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: ......

Excerpt: ...18.) Here, paragraphs 18 and 20 of the complaint set out the maximum amount: $27,223.38 for missing tires, $6,603.56 for missing parts, and $2,200 for missing struts, for a total of $36,026.94. This is the same amount as in the default judgment. The default judgment signed by Judge Schulte is thus not void. Extrinsic Mistake A. Procedure A motion to set aside a default and default judgment must be accompanied by a proposed pleading, in this case ...

Excerpt: ...sly allowed nor disallowed under Code of Civil Procedure section 1033.5. An item neither expressly allowed nor disallowed may be recoverable in the Court's discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4).) Although the Court encourages parties to engage in voluntary mediation, under the facts of this case such costs were not “reasonably necessary to the conduct of litigation.” The motion to tax mediation costs is GRANTED. Item No. 8: Th...

Excerpt: ...ery still outstanding which, counsel argues, likely will provide additional information necessary to opposition to the motion. The plaintiff shall give notice. Addendum on Discovery Referee The Court has reviewed the Joint Statement regarding status of the Discovery Referee filed June 12, 2018. The Court has been advised that Justice Aldrich (Ret.) has declined to accept the appointment as discovery referee here. Each side has suggested two very ...

Excerpt: ...rs suggests the contract was solely with the owners of the projects, but that this defendant entered into an oral agreement to “compensate” the plaintiff (whatever that means) if the owners failed to pay. A preliminary reading of the subcontract submitted by the defendants suggests that there is no written agreement between the plaintiff and this defendant to pay for materials and work performed on this project. That leaves the alleged oral a...

Excerpt: ...his declaration to this application, the plaintiffs' attorney states that he contacted the President of Exeter Exchange Management Corporation who told him Exeter has not been the agent for service of process for The Testa Family LLC for at least four years. Nowhere in the LLC's opposition to the application does anyone contradict the statement of the President of Exeter Exchange Management Corporation. Nor does anyone suggest that there is anoth...

Excerpt: ...here the local Court of Appeal has weighed in on this question, and thus it appears this Court may choose its own path among the competing authorities. The Court holds that for pleading purposes, the complaint states a cause of action for intentional interference with contractual relations because it effectively alleges that the property owner is not a party to the contract. The plaintiff shall give notice. ...

Excerpt: ...tate sufficient facts that these defendants were “employers.” The motion to strike is DENIED as MOOT. The demurrer of defendant Newport Mesa Inn, LLC, dba Best Western Newport Mesa Inn is SUSTAINED with 20 days leave. It does not appear from the opposition to the demurrer that the plaintiff actually opposes it on the merits, but relies instead on the intended filing of a First Amended Complaint. The argument by the demurring party Newport Mes...

Excerpt: ...mend was filed after the defendants filed a motion for summary judgment, and the proposed amendments effectively “add” three causes of action for racial discrimination, the defendants would be prejudiced if the amendments, as proposed, were allowed at this time. The August 9, 2018 hearing on the summary judgment motion, and the September 24, 2018 trial date, remain on calendar. The defendants shall give notice. ...

Excerpt: ...tion 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) The cross-defendant cites Exhibits I through M, which consists of approximately 40 pages. Although it does not offer citations to specific responses, a review of ...

Excerpt: ... to the plaintiff to establish general jurisdiction here. The plaintiff did not meet its burden. Service of process in on a foreign corporation's designation of an agent for service of process in California is not a consent to jurisdiction in this State. (See Gray Line Tours v. Reynolds Elec. & Eng'g Co. (1987) 193 Cal.App.3d 190, 194-195.) Similarly, an unverified complaint cannot establish jurisdiction because it is not competent evidence. The ...

Excerpt: ...es that, “A representation or inability to comply with the particular demand [] shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or ...

Excerpt: ... are awarded against defendant Wei Li to be paid within 30 days. Notice Plaintiff shall give notice. ...

Excerpt: ...y to brief the licensure issue raised by the motion. At the close of trial, the parties agreed that closing argument would be made in writing, thus oral argument is neither necessary nor appropriate. The matter is again taken under submission. ...

Excerpt: ...es that, “A representation or inability to comply with the particular demand [] shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or ...

Excerpt: ...ments of that section. (See Code Civ. Proc., § 128.7, subd. (c)(1).) The plaintiff shall give notice. ...

Excerpt: ...il March 20, 2018, or around 136 days after service, and thus it is untimely. The defendant asked the Court to exercise its discretion and hear the matter. Subdivision (f) allows a trial court, in its discretion and on terms it deems just, to hear a motion even if untimely. The court reviewed the defendant's declaration and the court's entire file. Based on that review and the purpose to be served by the anti-SLAPP statute, the court elects not t...

Excerpt: ...otion on the merits. It is, for purposes of this motion, undisputed the accident occurred on a fire road on county land in the County of Riverside. The only reason the original complaint was filed in Orange County is because the attorney who drafted the complaint mistakenly alleged that the county road was located in Orange County. This court's records do not disclose any other jurisdictional basis for filing the case in this county. Buddy Corpor...

Excerpt: ...ut the plaintiff has by “stipulation” agreed to vacate and set aside the defaults. The “stipulation” was filed as an attachment to a declaration by plaintiff's counsel on March 27, 2018. It contained various terms that required a court order. But as counsel's declaration recognized, the Court could not issue orders based on the stipulation because it was signed by an attorney claiming to represent defendants who had neither appeared nor p...

Excerpt: ...o compel and the Case Management Conference are CONTINUED to June 14, 2018, at 1:30 pm. Any supplemental documents must be filed at least 9 court days before the next hearing. The defendants shall give notice. ...

Excerpt: ...ed to state a cause of action for fraud. The Complaint alleges the defendant promised to pay for the services rendered but did not; issued a check and then put a stop payment on it; and created disputes without justification as a pretext for not paying agreed upon fees even though the work was performed in accordance with industry standards. 2. Second Cause of Action for Passing Check with Insufficient Funds The defendant asserts this cause of ac...

Excerpt: ...matter of law by the statute of limitations, the plaintiffs appear to concede that the construction was completed in and around 2012 and that they did not purchase the property until 2017. Without more, an allegation that they only discovered the construction defects within the past three years would be insufficient to allege a delayed discovery because it leaves open the distinct possibility that the cracks or other damage was observable and kno...

Excerpt: ...ns are moot. If the motions are not moot, then they are GRANTED, except that No. 20 is limited to the year 2015. The request for monetary sanctions against the defendants is GRANTED in the total amount of $1,260, payable within 30 days. The plaintiffs shall give notice. ...

Excerpt: ...t ORDERS sanctions in the amount of $470.95 for each of the three motions (for a total sanctions award in the amount of $1,412.85) against both the attorney and the defendant. The sanctions shall be paid within 30 days. The plaintiff shall give notice. ...

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: ...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: ...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: ...2012) 211 Cal.App.4th 1, 8.) The “Good Faith” Causes of Action 1. First Cause of Action for Intentional Misrepresentation The plaintiff's claim for intentional misrepresentation is unclear, but it appears he alleges the defendant misrepresented that it would perform a “good faith” review of his application. (¶¶ 17, 21 of the Complaint; ¶ 16 of Stewart Declaration.) To support this allegation, the plaintiff alleges the defendant purpose...

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: ...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: ...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: ...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: ...$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: ...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: ...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: ...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...