Excerpt: ...ry sanctions to plaintiffs within 30 days of notice. (See Code Civ. Proc., §§ 2031.310, subd. (h).) Defense counsel is included in the sanctions order for its failure to meet and confer in good faith. (See Code Civ. Proc., § 2023.010, subd. (i); 2023.020; see also Morse Decl. ¶¶ 7-9.) Defense counsel asserts in a declaration: “Rather than narrow the scope of the requests at issue, Plaintiff flatly demanded that GM withdraw its objections a...

Excerpt: ...Electronics Corp. (2008) 169 Cal.App.4th 116, 134; see also SAC, ¶8.) Plaintiff has still not alleged facts showing class action tolling, delayed discovery, equitable tolling/estoppel, repair doctrine, or fraudulent concealment. (See Am. Pipe & Const. Co. v. Utah (1974) 414 U.S. 538; Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808- 809; Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370, 373; Community Cause v. Boatwright (1981) 124 ...

Excerpt: ...Ratings LLC (June 13, 2019, G055429) [nonpub. opn.].) “[W]here a written contract expressly provides for the award of attorney fees, the prevailing party in an action under or relating to the contract is entitled to recover its fees, whether incurred at trial or on appeal.” (Starpoint Properties LLC v. Namar 201 (2011) Cal.App.4th 1101, 1111.) Motion for Attorney Fees (Enforcing Judgment) Cross-complainants attorney fees motion is granted. Cr...

Excerpt: ...Wintec alleges Skyworks sold it Blackberry phone components for resale, despite knowing no resale market existed for the obsolete products. (See Van Niekerk decl., Ex. B ¶¶ 1, 6-8, 20-25.) While the cases may have overlapping witness lists, they arise out of different contracts and present different factual and legal issues. RTAO/Writ of Attachment Plaintiff Skyworks Solutions, Inc.'s application for a right to attach order and writ of attachme...

Excerpt: ...ity (2012) 208 Cal.App.4th 1125, 1135.) 2rd cause of action, breach of lease. The complaint states facts sufficient to constitute this claim. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The complaint does so. (Compl. ¶¶ 4, 22-24.) 3rd cause of action, bad ...

Excerpt: ...t the age of 66”  ¶ 28, “and attempts to evict Decedent from her home”;  ¶ 31(D), “Defendant Gonzales attempted on several occasions to evict Decedent from her real property residence, causing Decedent great stress and illness.” Defendant met his initial burden to show the complaint arises, at least in part, from protected conduct. (See Code Civ. Proc., § 425.16, subds. (b), (e)(2).) When a “claim for relief” is “based on...

Excerpt: ...ting the initial papers seeking summary judgment on the complaint, preparing the trial brief re complaint, calculating prejudgment interest on the judgment on the promissory note, and asserting the parol evidence argument on appeal to preserve the judgment on the complaint. For this work, plaintiff incurred a reasonable number of attorney fees at a reasonable rate. (See generally PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Notably, the M...

Excerpt: .... reasonable attorneys' fees and expenses.” (8/22/19 Jones decl., Ex. 1 ¶ 12.9.) Notably, this is not an action on the written contract containing the attorney fee clause. (Cf. Civ. Code, § 1717.) This is instead an action on alleged oral agreements and for equitable contribution. Nonetheless, the attorney fee clause is “phrased broadly enough” to support an attorney fee award to the prevailing party here. (See Santisas v. Goodin (1998) 1...

Excerpt: ...a triable issue of material fact. (See Code Civ. Proc. § 437c, subd. (p)(2); Aguilar, supra 25 Cal.4 th at 849-850). Defendant's motion expressly relies on plaintiff “looking where she was walking” (Def. SSUF #2.) By including this fact in the separate statement, defendant represented that it was in fact material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; see also Cal. Rules of Court, rule 3.1350(d)(2).) Plaintiff ...

Excerpt: ...191, subd. (a).) The complaint alleges defendant ordered goods from plaintiff, who manufactured and shipped them to defendant, who failed to pay for it. (Compl. ¶¶ BC-1. BC-2.) Defendant offers scant evidence this contract involved intrastate commerce. Defendant fails to show plaintiff negotiated the deal in California, manufactured the goods in California, or shipped them within California. Defendant ties plaintiff to California only by statin...

Excerpt: ... 826, 850-851.) First, defendants fail to “completely dispose[] of” the claim. (Code Civ. Proc., § 437c, subd. (f)(1).) “‘If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.'” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 163.) Defendants fail to address numerous allegations supporting the punitive damages claim, including:  Bisio knew...

Excerpt: ...ligence” Plaintiffs may file and serve oppositions to the demurrers no later than 1/10/20. Defendants may file and serve replies in support of the demurrers no later than 1/17/20. The parties may file and serve replies regarding the OSC (originally due 8/29/19) no later than Motion for Attorney Fees Plaintiffs Bruce Ibbetson and Donna Warwick's motion for attorney fees is granted. Defendants William Grant, Jon Van Cleve, James Netzer, and Willi...

Excerpt: ...t reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) Typically, this is done “through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) The evidence supporting summary judgment must be summarized in a specially formatted separate statement, which “must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, r...

Excerpt: ... subds. (b); see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Defendants showed those causes of action arise from a “written statement . . . or writing made before a . . . judicial proceeding” – namely, disclosures in their 6/3/19 responsive brief. (Code Civ. Proc. §425.16, subd. (e)(1); accord G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612-616 [claims based on filing unredacted documents]; see Heller decl. ¶¶ 8-16 & E...

Excerpt: ...tate facts sufficient to constitute this cause of action. It fails to allege plaintiff's reliance (i.e., plaintiff would not have acted as he did had he known the truth) with specificity. (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634 [elements].) 5th cause of action, conspiracy. Civil conspiracy is not an independent tort. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 129.) Because the underlying fraud is not a...

Excerpt: ...ings.” (See 11 USC § 157, subds. (b)(2).) Defendant presents no evidence the subject of the wrongful foreclosure action has filed a claim against the estate. (See 11 USC § 157, subd. (b)(2)(C).) More basically, a party may “pursue [its] bankruptcy-related fees in state court” after “dismissal of the bankruptcy case restored to the parties their preexisting rights and remedies.” (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 936.) Defen...

Excerpt: ...after a diligent search and reasonable inquiry,” it “cannot fully comply” with the requests, as any staphylococcus aureus tests performed on defendant Steven Dennis or any pre-2017 staph treatment for Dr. Dennis either do not exist or are not in its possession, custody, or control. (See 8/27/19 Johnson Decl. ¶ 37, Ex. 6.) Hoag Orthopedic relied on Patricia Steger, its manager of infection prevention, to verify the responses and provide a s...

Excerpt: ...n the one hand, the alter ego allegations are sufficient. On the other hand, the SAC fails to allege plaintiff exhausted her administrative remedies against this defendant, which is a “jurisdictional” defect. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70). The SAC fails to allege plaintiff identified this particular defendant as one of her employers in her administrative complaint. (See Valdez v. City of Los Angeles (1991) 231 Cal.A...

Excerpt: ...ndant. (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) The amended cross-complaint now alleges 10 or 12 specific acts that may have “unfairly frustrated the agreed common purposes and disappointed the reasonable expectations of [cross-complainant] thereby depriving that party of the benefits of the agreement.” (Careau, supra, 222 Cal.App.3d at p. 1395.) Motion to Strike Cross-defendant Kurt Kafen...

Excerpt: ...l fails to state facts sufficient to constitute this cause of action. It still fails “‘to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property'”].) (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) At best and putting aside contrary allegations, the SAC alleges defendants intentionally left their gate open. (See SAC ¶¶ 30- 37...

Excerpt: ... 570 hours, a reasonable rate for which would be $500 per hour. That makes a subtotal of $285,000. To this, the court add a 33% multiplier of $94,050. Plaintiff's counsel persevered through the death of his client, a defense verdict on the first trial, an appeal, and the loss of witnesses and evidence over many years. The total award is thus $379,050, which reflects an objectively reasonable award for the work in this case. (See PLCM Group v. Dre...

Excerpt: ...ecessarily time-barred. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) None of the three documents upon which defendants rely shows on its face when plaintiff Dawn Thorson knew of the alleged misconduct. Exhibit 4 shows when plaintiff was appointed special administrator of the Posner estate, but it does not show what she knew. Exhibits 2 and 8 show what the other three plaintiffs knew, but they do not show what this p...

Excerpt: ... ‘to out-of-state persons or corporations engaged in commerce.'” (Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 759.) “[S]ection 351 [does] not violate the commerce clause ‘when applied to a non-commercial defendant not engaged in interstate commerce.'” (Id. at p. 761.) The face of the FAC does not show any connection to interstate commerce. It does not allege defendants are nonresidents doing busine...

Excerpt: ...e diligence have been presented earlier. (Code Civ. Proc. § 1008, subd. (a); see also Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) Plaintiffs' alternative request for a new trial is untimely in two ways. First, plaintiffs failed to file and serve a timely notice of intention. (See Code Civ. Proc., § 659.) Second, plaintiffs...

Excerpt: ...nt showed she does not have an adverse claim to plaintiff's interest in the subject property. The adverse claimant is the judgment creditor under the recorded support order. That would be plaintiff's ex-wife. (See Fitzgerald decl. ¶¶ 6, 8, Ex. 3; 5/16/19 Notice of Errata, Ex. A; Chen decl. ¶ 3, Ex. B; Hibert decl. ¶¶ 6-7; see also Code Civ. Proc., §§ 680.230, 680.240, 680.270, 697.320.) Plaintiff fails to meet his shifted burden to show a ...

Excerpt: ...et its burden to show a written arbitration agreement exists that covers plaintiff's claims and is governed by the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101 [FAA]; see also Remy decl. ¶¶ 4-6 & Ex. A.) Plaintiff does not dispute signing the agreement. His failure to recall doing...

Excerpt: ...les of Court, Rule 8.278 [costs and fees on appeal].) Plaintiff may recover contractual attorney fees even though he “prevail[ed] on grounds the contract is inapplicable, invalid, unenforceable or nonexistent” – under the clause, defendant “would have been entitled to attorney's fees had it prevailed.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 870.) This clause expressly singles out arbitration-related attorney fees. Plaintiff prevailed on t...

Excerpt: ...said: “I'm going to kill him. I'm going to rip his head right off.” The Los Angeles Superior Court issued a civil harassment restraining order protecting the witness from Mueller. The court heard live testimony from the witness and Mueller. It expressly found Mueller made a “clear, credible threat of violence.” Mueller also violently threatened an officer of this court. After insulting defense counsel, Mueller said “I'm bigger than you�...

Excerpt: ...alifornia with sufficient minimum contacts substantially related to this contract dispute. (See Pavlovich,supra, 29 Cal.4th at p. 269 [purposeful availment]; see also Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 [contract factors]; accord Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477-482 [same].) Plaintiff showed defendant reached out to plaintiff in California to initiate the transaction, then sent a representative to Cali...

Excerpt: ... v. Bodokh(2019) 35 Cal.App.5th 761.) Defendant has not shown plaintiff's claims were frivolous, unreasonable, or groundless, let alone based on perjured testimony. Plaintiff was repeatedly impeached at trial, no question. But defendant fails to show plaintiff was willfully lying. “People often forget things or make mistakes in what they remember.” (CACI No. 107.) Besides, the jury was one vote away from hanging. Three jurors found for plaint...

Excerpt: ...onse to identifying its policies regarding suspicion of fraud with respect to claims for stolen vehicles. The parties shall meet and confer to reach a stipulated protective order. The rest of Special Interrogatory #3 is vague, ambiguous, irrelevant, and overbroad on its face. Special Interrogatories 1 and 2 are vague and ambiguous. What facts relate to a corporate policy? Who are the witnesses to a corporate policy? Special Interrogatories 4 and ...

Excerpt: ...gence have been presented earlier. (Code Civ. Proc. § 1008, subd. (a); see also Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) Plaintiffs' alternative request for a new trial is untimely in two ways. First, plaintiffs failed to file and serve a timely notice of intention. (See Code Civ. Proc., § 659.) Second, plaintiffs made ...

Excerpt: ...in plaintiffs' contentions and “the facts, witnesses, and writings” on which they are based. (Code Civ. Proc., § 2030.010, subd. (b).) And defendants offered to withdraw duplicative interrogatories. Plaintiffs fail to show responding to the special interrogatories would cause “unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” (See Code Civ. Proc. § 2030.090, subd. (b)). Plaintiffs fail to show exactly wha...

Excerpt: ...sed by inexcusable neglect or avoidance of service. (See Code Civ. Proc. § 473.5; see also Trackman v. Kenney(2010) 187 Cal.App.4th 175, 180.) Finally, defendant has also not shown with admissible evidence that the entry of default was due to extrinsic fraud or mistake. The court grants plaintiff's request for judicial notice. It will take notice of the court records' existence, filing, and legal effect – but will not take notice of the truth ...

Excerpt: ... their posttrial settlement. The court need not assign blame – the parties either completed their settlement or they did not. Because this case has not settled, the court will issue its ruling forthwith. Plaintiffs' request for posttrial damages and relief is denied without prejudice. They have not shown the court retained jurisdiction to enforce the settlement by way of motion. (Cf. Code Civ. Proc., § 664.6.) The relief plaintiffs seek now wa...

Excerpt: ...tual intention to enter into a binding contract. (See Civ. Code § 1621; see also 1 Witkin, Summary of Cal. Law (10th ed. 2005), Contracts §§ 102, 103). The alleged portions of the Code of Conduct, Referee Complaint Policy, and Prohibitions Against Misconduct Against Referees are not the sort of public notice that constitute an offer. (See generally Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 271-273.) 3rd cause of action, breach of contract. T...

Excerpt: ...n, negligence. The complaint states facts sufficient to constitute this cause of action. (See Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 133, 1339 [elements]; see also Compl. ¶¶ 14-17.) “There is no need to require specificity in the pleadings.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608 (Ludgate).) 2nd cause of action, premises liability. The complaint states facts sufficient to constitute this caus...

Excerpt: ...d December 2014 and December 2015. Defendant may redact any information that deals exclusively with peer review of the physician's medical performance and suggestions for improvement as to medical care. While defendant's supplemental privilege log filed with the parties' Joint Statement fails to comply with the court's order, it is apparently sufficient for the parties' purposes. Yet the log still fails to establish that the performance monitors ...

Excerpt: ...fied under modern discovery procedures.” (Ibid.) 1st cause of action, elder abuse The complaint states facts sufficient to constitute this cause of action. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396 [elements].) It sufficiently alleges defendant's responsibility for meeting the elder's basic needs (Compl. ¶¶ 13-14 & 20); defendant's knowledge of conditions that made the elder unable to provide for basic nee...

Excerpt: ...inute order.) That limited information seemed sufficient to allow plaintiffs to determine whether the tire met the industry standard. The court allowed defendant to respond to the reply declaration of plaintiff's expert, who had opined the industry standard is 100% halobutyl. In the new declaration, defendant's expert opines the industry standard is not 100% halobutyl. The specific percentage of halobutyl has thus become relevant, necessary, and ...

Excerpt: ...(b).) They fail to show excusable neglect. (See Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399; Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 286-287.) The vague assertions continue to lack credibility. (Compare 1/2/19 minute order with Swan decl. at 10:23-11:4.) Defendants fail to show the judgment is void. (See Code Civ. Proc. §473, subd. (d).) Motion for Relief from Admi...

Excerpt: ...pany, Inc. v. Mach-1 Autogroup (G048082, Apr. 3, 2015,) [nonpub. opn.].) “An unqualified reversal remands the cause for a new trial [citation], and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable.” (Central Sav. Bank of Oakland v. Lake (1927) 201 Cal. 438, 443.) Cross-defendants' concerns about whet...

Excerpt: ...sition? The court ordered plaintiffs to serve their opposition and file proof of service no later than 5/7/19. (See 4/29/19 minute order and notice of ruling.) They failed to file proof of service as ordered. But they must have served their opposition because defendants reply to it. The court will proceed to the merits. Standing. Neither the SAC nor anything the court can properly notice shows on its face that plaintiff Susan Hersey lacks standin...

Excerpt: ...n, conversion. The FAC fails to state facts sufficient to constitute this claim. “‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.'” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) Or as plaintiffs correctly note, conversion requires only “the intent to ...

Excerpt: ... (See Willis v. City of Los Angeles (9th Cir. 2000) 57 Fed. Appx. 283, 289.) The U.S. District Court has already dismissed the § 1983 claim with prejudice. And the alleged conduct is protected by qualified immunity. (See Gov. Code, § 815.2; see also Via v. City of Fairfield (E.D. Cal. 2011) 833 F.Supp.2d 1189, 1195.) Plaintiff fails to meet her burden to show any reasonable possibility of curing the defects by amendment. (See Blank v. Kirwan (1...

Excerpt: ...as due 4/30/19. (See Cal. Rules of Court, rule 3.1300(d).) Even if the court did consider the untimely opposition, plaintiff fails to show defendant's “‘affiliations with [California] are so “continuous and systematic” as to render it essentially at home'” here – for example, that California is defendant's “place of incorporation and principal place of business” – thereby subjecting defendant to general jurisdiction. (Daimler AG...

Excerpt: ... any documents in their possession, custody, or control that refer to the privileged emails. Plaintiff is barred from using or disseminating the privileged emails or any information obtained thereby. David L. Brault shall reimburse defendant for reasonable attorney fees and costs incurred with this motion. (See Code Civ. Proc., § 2023.010, subd. (c).) Defendant may file and serve an attorney fee declaration no later than 5/24/19. Attorney Brault...

Excerpt: ...127; see also Def. Opp. SSUF ¶ 25; Pl. Opp. SSUF ¶¶ 6, 9, 19-21.) George Murai's deposition and declaration are not so flatly contradictory that the declaration is inadmissible. These discrepancies go the weight of his testimony. Plaintiff's request for judicial notice is granted. The court will “take notice of [the document's] existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova v. New Century Mortg...

Excerpt: ...ng, and concealing funds. (See Cross-compl. ¶¶ 10-12.) The filing of the cross-complaint was just “the means of communicating that action or decision” or “evidence of that action or decision.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275-1276 [complaint based on termination of tenancy, not unlawful detainer action].) Cross-defenda...

Excerpt: ...or causation with sufficient specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [specificity].) 5th-6th causes of action, fraud/negligent misrepresentation. The FAC fails to state facts sufficient to constitute these claims. It fails to allege a misrepresentation, plaintiff's reasonable reliance, or resulting damages with sufficient specificity. (See Lazar, supra, 12 Cal.4th at pp. 638, 645 [fraud]; see also Smal...

Excerpt: ... may reasonably extend some period before June 2013. The motion is otherwise denied. Assuming the subpoenas present serious intrusions into defendants' legally protected privacy interests, over which defendants have reasonable expectations of privacy, those interests are outweighed by plaintiff's legitimate litigation need for the requested information. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants shall pay $2250 in disc...

Excerpt: ...& 3rd causes of action, fraud/negligent misrepresentation. Plaintiff may assert these claims even if the alleged promise would be unenforceable as a contract due to the statute of frauds. (See Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29-31; accord Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1052.) Moreover, the alleged agreement for plaintiff to buy the boat and retain ownership “off title” is capable of being performed within...

Excerpt: ...r 11/18/19 at 10 am in Dept. C-15. Defendant met its burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Zia decl. ¶¶ 3-4 & Ex. 1 § 19.6.) Plaintiff has not shown any exception to compelling arbitration. Arbitration Fee Motion Plaintiff's motion to require defendant to adva...

Excerpt: ...e inaccurate. Recorded documents contradict the allegation that defendant lacks the power to foreclose. (See Def. RFJN Ex. C; see also Scott v. JPMorgan Chase Bank, NA (2013) 214 Cal.App.4th 743, 751). The assignment of a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). To the extent this claim is based upon Civ. Code § 2024.12, as of 2017 no such private right of action existed. 2nd caus...

Excerpt: ...(Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59.) Defendant failed to present such facts regarding its alleged vicarious liability for defendant Stephanie Ricci's alleged failure to obtain informed consent. (See Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133–1134 [informed consent]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 [vicarious liability]; see also SAC ¶¶ 4, 6.) Plaintiff Aneta Michen...

Excerpt: ...entify any specific repair facility, literature, or replacement part. 4th cause of action, breach of express warranty. The complaint states facts sufficient to constitute this cause of action. (Cal. Civil Code, § 1794; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 [“plaintiff may plead the legal effect of the contract”]; Compl. ¶¶ 7, 74-77.) 5th cause of action, breach of implied warranty o...

Excerpt: ...4th 631, 638, 645).) 4th cause of action, negligence. This claim alleging “wrongful conduct . . . while providing medical treatment, surgery and other healthcare services” is duplicative of the 1st cause of action for professional negligence. (See Code Civ. Proc., § 340.5(2); see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000.) Motion to strike Defendant Quang T. Vo's motion to strike is granted without ...

Excerpt: ...gful use with the intent to defraud or by undue influence, or causation or harm. (See Welf. & Inst. Code, §§ 15610.30.) The claim is also time-barred by the 2-year statute of limitations. (See Code Civ. Proc., § 335.1.) Decedent was aware of the underlying facts and her damages by 12/23/13. (See Def. RFJN, Ex. A.) But this action was not filed until 1/4/18. 2nd Cause of Action, Deceit. The SAC fails to state facts sufficient to constitute this...

Excerpt: ...t in Santa Ana] with Demurrer Ex. B ¶ 3 [2015 auto accident in Laguna Niguel involving different people].) The FAC is hopelessly untimely. It was filed on 9/11/18 and alleges personal injuries suffered on 12/31/15. It is barred on its face by the 2-year limitations period. (See Code Civ. Proc., § 335.1; see also Mitchell v. California Department of Public Health(2016) 1 Cal.App.5th 1000, 1007.) Plaintiff has not shown any reasonable possibility...

Excerpt: ...AC asserts claims for money. Even the 4th and 5th causes of action for specific performance and constructive trust would not change defendant's legal title or right to possession. Defendant's request for judicial notice is granted. Demurrer The matter is abated. “[F]amily law cases should not be allowed to spill over into civil law.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) Defendant has shown the family law department holds “...

Excerpt: ...But the FAC fails to state facts sufficient to constitute this claim. “‘[C]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another's injury.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 131.) That is exactly what the FAC alleges. It asserts plaintiff Angelique Lynch “suffer[ed] severe emotional distress upon seeing the body of [her h...

Excerpt: ...v. Frank (1990) 217 Cal.App.3d 94, 98- 99.) The delay appears to have been caused by unsuccessful settlement efforts, not by hiding the ball. While an earlier motion may have been more convenient, the court find no bad faith. Even if some or all of the proposed cross-claims were permissive, trying them with the complaint serves the interests of justice. (See Code Civ. Proc., § 428.50, subd. (c).) The parties should be prepared to discuss a conti...

Excerpt: ...etermined whether to consider it. (See Cal. Rules of Court, rule 3.1300(d).) 2. Reviewing only the moving papers thus far, plaintiffs' respective responses to the 12 document demands are sufficient. Plaintiffs verify they produced all responsive documents. Defendant doesn't believe that. But its incredulity doesn't entitle it to sanctions. It offers no contrary evidence that plaintiffs actually have possession, custody, or control of any withheld...

Excerpt: ...nts to an incorrect address – where someone signed for them. Had no one signed for the documents, the agent would have been on notice to confirm defendant's address – as it did when its subsequent mail to defendant was returned as undeliverable. While defendant could have better ensured its agent had the correct address in the first place, it had no control over its FedEx package being accepted and signed for by a stranger. Defendant's neglec...

Excerpt: ...nk of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527; see also Hassan decl. ¶ 4; Ocwen's RFJN Ex. 9.) Plaintiffs' attempt to relitigate these claims is also untimely. Plaintiffs knew or reasonably should have known of their claims by the time they filed their 2012 case, if not by their 2009 default or the 2006 loan. And plaintiffs have not alleged how they have been injured. Their loan is still outstanding; the ba...

Excerpt: ...leged documents in its possession, custody, or control within 20 days. Defendant Kindred Healthcare Operating Inc. shall serve complete, code-compliant, verified further responses -- without objection other than attorney-client privilege, work-product protection, third-party privacy, or Evidence Code section 1157 -- to plaintiff's requests for production #14 and 23 within 10 days, and shall produce all responsive, nonprivileged documents in its p...

Excerpt: ...act Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1262.) In their briefs, each party recognizes different ways in which the subpoena might be limited. They should continue exploring the specific information that defendants seek and plaintiff's exact concerns about that specific information. There is reasonable middle ground here. The court is confident the parties can find it. The court anticipates this matter will be resolved before Mond...

Excerpt: ...nn v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) By demurring, defendant admits all properly pleaded facts. (See Blank v. Kirwan(1985) 39 Cal.3d 311, 318.) Defendant cannot manufacture “a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) Its cap...

Excerpt: ...eges defendant Millennium wrongly ordered the repossession. (Compl. ¶ 20.) The complaint alleges the repossession order was “placed” – it does not concede the order was valid. (Compl. ¶ 8.) 3rd cause of action, conversion. The complaint states facts sufficient to constitute this cause of action. (See Rest.2d Torts § 222A [elements]; Henderson v. Security Nat'l Bank (1977) 72 Cal.App.3d 764, 770; see also Compl. ¶¶ 26-27.) 4th cause of ...

Excerpt: ...ation. (See 9 U.S.C. § 3; see also Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1121-1122.) The court SETS a status conference re binding arbitration for 7/29/19 at 10 am in Dept. C15. Defendants met their burden to show a written arbitration agreement exists that covers plaintiff's claims against defendant Camco and is governed by the FAA. (See Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp....

Excerpt: ...wed defendant purposefully availed itself of California with sufficient minimum contacts substantially related to this dispute. (See Pavlovich, supra, 29 Cal.4th at p. 269; accord Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1780.) And plaintiffs showed “‘“the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.'”'” (Pavlovich, supra, 29 Cal.4th at p. 269.) Plaintiffs showed th...

Excerpt: ...cords and plaintiff's lost wages claim. A closer connection exists between plaintiff's actual salary and his lost wages claim, of course. His actual wages are what he claims to have lost. But “‘good cause' for disclosure of actual records or reports does not exist if the party seeking discovery can obtain the desired information through direct contact with the complainants or witnesses.” (City of Hemet v. Superior Court (1995) 37 Cal.App.4t...

Excerpt: ...rporation and a dentist's guaranty. The San Bernardino case is a dispute over a dental partnership. The most significant connection is that the dentist who guarantied the loan in this case is also a partner in the San Bernardino partnership. Coordination might be convenient for that dentist on some level, but his default has been entered in this case. Defendant fails to show consolidation would be especially convenient for any other party, witnes...

Excerpt: ...Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671 [elements].) 2nd cause of action, IIED. The complaint fails to state facts sufficient to constitute a cause of action. It fails to allege facts showing extreme and outrageous conduct with intent or reckless disregard, severe or extreme emotional distress, or causation. (See Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–229.) 3rd cause of action, negligence. The complaint ...

Excerpt: ...produce all documents responsive to the subpoena, except it may withhold records relating to any employee other than Eric Freeman. (See Code of Civ. Proc., § 1985.6, subds. (b), (j), (k).) Summit shall pay $2,450 in discovery sanctions to defendants within 30 days of notice of this order. (Code Civ. Proc., § 2025.450, subd. (g).) The designated topics and requested documents are relevant to the subject matter of this action. Summit failed to sh...

Excerpt: ...ference re binding arbitration for 1/14/19 at 10 am in Dept. C- 15. Defendants met their burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 [burden]; Basler Decl., ¶¶ 3-9 & Exs. A & C.) Plaintiff has not shown any exception to compelling arbitration or ground for revoking the agreement. (See C...

Excerpt: ...(See Lim v. The.TV Corp. Int'l (2002) 99 Cal.App.4th 684, 691 [plaintiffs may “correct erroneous allegations of generic terms” or clarify ambiguities].) CUTSA Preemption. Defendants fail to show any of the challenged causes of action sound in trade secret misappropriation or are otherwise preempted by CUTSA. (See Klamath-Orleans Lumber, Inc. v. Miller (1978) 87 Cal. App. 3d 458.) 3rd cause of action, breach of fiduciary duty. The FAC states f...

Excerpt: ...ence is time-barred on the face of the complaint, which alleges the accident occurred on 10/12/15 – more than two years before filing. (See Code Civ. Proc., § 335.1 [two-year statute of limitations]; see also Compl. at p. 4 ¶ MV-1.) Defendants' request for judicial notice is DENIED. A company's guidelines are not subject to judicial notice. Defendants shall give notice. ...

Excerpt: ...ndants on two theories of liability: direct liability for negligently entrusting the vehicle to the driver, and vicarious liability as the driver's employer. This results in a redundant complaint with overlapping claims. For example, both of the first two causes of action essentially allege defendant Cary Fischer is liable for negligence because he employed the driver. And all three causes of action allege defendant Cary Fischer is liable for neg...

Excerpt: ... reasonable diligence have been presented earlier. (See Code Civ. Proc. § 1008, subd. (a); see also Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) Plaintiff shall give notice. ...

Excerpt: ...ncipal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859, 862, fn. 16 [duty to disclose in nonfiduciary context]; Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1384 [less particularity required to allege fraud by concealment]; see also SAC ¶¶ 11, 15, 17-29, 31-32, 41-47.) 3rd cause of action, fraud–misrepresentation. The SAC states facts sufficient to constitute this c...

Excerpt: ...s]; World Financial Group., Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1568- 1570 [no public interest in private dispute]; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [same].) No doubt, battle lines are forming in this dispute over an aquatic center. But defendants fail to show the topic has drawn widespread public interest beyond a “relatively small, specific audience.�...

Excerpt: ...g. But plaintiff has now offered new evidence showing timely service of its summary judgment motion on defendant's then- counsel. Plaintiff has reasonably explained why it was unprepared to produce that evidence at the 7/9/18 hearing. On reconsideration, the court now GRANTS plaintiff's summary judgment motion. Plaintiff met its initial burden to show each element of its causes of action. (See Code Civ. Proc. § 437c, subd. (p)(1); see also Aguil...

Excerpt: ... 1st-6th causes of action, FEHA and Labor Code claims. The second amended complaint states facts sufficient to constitute these causes of action. (See, e.g., Vernon v. State of California (2004) 116 Cal.App.4th 114, 125 [factors for determining employment]; Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183-1184 [dual employment]; see also SAC ¶¶ 5, 8, 24-26, 28-29, 32, 34, 36, 43, 45, & 48-51.) Defendant has not shown the SAC is a sham...

Excerpt: ...f the demurrer and sufficient time to prepare an opposition. The court's tentative ruling expressly admonished her it “might make a different order at the hearing.” The Orange County Superior Court sets oral argument on motions as a matter of course; no “notice of intent to appear” is required. (Cf. Cal. Rules of Court, rule 3.1308, subd. (a).) To the extent plaintiff seeks reconsideration, the motion was filed more than 10 days after she...

Excerpt: ...Cal.App.4th 458, 471.) Because a good faith offer “must be ‘realistically reasonable under the circumstances of the particular case,'” it is important to recall the circumstances here. (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1024 (Arno).) Plaintiff was a passenger in defendant Crescioni's car. Defendant Nevin-Hartung was driving another car. The two cars collided in an intersection under circumstances that showed one or the othe...

Excerpt: ...ion moot. Service of a summons gives notice of the action and (potentially) secures personal jurisdiction. That need be done only once. No additional or amended summons need be filed when a complaint is amended. (See Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 441 cf. Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433; but see Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 4.) The summons served with the init...

Excerpt: ... Defendant met its burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Martinez Decl. ¶ 1 & Exs. 1-2.) Plaintiff failed to meet his burden to show procedural or substantive unconscionability. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th...

Excerpt: ... notice. Motion to Compel #2. Defendant Alice Renae Ashwill's motion to compel deposition is GRANTED. (See Code Civ. Proc. § 2025.450, subd. (a).) Plaintiff Albert Vernon Wright shall shall APPEAR for deposition on 7/30/18 at 9 am at Bamford Reporting Service, Inc., 4105 North 20th Street, Suite 125, Phoenix AZ 85106. The parties may agree in writing to change the date, time, or place. Plaintiff shall pay $1188.85 in discovery sanctions to defen...

Excerpt: ...fully, and carelessly represented” something to Klein. (Cross-compl. ¶¶ 3, 12.) Cross-complainants have not opposed the demurrer to show why misrepresentations by other cross-defendants to Klein would impose an indemnity obligation on Klein. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Nor, of course, have they shown how Klein as a cross-defendant could make misrepresentations to himself. 3rd cause of action, express writt...

Excerpt: ...met her burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413 [elements].) Defendant failed to show procedural or substantive unconscionability. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114). The court finds plaintiff properly served the Notice of Clie...

Excerpt: ...with this request because no such letter exists; there is only a “conditional payment letter.” Requests 43 and 44. Defendant seeks a “Medicare Final lien letter” and the “Medicare Conditional Payment letter” from decedent Mildred Baggs. Defendant propounded these requests on the decedent (through plaintiffs' counsel) despite knowing she was deceased. During the meet-and-confer, plaintiff Cheryl Baggs (who is both an individual plainti...

Excerpt: ...tt Laboratories, Inc. (1982) 32 Cal.3d 892, 900.) Good policy reasons exist for courts to grant equitable relief only with caution. (Ibid.) And “[t]o the extent that the court's equity power to grant relief differs from its power under section 473, the equity power must be considered narrower, not wider.'” (Id. at p. 901, fn. 8.) Plaintiff shall give notice. ...

Excerpt: ...fective service and failed to show any mistake, surprise, or excusable neglect. (Code Civ. Proc. §§ 473, subd. (b); see also Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) His uncorroborated hearsay statements denying substitute service are not credible. Defendant Constantino sufficiently showed mistake or excusable neglect in believing the summons was for defendant Aleman, not for her. (Code Civ. Proc., § 473, subd. (b).) Defendants' rep...

Excerpt: ... Cal.3d 311, 318.) Moreover, plaintiff has been declared a vexatious litigant and the court has already denied him leave to file a third amended complaint. (See Code Civ. Proc., § 391.7; see also 11/20/17 order.) Defendant's request for judicial notice is GRANTED. Defendant shall prepare both a formal written order and a separate judgment of dismissal. Defendant shall give notice. ...

Excerpt: ... is minimal at this early stage; the discovery stay imposes a minimal burden; the stay does not yet prejudice the court's calendar or case management; no other person's interests are implicated; and the public interest in the litigation is not yet prejudiced. (See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886-887.) The prejudice to the parties, the court, and the public -- and the balance of factors -- may change over time. The co...

Excerpt: ...0 days of being served notice of this order. (See Code Civ. Proc. § 2031.310, subd. (h).) While plaintiff did not have to verify its objections when served, it does have the burden to substantiate them on a motion to compel. (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-658; Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) That it has failed to do. It did have the burden to verify its substantive respo...

Excerpt: ... meet its initial burden to show the trivial defect rule bars plaintiff's claim. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Defendant failed to show a six-inch drop is trivial as a matter of law. (Cf. Strathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568 [“height differentials of up to one and one-half inches”].) Even if it did, plaintiff raised triable issues of...

Excerpt: ... 10 days. Cross-complainant Wavell Showcase shall pay $1,766 in discovery sanctions to cross- defendant Aurora within 30 days. Cross-complainant Wavell Showcase's general objections are improper. (See Code Civ. Proc., § 2030.210, subds. (a)(3), (c).) In any event, it fails to substantiate its objections. It has not shown the interrogatory is vague or would impose an undue burden. To the extent it is asserting privilege regarding documents, it mu...

Excerpt: ... the delay, and plaintiff fails to show what specific discovery would now be necessary. Defendants are just adding a statutory subdivision to their existing statute of limitations affirmative defense. Defendants shall give notice. OSC re Compliance and Attorney Fees The court finds plaintiff has SATISFIED Conditions #1-4 of the 4/20/18 order and shall satisfy Condition #5 by PAYING $10,280 to defendants within 15 days. The parties agree plaintiff...