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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...