Excerpt: ...tantial prejudice will result if the requested relief is granted. The Opposition asserts that there is insufficient time for Plaintiff to conduct additional discovery on this issue, but fails to identify any specific discovery that would be needed. The Motion is therefore granted. However, MP cannot simply withdraw the response – an amended response must be provided. The Court will allow MP to serve an amended verified response to RFA 16 within...

Excerpt: ... in granting leave to amend: the parties may instead test its legal sufficiency by demurrer, motion, or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) This Motion is therefore granted – but without prejudice to any future motions defendants wish to file as to the merits of the proposed new claims. Plaintiffs may file their Second Amended Complaint in substantially the form proposed with...

Excerpt: ...hould not dismiss the case for failure to prosecute. Given plaintiff's complete failure to prosecute this case and his failure to respond to discovery or the court's orders to compel, the court grants the defendant's request for terminating sanctions. On 10/29/18, defendant's former counsel caused to be served upon plaintiff by regular US Mail four sets of discovery as follows:  Form Interrogatories  Special Interrogatories  Request for ...

Excerpt: ...he First, Second and Third Causes of Action (“COAs”), the contracts upon which the claims are based are also now adequately identified. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616.) Any remaining ambiguities as ...

Excerpt: ... 163 Cal.App.4th 896, 902; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 577.) In addition, Plaintiff came forward with evidence showing that Defendant received the benefit of years of misapplied loan payments, of Plaintiff's payment of the property taxes and insurance, and of Plaintiff's refund of loan escrow funds, which the Defendant was not entitled to. At the time of the final accounting of their dealings, D...

Excerpt: ...tion preceding the time of the fall (based on the Gleason records at 6:40 p.m. – 22 minutes before the fall). If the defense believes that the CD contains evidence which would alter the ruling on this motion, the court will entertain a motion to continue and request the submission of a new CD. On summary judgment, a moving defendant must “present evidence that would require . . . a trier of fact not to find any underlying material fact more l...

Excerpt: ...rform the exam has attested that it cannot properly be conducted in the shorter period of time that Plaintiff proposes. (Purisch Decl. ¶¶ 2-5.) The process will also be prolonged because Plaintiff will evidently require a Korean interpreter. (Perry Reply Decl. ¶ 4.) As the full period requested in the Motion thus appears necessary and proper here, the Motion is granted in full. Moving defendants are to: (a) submit a proposed order in accordanc...

Excerpt: ...4 th167, 184. The degree of detail required depends on the extent to which the defendant in fairness needs such detail. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 549-550; Zelig v. County of Los Angeles (2002) 27 Cal.4 th 1112, 1126. A demurrer must be denied if the pleading states a cause of action under any legal theory, irre...

Excerpt: ...r to Plaintiff's attorney and then following up with an email. From the information before the Court, Plaintiff's counsel did not respond to this effort. This is unacceptable especially in the face of the presentation of a massive 32-count complaint, which is the subject of a demurrer and motion to strike. Plaintiff's attorney is ordered to engage in meaningful meet and confer dialogue in the future and the Court intends to enforce this requireme...

Excerpt: ...inancial infusion of $10,000 back, but very little for her purported ownership interest. Before the Court is a demurrer to the 1 st (fraud), 3 rd(constructive fraud), 6 th (unfair practices), 7 th (securities fraud), 8 th (sale of unqualified security), 9 th (dissolution), and 10 th(dissolution) causes of action in the Complaint. The parties have engaged in the necessary meet and confer before bringing this matter to Court, but were unable to fin...

Excerpt: ...ee passage or use, in the customary manner, of any . . . street or highway . . . .” Civ. Code § 3479. “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient.” San Diego Gas & Elec. Co. v. Superior Court (“SDG&E”) (1996) 13 Cal. 4th 893, 937. “The first additional requirement for recove...

Excerpt: ...5 days of this order. The plaintiff's request for monetary sanctions is denied. Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10: Defendant Kathy Nguyen dba Zara Nails & Spa has indicated in her Opposition brief that she will provide amended responses to Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10; as such, the motion to compel further responses will be moot if further responses are provided before t...

Excerpt: ...le, “Giving back chump change” is not an actual cause of action; being rude to someone of Indian descent, though improper and unkind, is not a violation of Title VII of the Civil Rights Act of 1964, which relates to discrimination by employers; Civ. Code §§ 4080, 4100, 6528, and 6534 are code sections that contain only definitions, which cannot actually be violated; and many other issues that the Court will not specifically address at this ...

Excerpt: ...any and the personal guarantor Bradley Johnson. The complaint alleges causes of action for breach of contract, account stated and breach of guaranty. Authorities: The requisite elements for a prima facie showing of breach of contract are (1) existence of a contract, (2) the plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom. Wall Street Network, Ltd. v. New York Times Co. (2008) 16...

Excerpt: ...ial facts exists as to that cause of action or a defense thereto. (Id.) Here, Plaintiff has failed to meet his burden. Both of the causes of action asserted require, as an element of the claim, that Plaintiff establish damages. On a motion for summary judgment, the moving plaintiff must show both the fact and the amount of damages. (Pajaro Valley Water Management Agency v. McGrath(2005) 128 Cal.App.4th 1093, 1106.) Here, Plaintiff has asserted th...

Excerpt: ... the deposition subpoenas issued to Midwest Employer's Casualty Company and GSM Rental Group. The request to Midwest was for “any and all non- privileged records and documents, including but not limited to industrial injury records, benefits entitled to or paid out, medical records and information of health and/or accident claims pertaining to Hector Reyes Rivera, born on August 12, 1980, with SSN: XXX-XX-6606, from 11/1/816 to 2/6/19.” The r...

Excerpt: ...roper service of a defendant under section 474 may be attacked by a motion to quash. Optical Surplus, Inc. v. Superior Court, (1991) 228 Cal. App. 3d 776, 782- 783. C.C.P. § 474 is only applicable when the plaintiff is “actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.” McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, (2016) 247 Cal. App. 4th 368, 371 – 372. Here, the evi...

Excerpt: ...y a separate statement. (See C.R.C. 3.1345(a)(7) [“(a) Separate Statement required. Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: … (7) For issue or evidentiary sanctions.”].) Plaintiff argues that no separate statement was required here since the discovery at issue was already addressed i...

Excerpt: ...much accusatory language in the Complaint, the COAs as pled are based on alleged negligence, incompetence and “recklessness,” not on an alleged conspiracy between the Firm and its clients. (See e.g. Complaint ¶ 17-19.) That the claims are subject to §1714.10 is thus not apparent from the Complaint as pled. Firm also argues that COAs 1 and 2 fail because Firm owed no duty to Plaintiffs as a matter of law. Although the issue of duty is ultima...

Excerpt: ...and thus leaves each cross-defendant unable to discern which allegedly did what to incur liability. But a demurrer for uncertainty should be sustained only where the pleading is so bad that defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615-616.) Here, the XC asserts that UMT was Balboa's vendor, that UMT and Balboa acted together, and that their combined conduct caused the harm alleged. ...

Excerpt: ...e motion is denied as moot with respect to defendants Erickson and Wellman. Defendant Ron Plemmons does not seek any relief from this court, and, thus, no order regarding this defendant is made by the court at all. Authorities: Substitute service on an entity defendant is effected by leaving a copy of the summons and complaint at the office during usual office hours with a person at least 18 years of age and apparently in charge and thereafter ma...

Excerpt: ... the Defendant. The Defendant has the right to attempt to gather information and evidence to defend itself against these claims and to depose an adverse party. (CCP § 2025.210(a)). “Under existing law, the competency of a person to be a witness is a question to be determined by the court and depends upon his capacity to understand the oath and to perceive, recollect, and communicate that which he is offered to relate…” (Law Rev. Comments t...

Excerpt: ... Motion is thus defective on its face and fails on its own merits. Microsoft Corporation's request for sanctions is GRANTED IN PART under C.C.P. § 2031.310(h), as it does not appear that Plaintiff acted with substantial justification or that other circumstances would make the imposition of a sanction against Plaintiff unjust here. However, the sum sought appears to be an excessive sanction for opposition to this patently defective motion. Sancti...

Excerpt: ...er shall oversee and verify that David Shiokari is properly accounting for Tomko, T & N Walnut, and T & N Fountain assets, income and expenses and approve and oversee any real property sales by Tomko, T & N Walnut, and T & N Fountain. To accomplish such tasks the receiver shall be given immediate and unfettered access to any and all partnership records and accounts and responsible individuals, including but not limited to David Shiokari, on a bi-...

Excerpt: ... 3 rd cause of action under B&P Code § 17531 and § 17535 The demurrer is sustained with leave to amend. Pleading a cause of action for violation of a statute requires more than reiterating the language of the statute. (See Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478.) On demurrer, the court looks for well-pleaded material facts, versus contentions and conclusions of law or conclusions of fact. (See WA Southwest 2, L...