mold may reasonably be found to qualify as “outrageous.” 2. Fifth Cause of Action for Nuisance Because this claim is not being as...

Excerpt: ...aw, even if there is a suggestion the buyer did not act with due diligence in investigating the facts. (See Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1497-1499.) As to the fiduciary causes of action (the Fourth and Fifth), a broker has a duty to disclose items that affect the desirability of the property to the buyer. (See Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1520.) As to the breach of the implied covenant cause of ac...

Excerpt: ...e is evidence the plaintiff fell off the stairway and landed on the ground in an area below where a handrail should have been, a reasonable jury could find that the absence of a handrail was a proximate cause of the plaintiff's injuries. The defendant suggests there is no evidence that the plaintiff was either attempting to ascend or descend the stairway; in short, he was just standing there when he fell off the stairway. Even if the plaintiff ha...

Excerpt: ... or portion thereof. To the extent such a request is even relevant here (see defendant Torriero's argument explaining why it is not), it is meritless because that part of the Rule is permissive, not mandatory. The failure of the defendant to list each party and pleading affected by the motion does not affect the merits of the motion. There is only the original complaint, and all of the other defendants (i.e., not Severson or Nunez) have been brou...

Excerpt: ... matters were first on calendar, it was clear that the parties had not met and conferred beforehand. The parties were ordered to meet and confer and to submit a “joint statement” as to the discovery issues that remained following the mandated meet and confer process. For reasons that are unclear, counsel did not jointly file a meet and confer statement as ordered. Rather, each submitted a “unilateral joint” statement—whatever that is—...

Excerpt: ...1/2 page form complaint, researching the law on restitution under the “Lemon Law,” and a “lengthy” telephone call with the client. Given her law firm is called “Lemon Law Associates of California” and she claims to have a large state-wide practice in this area, it would be fair to assume that she has a standard complaint where the only changes are to the name of the plaintiff and the county. Any research on restitution would be minima...

Excerpt: ...s could proceed because the motion does not appear to affect the Perero defendants in any meaningful way. It would appear the Case Management Conference will need to be continued to provide adequate notice. First, Second, and Third Causes of Action The motion of defendants Huntington Beach City School District, Greggory Haulk, Jeff Smith, and Darrenn Platt for judgment on the pleadings as to the First, Second, and Third Causes of Action is GRANTE...

Excerpt: ... objective test there is a triable issue of fact as to when the plaintiff discovered, or through reasonable diligence should have discovered, defendants committed dental malpractice. The plaintiff shall give notice. ...

Excerpt: ...r or a four-year statute of limitations period? Case Management Conference The defendants request a 4-day jury trial. The parties are ORDERED to post jury fees forthwith. Notice The defendants shall give notice. ...

Excerpt: ...ovisions that were “to resolve all disputes that may arise out of the employment context.” The agreements appear to be effectively the same. The plaintiff claims these agreements are substantively and procedurally unconscionable. 1. Procedural Unconscionability The plaintiff argues that the arbitration agreement was forced on him; i.e., “take it or leave it.” The plaintiff does not submit a declaration to support that assertion. Even if i...

Excerpt: ...mpany, LLC.” The plaintiff claims the caption is a clerical error. Having reviewed the Court's file, the Court finds this was a clerical error and defendants were not prejudiced by it. Amendment of Judgment—Individual Defendant's Name The motion of plaintiff Merchant Capital Source, LLC, to amend the Clerk's Default Judgment nunc pro tunc to reflect a different name for the individual defendant is DENIED without prejudice. The Complaint filed...

Excerpt: ...ng because he is not a party. But Article X, Section 9 of the Memorandum expressly authorizes the plaintiff's action. 2. The defendant asserts the Memorandum of Understanding is not a valid contract because there is no consideration. Specifically: “In terms of consideration, what exactly is being provided to the County by either OCMA or its public employee members in exchange for the granting of these various entitlements?” An awkward argumen...

Excerpt: ...ges in a property management business is not sufficient, as a matter of law, to show agency, alter ego, or any other relationship between it and Sage Kia Downtown LA as to this design contract. The plaintiff does show a contract between it and defendant Sage Kia Downtown LA. But there is a procedural problem with the notice of motion: It is misleading in that Paragraph 1 it lists the summary adjudication as having been brought against all three d...

Excerpt: ...f the plaintiffs for judicial notice is GRANTED, but only to the extent the documents exist, not as to the truth of any matter contained therein. The request of the defendant for judicial notice is GRANTED, but only to the extent the documents exist, not as to the truth of any matter contained therein. (See Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124.) The evidentiary objections of the plaintiffs are OVERRULED. Th...

Excerpt: ...arty. But under Code of Civil Procedure section 369, subdivision (a)(2), the plaintiffs may only proceed on the allegations here in their capacity as trustees of the trust. (Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753.) The plaintiffs have not sufficiently pled around the statute of limitations. The limitations period for a latent construction defect starts “after the damage is sufficiently appreciable to give a reasonable man notice t...

Excerpt: ...udgment. ...

Excerpt: ...e. Paragraph 72 alleges, for example, that after the tenancy commenced the defendant hired a mold expert and failed to disclose that the property had tested positive for toxic and mold growth. The defendant shall file his answer within 10 days. Motion to Strike The defendant's motion to strike portion of the First Amended Complaint is DENIED. Case Management Conference It appears the case is ready to set for trial. The Court intends to set the ma...

Excerpt: ...ails to amend the pleading in a timely fashion. It says nothing about service. Defendant does not cite, and the Court is unaware of, any authority justifying the dismissal of an action where, as here, the pleading was timely amended even if not timely served. The defendant also relies on Code of Civil Procedure section 581, subdivision (m). But that section is a general statement of the Court's powers and does not provide a legal basis on which t...

Excerpt: ... Strike Code of Civil Procedure section 430.41, subdivision (a), requires the demurring party to meet and confer in person or by telephone with the party who filed the complaint before filing a demurrer. Counsel for the demurring party did neither. It merely sent a relatively short letter without substantial discussion or citation to authority indicating it did not believe the complaint stated a cause of action. The demurrer and motion to strike ...

Excerpt: ...re due no later than May 10, 2018. On May 21, 2018, the defendants filed a motion to dismiss for failure to file an amended complaint. Plaintiff has not filed opposition to the motion, but he has reserved a law and motion hearing date of October 11, 2018, seeking to “continue the case.” He suggests that he is no longer in the country and will not return until October, but he does not provide the Court with any evidence, such as copies of airl...

Excerpt: ...n the controlling statutes, the conduct of the parties, and its understanding of the intent and purpose of the stipulated discovery order, the Court concludes that the motion was timely. These Special Interrogatories do not violate Code of Civil Procedure section 2030.060, subdivision (f); and, they fall within the scope of the First Stage Discovery. The Court concludes that in the interests of justice no sanctions should be awarded. The plaintif...

Excerpt: ...thinks could state a cause of action. The Fourth Cause of Action is for fraud in the inducement, but fails to state specific facts showing the defendant did not intend to perform at the time it issued the policy. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.) The motion of defendant Interinsurance Exchange of the Automobile Club of Southern California to strike allegations of punitive damages is GRANTED with 10 days leave to amend. The ...

Excerpt: ...re due no later than May 10, 2018. On May 21, 2018, the defendants filed a motion to dismiss for failure to file an amended complaint. Plaintiff has not filed opposition to the motion, but he has reserved a law and motion hearing date of October 11, 2018, seeking to “continue the case.” He suggests that he is no longer in the country and will not return until October, but he does not provide the Court with any evidence, such as copies of airl...

Excerpt: ...t case is unhelpful for two reasons: (1) it involved a motion for relief brought in the context of a summary judgment motion for which subdivision (b) [requiring mandatory relief for attorney fault] was held not to apply [id. at pp. 228-229]; and (2) counsel's declaration stated the answer was filed a few days late because he had “forgotten to instruct [his] assistant” to file the answer on the day it was due. (See decl. of attorney Colin Mun...

Excerpt: ... After the request for partial dismissal was filed, the Court issued its final ruling and indicated the motion brought by this defendant was now moot. Based on the above history, the request for attorney fees (if any fees are still being requested) is DENIED. John Severson The anti-SLAPP motion of John Severson was granted in part and denied in part. (See this Court's June 4, 2018 minute order.) A defendant who successfully brings an anti-SLAPP m...