Excerpt: ...ENIES the motion as to Pogue's Special Rogs in its entirety. The Court DENIES the motions as to the Corporate Entity Defendants' Special Rogs, Nos. 6-17, 126, 129-130, 132-136 and 162-202. The Court GRANTS the motions as to the Corporate Entity Defendants' Special Rogs, Nos. 21-65 and 67-125. The Court DENIES both parties' requests for sanctions. A. Jurisdiction A party moving to compel further discovery responses must file and serve the motion �...

Excerpt: ...ived. James did not move for relief from that waiver under C.C.P. § 2033.280. All of the objections in the RFAs at issue here are thus improper. The Opposition incorrectly asserts that this is effectively a motion for reconsideration in light of the Court's prior refusal to deem these RFAs admitted in its 12/20/21 ruling. But, on the prior motion, the tardy responses were viewed as a whole to determine whether they were in “substantial complia...

Excerpt: ...uashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. Plaintiff argues that the materials at issue are irrelevant and improperly seek to invade his financial privacy rights. Where privacy rights are at issue in discovery, the party asserting the privacy right must establish a legally protected privacy interest, an objectively reasonable ...

Excerpt: ...with these motions demonstrate that Plaintiff's counsel still has not fully complied with C.C.P. § 1010.6(e), which provides that any party who has appeared in this action “shall accept electronic service” and shall, upon the request of any other party, provide electronic service, for any “notice or document that may be served by mail, express mail, overnight delivery or facsimile transmission.” This conduct has continued even though thi...

Excerpt: ...lement & Mutual Release Agreement, Ex. 1 to Cross-Complaint, page 4, section 7 stating that San Bernardino County Superior Court shall retain jurisdiction over enforcement of the Agreement 4. The Settlement and Mutual Release Agreement, Ex.2 to the FACC wherein Judge Bryan F. Foster of the San Bernardino Superior Court has already retained jurisdiction and made a ruling regarding the Settlement Agreement. II. Merits Cross-defendants assert that t...

Excerpt: ...a)(1), “[t]he court may… in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars…” “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of...

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

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

Excerpt: ...'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: ... 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: ...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: ...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...