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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...If met, the burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406. “Any doubt on the issue must be resolved in favor of arbitration.” Id. Here, Ex. A to the Declaration of Erick J. Becker is the signed Arbitration Agreement. Plaintiff does not dispute the existence of t...

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

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

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

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

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

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

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

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

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

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