Excerpt: ...ty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289, sets forth the procedure when a party seeks to take an “apex” deposition: “[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official ha...

Excerpt: ...custody of Plaintiff's minor son. The allegedly wrongful detention occurred from April 18, 2016 through June 22, 2016. Plaintiff's Complaint includes causes of action for: (1) negligence; (2) false evidence (fraud); (3) intentional misrepresentation; (4) wrongful imprisonment; (5) retaliation; and (6) character defamation. Defendants demur to these claims on several grounds. The Government Claims Act (Govt. Code, § 900, et seq.) provides that, w...

Excerpt: ... the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University ...

Excerpt: ... then attorney's fees are awarded in accordance with Civil Code section 1717. (Santisas v. Goodin (1998) 17 Cal.4th 599, 615-617.) Section 1717 defines a prevailing party as “the party who recovered a greater relief in the action on the contract.” The definition of ‘prevailing party” in Section 1717 is mandatory and cannot be altered or avoided by contract. Contractual provisions that conflict with the prevailing party definition under Se...

Excerpt: ...and motion upon the plaintiff in the related case, MV Transportation, Inc. Indeed, MV Transportation, Inc. stipulates to consolidation for all purposes. (Grandy Decl., Exh. B.) When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated, or such orders concerning proceedings therein as may tend to avoid unne...

Excerpt: ... the reply. Plaintiff has failed to meet its burden to show that there is good cause for further responses and production of the documents sought. The categories of documents sought here are impermissibly broad, unreasonable, and violate financial privacy rights. “Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be pr...

Excerpt: ...icient facts to invoke the doctrine. Plaintiffs may plead “ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) Moreover, “less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff,” which is the case here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474.) Here,...

Excerpt: ...laint filed on March 12, 2018, is mostly illegible based upon an apparent scanning issue. APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT “Attachment is a prejudgment remedy which requires a court to make a preliminary determination of the merits of a dispute.” (Lorber Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) “‘[A]ttachment procedures are solely creatures of statute and ... such st...

Excerpt: ...ure Before Trial (The Rutter Group 2017) ¶¶ 6:560-6:561.) “The declarations of defendant's counsel should show that it would be ‘in the interest of justice' to grant leave to file, and some reasonable excuse why the cross-complaint was not filed earlier (mistake, inadvertence, excusable neglect or, most commonly, recent discovery of new facts).” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 6:...

Excerpt: ...r of law, he was acting solely as a “broker,” and not a “financial advisor.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 [“A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a question of law.”].) Plaintiffs did not originally allege that Howells was their “insurance broker,” then amend their allegation to “financial advisor” or “financial professional�...

Excerpt: ...llful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. Generally, a decision to order terminating sanctions should not be made lightly. (Los Defensores, Inc. v. Gomez(2014) 223 Cal.App.4th 377, 390.) But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court...

Excerpt: ...er Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) “‘[A]ttachment procedures are solely creatures of statute and ... such statutes must be strictly construed.'” (Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270 [citing Arcata Publications Group v. Beverly Hills Publishing Co. (1984) 154 Cal.App.3d 276, 279].) An act beyond those limits is in excess of its jurisdiction and void. (Pacific Decision Science...

Excerpt: ...rpenters' Trust for So Cal. (1983) 144 Cal.App.3d 222, 228.) Plaintiff alleges he was injured when Defendant's employee asked him to remove his planter from a public street, and that Defendant is liable pursuant to Government Code section 815.2. Pursuant to Government Code section 815, subdivision (a), a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any...

Excerpt: ...lifornia Rule of Court 3.1306, as it fails to provide a copy of the material that Plaintiff requests that the court judicially notice. Nevertheless, the court grants Plaintiff's request for judicial notice of (1) the complaint in the first unlawful detainer (“UD”) action OCSC case no. 30-2015-00823895; and (2) the 01/27/17 ruling in the second UD action, OCSC case no. 30-2016-00847328, except that judicial notice will not extend to any hearsa...

Excerpt: ...id of any factual allegations to support the claims. As to the first cause of action, “[t]he right to indemnity flows from payment of a joint legal obligation on another's behalf. [Citations.] The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Assoc...

Excerpt: ...); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fees to be recovered include only fees “for the expense of responding to a baseless lawsuit”, which includes successfully prosecuting any related appeal. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785; see also Lafayette Morehouse, Inc. v. Chronicle Publishing Company (1995) 39 Cal.App.4th 1379, 1383 [attorney fees and costs recoverable “only on the motion...

Excerpt: ..., the settlement must be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settl...

Excerpt: ...cretion.” (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530.) If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (See Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490.) However, if the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an a...

Excerpt: ...) 72 Cal.App.3d 544, Defendant has not waited until “the first day of trial” to attempt to file a cross-complaint. Nor is there any evidence Defendant is seeking leave as a “tactical, strategic maneuver” to deprive Plaintiff of any right, like the defendant in Gherman was attempting to “deprive Plaintiffs of a right to a jury trial.” (Gherman v. Colburn, supra, 72 Cal.App.3d at p. 560.) The issues that would be raised by the Cross-Com...

Excerpt: ...nd Fair Dealing) The elements of a breach of contract claim are (1) plaintiff and defendant entered into a contract, (2) plaintiff performed its obligations under the contract, or it was excused from doing so, (3) all of the conditions for defendant's performance occurred or were excused, (4) defendant failed to something required under the contract or did something prohibited by the contract, (5) plaintiff was harmed, and (6) the breach of contr...

Excerpt: ... dismissal of all remaining Defendants is proper for the reasons set forth below. The court's 8/11/2017 and 9/15/2017 orders are modified by this ruling as set forth below. The 8/11/2017 order stated that disposition had not been entered for Defendants Caitlin Chen, Fremont Investment and Loan, Inc., International Mortgage, Inc., Jason Kishaba, Sandra Jaquez, and Peter Saueracker. This statement was incorrect. Disposition of Defendants Caitlin Ch...

Excerpt: ...ain jurisdiction to enforce the settlement, a party requesting a dismissal of the action must specifically request that the court retain jurisdiction under Code of Civil Procedure section 664.6. If not, the party's remedy in the original action is to move to vacate or modify the dismissal under Code of Civil Procedure section 473, subdivision (b), for “mistake, inadvertence or excusable neglect.” (Basinger v. Rogers & Wells (1990) 220 Cal.App...

Excerpt: ...“statement of facts” are not evidence and cannot provide basis for granting motion].) Here, the Memorandum of Points and Authorities explains that Plaintiffs' counsel only intended to dismiss DOES 5- 50. But, the Declaration of Allen Feghali filed in support of this Motion does not state this key fact. Instead, it discusses unrelated parties in an unrelated case. The court cannot grant either mandatory or discretionary relief pursuant to Code...

Excerpt: ...est for judicial notice of a declaration of Defendant Lal in support of an opposition to a preliminary injunction in another case, is denied as irrelevant. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21 [“court need not take judicial notice of irrelevant court records”].) Uncertainty The special demurrer on the grounds of uncertainty is sustained with 15 days leave to amend only as to the first cause of action. A d...

Excerpt: ...0.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the...

Excerpt: ...aintiff was harmed, and (4) the defendant's negligence was a substantial factor in causing the plaintiff's harm. (CACI No. 1000.) Premises liability is a form of negligence; it is described as follows: the owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management...

Excerpt: ...n its first through third causes of action. (Code Civ. Proc., § 512.060, subd. (a)(1).) The application includes all information required by Code of Civil Procedure section 512.010, subdivision (b). In particular, Plaintiff provides copies of the lease agreements and assignments, and Donald Lee, its Assistant Vice President and Special Asset Department Workout Officer, declares that beginning in August 2016, Weistec failed to make the monthly pa...

Excerpt: ...LC, et al., Orange County Superior Case no. 30- 2013-00646391), in which Suncoast Nova LLC as Trustee for Rue Chateau Royal Trust #5 and Preferred Group Properties, Inc.'s judgment on the pleadings was granted without leave to amend [ROA #148] and Cal Western Reconveyance was dismissed without prejudice [ROA #167, 175], is not new or different facts, circumstances, or law. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; New York Time...

Excerpt: ... [it] determine[s] whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor.” (Id. at pp. 493-494.) “‘Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.'” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) “When a summary ...

Excerpt: ...hich the attorney will testify as a witness unless: (1) the testimony relates to an uncontested matter; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) the client gives informed written consent. (Cal. Rule Prof. Conduct 5-210.) The court has discretion, notwithstanding the client's consent, to disqualify counsel who ought to testify on behalf of the client in a jury trial where there is a “convin...

Excerpt: ...; (d) justifiable reliance; and (e) resulting damage. (In re Estate of Young(2008) 160 Cal.App.4th 62, 79; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled specifically; general and conclusory allegations do not suffice. (Alfaro v. Community Housing Imp. System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege...

Excerpt: ...ative complaint and Right to Sue Notice. (Medix Ambulance Serv., Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 115.) Exhaustion of Administrative Remedies Before filing suit against an employer for an unlawful employment practice under the Fair Employment and Housing Act (“FEHA”), a plaintiff must first exhaust his or her administrative remedies. (Gov. Code, §§ 12960, 12965.) In order to do so, the plaintiff must timely file a verified,...

Excerpt: ...ll defendants; it offers to take judgment only against all defendants and not against one or more of them; and it requires that defendants in the plural, and not any one defendant in the singular, accept the offer.” Such an offer is impliedly conditional on acceptance by all offerees. (Wickware v. Tanner (1997) 53 Cal.App.4th 570, 577.) Here, the Offer is a single document and its acceptance line says that “Plaintiffs/Cross- Defendants”… ...

Excerpt: ..., LLC and Luminance Health Group, Inc. An automatic bankruptcy stay is in effect and remains in effect until the earliest of: dismissal of the case; closing of the case; discharge of the debtor is entered; or entry of an order terminating, vacating, or modifying the automatic stay. (11 U.S.C. § 362, subd. (c).) There is no indication that Defendants' counsel has obtained relief with the bankruptcy court from the automatic stay to pursue the moti...

Excerpt: ... (7).) As an initial matter, Defendants' memorandum of points and authorities fails to comply with California 3.113(d), as it is over-sized (3.5 pages too long) and Defendants did not first seek leave of court to file it. Nevertheless, the court considered the memorandum of points and authorities. A court may grant a new trial based on excessive damages. (Code Civ. Proc., § 657, subd. (5).) However, “[a] new trial shall not be granted . . . up...

Excerpt: ... (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [requests for production]; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:852.) The moving party need only show the failure to ...

Excerpt: ...ions. Applicable Law “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary...

Excerpt: ...one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2031.300, subd. (a).) Here, Plaintiff propounded Requests for Production of Documents, Set One, on Defendant on January 4, 2018 by mail. Despite promises to send a response, Defendant never served any response or responsive documents. Thus, the court grants this Motion. Defendant Steven Coe is ordered to provide...

Excerpt: ...ny notice of change of mailing and electronic service addresses. Plaintiff cites the wrong ground for relief, Code of Civil Procedure section 116.725, which applies to actions under the Small Claims Act. Nevertheless, the court construes this motion as one for relief under Code of Civil Procedure section 473. The dismissal was entered as a result of Plaintiff's attorney's mistake and neglect. The clerk is ordered to vacate the dismissal entered o...

Excerpt: ...ssal, or within 180 days after entry of judgment, whichever is first.” The service of notice of entry by the clerk is only effected when the service is made pursuant to court order. (See Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.(1997) 15 Cal.4th 51, 64.) Here, service of the notice of entry of judgment by the Clerk was not under Code of Civil Procedure section 664.5. Accordingly, the Clerk's mailing of th...

Excerpt: ... of sanctions. Monetary sanctions of $735 are awarded in favor of Moving Defendant, and against Plaintiff and her counsel, AlderLaw PC, and payable to Selman Breitman, LLP, within 30 days of the notice of ruling. The parties should be prepared to discuss Plaintiff's objection to an instruction that she try on the vest at her deposition. MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY Moving Defendant's motion to compel further deposition testimony ...

Excerpt: ...ht to compel further responses to Form Interrogatories-Employment (Set 1) nos. 210.2, 210.3, 212.4 – 212.7, 213.1, 213.2, 215.1, and 215.2. On April 9, 2018, Plaintiff served further responses (labeled supplemental responses) to these disputed interrogatories. (See Opp., Exh. 1.) In its Reply, Defendant argues that Plaintiff did not provide further responses to interrogatory nos. 210.3, 215.1, 215.2. Plaintiff, however, did provide a further re...

Excerpt: ...tive order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection.” Here, Plaintiff's counsel terminated the deposition and stated: “You can go to court and ask to reset it if you like.” (Pelliconi Decl., Exh. F.) Defendants promptly filed an ex parte application seeking to compel Plaintiff's deposition or alternatively an order shortening time on a motion to compel the deposition or alternatively a 90-d...

Excerpt: ...already incurred. On March 17, 2017, the court granted Defendant Briggs' motion for appointment of a discovery referee and ordered that the costs of the Discovery Referee to be shared equally by the parties. Since then, Plaintiff has conducted significant third party discovery, which resulted in at least three third party discovery motions, motions for protective orders, and hearings with the Discovery Referee which did not involve and were not o...

Excerpt: ...t prior to the May 21, 2018 trial date, even with a reduced-notice schedule, or be prepared for expert discovery and trial. There have been no prior continuances and it has been less than a year since the first Defendant appeared in this case in June 2017. The court finds that the interests of justice in continuing trial outweigh any purported prejudice in scheduling expert testimony. Finally, Plaintiffs acknowledge that Moving Defendant should b...

Excerpt: ...� 2031.310, subd. (b)(1).) “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Here, Defendant has shown good cause to seek the accounting records of Professional Home Cinema (“PHC”). The Second Amended Cross-Complaint (“SAX-C”) includes alleg...

Excerpt: ...ment. (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 844.) “It is essential to the existence of a contract that there should be: [¶] 1. Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and [¶] 4. A sufficient cause or consideration.” (Civ. Code, § 1550.) “Agency ‘can be established either by agreement between the agent and the principal, that is a true agency [citation], or ...

Excerpt: ...out of the employment, the employee or the employee's dependents may receive compensation or death benefits from the employer even though the cause is the wrongful act of a third party. However, a right of action for damages also arises against the third-party tortfeasor. (Lab. Code, § 3852; Lamoreux v. San Diego & Arizona Eastern Railway Co. (1957) 48 Cal.2d 617, 625.) Here, the court has already determined on summary judgment that AAM committe...

Excerpt: ...d in an individual capacity is entitled to pursue remedies in both capacities.” (Denevi v. LGCC (2004) 121 Cal.App.4th 1211, 1221-1222; see Goles v. Sawhney(2016) 5 Cal.App.5th 1014, 1018.) “An action is deemed derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation ...

Excerpt: ...d the Court that Mr. Meehan had passed away earlier that day. (11/20/2015 minute order.) But on a party's death, this estate is not automatically substituted in for that party. A judgment cannot be given for or against a decedent until the personal representative has been made a party by substation. (Johnson v. Simonelli (1991) 231 Cal.App.3d 105, 107 fn. 1.) An application to, and order by, the court is required. (See Code Civ. Proc., § 377.32;...

Excerpt: ...rer rather than a motion to strike under Code of Civil Procedure section 436: “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) A demurrer should have been brought. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [failure to state facts sufficient to state a cause of action is ground for general demurrer, but not for a Code ...

Excerpt: ...law or statute” since the demurrer was overruled. (Code Civ. Proc., § 438, subd. (g)(1); see Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 562, fn. 1.) Here, the court's reference to Acqua Vista Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1147, in overruling the demurrer to the SAC, does not foreclose Defendants' instant Motion. In the September 29, 2017 ruling on the demurrer to the SAC, the court noted that “[t]here is a...

Excerpt: ... for answer or demurrer. (Code Civ. Proc., § 473, subd. (a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Ibid.) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, ...

Excerpt: ...ter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Emphasis added.) Trial is set for 4/16/18; the 15 th day before trial is 4/1/18, which is a Sunday. As a result, the motion was due to be personally served on 3/7/18 pursuant to Code of Civil Proced...

Excerpt: ...rovide further responses to the following discovery: (1) Interrogatories regarding Plaintiff's damages: Special Interrogatory No. 8; General Form Interrogatory Nos. 8.8 & 9.1. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Plaintiff Lauren Scricca has not met her burden as a...

Excerpt: ...or to this hearing, the truth of the matters specified in Michelin's first sets of requests for admission are deemed admitted. (Code Civ. Proc., § 2033.280, subd. (c) [the court shall deem the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220...

Excerpt: ...sary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:340.) Here, consolidation of this action and the limited action (Evergreen v. Choi, Orange County Superior Court case no. 30-2011-00443427) would be im...

Excerpt: ...bdivision (b), provides that the presiding judge “shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay.” On the same day, the Presiding Judge granted Plaintiff's request “as to 5 th cause of action only (intentionally allowing roaches to reach over 20,000 in rental unit).” (Emphasis in original.) In its attachment to the order, the Court ...

Excerpt: ...ith 15 days leave to amend. The demurrer as to the seventh and ninth causes of action, is sustained without leave to amend. The Kimbark Defendants' request for judicial notice is granted. Third Cause of Action for Intentional Interference With Prospective Economic Advantage The elements of intentional interference with prospective economic advantage are “(1) the existence, between the plaintiff and some third party, of an economic relationship ...

Excerpt: ...support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima(1991)...

Excerpt: ...m a cause of action for wrongful death under Code of Civil Procedure section 377.” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 831.) Where, as here, Plaintiffs have joined a wrongful death claim with survivor causes of action, Plaintiffs can recover punitive damages in connection with the survivor claims. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 616, fn. 14.) The court declines to consider Defendant's argument that the allegations...

Excerpt: ...nternal citations omitted].) Defendant contends the five causes of action in the Complaint asserted against him (i.e., the first, second, third, seventh, and eighth) are subject to a general demurrer because they are time-barred, and Plaintiff fails to allege the debtors transferred property to Defendant. Under the first, second, and third causes of action, Plaintiff seeks to void certain transfers of cash from debtors to Defendants under the Uni...

Excerpt: ... 196 Cal.App.4th 1366, 1375 [internal citations omitted].) A party is indispensable where the plaintiff seeks a type of affirmative relief that, if granted would affect the interest of a third person not joined. (Sierra Club, Inc. v. California Coastal Comm. (1979) 95 Cal.App.3d 495, 501; Code Civ. Proc., § 398, subd. (a).) In other words, Plaintiff is required to join as parties to the action any person whose interest is such that any judgment ...

Excerpt: ...tions moving forward on an agreed-upon date is that it is burdensome under Code of Civil Procedure section 2019.030, subdivision (a)(1) for its employees to have to attend a deposition 10 miles from their place of employment as it disrupts business and the employees “rarely produce any useful information”. This statute does not support Defendants' argument. Defendants' five employees [(1) Huntington Beach Chrysler Dodge Jeep Ram's person most...

Excerpt: ...al.App.3d 1450, 1453-1455; Code Civ. Proc., § 1032, subd. (a)(4).) The per diem cost for having a court reporter present at the trial is recoverable. (See Code Civ. Proc., § 1033.5, subd. (a)(11); Govt. Code, § 68086, subd. (a); Cal. Rules of Court, rule 2.956(c).) The costs for models, blowups, and photocopies of exhibits, and electronic filing fees are also recoverable. (See Code Civ. Proc., § 1033.5, subds. (a)(13) & (a) (14). While Natash...

Excerpt: ...nd nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc., § 2032.220.) The plaintiff must respond to the demand within 20 days stating that she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. ...

Excerpt: ... are unopposed. Plaintiff has not presented a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (a), (p)(2); see also, Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412-414.) Plaintiff Nick Guillermo's loss of consortium claim rises or falls, as in this case, with his wife's medical malpractice claim. (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256.) Defendants Bull and Wong shall give notice of rulings. ...

Excerpt: ...he motion was not placed back on the November 3, 2017 law and motion calendar. In contrast to the notice, the ex parte application to place the motion back on calendar for January 19, 2018, indicated that Defendants sought sanctions consisting of: (1) terminating sanctions of $100,000 against Plaintiff; (2) dismissal of Plaintiff's First Amended Complaint; and (3) monetary sanctions against Plaintiff and its counsel. The court construes the motio...

Excerpt: ...that the stipulation and protective order that Defendants asked Plaintiff to enter into is the Los Angeles County Superior Court's model protective order. This model protective order is commonly used by parties in civil litigation. The model protective order requires only good faith designation of confidential documents. Designation of confidential documents in bad faith could subject a party to sanctions, as a discovery abuse. It also sets forth...

Excerpt: ...as moot. DEMURRER Alter Ego Except for the claims for breach of oral contract, intentional misrepresentation and negligent misrepresentation, Gunnison's liability depends on the alter ego doctrine. However, Plaintiffs have not alleged sufficient facts to invoke the doctrine. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Accordingly, the demurrer as to the claims for breach of written contract, breach of implied warranty...

Excerpt: ...rrer as to the sixth cause of action for negligence. First and Fourth Causes of Action (Breach of Contact and Breach of Implied Covenant of Good Faith and Fair Dealing) The elements of a breach of contract claim are (1) plaintiff and defendant entered into a contract, (2) plaintiff performed its obligations under the contract, or it was excused from doing so, (3) all of the conditions for defendant's performance occurred or were excused, (4) defe...

Excerpt: ...ontribution. HKJ Gold asks for time to conduct discovery into Hernandez's wealth. But in light of his Declaration, discovery is not needed for the court to make a determination as HKJ Gold urges. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, is inapposite. In that case, the moving party provided no evidence of his assets or even that the insurance denied coverage. Thus, the court denies HKJ Gold's request for a continuance t...

Excerpt: ...f critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) If, however, the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has discretion to deny leave to amend. (See Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490.) Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether...

Excerpt: ...plemental response was served 2/22/18. The statutes for each of the interrogatories, RFPS, and RFAs provide for 45 days to move to compel further responses. Similarly, that 45 days starts anew when a supplemental response is served. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c) [“within 45 days of the service of the verified response, or any supplemental verified response”].) There is no reading of this ...

Excerpt: ...ing to Code of Civil Procedure section 1987, subdivision (c), a notice to appear and produce documents at trial “shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” (Code Civ. Proc., § 1987, subd. (c); compare, Code Civ. Proc., § 2031.030 [for discovery, only requires that a request describe a category of documents to be produced].) Plaintiff's reques...

Excerpt: ...are equitable. Accordingly, Defendants' jury demand is stricken. The October 22, 2018 trial will be a court trial, not a jury trial. Plaintiff shall give notice of the ruling. ...

Excerpt: ...es are authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subds. (a)(10)(A), (B), & (C); Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Here, the court has already determined that fees are authorized by contract. There any question that Peloquin is the prevailing party on appeal. The court has broad authority to determine the amount of reasonable fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may make...

Excerpt: ... meet and confer letter to Plaintiff on December 8, 2017. After receiving no response, Defendant again reached out on January 8, 2018, and again received no response. On January 8, 2018, the court signed and filed the stipulated protective order. Only after Defendant filed the instant Motion, did Plaintiff served verified supplemental responses on February 9, 2018. Plaintiff asserts that the Motion is moot because Plaintiff served further respons...

Excerpt: ...ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)-33.) Code of Civil Procedure section 426.30 clearly states that the compulsory counterclaims are waived only if: “a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of servin...

Excerpt: ...f the plaintiff against which a determination is sought. (Code Civ. Proc., § 761.020, subd. (c).) If the plaintiff admits the validity of any adverse claim, the complaint must also contain that admission. This enables the action to determine the title against all persons, with specified exceptions, and avoids the need to litigate interests accepted as valid and to which the plaintiff's title is subject. (Code Civ. Proc., § 762.060, subd. (c).) ...

Excerpt: ...vacy extends to one's confidential financial affairs as well as to the details of one's personal life”].) In doing so, the Court expressly noted “relevant bank customer information should not be wholly privileged and insulated from scrutiny by civil litigants”; rather, the trial court should employ “certain procedural devices” to “fashion[] an appropriate order that will, so far as possible, accommodate considerations of both disclosu...

Excerpt: ...s should be prepared to address available trial dates for October, November, and December 2018. ...

Excerpt: ...uty against all Defendants. The court granted Plaintiff leave to amend after sustaining moving Defendants' demurrer to the third cause of action for breach of fiduciary duty in the SAC, reasoning in part that Plaintiff had not alleged that moving Defendants had a fiduciary duty to Plaintiff. (10/27/2017 Minute Order.) In the TAC, Plaintiff deleted moving Defendants from the breach of fiduciary duty cause of action which is now alleged against Def...

Excerpt: ...e under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452...

Excerpt: ...ate, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, . . . .” In determining whether bifurcation is appropriate, courts often look to other factors aside from whether the case presents separate issues. For example, courts will consider the complexity of the issues, the risk of jury confusion, judicial economy, and whether the claims present separate and independent issu...

Excerpt: ...: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)- 33.) Cross-Defendant's motion is based on a contractual statute of limitations that, by its terms, does not appear to apply in this situation. Further, under existing law and on the pleadings alone, there is a question whether the provision would be enforceable. The introductory clause for the contractual statute of limitation says that “[e]xcept for actions by WZWL&H t...

Excerpt: ...complaint].) The court also notes that even before the MSA was filed, Plaintiff dismissed the first and seventh causes of action in the Complaint. The issues regarding legality of e-signatures in this MSA were raised in the first cause of action in the Complaint, which was dismissed prior to the filing of the MSA. A defendant moving for summary judgment need not refute liability on some theoretical possibility not included in the pleadings. (Coun...

Excerpt: ...ained as to nos. 6 and 10. Defendants' remaining evidentiary objections are overruled. A lis pendens is a recorded document giving constructive notice that an action has been filed affecting right or title to possession of the real property described in the notice. (Park 1000 Investment Group II v. Ryan (2010) 180 Cal.App.4th 795, 807.) It is a provisional remedy which is to be used sparingly, and only to advance the interests of litigant claiman...

Excerpt: ...conformity with the laws…” the motion to strike is granted as to the entire Complaint. (Code Civ. Proc., § 436, subd. (b).) Additionally, Plaintiff fails to plead sufficient facts to support his claim for punitive damages. Plaintiff claims that Defendant acted “willfully, intentionally, and with oppression, malice and fraud, and “with conscious disregard of Plaintiffs rights.” (Complaint, ¶ 58.) However, the only facts alleged to supp...

Excerpt: ...ce” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supr...

Excerpt: ...writers' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial court and its decision is reviewed for abuse of discretion].) Allowable costs must also be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(3).) If the items on their face appear to be proper charges, the verified memorandum of costs is prima...

Excerpt: ...s should not be made lightly. (Los Defensores, Inc. v. Gomez(2014) 223 Cal.App.4th 377, 390.) But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one o...

Excerpt: ...ded that the injunctive and monetary relief may be ordered by the court. Plaintiff must submit an appropriate proposed judgment and allow Defendant an opportunity to object. The court is contemplating continuing the hearing on the motion in order to allow Plaintiff submit a proposed judgment and an opportunity to object. ...

Excerpt: ...urt shall deem the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220”]; see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782 [actual compliance not required where the proposed response is facially a good- faith effort to respo...

Excerpt: ...d,” thus, there is nothing to produce. While Defendants' response is appropriate, it does not fully comply with Code of Civil Procedure section 2031.230 (e.g., affirm that a diligent search and reasonable inquiry and whether the inability to comply is because the particular item or category has never existed, has been destroyed, etc.). Defendants are ordered to provide a further response that complies with the Code. No. 14 Plaintiff requests do...

Excerpt: ...Code Civ. Proc., § 437c, subds. (a), (p)(2); see also, Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412-414.) Defendants Hassan M. Alkhouli, M.D. and Pathway Medical Group, Inc. shall submit electronically a proposed judgment and serve it on all parties. Defendants Hassan M. Alkhouli, M.D. and Pathway Medical Group, Inc. shall give notice of ruling. ...

Excerpt: ...facts material to the case occurring after the former complaint or answer.” A motion to file a supplemental pleading is addressed to the sound legal discretion of the court. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Plaintiff seeks to add five paragraphs to the First Amended Complaint, consisting of allegations that Defendant's enforcement of the governing documents was arbitrarily directed only at Plaintiff. Plaintiff argues that the e...

Excerpt: ...9/28/15 and the Certificate of Dissolution filed 9/28/15. Defendants' request for judicial notice of documents filed with the Secretary of State of California granted. Judicial notice of the existence and filings of these exhibits is appropriate, as well as the clear legal effects thereof, pursuant to Evidence Code section 452, subdivisions (c) and (h), but not the truth of any matters asserted therein. (Fontenot v. Wells Fargo Bank, N.A. (2011) ...

Excerpt: ... action, and overruled as to the other causes of action. As to Plaintiff Varney, the demurrer is sustained with 15 days leave to amend as to all but the seventh and eighth causes of action; the demurrer is overruled as to the seventh and eighth causes of action. Defendants' request for judicial notice is granted. First Cause of Action for Violation of Homeowners Bill of Rights (“HBOR”) Civil Code section 2923.7 requires mortgage servicers to ...

Excerpt: ...is sold and transferred al rights, title, and interest in the subject property to her. (Martz Decl., ¶ 2.) Based on that Declaration, on 8/22/16, the court ruled that: “Gayle Martz is substituted as a plaintiff in this action, in Orange County Superior Court Case No. 30-2009-00120639 (which has been consolidated with lead case No. 01CC15035), instead and in place of Plaintiffs.” Plaintiff argues that the court should exercise discretion and ...