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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: .... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...(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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...