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

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

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

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

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

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

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

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

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

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

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

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

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