Excerpt: ...forth below. This is Hooper's second attempt to set aside the default judgment first entered against him on 6/4/19. In Hooper's first attempt, the Court denied the motion without prejudice on 9/23/19 as Hooper did not file a proposed answer to the Complaint and failed to meet the minimal threshold requirement to show good cause for setting aside the default, such as a declaration as to why the default should be set aside. As both of those issues ...

Excerpt: ... implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4 th 437, 453. Precision or in haec verba is not required, nor is attaching the actual contract if in ...

Excerpt: ...nagement, LLC (“Epsilon”), arguing that: (a) as MP had previously filed an action against Koulouras and Epsilon in Illinois which also concerns Koulouras' prior employment with MP, its first-filed case should be allowed to proceed in Illinois to address all of the issues re Koulouras' separation from MP; and (b) the claims at issue should be adjudicated in Illinois on forum non conveniens grounds. Both arguments are unpersuasive here. As a pr...

Excerpt: ...stalled the allegedly-trespassing items. Indeed, from the pleading, it appears that the Plaintiff is also unsure. (See FAC ¶¶ 2, 5, 6.) This issue would be a matter for discovery and gathering of evidence. Judicial notice is reserved only for matters that are indisputably true or which could not be a subject of a reasonable dispute. (See Evid. Code § 452; Richtek USA, Inc., 242 Cal.App.4th 651, 660; Bounds v. Superior Court (2014) 229 Cal.App....

Excerpt: ...ing demurrer attacks all nine causes of action. The motion to strike is directed at the 1 st cause of action, and claims asserted against individuals (named and unnamed). Initially, plaintiffs allege that there was no new pleading triggering the option of another demurrer, noting that the Master Complaint came about after two cases were consolidated. However, at the August 12, 2019 hearing, this Court did not order that no new responsive pleading...

Excerpt: ...aintiff alleged defect in F22 that, over time, resulted in slippage or dislodgment of front balancer shaft oil seal failed to state a valid CLRA claim because the allegations failed to identify any affirmative representations that the automobiles had any characteristic they do not have or are of a standard or quality they are not or allegations that manufacturer was bound to disclose defect]. See also, Bardin v. DaimlerChrysler Corp. (2006) 136 C...

Excerpt: ...aintiff alleged defect in F22 that, over time, resulted in slippage or dislodgment of front balancer shaft oil seal failed to state a valid CLRA claim because the allegations failed to identify any affirmative representations that the automobiles had any characteristic they do not have or are of a standard or quality they are not or allegations that manufacturer was bound to disclose defect]. See also, Bardin v. DaimlerChrysler Corp. (2006) 136 C...

Excerpt: ...ing demurrer attacks all nine causes of action. The motion to strike is directed at the 1 st cause of action, and claims asserted against individuals (named and unnamed). Initially, plaintiffs allege that there was no new pleading triggering the option of another demurrer, noting that the Master Complaint came about after two cases were consolidated. However, at the August 12, 2019 hearing, this Court did not order that no new responsive pleading...

Excerpt: ...stalled the allegedly-trespassing items. Indeed, from the pleading, it appears that the Plaintiff is also unsure. (See FAC ¶¶ 2, 5, 6.) This issue would be a matter for discovery and gathering of evidence. Judicial notice is reserved only for matters that are indisputably true or which could not be a subject of a reasonable dispute. (See Evid. Code § 452; Richtek USA, Inc., 242 Cal.App.4th 651, 660; Bounds v. Superior Court (2014) 229 Cal.App....

Excerpt: ...ute. The parties subsequently filed separate responses on 3/20/20. The 3/20/20 filings make it clear that the parties are arguing about a pleading which has not been filed with the Court. Both sides now agree that the dispute is as to a Second Amended Complaint which attempts to assert twelve causes of action (“COAs”), beginning with a claim for “Violation of the Ralph Civil Rights Act” as COA 1. However, the SAC which was filed with the ...

Excerpt: ...ute. The parties subsequently filed separate responses on 3/20/20. The 3/20/20 filings make it clear that the parties are arguing about a pleading which has not been filed with the Court. Both sides now agree that the dispute is as to a Second Amended Complaint which attempts to assert twelve causes of action (“COAs”), beginning with a claim for “Violation of the Ralph Civil Rights Act” as COA 1. However, the SAC which was filed with the ...

Excerpt: ...s failed to file timely oppositions to the Motions. The Motions were originally scheduled to be heard on 1/13/20, which would have made any oppositions due no later than 12/30/19. CCP § 1005. Plaintiff did not file any oppositions to the Motions prior to the 1/13/20 hearing date. When the matter came before the Court on 1/13/20, the Court continued the hearing to 3/2/20 for Defendant's lack of meet and confer efforts with plaintiff Escotto, lack...

Excerpt: ...s failed to file timely oppositions to the Motions. The Motions were originally scheduled to be heard on 1/13/20, which would have made any oppositions due no later than 12/30/19. CCP § 1005. Plaintiff did not file any oppositions to the Motions prior to the 1/13/20 hearing date. When the matter came before the Court on 1/13/20, the Court continued the hearing to 3/2/20 for Defendant's lack of meet and confer efforts with plaintiff Escotto, lack...

Excerpt: ...nagement, LLC (“Epsilon”), arguing that: (a) as MP had previously filed an action against Koulouras and Epsilon in Illinois which also concerns Koulouras' prior employment with MP, its first-filed case should be allowed to proceed in Illinois to address all of the issues re Koulouras' separation from MP; and (b) the claims at issue should be adjudicated in Illinois on forum non conveniens grounds. Both arguments are unpersuasive here. As a pr...

Excerpt: ...flight from the scene, and (2) insufficiency of the evidence to support the amount of the damages award. Neither ground has merit. 1. There was no irregularity or error for admitting evidence of defendant's flight Before the trial, defendant moved to exclude defendant's post-accident conduct that consisted of defendant exiting his vehicle and yelling at the plaintiff then getting into his car and driving away. Defendant based his motion on Eviden...

Excerpt: ...e of service of written notice of entry of judgment or dismissal, or (3) 180 days after entry of judgment. (CRC 3.1700(a)(1); Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 228.) The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. (CRC 3.1700(a)(1).) If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in C...

Excerpt: ... certain 911 calls and a missing person report of Camden Nicholson, and (3) confessions, witness statements and physical evidence. By agreement, plaintiffs have withdrawn the deposition subpoena for the cell phone. As such, only the depositions subpoenas for the 911 calls/missing person report and confessions, statements and physical evidence are at issue. City contends that the information and documents sought are part of the investigate police ...

Excerpt: ...on” or “Trucking Corporation R” with the same counsel, the McNeil Tropp firm. The Court will ask its counsel to address the correct name of this party as well as to make any appropriate corrections of the name in the record. Motion to Consolidate The Court GRANTS the Motion to Consolidate the cases of Hernandez v. Guzman, 2019- 1079884, with Brown v. Valleguzman, 2019-1097580, for purposes of discovery and for trial. However, the cases will...

Excerpt: ... signature is, in fact, the signature of the person the proponent claims it is. The statute states: ‘(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.' (Civ.Code, § 1633....

Excerpt: ...e Court would have benefitted from declarations from the engineers to discuss and illuminate their findings and verify the statements within their reports. The moving papers omitted this evidence. In the end, the insurer has the burden to show “the insured's loss was proximately caused by a peril specifically excluded from the coverage of the policy” and the court found the evidence on causation was insufficient at this time. (Vardanyan v. AM...

Excerpt: ...§ 430.10(e). A) COA #2 – Accounting “An action for an accounting may be brought to compel the defendant to account to the plaintiff for money or [] property (1) where a fiduciary relationship exists between the parties, or (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. [Citation omitted.] “A cause of action for an accounting requ...

Excerpt: ...ditionally, “[f]acts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” (Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4 th 1, 6). Within the First Amended Complaint, Plaintiff alleges he entered into a “Home Equity Conversion Mortgage Adjustable Rate Loan Agreement” with Defendant Pacific Residential. (¶5 of FAC). The Agreement, attached as Exhibit A to ...

Excerpt: ...aintiff has met its burden to show that those requirements are also satisfied. Minakov argues that probable validity is not shown because the contract with Plaintiff was modified or terminated in August 2016 based on an oral agreement. But the only evidence offered to support that claim is his own statement. (Minakov Decl. ¶ 6.) This statement is insufficient to defeat Plaintiff's showing of probable validity based on the written contract here. ...

Excerpt: ...”) is barred by the statute of limitations. The court sustains the demurrers on both of these grounds. 1) FAC was untimely filed and is barred On 9/9/19, the Court sustained both defendants' demurrers and gave leave to file the FAC within 21-days of service of the notice of the ruling. On 9/10/19, defendants filed and served by mail the Notice of Ruling on the original demurrers and motions to strike. The FAC was required to be filed by 10/6/19...

Excerpt: ...d by TIAA CREF. Robert and plaintiff separated in 2009 and divorced in 2010. As part of the divorce settlement, Robert retained his 403(b) retirement account as his sole and separate property. However, Robert never changed the beneficiary designation on the 403(b) account, which was subsequently split into two separate retirement accounts as follows: Annuity contracts remained with TIAA CREF and mutual funds went to Fidelity. Robert did not desig...

Excerpt: ...t billed until January 2019. Petersen Decl., Ex. 5. From January 2019 through January 2020, Plaintiff's sole bank account and asset contained money less than that amount at the end of each month with the exception of January 2019 and May 2019. See, Mackovska Decls. The Court notes that it was reasonable for Plaintiff not to pay the fees in either of those two months as defendant Ameron Pole Products, LLC (“Defendant”) represented to Plaintiff...

Excerpt: ...t to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as she did if she had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) Further, fraud must be plead with particularity rather than with “general and conclusory” allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) Thi...

Excerpt: ...all be increased by five days if the place of address is within the State of California.... The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise ....' (§ 437c, subd. (a), italics added.) “The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261–1262. Here, the not...

Excerpt: ... or previously. MPs shall give notice. Demurrer Regarding De Facto Partnership (overruled) Plaintiff attempts to plead facts to support having a stake or ownership interest in the LLC entity, which holds (or held) the title to various real properties. (See, e.g., SAC ¶16-17, 21-3, 27, 29, 34, 64.) Documentary evidence and testimony will likely aid a trier of fact to reach any conclusion about the appropriate relations of the parties. At the pres...

Excerpt: ... and Mov. Ex. 11, p. 217-19, 214-15.) Regarding the asserted conversation with Dr. Kang, which happened perhaps in May of 2014, the attributed statements about the hospital being top notch, a good place, the best place, and having high standards (see Mov. Ex. 11 p. 206-207, 210-13, 214-15, 217; Opp. Ex. B, pp. 206-7, 252-53) are too general, vague, and nonspecific to form the basis of actionable fraud. (See Finch v. McKee (1936) 18 Cal.App.2d 90,...

Excerpt: ...hole Foods, “leading a team of 13,” and that he “Quit/Resigned” from that job. (McConnell Decl. ¶ 5 and Ex. 4.) In his application, he certified the truthfulness of the information provided and acknowledged that any material misrepresentation would be grounds for termination regardless of the time elapsed before discovery. (Id.) The information sought as to that former employment is relevant here to Costco's after-acquired evidence claim...

Excerpt: ...quest for summary judgment, or in the alternative summary adjudication, as to Ritual Yoga Arts, LLC (“RYA”) and Stephen Levine, named only in causes of action 1 and 2, respectively. A plaintiff seeking summary judgment must produce admissible evidence on each element of each cause of action sufficient to demonstrate that he or she is entitled to judgment. (C.C.P. § 437c(p)(1).) If plaintiff meets that initial burden, the burden shifts to def...

Excerpt: ... relief in its absence).) Here, plaintiff provides no separate statement. Second, the moving party should propose a sanction that is tailored to the denied discovery (see Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389). Such tailored sanctions would entail some discussion of the content of the individual discovery requests. Because the motion does not contain any discussion of the content of the discovery requests, the reque...

Excerpt: ...(d) only permits recovery of “actual time expended” rather than estimates of time to be expended. Plaintiff posits 27.4 hours actually expended, and then estimates another 7.0 hours on future efforts (reviewing opposition, writing reply, appearing at hearing). The registry of action does not show any reply brief, and counsel has so far made all appearances by telephone. Thus, the best this Court can do is permit one hour of time digesting the...

Excerpt: ...20 days leave to amend. 1st COA: Gross Negligence Per Se Plaintiffs' first cause of action bears the label “gross negligence per se” – which counsel now admits was overstated. Outside the realm of express assumption of the risk, gross negligence is not a recognized standalone cause of action. See Hass v. RhodyCo Productions (2018) 26 Cal.App.5 th 11, 32; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 541. Moreover, negligence per se creates an...

Excerpt: ...employee or any other person.” Under this section, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Thus, in California “sovereign immunity is the rule” and “governmental liability is limited to exceptions specifically set forth by statute.” (Id.) Under Gov't Code § 844.6(a), a public ent...

Excerpt: ...are not clearly stated and various agreements are referenced without specificity as to when the agreements were reached, the parties thereto, the material terms, and the manner in which they were created. The FAC then presents a list in ¶ 42 as the issues to be resolved, but without specifying the factual underpinning for each. COA 1 attempts to state a COA for conversion. A COA for conversion requires allegations of plaintiff's ownership or rig...

Excerpt: ...ef requested is thus moot as no writ may be issued on a sanction that has been paid. And the request for terminating sanctions fails on its face because a failure to timely pay discovery sanctions would not, in and of itself, be a sufficient basis to impose terminating sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never...

Excerpt: ...d, that TAM's motion was untimely and that TAM waived its motion by filing an unrelated motion to continue. Neither argument is availing. Initially, the TAM motion was timely filed. Per the Proof of Service, TAM was personally served on June 4, 2019. (See POS dated 06/10/19). Pursuant to C.C.P. §412.20(a)(3), TAM had 30-days therefrom to answer, resulting in a deadline of July 4, 2019. As July 4 th was a court holiday, this deadline was extended...

Excerpt: ...ied on by the defendant with a willful and conscious disregard of the...safety of others.” Civ. Code §3294(c)(1). The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) Plaintiff here pleads that Defendant was under the influence of three different narcotic medications which negatively affected h...

Excerpt: ...12. The trial court has broad discretion in selecting which discovery sanction to impose in the face of discovery abuses, but either way California readily adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4 th 1272, 1293. Only if lesser sanctions fail to curb misuse should a trial court consider something like a terminating sanction. Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516. A decision to or...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ...neral areas: the partnership concerning the recovery-business, the partnership concerning real-properties for the recovery business, and parties' relationship regarding Plaintiff's Greenleaf personal residence. The court finds that -- in pleading all the areas within the first 80 paragraphs of the complaint and incorporating all the allegations then into the individual causes of action (some of which have little do with others) – the individual...

Excerpt: ...rule, and (3) the lack of any duty owed by Defendants. The Sham Pleading Doctrine: Under the sham pleading doctrine, a plaintiff may not avoid a subsequent demurrer or summary judgment by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts that prove the pleaded facts false, without explanation. (Womack v. Lovell (2015) 237 Cal.App.4th 772, 787; McClain v. Octagon...

Excerpt: ...ture. The amount is explained in the Memorandum of Costs, and includes an IME, record review, and trial testimony. Defendant's showing is sufficient and the motion to tax costs is denied. The prevailing party in any civil action is entitled to recover costs as a matter of right. CCP §1032. To claim those costs, the prevailing party must file and serve a memorandum of costs within 15 days from the date the clerk (or any party) mails out notice of...

Excerpt: ... Khalil. On 3/13/19, defendants served their statutory designation of expert trial witnesses. Defendants did not designate any experts – medical or otherwise. Neither side designated any experts to opine upon the question of fault or forces involved in the accident itself. On 4/18/19, with trial less than two weeks away, plaintiff applied ex parte for permission to swap out one of his designated medical experts, Dr. Khalil, for another in the s...

Excerpt: ...p. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) In addition, the FAC remains uncertain. A demurrer for uncertainty lies where the defendant cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed a...

Excerpt: ...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. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. 1st COA: ...

Excerpt: ...5, 754). Per Robinson v. Grossman (1997) 57 Cal.App.4 th 634, a seller's agent does not owe “a duty to independently verify or disclaim the accuracy of the seller's representations…” (Id. at 643); however, “the sellers' agent is required…to act in good faith and not convey the seller's representations without a reasonable basis for believing them to be true.” (Id. [emphasis added]). Additionally, per Civil Code §1088, “[i]f an agen...

Excerpt: ...if such allegation is controverted, then plaintiff must establish, on the trial, the facts showing such performance. (CCP § 457). When a condition precedent imposed by the contract is an act to be performed by the plaintiff, the plaintiff may allege the performance in general terms. (4 Witkin, Cal. Proc. 5th Plead § 538 (2008).) Under these rules, it is not required that a plaintiff allege the specific facts showing his performance of the contr...

Excerpt: ...conditions.” Id. Here, Plaintiffs allegedly informally requested a second inspection of the subject property located at 2826 N. Dayna Street in Santa Ana, CA (the “Property”), but have refused or failed to provide a date for the inspection. As Defendant received a Notice to Abate Public Nuisance from the City of Santa Ana on 09/10/18, Defendant risks large fines by not remediating the issues with the Property while Plaintiffs fail to comple...

Excerpt: ... The allegations included within ¶7 are asserted on “information and belief.” Allegations made on “information and belief” are improper where a Complaint fails to allege “such information that lead[s] the [plaintiff] to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 551, fn. 5; See also Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792: “Plaintiff may allege on information and belief any...

Excerpt: ...ns should be denied and sanctions awarded to the Plaintiff. Based on all the moving papers, the court finds that Defendant's counsel did meet and confer sufficiently to permit these motions to go forward. The request for sanctions is denied. Plaintiff's objection to each motion and each accompanying separate statement based on untimeliness is overruled. As explained in Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 ...

Excerpt: ...ent. Nevertheless, the motion is substantively deficient. Courts have a duty of inquiry regarding the grounds for the motion and are not required to accept at face value vague, unsupported, or uncertain representations as to reasons why an attorney seeks to withdraw. Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134-1136. Counsel has a corresponding duty to respond and to describe the general nature of the issue, within the con...

Excerpt: ...udge Gooding, the judge assigned to the previously consolidated cases, found this case related to the previously consolidated cases and transferred this case to her department. That order has not been set aside or otherwise challenged as far as this Court knows. This Court is not empowered to revisit it. See Cal. Const. Art. VI, Sec. 4; in accord, Alvarez v. Superior Court (2010) 183 Cal.App.4 th 969, 982-983; In re Alberto (2002) 102 Cal.App.4th...

Excerpt: ...rom Tara Hill (owner of the premises where the interaction occurred). The third motion is another motion to quash by specially appearing defendant Albaro Parada, claiming he was not effectively served. This Court will take each in turn. Discovery Motions – Granted Defendant Chief Financial Services first seeks an order compelling a further response to Form Interrogatory number 4.1 regarding available insurance coverage for the incident. Co-defe...

Excerpt: ...make a determination that Plaintiff was discriminated against by Defendant or that Plaintiff was fired on the basis of her disability or inability to perform the duties required of her. The MSA seeks adjudication as to the Business Necessity affirmative defense. “Where the plaintiff is the moving party and the defendant relies upon an affirmative defense, it is incumbent upon a moving party plaintiff . . . to show that there is no material fact...

Excerpt: ... statements of law” is without merit. Interrogatories may properly ask about a party's contentions of fact or law, and the facts, witnesses, or writings on which these contentions are based. CCP §2030.010(b); Burke v. Superior Court (1969) 71 Cal.2 nd276, 281. Moreover, plaintiff included the statements of law in her complaint, although their inclusion was not authorized by CCP §425.10(a)(1) and (2). Having alleged these statements of law, pl...

Excerpt: ... requirements are similar to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause, and damages (Id.), as well as additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In a...

Excerpt: ...of limitations will not lie where the action may be, but is not necessarily, barred. It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4 th 32, 42; May v. City of Milpitas (2013) 217 Cal.App.4 th 1307, 1324. Plaintiff readily concedes that her complaint was filed outside the applicable two-...

Excerpt: ...0 (consuming alcohol while driving) and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (swerving in and out of lanes amongst pedestrians). They collectively stand for the proposition that merely driving while intoxicated is not enough to support punitive damages, but that driving in a way which enhances an appreciable risk to others may. Here, plaintiffs allege only that defendant was impaired, as if impairment makes exposure to punitive damage...

Excerpt: ...se individual and specific orders of the Panel which sought to provide further instructions to the Receiver or sought to provide the Receiver with additional powers. The court notes that the parties are free to file ex-parte or noticed motions with this court to seek the relief provided in any of the Panel's orders which are stricken as a result of this order. Authorities The court may, upon motion of the injured party, or its own motion, correct...

Excerpt: ...vided while these motions were pending, and the responses “are now substantially compliant.” What remains at issue is thus only the requests for sanctions. Under C.C.P. § 2033.280(c), it is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to RFAs necessitated the motion. Therefore, despite the apparent discourtesy in bringing these motions without first advising n...

Excerpt: ...he Third Amended Complaint. The demurrer is overruled and the motion to strike is denied. Pertinent Background On 09/03/14, plaintiff entered into a services and joint venture agreement with the Boy Scouts to provide rowing equipment and instruction to the public. In pertinent part: 1. Boy Scouts would register participants and collect fees; 2. Boy Scouts would take a cut, and give the net to plaintiff; 3. Plaintiff would furnish and store the re...

Excerpt: ...aims except for claims under Bus. & Prof. Code § 17200. Defendants have proven the existence of the arbitration agreements (“Agreements”) between them and the Signing Plaintiffs entered into in early 2018. Stokke Decl., Exs. A through F; Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 972, as modified (July 30, 1997). Plaintiffs have failed to show that the Agreements were either procedurally or substantively unconscionable, bo...

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

Excerpt: ...ons of the pleading are not evidence for this purpose. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110) It must be shown that it is appropriate to exercise personal jurisdiction over each defendant on an individual basis. (See Calder v. Jones (1984) 465 U.S. 783, 790) General Jurisdiction Only a limited set of affiliations with a forum will render a defendant a...

Excerpt: ...g any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. C.C.P. § 2017.010. “The court shall limit the scope of discovery if it determines that the . . . intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to th...

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

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

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

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

Excerpt: ...t be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the basis for the claims asserted is unclear. The parties are alleged to be co-owners of the three properties identified with a 75%/25% respective interest. (Complaint ¶¶ 6-8.) Plaintiff asserts that he should be found to have more than a 75% interest due to “his contributions” (¶ 8) and Mah...

Excerpt: ... the forum state to justify personal jurisdiction, but the plaintiff has the right to conduct jurisdictional discovery to help develop the facts necessary to sustain this burden. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) As Plaintiff here has requested a continuance for this purpose and may be able to discover facts to assist it in establishing jurisdiction, the requested continuance is granted to permit limited jurisdictional di...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...edings, up to and including trial. . ., this policy should be applied only “[w]here no prejudice is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123...

Excerpt: ...e 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. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank,...

Excerpt: ...process to try to informally resolve the matter, the moving party has, at times, thwarted these efforts by refusing to go beyond writing letters and discuss the matters personally. Clement v. Alegre (2009) 177 Cal. App. 4 th 1277, 1294. The suggestion by the moving party that nothing more was required was not well-taken. (See Townsend v. Superior Court (1998) 61 Cal.App.4 th 1431, 1438-39; see Moving Exhibit E; Civ. Pro. Before Trial § 8:1163, 8...

Excerpt: ...umas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) Plaintiff thus appears to have abandoned his claims here. The demurrer also has merit. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendan...

Excerpt: ...every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.” In re Joseph F. (2000) 85 Cal. App. 4th 975, 986. However, “[t]his is not to say . . . that persons have unfettered free access to all public places. Indeed, where the nature of a public place or other circumstance so justifies, citizens regularly are subjected to intrusions not approp...

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

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

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

Excerpt: ...that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP section 2024.050(b) provides, “[i]n exercising its discretion to grant or deny this motion, the court shall take i...