Excerpt: ...action "binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government." (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) As to the Settlement 1. Paragraph 4 of the Memorandum of ...

Excerpt: ...al allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require speci...

Excerpt: ...d settlement agreement”, to avoid waste of limited Court time and resources. 1. The Release still references “this Action or in any other action or proceeding in this Court or any other Court or forum.” (See §14.1 of Amendment to Joint Stipulation: 5:24-25). The Court will only approve a Release which is limited to the facts alleged in this action. 2. Based on the Declaration provided by Counsel, the Court understands that PIFs will be nec...

Excerpt: ...ses of action, sustained without leave to amend as to the 20th cause of action, and overruled as to the other causes of action. The motions to strike are denied. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.”...

Excerpt: ...r than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The Settlement purports to settle Plaintiffs' PAGA claims against Defendant. However, no PAGA claims are asserted in this action. Further, the PAGA action brought by Plaintiff Juarez in San Bernardino County Superior Court (the “PAGA Action”) appears to have been dismissed. (Settlement, p. 1:26-27.) Do Plaintiffs intend to amen...

Excerpt: ...torneys' fee award.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Once the lodestar has been calculated, the court “shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the [] award so that it is a reasonable figure.” (Id. at 1096.) “The determination of what constitutes reasonable attorney fees is committed to the discretion of t...

Excerpt: ...; 2) the de minimis defenses fail as a matter of law under Troester v. Starbucks Corp. (2018) 5 Cal.5th 829; and 3) Defendant failed to reimburse employees for necessary pens, pencils, and paper. These issues are addressed below. “When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion ‘only if it completely disposes' of the defense. [Citation] The plaintiff bears the initial burden to show ...

Excerpt: ...at made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008(a).) “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4t...

Excerpt: ...status conference for a final accounting. Plaintiff shall submit a final report at least 10 days prior to that conference regarding the status of the settlement administration. Counsel should include a date for the final accounting in the proposed order. The final accounting should occur after the deadline for class members to cash their checks. The final report must include all information necessary for the Court to determine the total amount ac...

Excerpt: ...lass members. (See ¶8 of Hernandez Declaration). This is an approximately 30% increase from the estimated class size of 350. (See ¶15 of Perez Declaration filed on 3/8/19). Please confirm via Declaration that, consistent with the terms of the Settlement Agreement, the Net Settlement Amount has been proportionally increased. (See §46 of Joint Stipulation of Class Action Settlement and Release). 2. Similarly, please confirm via Declaration that ...

Excerpt: ...t agreement is directed, rather than “amended settlement agreement”, to avoid waste of limited Court time and resources. 1. The Release is vague and overly broad, as it purports to release any claim arising from facts/conduct that “could have been” alleged in this Action or any other. (See §14.1 of Agreement). The Court will only approve a Release which is limited to the facts alleged in this Complaint. 2. Please further explain the need...

Excerpt: ...n the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary...

Excerpt: ...ded settlement agreement', to avoid waste of limited Court time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) As to the Settlement 1. The release appears to include PAGA claims relating to violations of Labor Code § 558. (Settlement, § 1.t.) However, the first amended complaint does n...

Excerpt: ...les Decl., Ex. A, ¶ 2; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement ...

Excerpt: ...s warranted at this time. A court has the power “[t]o amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128(a)(8).) “[T]rial courts have broad discretion to fashion suitable methods of practice in order to manage complex litigation, so long as the procedures adopted do not conflict with any statute, rule of law, or Judicial Council rule.” (Hernandez v. Superior Court (2003) 112 C...

Excerpt: ...diate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 673; see also Teal v. Superior Court (2014) 60 Cal.4th 595, 599.) Plaintiff has not established that any of its members are suffering “immediate or threatened injury” as a result of the chall...

Excerpt: ...e comparative fault of the association or its managing agents may be raised by way of defense but shall not be the basis for a cross- action or separate action against the association or its managing agents for contribution or implied indemnity, where the only damage was sustained by the association or its members. It is the intent of the Legislature in enacting this subdivision to require that comparative fault be pleaded as an affirmative defen...

Excerpt: ...hey exhausted their administrative remedies as to Foster individually. (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116-18.) Plaintiffs are given leave to amend to the extent they can show they identified Foster individually in their administrative complaint. As to BFCI, its demurrer to the 15 and 16th causes of action is sustained with leave to amend. The Complaint is ambiguous as to whether this claim is being bro...

Excerpt: ... policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047 [quoting Code Civ. Proc., § 473(a)(1)].) “[A]s a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” (Central Concrete Supply Co., Inc. v. Bursak (2010) 182 Cal.App.4th 1092, 1102.) “Although courts are bound to ...

Excerpt: ...state facts that will support class certification. As Defendants note, Plaintiffs have previously stated that they are aware of at least one other person who has similar claims as Plaintiffs. The identity of this third-party is responsive to all four interrogatories and he or she should be disclosed. As should any other person that Plaintiffs are currently aware of, who has similar claims as Plaintiffs. Nos. 23-30 to Pano: The information request...

Excerpt: ...essing and pricing methodology of claims for behavioral health services. (Calonge Decl., ¶¶ 4, 6; see Courtesy Temporary Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1288.) Further, a substantial probability exists that Defendants will be prejudiced if the information is not redacted from the public record. They will be forced to provide economically valuable materials to competitors, to their own disadvantage. (Calonge, ¶¶ 4, 5; see ...

Excerpt: ...', but it must be ‘definite and concrete, touching the legal relations of the parties having adverse legal interests.'” ((Conroy v. Civil Service Commission of City and County of San Francisco (1946) 75 Cal.App.2d 450, 456.) “‘The “actual controversy” language in ... section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.' [Citation.] It does not embrace controversies that are ‘...

Excerpt: ...��A trial court is to apply an objective standard in making its inquiry concerning the attorney's or party's allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7.” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) “[T]o obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citations.] A claim is objectively unreas...

Excerpt: ...Arbitration Agreement, ¶ 5; SPLI Agreement, ¶ A.) Under the FAA, “the court's role ... [is] limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” (Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.) Even when the FAA applies, “interpretation of the arbitration agreement is governed by state law principles .... ...

Excerpt: ...on coordinated with his deposition in Dual Diagnosis Treatment Center v. Health Net, Los Angeles Superior Court, Case No. LC104357 (“Dual Diagnosis”), and subject to the same restrictions as Dual Diagnosis. The statements made by Mr. Neidorff at issue in Dual Diagnosis are the same statements at issue here. Thus, Plaintiffs and Health Net must coordinate Mr. Neidorff's deposition in this action so it occurs at the same time and place as his d...

Excerpt: ... of action for constructive fraud. Issue No. 1 Summary adjudication is GRANTED as to this issue. There is no factual dispute that the funds in CDA 836809 are Abelardo Estacion's (“Abelardo”) property. (See Plaintiff's Separate Statement (“PSS”) Nos. 1-5.) Generally, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action ….” (Code Civ. Proc., § 437c(f)(1).) However, “two separate ...

Excerpt: ...ff is not entitled to attorney fees pursuant to CCP § 1021.5. The relief sought and obtained by Plaintiff was largely personal, and any incidental benefit to others was not a benefit to the public at large, or to a large class of persons. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936.) Plaintiff's motion to strike/tax costs Plaintiff's evident...

Excerpt: ...nsidered the parties' Stipulation and Joint Request for the Court to Retain Jurisdiction Pursuant to CCP section 664.6 and for Dismissal; [Proposed] Order (duly signed by all parties), and as the [Proposed] Order does not provide that any term of the Settlement Agreement is made an order of court, the court concludes that review of the Settlement Agreement is not a necessary condition to granting the parties' stipulated request for the order. The...

Excerpt: ...he court further finds that the costs are reasonable and substantiated, and costs are awarded in the amount of $13,533.24. Plaintiff is awarded an enhancement of $10,000. In making this award, the Court has considered the time and effort Plaintiff expended in prosecution of this action, the benefit conferred on the Class, and all other relevant factors, including the risks to Plaintiff during this protracted litigation. Pursuant to CCP § 384(b),...

Excerpt: ...required by Cal. Rules Court, rule 3.1700, subd. (a)(1). Defendant's Motion For Attorney's Fees is DENIED. California subscribes to the “American Rule”. i.e. each side bears its own legal fees, absent an agreement or statute that provides otherwise. Code Civ. Proc. § 1021. Defendant fails to identify a contractual basis for an award of attorney's fees. Bus. & Prof. Code § 17200, et seq., and Corp. Code §§ 1800 - 1808 do not provide for an...

Excerpt: ...0- 481.) Plaintiff Matthew Goetz (plaintiff) has failed to demonstrate a compelling need for the requested information that overcomes her right to privacy. (See Britt v. Superior Court (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 859; see also Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The motion to quash is DENIED as to the subpoenas seeking the bank records of defendant O'Hara's Pub, Inc. (O'Hara's). (Rucci Decl. at Exhs. ...

Excerpt: ...en of presenting evidence of a written agreement providing for binding arbitration and that Plaintiff's employment law claims fall within the scope of this agreement. See, Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4 th394, 413. The burden thus shifted to Plaintiff to establish some ground such that the agreement for binding arbitration should not be enforced. See, Correctional Peace Officers Ass'n v. State of Calif. (2006) 1...

Excerpt: ...complaint are each ordered stricken and the defaults of these defendants entered. See, C.C.P. § 2023.030(d)(1). The Court notes that on March 29, 2018 it advised Defendants' attorney that a guardian ad litem should be appointed if defendant Babette Angelo had suffered a stroke. (See, March 29, 2018 Minute Order.) No such guardian ad litem was appointed. Also, defense counsel has not adequately explained why communication with the individuals pre...

Excerpt: ...leave to amend, on the basis that the Complaint fails to adequately allege that the subject deed of trust was a first priority lien upon the property and that Plaintiff had submitted complete loan modification applications. The Demurrer to the Third Cause of Action For Negligence is SUSTAINED with leave to amend, on the basis that the Complaint fails to allege facts giving rise to a duty of due care in favor of Plaintiff. The Demurrer to the Four...

Excerpt: ...this demurrer, they claim that in actuality, this cause of action has been brought by both of them in both contract and tort. (Opp. at p. 7.) This is not readily apparent from the allegations of the second amended cross-complaint. Takeya is entitled to know exactly what type of claim(s) each of these cross-defendants is attempting to allege against it so that it may prepare an appropriate response and/or defense. Second cause of action for misapp...

Excerpt: ...inute Order is GRANTED, limited to the existence of, filing of, and legal effect of the Order. The Motion For Judgment on the Pleadings by Cross-Defendants Majic Services, Inc. and ADA Property Services, Inc. is DENIED in its entirety. The Cross-Complaint states facts sufficient to allege prima facie causes of action for the disputed 2 nd, 5 th, 6 th and 8 thCauses of Action. Cross-Defendants' arguments are based upon facts and matters not proper...

Excerpt: ...aint to identify Does 18 through 20 as defense counsel is DENIED without prejudice. Moving party fails to cite any legal authority supporting the requested relief. (CRC 3.1113(a), (b).) To the extent plaintiff relies on CCP 473, plaintiff has not complied with CRC 3.1324. To the extent plaintiff is attempting to allege that the proposed attorney defendants conspired with their clients to allegedly convert plaintiff's stock, in order to compensate...

Excerpt: ...31:7-232:6], and T [Chrisman Depo., 8:11-17, 18:1-3, 42:1-47:12]), the Court cannot as a matter of law determine on the present papers alone that plaintiff Steven M. Voce (plaintiff) has engaged in deliberate, egregious misconduct by forging defendants' signatures on the subject agreement. The alleged forgery will require an evidentiary hearing, pursuant to a motion for summary judgment/summary adjudication or a motion in limine. See, for example...

Excerpt: ... Form Rog. Nos. 15.1 and 17.1 were served in March 2018, that these responses were deficient, and that defendant Santayana- Cruz essentially concedes they were deficient by serving more substantive responses to Form Rog. Nos. 15.1 and 17.1 approximately one month later on 4-19-18. 2) Plaintiff Martha Phillips' motion to compel further responses to employment form interrogatories by defendant Cecilia Cruz Santayana is MOOT because defendant has se...

Excerpt: ...was securely leashed and tethered to prevent them from roaming free among the public was in willful and wanton disregard of the safety, rights, and health of Plaintiff and the public at large. There are no allegations that the dog had bitten another person prior to the incident herein. Even if there were, punitive damages usually depend on more than negligence. “Nonintentional conduct comes within the definition of malicious acts [only] when a ...

Excerpt: ...ecurity interest in the real property commonly known as 3 Flora Springs, Irvine, CA 92606 (the “Property”) with a power of sale, to secure repayment of a $450,000.00 home equity line of credit, and that Defendants and Plaintiff's predecessor in interest intended that the security interest in the Property be effective 06/07/07. Based upon the foregoing, the court exercises its equitable powers and imposes an equitable lien upon the Property. D...

Excerpt: ...48), (2) plaintiff's performance or excuse for nonperformance, (alleged in paragraph 51[a]) (3) defendant's breach (alleged in paragraph 51[b]), and (4) the resulting damages to the plaintiff (alleged in paragraph 52). Oasis West Realty, LLC v. Goldman(2011) 51 Cal.4th 811. The demurrer is overruled as to the fourth cause of action for money had and received. Where, as here, a plaintiff has alleged defendant allegedly misappropriated monies they ...

Excerpt: ... Center - Anaheim • West Care Medical Center/ Business Office -Anaheim • West Care Medical Center/Radiology - Anaheim • Prospice Medical Center - North Orange Complete medical records, from June 21, 2008 through the present, including but not limited to the following: correspondence and documents indicating examinations, dates of examinations, testing, diagnosis, prognosis, all records of history, treatments and care including but not limit...

Excerpt: ...sion is distinguishable as Dr. Falvey has set forth the medical and hospital records relied on and set forth reasons for his opinions. Also, the plaintiff in Kelley submitted a proper expert declaration in opposition that the physician in that case fell below the standard of care. Plaintiff has not submitted any proper expert declaration by a medical expert opining that Defendant fell below the standard of care and/or how such breach was a cause ...

Excerpt: ... as those exhibits are not attached to the pleading. Plaintiff is granted ten (10) days leave to amend. The remaining requested relief is denied. Injunctive relief is specifically permitted per Civil Code § 3439.07(a)(1)(A). Compensatory damages are permitted. See, Taylor v. S & M Lamp Co. (1961) 190 Cal.App.2d 700, 706. Attorney fees are recoverable. See, Cardinale v Miller (2014) 222 CA4th 1020, 1024–1026. The prayer for punitive damages is ...

Excerpt: ...ates (1985) 38 Cal.3d 488, 499 [listing factors]; TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166 [factors also include settlor's potential liability for indemnity].) Moving party has failed to make this showing. Competent evidence demonstrating, inter alia, (1) the nature and extent of the settling party's potential liability, (2) the settling party's financial condition and/or applicable insurance policy limits ...

Excerpt: ...: “1) Defendant Saeid Maralan's Motion for Order to Stay Proceedings pending the Resolution of Related Criminal Investigation or until the Current Felony Charges are Resolved. Grant. The Motion to Stay is GRANTED. Pursuant to Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, the court will stay the action until after August 2013, when the statute of limitations will run. The stay is granted for discovery and trial as to Defendant Saeid ...

Excerpt: ...the City, the first cause of action for negligence alleges “dangerous condition” liability under Government Code section 835 and “concealed trap” liability under Government Code section 830.8, based on the City's failure to provide adequate lighting, an accessible crosswalk, a stop sign, and/or a traffic signal at the location of the incident. (See Complaint at ¶¶ 20-21.) To the extent the claim is based on the alleged failure to provid...

Excerpt: ...ndard of care]; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1418 [any matter admitted in response to a request for admission is conclusively established against the party making the admission].) Defendant's request for judicial notice is GRANTED. (See Evid. Code, § 452, subds. (d), (h); Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Defendant to give notice. ...

Excerpt: ...th the defense of their case in the underlying action, which advice Plaintiffs allegedly followed and were damaged by. In Samuels v. Mix (1999) 22 Cal.4 th 1, the Supreme Court held that the moving party has the burden of proving when a plaintiff discovered, or should have discovered, the alleged malpractice. Id., at 8 to 9. Third, Defendant has not established when his representation of Defendants ended as a matter of law. See, C.C.P. § 340.6(a...

Excerpt: ...ying the alter ego doctrine are that (1) there is such a unity of interest and ownership between the corporation and the individual or organization controlling it that their separate personalities no longer exist, and (2) failure to disregard the corporate entity would sanction a fraud or promote injustice. (Robbins v. Blecher (1996) 52 Cal.App.4th 886, 892.) The court finds that there are triable issues of material fact as to the second prong of...

Excerpt: ...fices of counsel for moving party, on a date and time mutually agreed by the parties and counsel. The motion is denied as to the request for document production at the deposition, as moving party fails to show good cause. (CCP 2025.450(b)(1).) The motion is granted as to the request for sanctions. The court finds that plaintiff's failure to produce its person most qualified for deposition lacked substantial justification, and imposes sanctions in...

Excerpt: ...ion can be considered (see, C.C.P. § 396b(d) and Buran Equipment Co., Inc. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665), and it has been brought within a reasonable time. See, Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295. But generally the declaration of individual defendants, agents or employees of a defendant are not considered. See, Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 478. Defendant ACSSI is relyin...

Excerpt: ...Calvillo-Silva v. Home Grocer (1998) 19 Cal.4th 714, 729) Motion No. 2. Motion to Strike Defendants' Motion to Strike is DENIED. Considered at this pleading stage, the cumulative facts pled in the Complaint could allow a jury to reach the determination that Plaintiffs are entitled to the enhanced remedies of punitive damages and attorney's fees pursuant to Welf & Inst. Code § 15657. Plaintiffs to file and serve an amended complaint within ten da...

Excerpt: ... RFPD responses by plaintiffs Roger Hogan, Capistrano Toyota and Claremont Toyota, and to compel further responses to special interrogatories by plaintiff Roger Hogan, and all future discovery motions between these parties, are Ordered submitted to a discovery referee. The Court finds that a discovery referee is warranted in this case based on claims of trade secrets, privacy rights, third party rights of privacy and overbreadth. Any and all disc...

Excerpt: ...ntiff filed a “Consent to Arbitration and Staying This Action.” At a case management conference on April 20, 2018, plaintiff Lisa A. Olsen again indicated that she was willing to arbitrate, but defendants (through defendant Farifteh Shahbazian) (all defendants by that date representing themselves in this litigation) indicated that defendants no longer wished to proceed to arbitration. The Minute Order of that date notes “Court informs defen...

Excerpt: ...leave to depose Attorney Kevin Bone is DENIED without prejudice. At this time Plaintiff has not met his burden of showing there is no other method to obtain information regarding the allegedly forged federal documents other than through Mr. Bone. Further, Plaintiff has not adequately shown how Mr. Bone's testimony is “crucial” to the preparation of his case. Spectra-Physics v. Superior Court (1988) 198 C.A.3d 1487. Moving party to give notice...

Excerpt: ...ition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Underscore added.) As is apparent from this se...

Excerpt: ... denied. Defendant failed to establish that her lack of actual notice in time to defend was not caused by her avoidance of service or inexcusable neglect, and Defendant failed to serve and file with the notice of motion a proposed Answer or other pleading to be filed. (CCP § 473.5(b).) Counsel for moving party to give notice. ...

Excerpt: ...quest to strike the entire Memorandum of Costs is denied. The court finds that the Stipulation for Entry of Judgment between Plaintiff and U.S. Bank does not provide grounds to strike the memorandum of Costs. Plaintiff materially breached the provisions of the stipulation pertaining to costs in this action by not dismissing this action “forthwith” and he continues to be in material breach by failing to dismiss this action with prejudice. Thes...

Excerpt: ...ighbors. See, Olvera, at 42. Plaintiff's process server went to a property where defendant Fiesler's mother resided but there is no evidence of any inquiry as to defendant Robert Fiesler's address after his mother indicated that defendant Robert Fiesler did not reside at that address. Similarly, there is no evidence that plaintiff Godfrey searched tax rolls and the register of voters. As to reasonable diligence, the Kott court also explained that...

Excerpt: ...o the theory of liability alleged. The demurrer on grounds of another action pending (CCP 430.10(c)) is overruled. Cross-complainants are granted 15 days leave to amend. The motion by plaintiff Tezza Ramirez to compel defendant Burroughs to provide further responses to Form Interrogatories, Set One, is granted in part and denied in part, as follows: Form Interrogatory Nos. 2.7(b), 2.11 12.1(d): Grant. Defendant Burroughs is ordered to provide ful...

Excerpt: ...efendant was under the influence of alcohol at the time of the accident. Defendant does not dispute that fact and has, in fact, pled guilty to criminal charges relating to driving while intoxicated. The extent of Defendant's drinking on the night of the accident is relevant to determine whether Defendant's actions were sufficiently “despicable” and “malicious” to support an award of punitive damages. As the information sought is directly ...

Excerpt: ...their initial evidentiary burden to show: (1) The existence of written agreement to arbitrate; (2) A demand to arbitrate and refusal by the party opposing arbitration; and (3) Proof that the arbitration agreement covers the dispute at issue. Mansouri v. Superior Court (2010) 181 Cal.App.4th 633. While Defendant LoanMe is not a party to either Employee Acknowledgement Form containing the two agreements to arbitrate, it has the right to compel arbi...

Excerpt: ...3/18 Minute Order; Code Civ. Proc., § 2024.020, subd. (b).) Defendants' request for a mental examination is therefore untimely, as any such examination would necessarily have to be conducted past the discovery cut-off date of April 2, 2018. Defendants have not moved to reopen discovery as required under Code of Civil Procedure section 2024.050, or sufficiently addressed the requisite grounds for reopening discovery under this section so that the...

Excerpt: ... Jennifer Magallanes' special motion to strike the second and third causes of action in the cross-complaint of Jenny Ramirez is GRANTED. Moving parties have met their initial burden to show the allegations of the complaint are protected under the anti-SLAPP statute. Therefore the burden now shifts to responding party Jenny Ramirez to show she has a probability of prevailing on her claims. Responding Party has not offered any competent, admissible...

Excerpt: ...example, fees incurred for motions in limine related solely to the fraud causes of action, as Defendant has failed to provide any evidence permitting the court to do so with reasonable precision. The court declines the request for a multiplier, as the criteria for a multiplier are not met here. The issues presented were straightforward, the case followed a predictable path, it settled via the CCP 998 offer before trial, and the hours and hourly r...

Excerpt: ...'s signature on the terms set forth in the proposed stipulation, attached as Ex. H to the declaration of moving parties' attorney in support of the motion, and to provide same to the court for signature within five days. The motion by plaintiffs Peggy Ewing and Kerry Ewing to compel the deposition of the person most knowledgeable for defendant is GRANTED. Defendants Uber Technologies, Inc. and Rasier-CA, LLC are ordered to produce for deposition ...

Excerpt: ... on the basis that the Complaint fails to adequately allege facts as to (i) Inadequacy of legal remedy; (ii) that the underlying contract is both reasonable and supported by adequate consideration; and (iii) Contractual terms which are sufficiently definite to enable the court to know what it is to enforce. The Demurrer to The Fourth Cause of Action For Quia Timet is SUSTAINED with leave to amend on the basis that the facts pled in the Complaint ...

Excerpt: ..., and citing in part Code Civ. Proc., § 720.110 et seq.]; see also Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [motion determined by requested relief].) Judgment creditor's petition for determination of validity of third party claim is DENIED, for lack of jurisdiction. Third party claimant Rita Wergowske filed the subject third party claim with the levying officer on January 24, 2018, and did not file an undertaking to...

Excerpt: ...he 1999 License Agreement. Id. As to cross-complainant Optimum Power's second cross-claim for accounting, plaintiff has alleged sufficient facts as to a basis for an accounting in the context of the alleged breach of the NDA agreements. As to cross-complainant Optimum Power's third cross-claim for breach of contract, Optimum Power has alleged sufficient facts as to breach of the NDA agreements even if the 1999 License Agreement and amendments the...

Excerpt: ... with Rule 2.112. Second, Petitioner Sutton's opposition appears to claim that he is seeking only equitable title and not legal title. But the prayer in Petitioner's first amended petition includes a request for an order that the trustees of the irrevocable trust in this case “…execute and record a deed and execute any other documents necessary in order to fully transfer such interest to Petitioner.” Petitioner thus appears to be seeking le...

Excerpt: ...case law, only the association, or an owner of a separate interest in a common interest subdivision, has standing to enforce a declaration of covenants, conditions and restrictions. (Civil Code 5975(a); Martin v. Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024, 1033.) There are no facts alleged to show that defendant Stonekastle Property Management, Inc. is a party to the CC&Rs, nor is any other contract alleged which this defendant...

Excerpt: ...ine requires an appeal and the reviewing court stating in its opinion a principle or rule of law necessary to the decision. See Clemente v. State(1985) 40 Cal.3d 202, 211. These facts do not appear on the face of the FAC, and are not established by judicial notice. The doctrines of collateral estoppel and/or res judicata are each inapplicable because these doctrines both require the existence of a final judgment. The final judgment element for re...

Excerpt: ...establish a certain element to a claim for violation of the Fair Employment and Housing Act (FEHA). Plaintiff's causes of action, however, include, inter alia, a breach of contract claim, the success or failure of which does not necessarily depend on plaintiff's ability to demonstrate a violation of FEHA. Issue No. 3 –Defendants may properly challenge plaintiff's first cause of action to the extent it alleges “FEHA disability retaliation” a...

Excerpt: ...) 20 Cal.4th 1103, 1113-1114; see also Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1506.) The court finds attorney Nathaniel Brown's reasonable hourly rate to be $250.00 and that he reasonably expended a total of 70.7 hours with respect to this matter, and that attorney Martin S. Kovalsky's reasonable hourly rate is $400.00, and that he reasonably expended a total of 2 hours with respect to this case. (See 569 East County Boulevard LLC v. Ba...

Excerpt: ...s attached as exhibits to the FAC, Plaintiff's conclusory allegation in paragraph 19 of the FAC that the Defendants “caused him” to execute the loan documents notwithstanding the fact that the property was Plaintiff's residence is not sufficient to allege that the loan is subject to the Dodd-Frank Act, as business loans are not subject to the Act. 15 USC § 1603(1). If the exhibits to the complaint contradict the language of the complaint, th...

Excerpt: ...violation of statute does not destroy this negligence claim. Plaintiff has alleged the elements of a claim for negligence; duty, breach, causation and damages. With regard to the second cause of action for nuisance, whether or not there was a superseding criminal act which relieves the defendant of a duty to plaintiff is a question of fact for the jury. Further, there is no requirement the alleged nuisance be “continuing” or “permanent” t...

Excerpt: ...aintiff's memorandum and the supporting declaration of attorney Nedda Mehrou and the court did not consider attorney Mahrou an expert in the areas of attorney's fees and/or reasonableness. See, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4 th 1084, 1095. The lodestar calculation (respective hourly rates multiplied by hours worked) provides the total sum of $122,585.65 sought by TUSD. (Reply, 10:19.) The Court reduces that amount on two separate bas...

Excerpt: ...ufficient evidence to meet its initial burden of showing that cross-complainant cannot prove an essential element of her claim(s) or that Hughes Cione has a complete defense to the claims. Triable issues remain as to material facts 5-9, 17-38, 39-45 and 48-70. Attorney Hughes' declaration in support of the motion purports to authenticate exhibits A through Z (e.g. “[A] true and correct copy of said Charge is being attached hereto and shall be r...

Excerpt: ...ive order has been withdrawn and taken off calendar, and thus, any alleged procedural defects with respect to it are moot. The court declines to consider any new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey(2013) 218 Cal.App.4th 1522, 1537-1538.) Moving party to give notice. ...

Excerpt: ...endants presented evidence negating any substantial, continuous and systematic contacts with this forum. See, Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, at 445. Also, general jurisdiction is now limited to a company's state of incorporation or principal place of business. See, Daimler AG v. Bauman (2014) 571 U.S. 117, 134 S.Ct. 746, 761 to 762 and Martinez v. Aero Caribbean (9 th Cir. 2014) 764 F.3d 1062, 1070. It is undis...

Excerpt: ... 260, 295.) 4. State of Delaware Certificate of Revival of Charter for Virtual Power Plant Inc., May 25, 2017 (RJN Ex. 4): Granted pursuant to Ev. 452(c) [official acts]. 5. Nick Michaels' Responses to Southern California Telephone Company's Requests for Admissions, Set One, dated June 1, 2017 (RJN Ex. 5): Granted. (CCP 2033.410(a) and Ev. 452(h)). 6. Voluntary Petition of Nicky Alexis Michaels, dated November 29, 2011 (Case No. 16 6:11-bk-46186-...

Excerpt: ...Alternative Loan Trust 2006-OA10 Mortgage Pass-Through Certificates Series 2006-OA10's General Demurrer to the First Cause of Action for Quiet Title in Plaintiff's Second Amended Complaint (“2 ndAC”) is SUSTAINED without leave to amend, on the basis that the 2 ndAC fails to adequately allege facts demonstrating Plaintiff's standing to bring this cause of action, facts demonstrating the adverse claims as against which a determination is sought...

Excerpt: ...ction on a contract from recovering their attorney's fees in a timely motion to set attorney's fees under CCP § 1033.5(c)(5). See also Calif. Rule Court, Rule 3.1372(b) and Kaufman v. Diskeeper Corporation(2014) 229 Cal.App.4th 1, 11. Under Section 8 of the Contract Services Agreement that formed the basis for Plaintiff's claims against Defendants, Defendants are the prevailing parties in this action on the Contract, and entitled to their reason...

Excerpt: ...claim has not been alleged with the required specificity. The demurrer to the third cause of action for breach of the covenant of good faith and fair dealing is sustained. There are insufficient facts alleged to determine what constitutes the alleged “wrongful conduct.” The demurrer to the fourth cause of action for money had and received is sustained. A common count, such a claim for money had and received, may be alleged in the alternative ...

Excerpt: ...strike did not specifically request the court strike the references to certain regulations. Instead, the motion seeks to strike the entirety of five paragraphs. Even assuming those paragraphs did cite to an inapplicable regulation, plaintiff has alleged defendants also violated other unidentified regulations/statutes. For example, paragraph 64 states defendants violated “numerous statutes, safety orders, codes, and/or Cal. OSHA regulations with...

Excerpt: ......

Excerpt: ...ntar's trade, business or profession (see Code Civ. Proc., § 483.010, subd. (c); see also Advance Transformer Co. v. Sup.Ct. (Shapiro) (1974) 44 Cal.App.3d 127, 143-144), and he has failed to provide any evidence of any kind in support of the application. (See Code Civ. Proc., §§ 484.090, 481.190, 482.040.) The Case Management Conference remains on calendar. Moving party to give notice. ...

Excerpt: ...d motion to compel responses to plaintiff's form interrogatories and special interrogatories by defendant Babette Angelo, pursuant to C.C.P. § 2030.290(b), is GRANTED. Defendant Babette Angelo is ordered to provide responses, without objections, to plaintiff Hughes' form interrogatories and special interrogatories within 21 days of service of a notice of ruling by plaintiff. If defendant Babette Angelo remains incapacitated because of the claime...

Excerpt: ...ial notice is granted. (Ev. 452(d)(1); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) Moving parties to give notice. ...

Excerpt: ... of plaintiff Cara Crouch. (See, Declaration of Charles Richardson in Support of Motion & Memorandum of Costs filed 6-27-17.) Rule 3.1700(a)(1) requires filing and service of a memorandum of costs. In addition, the stipulation to withdraw between attorney Keesling on behalf of plaintiff Cara Crouch and defendant TCCSA is not shown to cover the memorandum of costs attached to the declaration of attorney Charles Richardson. The stipulation in conte...

Excerpt: ...dication set forth in ETA's notice of motion for summary adjudication while there are nine issues for summary adjudication set forth in ETA's separate statement. Further, none of the issues for summary adjudication set forth in ETA's separate statement for summary adjudication are set forth in ETA's notice of motion for summary adjudication. On the merits, summary adjudication on all issues in ETA's separate statement that rely on previous lack o...

Excerpt: ...s bringing these claims or whether plaintiff L&K Technology, Inc. is also attempting to assert them directly. (See SAC at ¶¶ 35-38 [breach of fiduciary duty], 64-67 [conversion].) They are also uncertain as to whether Ngo is asserting the claim directly, derivatively, or in both capacities. (Ibid.) The rules of pleading and proof with respect to these claims differ substantially depending on who is alleging them and in what capacity. Defendant ...

Excerpt: ...ffered by a railroad company violated the FLSA where trainees received no compensation during the training. 330 U.S. at 150, 67 S.Ct. 639. Those who successfully completed the program and were listed as accepted and available for work were given a retroactive allowance, but those who were not accepted never received any compensation for their participation in the program. Id. In determining whether the trainees were employees for purposes of enti...

Excerpt: ... the allegations of the complaint. See, Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4 th 96, 106 to 107. Here, Plaintiff's complaint was filed on 11-12-15 with Plaintiff's third amended complaint filed on 2-1-17. Defendant Jack's Surf & Sport has been a named defendant since Plaintiff filed her initial complaint. Defendant Jack's Surf & Sport carried its initial burden of establishing that Plaintiff lacks evidence, including any documents th...

Excerpt: ...40:14-44.18 & Pltf. Depo., Vol. 2, 73:4-74:8, 78:21-80:22, 81:1-25, 95:11-98:7]; Complaint at ¶ 8)—facts which Defendants do not dispute and have not negated in their motion. Indeed, Dr. Dubrow's declaration, particularly his recitation of the “pertinent medical chronology,” shows that instead, he selectively credited Dr. Nguyen's contradictory version of the events as set forth in Plaintiff's medical records, which state, inter alia, that...

Excerpt: ... See, Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4 th 541, 542-547. Even if he had been, the Cross-Complaint against him was not based on the breach of any contract by him, but upon his alleged tortious conduct. Attorneys' fees are not recoverable on a cause of action asserting only tort claims. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4 th230, 240. Moving party to give notice. ...

Excerpt: ...aintiff dated 04/04/16 transmitted to Defendant (Quang Nguyen Dec. Exh. 1), that Defendant counter offered by e-mail requesting a $10,000.00 discount from the price in the 04/04/16 bid (Id. Exh. 2), and that a revised estimate dated 05/04/16, incorporating the discounted price, was transmitted to Defendant by Plaintiff from Orange County (Id. Exh. 3), and that Plaintiff believed that it had a binding contract by that date. (Id. ¶ 7). On acceptan...

Excerpt: ...ently demonstrated the October 26, 2017 emergency meeting was an “emergency meeting” held pursuant to Civil Code section 4923. Such a meeting does not require notice (Civil Code section 4920(b)(1)) and can be called by the president of the association or any two directors other than the president. Civil Code section 4923. That statute was specifically cited by the court in making its ruling—and that the emergency meeting and the actions tak...