Excerpt: ... on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781, citing Mar...

Excerpt: ...s as to defendant Phill Barklow being a managing agent and ratifying the conduct of the agents and employees of defendants Atria Golden Creek, et al. As to Plaintiff's second cause of action for negligence, negligence causes of action can be pled generally. See, Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 100 to 101. Pleading claims based on regulations for negligence per se does not transmute a cause of action for negligence into a stat...

Excerpt: ... of contract and second cause of action for breach of covenant of good faith and fair dealing – plaintiff Tina Mancuso Storch (plaintiff) has failed to allege the existence of an enforceable contract, a necessary element to each of these causes of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173-1174 (Daniels); Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1034.) The...

Excerpt: ...in its minute order of February 9, 2017, shows the court denied the 664.6 motion because it did not find Code of Civil Procedure section 664.6 or the terms of the settlement agreement allowed it to grant the relief requested—i.e., an order requiring the Mahonys to implement the “Norris Plan” within 90 days, without regard to the other portions of the settlement agreement - and that it did so without finally adjudicating whether the Mahonys ...

Excerpt: ...2014 to the present. Defendant presented evidence that Plaintiff is engaged in other business activities while out on disability that impacts Plaintiff's claim of lost earnings. Hence a compelling need is shown as to such records. Also, less intrusive means to ascertain what earnings Plaintiff has had since 2014 outside her admitted disability benefits is not shown. Plaintiff's motion to quash is GRANTED as to the balance of the records sought by...

Excerpt: ...hat is in issue is the duty to defend, based on those alleged claims, rather than the ultimate duty to indemnify. Majic/ADA argue a defense is not owed unless it is first shown Majic/ADA caused or contributed to Plaintiff's alleged injuries. In support of their contentions, Majic/ADA point to the language in the policy that they will indemnify, protect, defend (etc.) “provided that any such claim, damage, loss or expense is caused in whole or i...

Excerpt: ...ral testimony on a contested issue of fact in a motion hearing. Mutual Mortgage Co. v. Avis (1986) 176 CA3d 799, 805. The court also has discretion to refuse to allow oral testimony. Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1121. A party seeking to introduce live testimony at a law and motion hearing is required, in advance of the hearing, to obtain a court order upon a showing of good cause. The request for the order for live testimony must be...

Excerpt: ...d with plaintiff's new employer and misrepresented that plaintiff was still employed by HFIC and used this false information to claim that plaintiff was not authorized to take any claims from HFIC insured individuals. (SAC at ¶ 45.) However, plaintiff failed to plead all required elements of an intentional misrepresentation claim with the required particularity and factual specificity. Thus, plaintiff has not alleged defendants engaged in an ind...

Excerpt: ...ord Bernstein, M.D., and Newport Coast Surgery Center, Inc. (NCSC) (collectively, cross-complainants) do not lack standing to sue on the subject lien agreements (see XC at ¶¶ 20-22, Exhs. 1, 3, 5; see also Complaint at ¶ 23, pp. 6-7), and nothing in the cross-complaint or judicially noticed documents affirmatively demonstrate cross-complainants lack the capacity to sue pursuant to Business and Professions Code section 17918. As for the demurre...

Excerpt: ...018, defendant/cross-complainant Rudolph & Sletten filed its “Response” on February 13, 2018, and Black Diamond filed its Reply on February 14, 2018. CCP section 877.6(d) provides that “the party asserting the lack of good faith shall have the burden of proof on that issue." Rudolph & Sletten's Response attempts to discharge this burden only with respect to one issue, namely the Court's ability to determine the reasonableness of the propose...

Excerpt: ... special interrogatories, form interrogatories, and requests for admission. See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 433 to 435 and Townsend v. Superior Court (1998) 61 Cal.App.4 th 1431, 1435. New counsel for plaintiffs Hamid Hojati, et al. has represented that a further meet and confer might assist in resolving all or some of these pending discovery matters. Defendant Portales to file a supplemental declaration nine (9) court ...

Excerpt: ...uch counsel is acting an advocate before a jury. As reflected in the Court's May 9, 2017 Minute Order, both sides waived jury on that date. The “Discussion” of Cal. Rule Prof. Conduct, Rule 5-210 states in part: “This Rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying in front of a judge.” As the potential for attorney Recchia to testify as a witness i...

Excerpt: ... (or any other entity) these two subpoenas apply to. In addition, the Calcor Space Facility, Inc. court explained that: “Because of the potential for promiscuous discovery imposing great burdens, even though ultimately the probative value of the discovered material may be questionable, trial judges must carefully weigh the cost, time, expense and disruption of normal business resulting from an order compelling the discovery against the probativ...

Excerpt: ...en settlement agreement is denied. The proposed written settlement agreement (Ex. D to moving papers) contains multiple terms which were not part of the parties' oral settlement agreement on the record, as reflected in the transcript of the Mandatory Settlement Conference (Ex. A to moving papers). CCP 664.6 does not authorize the court to order a party to sign a written settlement agreement which “rewrite[s] the oral settlement agreement or add...

Excerpt: ...ining defendants to these causes of action is sustained with leave to amend. The first cause of action for breach of contract fails to state facts sufficient to constitute a cause of action. The contract attached to the complaint indicates on its face that only defendant Evolution Hospitality, LLC is a party. Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. (Holland v. Mors...

Excerpt: ...Cal.4 th 599, 622; Maynard v. BTI Group, Inc.(2013) 216 Cal.App.4th 984, 993. In addition, the parties' briefing and evidence, both with respect to this motion and OSC re: preliminary injunction, strongly suggests that this action was and remains part of a greater dispute between the parties, which remains at issue and is currently being litigated in Delaware. That plaintiff dismissed this action without prejudice after the court denied its reque...

Excerpt: ...pinions of Dr. Schifrin, Plaintiffs' expert, are solely grounded in Plaintiffs' medical records. (See, Declaration of Barry S. Schifrin, ¶ 2.) These medical records are not submitted in support of the motion and, more importantly, are not properly authenticated to be used as proof of independent facts to support an expert opinion solely based thereon. See, Garibay v. Superior Court (2008) 161 Cal.App.4 th 735, 742 to 743. See, also, College Hosp...

Excerpt: ...ourt days hereof Plaintiff is to file and serve a proposed Preliminary Injunction, for the Court's signature. The parties are to be prepared at the hearing on this matter to discuss an appropriate bond amount. ...

Excerpt: ...s ordered stricken. Defendant Costco to submit a proposed judgment of dismissal within 10 days. The Motions by Attorney Robert D. Walters and Sassan Mackay to Withdraw as Counsel of Record For Client Laurencia Gonzales are GRANTED, effective upon the filing of the proof of service of the signed orders upon the client. Defendant moving party to give notice. ...

Excerpt: ...e. (B&P 6201(a); Jafari Decl. in support of Opposition, Paras. 4 and 5 and Ex. A thereto.) However, the arbitration provision here also requires binding arbitration before Judicial Arbitration and Mediation Service, which is valid and enforceable. (Ervin, Cohen & Jessup, LLP v. Kassel (2007) 147 Cal. App. 4th 821, 826- 827.) Plaintiff has not shown any grounds to deny enforcement of binding arbitration. Plaintiff Offices of Christopher K. Jafari,...

Excerpt: ...55 in connection with the pending non-judicial foreclosure. The version of Civ. Code § 2923.12 in effect in 2013/2014 provides: “(a)(1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55…” Civ. Code § 2923.4 in effect at the time states in part: “(a) The purpose of the act that added this section is to ensure that, as part of the non...

Excerpt: ...0, 517. Defendants' evidence establishes that Plaintiff was acting as a contractor, that Plaintiff's Class B general contractor's license was not in effect at all times during its performance of being engaged in the business or acting in the capacity of a contractor, and that this action and each cause of action asserted in Plaintiff's First Amended Complaint is “…an action in law or equity for compensation for the performance of any act or c...

Excerpt: ...ently in her position. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355.) The complaint also fails to allege facts showing a discriminatory motive. (Id.) Rather, this is alleged as a conclusion only. (Complaint at Para. 10.) Statutory claims must be alleged with specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) The second cause of actio...

Excerpt: ...ued hearing. The court also ordered plaintiff to give notice. Nothing in the court file indicates that plaintiff gave notice, or met and conferred as ordered. Plaintiff's counsel is ordered to engage in the meet and confer required by Code of Civ. Proc. § 430.41 as to the issues raised by this demurrer, and to file and serve a declaration evidencing such efforts not less than nine court days before the continued hearing. Plaintiff to give notice...

Excerpt: ...1) 91 Cal. App. 4th 875, 882. Defendants' Request for Judicial Notice: Granted as to taking judicial notice of the language of Judicial Council Form Interrogatory No. 4.1. See, Evidence Code § 452(h). Plaintiff's Objection to and Motion to Strike Motion for JNOV and Associated Documents: Plaintiff objected and moves to strike the following pleadings for failure to comply with the rules of court: (1) the declaration of Jenos-Heidari filed in supp...

Excerpt: ...tate Automobile Assn. (2010) 189 Cal.App.4th 947, 975.) Plaintiff Luke Slovenec's (plaintiff) request for judicial notice is DENIED as to items 1 and 2, and GRANTED as to item 3. Items 1 and 2 require a copy of the docket from the underlying dissolution proceedings. Plaintiff has failed to provide the court with a copy of that docket and nothing indicates plaintiff has made arrangements with the clerk to have the docket available at the time of t...

Excerpt: ... The requests are overbroad as framed, however, and are narrowed as follows: 37. Documents reflecting all complaints by owners of 2012 BMW 328i vehicles regarding the coolant light repeatedly illuminating, for the period July 1, 2011 through June 30, 2016. The documents are to be redacted to exclude personal identifying information of the buyer(s)/owner(s). 39. Documents reflecting all repurchases or replacements by YOU of 2012 BMW 328i vehicles,...

Excerpt: ... an act from which she know, or should have known, it was highly probable harm would result. SKF Farms v. Superior Court(1984) 153 Cal.App.3d 902, 907. The Case Management Conference remains on calendar. Defendants to give notice. ...

Excerpt: ... Court (2012) 209 Cal.App.4th 1151, 1168.) Judgment creditor Flathers Precision, Inc. has failed to and cannot establish the underlying September 28, 2017 turnover order (“Turnover Order”) was valid for purposes of contempt. The Turnover Order was sought and issued pursuant to Code of Civil Procedure section 708.205. It ordered judgment debtor Jimmy Garrey (Garrey) to deliver to the judgment creditor either (1) certain nonmonetary property li...

Excerpt: ...-opposition, stating she does not oppose the motion, and has not presented any evidence showing that moving party was properly served, as is plaintiff's burden. (Ziller, supra at 1232.) Plaintiff to give notice. ...

Excerpt: ...omplaint responses to the Defendant's discovery requests, and thereby suffer further prejudice in its preparation for trial, the Court reserves the right to revisit the issue of terminating sanctions and shall consider all of the evidence then presented, including the history preceding the date hereof. The Court Orders Plaintiff to serve second further non- evasive, verified responses to Defendant's Special Interrogatories Set No. One, and Inspec...

Excerpt: ... declaration of Plaintiff's counsel, none of which cite to the actual trial transcripts in this matter. By contrast, moving parties have provided specific cites to the trial record in support of their arguments against the sufficiency of any evidence concerning collectability. This matter is continued to February 1, at 2 p.m. Plaintiff is Ordered to file and serve a supplemental brief by no later than 4:30 p.m. on Monday, January 29, 2018, identi...

Excerpt: ...preter fees actually incurred for the second session of Mr. Jin's deposition, not to exceed $1,200.00. Plaintiff to pay for the costs for the court reporter. The second session of the deposition shall occur on a date to be agreed between counsel, but no later than two weeks from today's date. The court finds that circumstances exist to make the imposition of other monetary sanctions unjust at this time, however, should Defendant be required to ap...

Excerpt: ...roper venue. CCP § 395(a). (“Where an individually joined defendant may be genuinely liable on the complaint, it has always been true plaintiff could choose that defendant's residence as the venue even though the corporate defendant was located elsewhere.” Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1667.) The Michaels defendants reside in this county and are sued as individuals in the 9 th cause of action for violation of...

Excerpt: ...bina has been appointed as administrator and successor in interest by the probate court as to the estates of both plaintiff John Gambina and plaintiff's former successor in interest, Johnny C. Gambina. The court's records reflect that Dorothy Gambina has attempted to file a Substitution of Attorney, and has also filed a declaration requesting the court order the Substitution be filed, and recognizing Dorothy Gambina as successor in interest. Howe...

Excerpt: ...is involved. Plaintiff has also shown a probability of prevailing on the merits of his first cause of action for violation of the Dodd-Frank Act. (15 USC 1602(bb); 15 USC 1639(c)(1); Verified First Amended Complaint at Paras. 16, 17, 21, 29; Ex. A to Verified First Amended Complaint; Romero Decl. in support of Reply, Paras. 4-7.) Plaintiff's evidentiary objections to portions of the Opposition filed by defendant RSA Premium Finance Company are ov...