Excerpt: ...P No. 4 as it was overbroad and unduly burdensome. The court has received no information that the meet and confer took place or that the scope was limited. As such, and based upon the information currently available to the court, the MTC as to RFP No. 4 denied. B) Motion to Quash Defendant's Motion to Quash (“MTQ”) Plaintiff's deposition subpoena of non-party Super G is DENIED in part and GRANTED in part. Denied as to Category Nos. 1-4. Grant...

Excerpt: ... more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular cause of action or the proffered defense thereto. (Id.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists....

Excerpt: ...ty to all six causes of action in the FAC. A special demurrer for uncertainty is disfavored and will be sustained only when the complaint does not reasonably apprise the defendant of what issues must be admitted or denied or what claims are directed against him or her. Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616. First cause of action for breach of fiduciary duty: Overruled The first cause of action is for breach of fiduciary du...

Excerpt: ...ivil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) “‘Malice'” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard fo...

Excerpt: ...s that Defendant did not waive its right to arbitration. The Motion is Defendant's first use of the litigation process, there is no trial date set, and Defendant claims no discovery has taken place. Plaintiffs have not demonstrated any prejudice and the timeline of events does not show any unreasonable delay. (Code Civ. Proc., § 1281.2, subd. (a); Saint Agnes Medical Center v. PacifiCare of Calif. (2003) 31 Cal.4th 1187, 1195; United States v. P...

Excerpt: ...riation of likeness under Civ. Code § 3344. Section 3344 provides in relevant part: (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or le...

Excerpt: ...430.10(e) and (f). ““A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]” [Citation.] Imposition of “[a] constructive tru...

Excerpt: ...nent's right to a fair trial. Courts attempt to balance the right of civil litigants to discover relevant information against the privacy interests of persons subject to discovery. (Id. at 1199.) “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, ...

Excerpt: ...his motion, Plaintiff seeks to quash a subpoena issued by Defendant on August 24, 2021 on Michael A. Rubin, Inc. (¶10 of Steven Fernandez Declaration and Exhibit F thereto [pg. 48 of ROA No. 70]). The subpoena includes 12 categories of documents – all of which were initially opposed by Plaintiff. (Id.). Within the Reply, however, Plaintiff unconditionally withdraws his objections to Requests Nos. 6, 8, 9 and 12. (Reply: 1:20-2:9). Additionally...

Excerpt: ...refuses to arbitrate that controversy, the court must order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (1) the right to compel arbitration has been waived by the petitioner; (2) grounds exist for rescission of the agreement; or (3) a party to the arbitration agreement is also a party to a pending court action or special proceedin...

Excerpt: ... is being sued is attributable, at least in part, to the cross- defendant. (American Motorcycle Ass'n v. Superior Court (1978) 20 Cal.3d 578, 607; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) § 6:529.) “Cross complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/All American Develop. Co. ...

Excerpt: ... justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) The party seeking a protective order bears the burden of proving that good cause exists for the order. (Emerson Electric Company v. Superior Court (1997) 16 Cal.4th 1101, 1110.) A decision granting or denying a motion for protective order is reviewable for an abuse of discre...

Excerpt: ...'s twenty-fourth affirmative defense, Failure of Condition Precedent. For the reasons discussed below, the Motion is DENIED. A. Issue 1: First cause of action (Breach of Contract) Plaintiff has met its initial burden of demonstrating that there is no triable issue on the breach of contract claim. Under California law, the elements of a cause of action for breach of contract are: (1) the existence of the contract, (2) plaintiff's performance or ex...

Excerpt: ...If met, 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 doubt on the issue must be resolved in favor of arbitration.” Id. Here, Ex. A to the Declaration of Erick J. Becker is the signed Arbitration Agreement. Plaintiff does not dispute the existence of t...

Excerpt: ... made by party counsel at the Informal Discovery Conference and the court's 11/16/21 Minute Order (ROA #503), Plaintiff indicated that the MTQ was withdrawn as to all the Doctors. Additionally, defense counsel in his declaration stated that he agreed not to depose the Doctors. Mendoza Decl. ¶ 2. The court notes that Mendoza's declaration also states he agreed not to depose Arburua, however the opposition contains arguments that Arburua's deposit...

Excerpt: ...nt against CPM arises out the Property Management Agreement entered into between CPM and Morland (Ex. B to the Cross-Complaint) in which there is no arbitration agreement. CCP §1281.2 allows a party to an arbitration agreement to petition the court for an order compelling the petitioner and respondent to arbitrate a controversy, if the court determines that an agreement to arbitrate the controversy exists. The party petitioning to compel arbitra...

Excerpt: ...e where the property is located to the best of plaintiff's knowledge, information and belief, and if held within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. (C.C.P. § 512.010(b)(1)-(b)(5).) Plaintiff here has not met these requirements. The Plummer Decl. submitted with the Application states that title to the Ford was held by Plaintiff's f...

Excerpt: ...cing party may move for an order compelling the deponent's attendance and testimony, and the production of any document described in the deposition notice. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. C.C.P. § 2025.450(b)...

Excerpt: ...court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” It also requires the party making the...

Excerpt: ...riate pursuant to Civ. Proc. Code § 2034.460(a). As for Roughan's income from expert witness employment, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.” Evid. Code § 722. Although an expert is not required to give precise information as to their income from expert...

Excerpt: ..., authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhib...

Excerpt: ...believes he can amend to cure that defect). The Demurrer as to COAs 1 and 2 is SUSTAINED with 20 days leave to amend. Fraud claims must be specifically pled, including how, when, where, to whom, and by what means the representations were tendered, and, when against an entity, the persons who made the misrepresentations, their authority to speak for the entity, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann ...

Excerpt: ...ff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436. Here, the Complaint fails to state sufficient facts to constitute...

Excerpt: ...d for a hearing date less than 30 days before trial, unless the court finds good cause before the motion is filed. Here, the Motion was filed on 08/27/21 and noticed for 11/15/21. At that time, trial was scheduled for 12/13/21. Therefore, when the Motion was served, it was noticed for a date less than 30 days before trial and was thus untimely. Cross-Defendants did not move ex parte for relief until almost two months later, on 10/20/21, but their...

Excerpt: ... 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 plaintiff's proof need not be alleged.” C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. Here, the SAC's allegations are sufficient to plead that Plaintiff's termination was substantially m...

Excerpt: ...LC (“MIP”) on 4/30/21 as to the Third Amended Cross-Complaint (the “TAXC”) filed on 2/24/21by Cross-Complainants Leila, individually and derivatively on behalf of K&C, and Wagih; and (3) The Motion to Strike filed by Cross-Defendants Karame, MMI and MIP on 10/16/20, as to the TAXC. I. The Demurrer to the TAC The Chayas' Demurrer is OVERRULED. For the First Cause of Action (“COA”), the TAC now specifically alleges that Karame and MMI o...

Excerpt: ... part and DENIED in part. As a preliminary matter, Ingeborg opposes all motions on the grounds that she is suffering from dementia as set forth in letters dated 9/27/2018 (from internal medicine physician, Dr. Daniel Sterns) and 9/25/2018 (from neurologist, Dr. Dean Le). It was recommended at that time (3 years ago) that Sandra Kane be granted conservatorship and power of attorney, yet no guardian ad litem was appointed for this action and Ingebo...

Excerpt: ...as appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. (Emergency Rule 12; C.C.P. § 1010.6(e).) Defendants have shown that they made such a request on 7/28/20. (Baghdassarian Decl., ¶ 6, Ex. F.) Yet Plaintiff's counsel admits that he has refused to electron...

Excerpt: ... adjudication on its Fraud Cause of Action. But Sellers' Opposition reflects disputed issues of material fact with regard to the alleged misrepresentation, as Sellers assert that they believed that the statements made in their Seller Property Questionnaire were true when they made them. (UF 3.) Sellers also dispute Plaintiff's claim of justifiable reliance, as Plaintiff had received materials in a Preliminary Title Report which revealed the lien ...

Excerpt: ...irst, plaintiff has adequately complied with the procedural requirements for the motion under CRC 3.1324. Second, although the court can consider whether the 17200 claim is timely under the statute of limitations (see below), the statute for 17200 claims is four years (B&P section 17208) and it is not obvious to the court from the terms of the FAC that this statute has expired. Thus, the court opts to allow the defendants to test the 17200 claim'...

Excerpt: ...rovider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that...

Excerpt: ...d to mediation and binding arbitration with Plaintiffs pursuant to the Residential Purchase Agreement and Joint Escrow Instructions (“PSA Agreement”). (Complaint, Ex. A, at ¶22) There is no dispute that the mediation and arbitration provision in the PSA Agreement covers Plaintiffs' claims and was signed by Plaintiffs and Defendant. (Id.) Thus, the burden shifts to Plaintiffs to demonstrate the arbitration agreement is not enforceable. (Buckh...

Excerpt: ...ants' evidence, Plaintiff concedes having signed the arbitration agreement and, in fact, authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be...

Excerpt: ...alifornia law – instead it has claimed only that “in the interests of judicial economy and to focus and streamline this matter” it “will not seek to enforce the restrictive covenants” at issue. (Chang Decl., Ex. 2.) That concession does not render the Motion moot. Nor does the evidence reflect that the Illinois action has been dismissed with prejudice, or that Affinitiv has stipulated that the provisions at issue are invalid under Calif...

Excerpt: ... A judgment in that action will not affect the present lawsuit. Thus, C.C.P. § 430.10(c) is inapplicable. In addition, Defendant failed to show that there is a defect or misjoinder of parties such that C.C.P. § 430.10(d) would apply. There are no allegations that a necessary party is missing or that plaintiff or defendant are improperly joined. Thus, C.C.P. § 430.10(d) is inapplicable. There is also no evidence that Plaintiff has engaged in an...

Excerpt: ...re granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal citations and quotation marks omitted.) Also, “[a] demurrer for uncertainty shou...

Excerpt: ...judgment must “show” that either one or more elements of the “cause of action … cannot be established”, or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter ...

Excerpt: ...ed as a cross-defendant. (See TACC at 1:8 and p.6 and CRC 2.112.) The moving brief does not cite to any recognized statutory basis for demurring to miscellaneous allegations within a pleading. (See Dmrr p. 1, Moving Mem. p. 3-4 and compare CCP 430.10 and CRC 3.1320(a), Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274 (demurrer challenges a cause of action, not “portions”...

Excerpt: ...�� produced, the record before the court does not establish that this disclosure was, or reasonably should have been, apparent to the attorney for Plaintiffs in the circumstances. This conclusion is based on many factors, including the very nature of the records requested in the subpoena (directly requesting the records produced), that the records were then released by a witness who is an attorney, that some information in the production reasonab...

Excerpt: ... 2009, [defendant] promised [plaintiff], via e-mail and a telephone call, she would promptly prepare and deliver trust documents…”) and Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 (“Hospital has … clearly pled facts that show how the statements were made (directly to agents of Hospital through telephone calls and written letters faxed to Hospital)…”).) In other respects, the demurrer's a...

Excerpt: ...o judicial notice. See, CCP § 437, subd. (a). There is no request for judicial notice. Thus, the facts contained in the Opposition and supporting documents are disregarded to the extent that they go beyond the four corners of the FAC. Punitive Damages Pursuant to Civil Code § 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Civil Code §3294(c) defines “malice” as conduct which is intended to cause inju...

Excerpt: ...court order to provide discovery.” CCP § 2023.030 subdivisions (a)-(c) authorizes the court to impose monetary, issue, or evidentiary sanctions against anyone engaging in conduct that is a misuse of the discovery process. CCP § 2023.030 subdivision (d) permits the court to impose a terminating sanction. CCP § 2023.030 subdivision (e) provides, “The court may impose a contempt sanction by an order treating the misuse of the discovery proces...

Excerpt: ...f. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhibit A to the Dawson Declaration). Additionally,...

Excerpt: ... To be sure, fraudulent intent must often be established by circumstantial evidence…. if plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) However, this is generally a matter of proof and evidence...

Excerpt: ...ation of territorial market areas and to provide security and to clarify the relations between manufacturers and their nonemployee sales representatives. Civ. Code § 1738.10. “The Legislature intended [the Act] to safeguard only nonemployee ‘middle-men' sales representatives dealing with wholesale goods.” Reilly v. Inquest Tech., Inc. (2013) 218 Cal. App. 4th 536, 546. The Act “specifically exclude[s] from coverage salespersons and retai...

Excerpt: ...ier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.” (Id. at 574). “The defendant may assert the pending action as a bar either by demurrer, or, where fact issues must be resolved, by answer.” (Id.). “In either case, where the court determines there is another action raising substantially the same issues between the same parties, it is to enter the interlocutory judgm...

Excerpt: ...eas. Those are 1) How much money in lost earnings Plaintiff attributes to the underlying facts of this lawsuit; 2) How much money Plaintiff did not make because of the underlying facts of this lawsuit; 3) Instances of inappropriate sexual contact or conduct prior to Plaintiff dating Defendant; 4-6) If Plaintiff was inappropriately touched by a certain people; and 7-8) If Plaintiff has dated anyone since her relationship with Defendant. Further qu...

Excerpt: ...a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant 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 fo...

Excerpt: ...s and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . . (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevaili...

Excerpt: ...the second cause of action for Breach of Contract on the bases that it fails to state facts sufficient to constitute a cause of action, is uncertain, and it cannot be ascertained from the Complaint whether the contract is written, is oral, or is implied by conduct. Civ. Proc. Code § 430.10(e)-(g). A) COA #1 – Legal Malpractice “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use ...

Excerpt: ...te the issue of Plaintiff having a “life estate” in the Anaheim residence. A life estate is a greater bundle of rights than the mere right of possession. (See Miller & Starr, 4 Cal. Real Est. § 12:21 (4th ed.) and RJN Exhibits 2 and 3.) Therefore, the statutory demurrer, based on the DV action, is not well taken. With regard to the family court action, while the family court may be the proper setting to address disputes between the former sp...

Excerpt: ...o be reasonably susceptible to the meaning that Plaintiff seems to propose -- that sale of Defendant's interest in entities other than Neudesic LLC, triggers the additional payment rights to Plaintiff under the MA. This is because the additional payments rights were defined clearly to be due upon sale of the Retained Membership Interest in Neudesic LLC only, and not in other entities. (See Minute Order 10/26/20 p.2 and MA Recital ¶ 2, 6, 7, 2, 4...

Excerpt: ...ourt order. In this case, and in response to Defendant's separate motions to compel Plaintiff to appear for an IME and for a third deposition session, the Court issued orders on 12/07/20 tentatively granting those motions, “unless and until plaintiff delivers to defendants a properly executed writing which tracks Code of Civil Procedure § 2032.320(c).” ROA # 201. At that time, Defendant had already noticed an IME for 12/15/20. Instead of exe...

Excerpt: ...t. As a preliminary matter, the Opposition requests a continuance to pursue additional discovery but fails to show that such a continuance is warranted here. The Opposition makes only a vague request for continuance at p. 21, to take the depositions “of Patty, Neil, and Oliver,” but fails to explain what such depositions would be expected to show, why they were essential to the opposition, and why they remained outstanding. And no supporting ...

Excerpt: ...in three or five years. (See Salinas v. Atchison, Topeka & Santa Fe Ry. Co. (1992) 5 Cal.App.4th 1, 9; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440; Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1164). The present case is not in such a situation. The present matter involves a lengthy course of business relations with a great deal of disputed discovery (including the two matters set for hearing today) and the likelihood...

Excerpt: ...al notice of a court record within this case (ROA 108). (ROA 211.) A trial court may take judicial notice of the existence of judicial opinions and court documents, along with truth of results reached in documents such as orders, statements of decision, and judgments, but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (People v. Harbolt...

Excerpt: ...troming's scheduling of the demurrer hearing to be concurrently heard with another motion, rather than upon the first available hearing date (CRC Rule 3.1320(d)), is not jurisdictional, and the Court elects to exercise its discretion to reach the demurrer's merits. Defendant has presented evidence of its efforts to meet and confer, although such efforts were reportedly ineffective due to Plaintiff's counsel's new mailing and email addresses. Plai...

Excerpt: ...Plaintiff has correctly identified Tabletop's failure to provide the required meet and confer efforts and statement. Although typically the Court would continue the hearing, the court feels it would be more efficient to reach the merits at this time. The Court will not be as lenient with future meet and confer failures. Although Plaintiff has attached a copy of the Licensing Agreement (“Agreement”) to the FAC, the FAC remains too unclear to s...

Excerpt: ...n the forum State…” (Walden at 285.) Physical entry into the State—either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact. (Id.) But physical presence in the state is not required. “So long as a commercial actor's efforts are “purposefully directed” toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defe...

Excerpt: ... 20-22, Exs. D-M and O-Q. Han failed to properly answer each of the above FROG as completely and straightforwardly as the information reasonably permitted and/or did not state he did not have sufficient information to be able to fully respond to each of the FROG in question. Civ. Proc. Code § 2030.220. As such, this motion was proper. Civ. Proc. Code § 2030.300. Han is ordered to serve further responses to the above FROG within 40-days of recei...

Excerpt: ..., or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudi...

Excerpt: ...Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488–89; Kittredge Sports Co. v. Super.Ct. (1989) 213 Cal.App.3d. 1045, 1048. The Second Amended Complaint (“SAC”) is not based on the same general facts as the original complaint. Instead, it seeks to add defense counsel as a defendant and contains allegations of actions that occurred mostly during the pendency of this lawsuit, with some minor additional allegations which appear to be related...

Excerpt: ...., ¶¶ 5-6, Ex. B.) The parties were unable to agree on amended request nos. 2, 3, 4, 8 and 9 (the “Requests”), which are the subject of the current Motion. (Id.) 2. Any and all DOCUMENTS including ESI which evidence, constitute, refer or RELATE TO contracts and/or agreemetns, including contract renewals and contract amendments, between YOU and the HOA RELATING TO the maintenance and repair of THE SPRINGS from January 2010 to present. 3. Any...

Excerpt: ...rrent employees, including Plaintiff, on 12/2/19. (Crawford Decl., paras. 2-7.) After directing employees to review the new Handbook, Crawford's 12/2/19 email indicated that an “Associate Acknowledgement” form would be sent separately via DocuSign for associates to provide their electronic signature. This form was then distributed on 12/3/19 to employees, including Plaintiff. (Crawford Decl., paras. 7-8.) By signing the acknowledgement, each ...

Excerpt: ... from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff's cause of action is improperly titled or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38; Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th ...

Excerpt: ...� (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Plaintiff's request for judicial notice is granted. The court will take judicial notice of the complaint's “existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1.) Plaintiff generally demurs to the Cross-Complaint's first, second and third causes of action on the ...

Excerpt: ... the federal constitution. (Cal. Prac. Guide: Civ. Proc. Before Trial ¶ 3:198 (Rutter Group 2019); see, e.g., BNSF Ry. Co. v. Tyrrell (2017) 137 S.Ct. 1549, 1554, 1558.) Here, general jurisdiction is not proposed. For a court to exercise specific jurisdiction over a party, the suit must arise out of or relate to his contacts with the forum; and the defendant's suit-related conduct must create a substantial connection with the forum state. (Brist...

Excerpt: ....3, 405.30, 405.31, 405.32, 405.33, 405.38.) “At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. . . Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any or...

Excerpt: ...s supported by a separate statement (ROA 29) regarding the disputed deposition questions and responses, in which Plaintiff invoked his Fifth Amendment privilege no less than 121 times in refusing to answer questions seeking discoverable information regarding WCCT's actual or potential bases for terminating Plaintiff's employment, i.e., matters which Plaintiff himself placed at issue in this litigation in alleging wrongful termination without caus...

Excerpt: ...ve judicial arbitration -- a type of arbitration distinct and different from contractual arbitration. The rules and procedures for judicial arbitration are not the governing body of law. (See the Motion to Strike, p. 1-2 and Reply p. 2; see CRC 3.810 and CCP 1141.10, .14, Cal. Prac. Guide: Alt. Dispute Res. § 5:7, Rutter Group 2020). The present case involved contractual arbitration, which is governed by the California Arbitration Act (CCP 1280 ...

Excerpt: ...ocuments: (1) recorded property records for the relevant properties, and (2) internet photographs allegedly showing portions of the relevant property as it appeared in 2015. The court need not (and does not) reach the question of whether the court can take judicial notice of these documents because, even if the court takes judicial notice of them, the documents are completely out of the context necessary to give them meaning for purposes of this ...

Excerpt: ...ich motions scheduled for 12/7/2020 are going forward and which motions are off calendar on or before 11/16/2020.” See 10/30/20 Minute Order. No letter was forthcoming, but there were a number of “notices” filed requesting to take certain motions off-calendar. Best this Court can tell, there are still four (4) motions on calendar. Defense Motion to Compel Psych IME of Plaintiff (ROA 106) Pursuant to CCP §2032.320(a), the moving party has t...

Excerpt: ...a protective order, except for emails. Clayton Supp. Decl., Ex. A. FCA has provided no good reason why it will produce all documents except for emails responsive to the Plaintiff's specific definition of “FUEL SYSTEM DEFECT.” FCA is ordered to provide a further response and to produce all responsive documents, including emails. As to RFP No. 19, FCA states that it will comply in full and produce all responsive documents in its possession, cus...

Excerpt: ...f law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4 th 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. Since it plays such a large role here in this demurrer, it is important to appreci...

Excerpt: ...ce fell below the applicable standard of care in that the margins were not smooth. She eventually had the issues resolved by other dental professionals. Plaintiff Jessica further contends that defendant has since used photos taken of her during the treatment in 2017 for advertising purposes without her consent. Demurrer to 2 nd COA for Misappropriation of Likeness: Sustained with Leave to Amend Plaintiff Jessica alleges that defendants are using ...

Excerpt: ...a v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 924 fn.1.) However, the unrecorded trustee's deed upon sale, within the reply, Exhibit 8, is not a recorded instrument and so it is not a proper subject of judicial notice. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, approved in part, and disapproved on other grounds in part, Yvanova, 62 Cal.4th 919 fn.1, fn. 13.) The request for judicial notice of records from the ...

Excerpt: ...ance, the Court will consider the merits. (See generally, Plumlee v. Poag (1984) 150 Cal.App.3d 541, 546.) Motions to Compel (Initial) Responses to three sets of Requests for Production of Documents, each Set Nos. Two, to Defendants Basmadjian, Jacksontuck, and Basmadjian & Jackson Investment Advisory Equitable Partnership LLC (“B&J”) These Motions to Compel are GRANTED. Each Defendant is ordered to provide verified responses, without objecti...

Excerpt: ... no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Emphasis added.) As set forth in considerable detail in the Court's 10/26/2020 minute order, Diaz did not file her motion to set aside default pursuant to C.C.P. § 473(b) until 6/25/2020. Diaz's motion is therefore untimely, and Diaz's moving papers cite no legal authority to avoid or otherwise overcome the six-month time limit expressly set forth i...

Excerpt: ...y to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) IKEA moves for summary judgment on the grounds that Plaintiff cannot establish the second element that IKEA breached its duty and the third element of proximate cause. With respect to the second element, IKEA argues that Plaintiff cannot establish that a dangerous...

Excerpt: ...ourt gives the pleading a reasonable construction. (CCP § 452; Miller & Lux v. San Joaquin Light & Power Corp. (1932) 120 Cal.App. 589, 602.) “[T]he determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) To the extent that new matter constituting an affirmative def...

Excerpt: ...se and scope of his employment. The salient facts are simple. On 12/14/17, at approximately 10:15am, plaintiff was summoned to the front office at Trabuco Hills High School to answer for an alleged dress code violation. She spoke with the assistant principal, Matthew Rainwater, who instructed her to go to the ladies' room and change her pants into a “loaner” pair of pants available to students who violate dress code. Plaintiff complied (plain...

Excerpt: ...ms as asserted by Mr. Espinoza, through his GAL. For COA 1, the claim is based on an alleged failure to fully accommodate, including providing assistance to escort him to classes, refusing to provide him with transportation assistance, and covering up as to an alleged “violent assault and battery” by Chapman. (TAC ¶ 82.) For COA 2, the claim is based on Chapman's alleged push, causing him to fall out of his wheelchair. (TAC ¶¶ 43-47, 114.)...

Excerpt: ...f law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4 th 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. Since it plays such a large role here in this demurrer, it is important to appreci...

Excerpt: ...ourt ruled agreements providing for valuations and appraisals are considered to be an arbitration agreement subject to the statutory contractual arbitration law. CCP § 1280(a); Mahnke v. Superior Court (2009) 180 Cal. App. 4th 565, 575; Devonwood Condo. Owners Assn. v. Farmers Ins. Exch. (2008) 162 Cal. App. 4th 1498, 1505. In regard to appraisal arbitrations, such an arbitration would be before appraisers and not an arbitrator, and appraisers' ...

Excerpt: ...lure to pay rent in various months). The motion is GRANTED in part and DENIED in part, as follows: Failing to respond to an authorized method of discovery is a misuse of the discovery process warranting sanctions. (C.C.P. § 2023.010(d).) So, too, is disobeying a court order to provide discovery. (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court'...

Excerpt: ...on are focused on the legal insufficiency of the First Amended Cross-Complaint. (See the Opp. Brf. at 6:26) (construing the Motion in this way also). The Court does not consider the change of the focus in the Reply brief. (See Reply Brf. at 6:16 and reply exhibits); see Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 56 (“We do not consider those contentions because plaintiffs did not raise them in their opening brief and there is no exp...

Excerpt: ...e legal sufficiency of another pleading in the form of an objection. CCP §§ 422.10, 430.10, 430.30. A motion to strike, on the other hand, is a request to the Court to thin out “irrelevant, false, improper or nonconforming” matter included in an otherwise valid pleading. See CCP §§ 435- 436. While often filed and heard together (see CRC 3.1322(b)), the two serve very different functions and as such are not authorized to be filed as a sing...

Excerpt: ...1.) The request for judicial notice of Exhibit B is granted. The information appears to be from the official website of HUD which regulates Home Equity Conversion Mortgage (HECM) loans, i.e. the type of loan that the Plaintiffs appear to have received. (See SAC ¶ 25 and Exhibit B; see Evid. Code § 452(c), (h); In re N.M. (2008) 161 Cal.App.4th 253, 268 n.9 (“we take judicial notice of . . . the list provided by the State Department of Social ...

Excerpt: ...yvale, LLC (2008) 162 Cal.App.4th 858, 878; Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248) This furthers the purpose of framing the claim, providing clarity and notice, and weeding out non-meritorious claims at the pleadings stage. (See Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 362.) Here, the complaint is comprised of many vague and conclusory allegations. To further clarity, the Court is directing the Plaintif...

Excerpt: ...is method of service. The code provision that allows for electronic service does require there be affirmative consent by the recipient to receive papers by this method. (See CCP §1010.6(a)(2)(A)(ii) and CRC 2.251(b)(1)(A) and (B).) The Court would encourage the parties to agree to this service method to help reduce their costs, but, if there is no such agreement, then the Plaintiff must in the future serve the papers by another means. In this in...

Excerpt: ...leveland Plumbing to diagnose and repair issues with the plumbing lines feeding the subject units. In late 2013, plaintiff Sanchez experienced a serious water intrusion event up through the slab foundation of his unit, resulting in a flood in the master bedroom. Shortly thereafter, no unit in Sanchez's building was receiving hot water. Defendant HOA retained the services of Scott English Plumbing to diagnose and repair the issue. While part of th...

Excerpt: ...vidence from witnesses (or other defendants) who have invoked their privilege against self-incrimination." (Bains v. Moores (2009) 172 Cal.App.4th 445, 484.) "The Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings. [Citation.] A court, however, has the discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions when the interests of justice seem [ ] ...

Excerpt: ...“minimal merit.” Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 Here, the allegedly defamatory speech is set forth in ¶¶ 14 and 16 of the Complaint and essentially boils down to the statements that plaintiff was a “troublemaker,” a “menace to society,” and a “crook” who should be “excommunicated” from the church. Although the motion does not clearly state which subdivisions of CCP �...

Excerpt: ...10(3). “To state a claim for fraudulent concealment, a plaintiff must allege: ‘(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.'” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1189 (C.D. Cal. 2010) [Toy...

Excerpt: ...atters while Plaintiff was serving as a member of the board; concerns about the Association's decisions in addressing a conflict within its governing documents about how many directors the Association must have; objections to how the Association addressed the problem (by opting to not hold the 2018 election and allowing directors with unexpired terms to constitute the full board); alleged failures in presenting the issue to the Association member...

Excerpt: ... of time to respond, but never did. On 2/8/19, this Court heard plaintiff's motion to have unanswered RFAs deemed admitted. Attorney Dickerson did not attend the hearing, nor did he file any opposition to the motion. The motion was therefore granted, and the RFAs deemed admitted by operation of statute. On 8/19/19, this Court heard plaintiff's motion for discovery terminating sanctions (based principally on plaintiff's inability to secure deposit...

Excerpt: ...OAs have been dismissed prior to the hearing, the Demurrer as to COAs 1-3 is SUSTAINED, without leave to amend. For COAs 4 and 5, Plaintiff has made only conclusory allegations as to the basis for each. For COA 4, she asserts generally that she made complaints to management about staffing/census issues, and/or refused to participate in activities that would result in a violation of or noncompliance with a local, state, or federal statute, rule or...

Excerpt: ...WITHOUT LEAVE TO AMEND). The court will take up each cause of action in turn. 1. 1 st COA: Wrongful Termination – Overruled as to CLG, Sustained without Leave to Amend as to Anna Carno Plaintiff's first cause of action is for wrongful termination. In his complaint, Defendant claims he was fired “because he performed and would continue to perform pro bono legal services on behalf of the community.” (FAC ¶ 39). As far as this court can tell,...

Excerpt: ...l notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (People v. Harbolt (1997) 61 Cal.App.4th 123; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875.) Therefore, the Court GRANTS Defendants' request for judicial notice of Exs. A-M and P. The Court DENIES Defendants' request for judicial notice of Exs. N and O since they d...

Excerpt: ...ned inspections re same and had provided a guaranty as to the work performed (when, in fact, the work was performed by unlicensed cross-defendants). The XC further alleges that Genesis was defamed and wrongfully sued in this action. Based on the alleged fraud, these allegations are sufficient to support the punitive damages claim at issue. The claims as presented are also sufficient, for pleading purposes, to support the prayer for fees based on ...