Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...at- will basis, which means that either you or the School may terminate the employment relationship at any time without cause or notice.” Plaintiff argues that the document also references execution of a contract of employment, making the terms of the contract ambiguous. However, she does not allege that a second employment contract as referenced was ever executed or that the terms of such a contract contradict the at-will provision she undispu...

Excerpt: ...mely filed within the six-month limitation period of the Gov't Claims Act Although CalOptima was not named in the caption of the original Complaint, it is clear from the allegations in body of the Complaint that CalOptima was the intended defendant in this matter. Plaintiff brought this action against “County of Orange, which includes its subdivision CalOptima.” (9/6/22 Complaint, Preamble Paragraph). Furthermore, the complaint alleges employ...

Excerpt: ...reach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) Plaintiff has pled the existence of a valid contract between it and defendant/cross- complainant Rezidential Development, Inc. ...

Excerpt: ...ices, Inc. (the “entity defendant”). With regard to the individual defendant, the motions are GRANTED. With regard to the entity defendant, the motions are GRANTED – subject to the filing of a supplemental declaration attaching the discovery requests and the proofs of service. According to the declaration of plaintiff's counsel, all three discovery devices were served on the defendants and no responses were received. California Code of Civi...

Excerpt: ...urrer First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.) Plaintiff's opposition ...

Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...

Excerpt: ... breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.) “It is fundamental that in order to take charge of a person in such a manner as will create a duty to control his conduct, one must possess the ability to control that...

Excerpt: ...ce documents responsive to subpoena request Nos. 4 – 7 at this time. Before the court is a request to order Plaintiff's current counsel of record to produce documents responsive to a subpoena duces tecum (“Subpoena”). (Civ. Proc. Code § 2031.240.) The basis for the Subpoena is that CST previously represented Plaintiff and his mother/bankruptcy attorney Amanda J. Potier in another action (“CTI Action”). Several of the Defendants in this...

Excerpt: ... Civ. Proc. Code § 405.38. (Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42-43.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (J&A Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42.) “The term prevailing party was not defined in the statute and, as a result, courts determine the prevailing party by taking a practical approach that ...

Excerpt: ...o matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3...

Excerpt: ...n other than the date, time, and length of calls made and received, redacted. This motion concerns Plaintiff's Request for Production No. 19, which seeks: “All bills and usage statements for the date of the INCIDENT (i.e., the 24-hour time period) for any mobile communications device (such as a cellular telephone) in YOUR possession, custody and/or control on the date of the INCIDENT.” (¶8 of Nikarjam Declaration and Exhibit B thereto.) As n...

Excerpt: ...tated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molina...

Excerpt: ...rst and fourth causes of action). The general demurrers of defendants Samantha Zehngut and Julia Mestas to the fifth cause of action are SUSTAINED with 30 fays leave to amend. First cause of action for gender and pregnancy discrimination. The first cause of action is for gender and pregnancy discrimination and is brought against all three defendants. A prima facie case for a discrimination requires a showing by the plaintiff of the following elem...

Excerpt: ...First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success…‘[C]laims with the requisite minimal merit may proceed.' ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, 205, fn. omitted.) “Assertions that are ‘merely i...

Excerpt: ...st produce evidence they were subjected to ‘offensive comments or other abusive conduct' that is (1) based on a ‘protected characteristic' (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.' (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) … Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically t...

Excerpt: ...itive damages. A. First Cause of Action – Hostile Work Environment Harassment “[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].” (Ortiz v. Dameron Hospital Assn. (2019) 37 Ca...

Excerpt: ...orber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment pursuant to Civ. Proc. Code § 483.010, which requires 1) an action on a claim or claims for money; 2) each of which is based upon a contract, express or implied; 3), where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fe...

Excerpt: ...unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042.) A. First Cause of Action – Harassment/Hostile Work Environment To establish a prima facie case of harassment/hostile work environment...

Excerpt: ... against him on summary judgment, they are not entitled to recover any costs, citing Labor Code § 218.5. Plaintiff contends that, under this code section, if the prevailing party in a court action is not an employee, attorney's fees and costs may only be awarded if the Court finds that the employee brought the action in bad faith, i.e., it finds that the action is unreasonable, frivolous, meritless, or vexatious. Plaintiff contends that the acti...

Excerpt: ...rty's or one's own act or default.” (INDEMNIFY, Black's Law Dictionary (11th ed. 2019).) “Express indemnity refers to an obligation that arises “ ‘by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.' ” [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, i...

Excerpt: ...documents, and requests for admission are due 30 days after service (plus appropriate time for method of service). (CCP §§ 2030.260, 2031.260, and 2033.250.) With respect to the Requests for Admission, a propounding party may ask the court for an order that deems the matters contained in the requests for admission admitted if the receiving party fails to respond to the requests for admission. (CCP § 2033.280(b).) The court shall grant the orde...

Excerpt: ...e Lock Co. (2002) 101 Cal.App.4th 1443, 1449—1450.) Plaintiff seeks an injunction to prohibit defendants Ruth Anne Della Vedova ("Della Vedova" individually); Barbara A. Kerr; and Asset Default Management, Inc. ("ADMI" individually; 'Defendants" together with Vedova) from selling real property located at 19311 Oriente Drive in Yorba Linda ("Property"). 1) Likelihood of Prevailing On the Merits Plaintiffs' Complaint states various causes of acti...

Excerpt: ...he request for issue and terminating sanctions. As a threshold matter, defendants have met their burden of showing that plaintiff intentionally destroyed evidence after contacting a lawyer and while considering litigation. In her deposition, plaintiff admitted that, prior to turning in her computer to her employer, she downloaded certain files onto thumb drives and used a special program to entirely wipe the computer. Furthermore, although we do ...

Excerpt: ... either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) NNA moves to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract ("RISC") attached as Exhibit 4 to the Maugeri Declaration. The RISC, dated 5/30/20, is between plaintiffs Yesenia Delao and Patricia Delao ("Plaintiffs") as "Buyer" and Buena Park Nissan as "Seller-creditor." NNA acknowledges that it is not a signatory...

Excerpt: ...s adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 cal.4th 1028, 1042.) A. First Cause of Action — Harassment/HostiIe Work Environment To establish a prima facie case of harassment/hostile work environment under the Fair Em...

Excerpt: ... Apartment Homes, 500 Estancia, Irvine, CA 92602, involving Jiahan wu, DOB 9/19/2020." Defendants assert that the subpoena is overbroad, but provide no explanation or argument as to how the request is overbroad nor do Defendants offer any possible narrowing. Defendants argue that production of the requested items would violate Defendant Cruz's Fifth Amendment Rights. Defendants argue that Defendant Cruz's privacy rights are at issue, as he could ...

Excerpt: ...e. "CA]II 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 2020) 'l g.53.1a.) Nonetheless, the Court will GRANT both parties' requests for judicial notice as to the existence of the following documents only: Fidelity's Complaint, Demurrer to FAXC, Demurrer to SAXC, the SAXC, Notice of Ruling Re: Plaintiff Fidelity National Title Insurance Company...

Excerpt: ...t complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights...

Excerpt: ... moving defendants to pay $135,000 in exchange for a dismissal. It is conditional upon: (1) the entry of a final, non- appealable order granting the instant motion for an order determining the settlement to be in good faith; and (2) the supplemental production by settling defendants of documents responsive to plaintiff's requests for production. Responding co-defendants Sunil Kirit Mehta, Real Estate Xperts, Inc., and O.Rhyan Capital Management, ...

Excerpt: ...ction for Violation of Penal Code S 496(a), seeking treble damages under Penal Code 496(c). The Siry court is clear: "A plaintiff may recover treble damages and attorney's fees under section 496(c) when property has been obtained in any manner constituting theft." (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361.) The question is whether Plaintiff has adequately alleged that property has been obtained in a manner constituting t...

Excerpt: ....6(c), "If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgag...

Excerpt: ...right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." "The moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activit...

Excerpt: ...her the court stated "Where, as here, a defendant's silence is constitutionally guaranteed, the court should weigh the parties' competing interests with a view toward accommodating the interests of both parties, if possible. An order staying discovery until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit while alleviating petitioners' difficult choice between defending either the civil or crimin...

Excerpt: ...sition date for 3/13/23. (Baghdassarian Decl. g, Ex. 8.) At that time, trial had been reset for 3/27/23 along with all related dates. (ld. at Tl 8, Ex. 7; see also M.O. of 2/9/23). Plaintiff served objections thereto on 3/7/23 and refused to produce the expert for the deposition. (ld. at g, Ex. 10.) None of those objections suffice to excuse the refusal to produce the expert for deposition on 3/13/23. Plaintiff argued that the date set was after ...

Excerpt: ...e is defined in Welf. & Inst. Code 515610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Neglect is defined in 515610.57(a) (1) as "the negligent failure of any person having the care or custody of an elder or a dependent adult to exerci...

Excerpt: ...ed by CCP section 2032.220. (Code Civ. Proc. S 2032.310(a).) The motion to compel a physical or mental examination shall be qranted only for good cause shown. (Code Civ. Proc. S 2032.320(a).) A showing of good cause requires "that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence." (Vinson v. Superior C...

Excerpt: ...f to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal. 5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is leqallv sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient t...

Excerpt: ...alue of legal services rendered in the case; or (3) the lawyer has obtained informed written consent from the client." "A comment to the rule clarifies that the informed-consent exception is not absolute: "Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or...

Excerpt: ...nd Written Discovery. For the reasons set forth below, Plaintiffs' motion is GRANTED and the Dunn Defendants' motion is DENIED. The parties are ordered to meet and confer regarding available dates for the deposition of the Dunn Group's PMK to be conducted within 45 days of the date of this order. The Dunn Defendants are ordered to provide responses to the written discovery at issue within 30 days of the date of this order. Plaintiffs' request for...

Excerpt: ...s been deemed a vexatious litigant as of 11/9/22, per OCSC Case No. 1600001283, and is therefore subject to the requirements and restrictions set forth in C.C.P. S 391 et seq. for this case and for all other filings subsequent to that designation. However, as Motion 1 was presented before that designation was entered, the Court has considered it here. Motion 1 (Plaintiff's Motion for Transfer. etc.) is DENIED. The Los Angeles Superior Court previ...

Excerpt: ...age of the proceedings, up to and including trial," absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Hi...

Excerpt: ... to conduct that would support recovery of punitive damages." (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) "The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglec...

Excerpt: ... for inspection with: (1) a statement that the party will comply with the particular request; (2) a representation that the party lacks the ability to comply; or (3) an objection to the particular demand for inspection, copying, testing, or sampling. (Code Civ. Proc., § 2031.210(a).) A statement that the party will comply shall state that the production, inspection, copying, testing, or sampling, will be allowed either in whole or in part, and t...

Excerpt: ...ond motion filed by plaintiffs' counsel seeking an order to consolidate these cases. In the first motion, plaintiffs filed the motion in Case No. 2020-01161967. That motion was denied on 1/14/22 with a detailed minute order which was filed in this action at ROA 64. In the Court's 1/14/22 order, the Court noted that plaintiffs had failed to comply with California Rule of Court Rule 3.350. In this motion, Plaintiffs have again failed to comply with...

Excerpt: ...on must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The arbitration agreement at issue is purported to be part of the Retail Installment Sale Contract (“RISC”) attached as Exhibit 4 to the Chung Declaration. However, the RISC attached as Exhibit 4 is only a one-sided document and the Arbitration Provision referenced on the front of Exhibit 4 is not part of the document. To get around this deficiency, NNA su...

Excerpt: ...es of Action, as the Court finds the same do not arise from protected activity. Pursuant to C.C.P. §425.16(b)(1), “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintif...

Excerpt: ...g the income limits for eligibility for CalFresh benefits. The Department contends that it correctly determined that Petitioner was not eligible for CalFresh benefits. The Department contends that Petitioner does not meet the requirements needed to qualify for a child care (dependent care) deduction. California's CalFresh program enables low-income California households to receive Supplemental Nutrition Assistance Program (SNAP) benefits, previou...

Excerpt: ...l realized that he had served the §998 offer to the wrong plaintiff. Defense counsel immediately telephoned plaintiff and made efforts to resolve this matter informally but plaintiff's counsel took the position that the $500,000 settlement must be paid. An ex parte was then filed on 1/10/23 and plaintiff opposed the ex parte and asked for further time to file a more detailed opposition. As a result, the motion was set for hearing on 2/27/23. Def...

Excerpt: ...to (1) Robert A. Lotter, (2) RA Lotter Insurance Marketing, Inc., (3) The Agent Builders Company Insurance Marketing, Inc., (4) The TDS Group Inc. (“Defendants”) The four applications are GRANTED. The within action arises out of four separate Guarantees the Defendants signed relating to a Note for a loan made by CNB to RA Lotter Holdings, Inc. which has defaulted on the loan. Under C.C.P. §483.010, attachment may be issued only if the claim ...

Excerpt: ...otice of motion is defective. Defendants apparently seek to strike “the Complaint,” when the operative pleading is the First Amended Complaint. Furthermore, the notice of motion fails comply with Rule of Court 3.1322(a) because it does not quote in full the portions sought to be stricken or note the cause of action. Nevertheless, because there is only one cause of action charged against the moving defendants and it appears that the moving def...

Excerpt: ...iling (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40). Finally, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. (§ 415.50.) To obtain an order directing service by publication, section 415.50, subdivisi...

Excerpt: ... Hyundai Sonata. HMA demurs to the Second Cause of Action for Violation of Civil Code §1793.2(b) and the Third Cause of Action for Violation of Civil Code §1793.2(a)(3) on the grounds that the complaint fails allege sufficient facts to support these two causes of action. It is the plaintiff's pleading burden to show that the Song-Beverly Act applies to her claims. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 917). 1. Second Cause of Ac...

Excerpt: ...eges that when Starbuck's lease ended, an unidentified Starbucks employee improperly went on the adjacent property and removed the “grease trap.” Plaintiff alleges this was a violation of the lease which only allowed removal of fixtures/equipment Starbucks installed on the leased premises. Based on these facts, plaintiff alleges breach of contract, trespass and conversion. In paragraph 18 of the trespass cause of action, plaintiff alleges the...

Excerpt: ...met and conferred with regard to RFP Nos. 50 and 52 and have reached an agreement to limit these requests to posts about Plaintiff and posts about the harassment. Thus, the motion is GRANTED subject to the stipulated limitations. Plaintiff has WITHDRAWN her request to compel a further response to RFP No. 53. RFP Nos. 40 and 43 seek the cell phone(s) Anderson had in 2020. Defendant Anderson contends his responses are full and complete as he testif...

Excerpt: ...ly tolled prior to the filing of her official complaint on October 1, 2019. “The exhaustion of an administrative remedy is a procedural prerequisite to an action at law, and the failure to exhaust it does not divest a trial court of subject matter jurisdiction. As a result, courts can resort to equitable exceptions to this condition precedent.” (Holland v. Union Pac. R.R. Co. (2007) 154 Cal.App.4th 940, 946). One exception arises when DFEH re...

Excerpt: ... of its teacher, Doe 2; and (2) Plaintiff fails to sufficiently allege how the District or any of its employees knew or should have known that Doe 2 had engaged in “unlawfully sexually-related conduct” with minors in the past or that such conduct was continuing. Plaintiff failed to rebut the District's contention that it cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. Thus, Plaintiff appears to have conceded this point. Th...

Excerpt: ...of or inexcusable neglect. Jeon states he was improperly substitute served at 735 Gramercy Dr., #209, Los Angeles, CA 90005 (“Property”), which is an address Jeon states he, “never used . . . as his address for any purpose whatsoever.” (Jeon Decl. ¶ 5.) Jeon provided his residential address, which is different from the Property. (Jeon Decl. ¶ 5.) Jeon also provided a copy of his proposed answer. (Jeon Decl. ¶ 9, Ex. A.) Having complied...

Excerpt: ...trial and moves for fees under CCP §2033.420, which provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay t...

Excerpt: ...s that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Nissan has failed to meet this burden. Felisilda v. FCA USA LLC (2020) 53 Cal.App.5th 486 (Felisilda), upon which Nissan relies, is distinguishable. Unlike in Felisilda, the complaint in this case does not allege or otherwise indicate...

Excerpt: ...action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plai...

Excerpt: ...A US, LLC. The arbitration agreement at issue at issue is found at page 5 of the Retail Installment Sale Contract (“RISC”) attached as Exhibit A to the Lambert Declaration. The RISC, dated 4/21/17, is between plaintiffs Angela Earthman and Stoney Earthman (“Plaintiffs”) as “Buyer” and Surf City Auto Group as “Seller-Creditor.” FCA acknowledges that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration...

Excerpt: ... request must be considered on its own merits. A court may grant a trial continuance only on an affirmative showing of good cause. The Court finds good cause has been shown to grant the motion as Cross-Defendants recently appeared in the action, discovery is ongoing and trial counsel is unavailable. (CRC 3.1332(c)(3), (5), (6).) In addition, no oppositions were filed, thus no prejudice to any party has been shown. Accordingly, the motion is grant...

Excerpt: ...(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” “If the items appearing in a cost bill appear to be proper ch...

Excerpt: ...seeking an order taxing the memorandum of costs filed by the defendants. The motion for attorney fees is DENIED. The motion to tax costs is GRANTED in part. This case arises from a dispute between various parties as to the use/improvement of a piece of vacant land in Dana Point. A court trial was conducted on multiple dates in 2021 and 2022 resulting in a verdict for the defense on all causes of action. Statements of Decision were entered on 12/1...

Excerpt: ...ty managed by Western National Securities. Based on this alleged contractual relationship, plaintiff asserts that Western acted in contravention of his rights as a tenant by preventing him from entering the apartment. Plaintiff alleges this gives rise to the causes of action for (1)Breach Of Contract, (2) Breach Of Covenant Of Good Faith And Fair Dealing, (3) Breach Of Covenant Of Quiet Enjoyment Of The Premises, (4) Intentional Infliction Of Emo...

Excerpt: ...hed by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. After an initial prima facie showing of discrimination from the employee (which is not at issue in this case), the employer, as the moving party, has the burden to present admissible evidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscr...

Excerpt: ...the prevailing party in this action. (Civ. Proc. Code §§ 1032.) As the prevailing party in a civil rights action, Plaintiff is entitled to recovery of attorney fees and expert witness fees. (Civ. Proc. Code § 1033.5(10)(B); Civ Code. §§ 52 and 54.3; 42 U.S.C.A. § 12205.) “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate...

Excerpt: ...sonably subject to dispute under Evidence Code section 452(h). Defendant Kidder also asserts that courts routinely take judicial notice of documents incorporated into a complaint. Evidence Code section 452, subdivision (h) permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” “It is int...

Excerpt: ... party's statement of compliance, the demanding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320(a).) The Court deems the motion moot as Aptim's opposition shows that it has produced all documents responsive to Request No. 23. (See Miner Decl. [ROA 619], ¶¶ 2, 5-6, 8, Exs. A and C; Rankovich Decl. [ROA 615], ¶¶ 3-6.) While Plaintiff contends that 1,740 closeout packages exist (or 1,793 based on what is stated i...

Excerpt: ... shall be made a sufficient time in advance of the time limit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (Code Civ. Proc. §§ 2034.610, subd. (b) and 2024.020, subd. (a).) Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610, subd. (...

Excerpt: ...act and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiff is a title insurance company that issued a policy of title insurance to the Millers in connection with their purchase of the subject Carnation property in 2008. At the time of issuing the policy, plaintiff erred and did not address the existence of the Wells Fargo home equity line of credit deed of trust (HELOC ...

Excerpt: ...ain (Civ. Proc. Code § 430.10(f)); and 3) Plaintiff has failed to join indispensable parties (Civ. Proc. Code §§ 430.10(a) and (d)). 1) COA No. 1 – Breach Of Civil Code § 2924m Civ. Code § 2924m provides means and requirements for the sale of property containing between one to four residential units through a foreclosure sale. For purposes of this matter, Plaintiff has alleged he is an “eligible tenant buyer” and provided a declaration...

Excerpt: ...omplaint on the basis that they fail to state sufficient facts to constitute COA against Defendants. (Civ. Proc. Code § 430.10(e).) 1) COA No. 2 – Intentional Misrepresentation “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable relianc...

Excerpt: ...tate parks in order to provide ready access thereto by the public and to provide means of ingress and egress to highways and roads across state parks from lands separated from such highways and roads by state parks, and for that purpose may enter into contracts or agreements with cities, counties, and other political subdivisions of the State and with other state agencies or with persons, firms or corporations for the acquisition, construction, a...

Excerpt: ... Motion to Strike filed by HOA as to Complaint filed by plaintiff Anthony Aulisio, Jr. 4. Demurrer filed by Feldsott as to Complaint filed by plaintiff Anthony Aulisio, Jr. 5. Demurrer filed by Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. 6. Motion to Strike filed by defendant Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. Special Motion To Strike [SLAPP] The Special Motion To Strike Portions of P...

Excerpt: ...s set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under (Evidence Code §§ 451 or 452.) As to causes of action Nos. 1-16, Defendants bring their Demurrer on the bases that Plaintiff is judicially estopped from pursin...

Excerpt: ...separate pleading. (CRC 3.1354(b); Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8-9—court did not abuse its discretion in refusing to consider objections not filed separately as required by rule). The City's evidentiary objections are OVERRULED. Allegations in the Complaint: Plaintiff's complaint asserts causes of action for premises liability and negligence based on general negligence and dangerous condition of public pro...

Excerpt: ...fendants Tesla, Inc., and Tesla Energy Operation, Inc. demur generally to all seven causes of action in the complaint. First and second causes of action for intentional and negligent misrepresentation, respectively. At the previous hearing of August 8, 2022, the court had issued a tentative ruling sustaining the demurrer to the first and second causes of action based on the economic loss rule. (See Food Safety Net Services v. Eco Safe Systems USA...

Excerpt: ...party is likely to sustain if the injunction is denied and the harm the opposing party is likely to suffer if the injunction is granted. (White v. Davis (2003) 30 Cal.4th 528, 554; Teamster Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, 1509.) The moving party bears the burden of presenting facts establishing that it is reasonably probable that the moving party will prevail on the merits. (Fleishman v. Superior Court (2002) 102 Cal.App....

Excerpt: ... (“Aptim”) employees, David Gunn, Mark Matten, Jonathan Hunt and Sonjay Redway, to appear and produce documents at deposition is moot as the four witnesses have appeared for deposition. (Miner Declaration in Support of Opposition, ¶ 2; Reply at 1:28- 2:3.) The Court finds that sanctions are not warranted against either party. (C.C.P. § 2025.450(g)(1).) The correspondence shows that defense counsel was engaging in meet and confer efforts to ...

Excerpt: ... Amended Cross-Complaint This motion originally came on for hearing on August 8, 2022. In its ruling, the Court indicated that The One Solution had failed to comply with the procedural requirements of Rule 3.1324(a). The Court permitted The One Solution an opportunity to submit further briefing. (See ROA 549.) The One Solution submitted further briefing on August 16, 2022, as requested by the Court. Based on the moving papers and the further brie...

Excerpt: ...f. In demurring, cross-defendant has asked for judicial notice of documents, including a minute order, that have been filed in this case. A request for judicial notice is not needed for the Court to review matters already on file in the case. In opposing the demurrer, the cross-complainants have submitted a declaration by counsel with exhibits consisting of extraneous matter recently produced by cross-defendant in discovery. The Court cannot cons...

Excerpt: ... in the case, despite two prior orders specifically addressing such conduct. (See M.O.s of 10/18/21 and 4/18/22.) As previously noted, personal attacks on opposing counsel are unprofessional and inappropriate. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 130, 132–134.) Yet Plaintiff's Opposition to this motion again refers to defense counsel having acted “with their usual, deceptive, and dishonest practices.” (See ROA 654 at pp. 2 and 5...

Excerpt: ...e motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” “In the anti-SLAPP context, ‘good cause' requires ‘a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.' [Citation.]” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692 (Balla).) (emphasis added.) Here, Plaintiffs hav...

Excerpt: ...or violation of Civ. Code § 5105. That code section in relevant part states: “(a) An association shall adopt operating rules in accordance with the procedures prescribed by Article 5 (commencing with Section 4340) of Chapter 3, that do all of the following: (1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or internet websites during a campaign, for purposes that are rea...

Excerpt: ...aint by plaintiff Colleen Windsor (“plaintiff”) is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. Individual defendants demur to the third cause of action for hostile work environment (Gov. Code §§12923 & 12940(j)) pled in plaintiff's complaint. A demurrer tests the legal sufficiency of the pleading, accepting as true the material facts properly pleaded, but not assuming the truth of contentions, deductions or conclusions of fact or law. (Brown v. ...

Excerpt: ... used by Defendant's technicians. This would include, for example, repairs for things such as flat tires, broken tail lights, or windows that won't go up/down, none of which are related to the specific issues which Plaintiff sought to be repaired on his Vehicle. The definition of “TRANSMISSION DEFECT” also contains “include, but not limited to,” which explicitly does not limit the defects as to those allegedly suffered by the Vehicle. Pla...

Excerpt: ... unauthorized writ of attachment. “An attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” § CCP 483.010. Here, the complaint asserts a tort claim within unknown damages. Furthermo...

Excerpt: ...the matters on which examination is requested, and the deponent must designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. (Code Civ. Proc. § 2025.230.) Code of Civil Procedure Section 2025.480 provides, in part: “(a) If a deponent fails to ...

Excerpt: ...terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Civ. Proc. Code § 2031.310(i).) The court's 04/05/21 order in relevant part states: “No. 16 – This request is granted as to all non-privileged documents, including emails and ESI. Plaintiff is ordered to produce a list of relevan...

Excerpt: ...force an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) FCA has failed to meet this burden. Felisilda v. FCA USA LLC (2020) 53 Cal.App.5th 486 (Felisilda), upon which FCA relies, is distinguishable. Unlike in Felisilda, the complaint in this case does not allege or otherwise indicate that the sales contract between Plaintiff and the nonparty dealer is the so...

Excerpt: ... (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826)...

Excerpt: ...ENIES the motion as to Pogue's Special Rogs in its entirety. The Court DENIES the motions as to the Corporate Entity Defendants' Special Rogs, Nos. 6-17, 126, 129-130, 132-136 and 162-202. The Court GRANTS the motions as to the Corporate Entity Defendants' Special Rogs, Nos. 21-65 and 67-125. The Court DENIES both parties' requests for sanctions. A. Jurisdiction A party moving to compel further discovery responses must file and serve the motion �...

Excerpt: ...ived. James did not move for relief from that waiver under C.C.P. § 2033.280. All of the objections in the RFAs at issue here are thus improper. The Opposition incorrectly asserts that this is effectively a motion for reconsideration in light of the Court's prior refusal to deem these RFAs admitted in its 12/20/21 ruling. But, on the prior motion, the tardy responses were viewed as a whole to determine whether they were in “substantial complia...

Excerpt: ...uashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. Plaintiff argues that the materials at issue are irrelevant and improperly seek to invade his financial privacy rights. Where privacy rights are at issue in discovery, the party asserting the privacy right must establish a legally protected privacy interest, an objectively reasonable ...

Excerpt: ...with these motions demonstrate that Plaintiff's counsel still has not fully complied with C.C.P. § 1010.6(e), which provides that any party who has appeared in this action “shall accept electronic service” and shall, upon the request of any other party, provide electronic service, for any “notice or document that may be served by mail, express mail, overnight delivery or facsimile transmission.” This conduct has continued even though thi...

Excerpt: ...lement & Mutual Release Agreement, Ex. 1 to Cross-Complaint, page 4, section 7 stating that San Bernardino County Superior Court shall retain jurisdiction over enforcement of the Agreement 4. The Settlement and Mutual Release Agreement, Ex.2 to the FACC wherein Judge Bryan F. Foster of the San Bernardino Superior Court has already retained jurisdiction and made a ruling regarding the Settlement Agreement. II. Merits Cross-defendants assert that t...

Excerpt: ...a)(1), “[t]he court may… 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…” “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of...