Excerpt: ...cised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “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 mer...

Excerpt: ...2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties]; see Cal. Rules of Court, Rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record witho...

Excerpt: ...Defendants' evidentiary objections to the Rainboldt Declaration (Nos. 2, 3, 4, 5, 10, and 11) and the Arias Declaration (Nos. 7 and 11) are sustained. Defendants' remaining objections are overruled. Judicial Notice Plaintiffs request for judicial notice of the file in the case of Dickenson v. C&B Towing, Orange County Superior Court case no. 2010-00372510 is denied. Plaintiffs did not identify any particular document in the of the court file they...

Excerpt: ...fs' oppositions were filed and served late, without explanation. However, it is within the Court's discretion to consider late filed opposition. (Cal. Rules of Court, rule 3.1300(d).) Accordingly, the Court will consider Plaintiffs' oppositions. Plaintiffs are admonished in the future late filings may not be considered. Analysis A party to whom a complaint has been brought may demurrer on the grounds that "[t]he pleading does not state facts suff...

Excerpt: ... apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general." (Code Civ. Proc., § 2030.300(a).) “The statute does not require any showing of good cause for the serving and filing of interrogatories. Thus, th...

Excerpt: ...Plaintiff intends to proceed against Orange Coast at the hearing. The parties did not comply with California Rules of Court, Rule 3.1113(d). The Court reminds the parties that "[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper." (Cal. Rules of Court, Rule 3.1113(g).) Lastly, FCA submitted a declaration in support of its reply. “The general rule of motion practice…i...

Excerpt: ...r answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." ." (Code Civ. Proc., § 430.30(a).) The role of a demurrer is “to test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.) In ruling on the demurrer, the court “treats the demurr...

Excerpt: ...emurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the compl...

Excerpt: ...HOA's CC&Rs and for Defendant's alleged harassment of Plaintiffs. Defendant brings a special motion to strike Plaintiffs' third cause of action intentional infliction of emotional distress (“IIED”) claim. Defendant contends that his statements that are the basis for Plaintiffs' IIED claim were “made in connection with issues of public interest in a public forum,” and, as such, are subject to the protections of CCP section 425.16 (the “A...

Excerpt: ...g relevant to the issues in this case. Objections Plaintiff's objection to Defendants' separate statement in support of the motion for summary judgment/adjudication is OVERRULED. The Court DECLINES to rule on Plaintiff 's remaining objections. The evidence objected to is not material to the Court's disposition of this motion. (Code Civ. Proc. §437c(q).) ANALYSIS Defendants' Notice “Defendants believes that many issues appear in this action tha...

Excerpt: ...y, upon like terms, enlarge the time for answer or demurrer. The court may likewise, 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; and may upon like terms allow an answer to be made after the time limited by this code." (Code Civ. Proc. § 473(a)(1).) "Additionally, any judge, at any time before or after commencement of trial, in the fur...

Excerpt: ...stake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, 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; and may upon like terms allow an answer to be made after the time limited by this code." (Code Civ. Proc. § 473(a)(1).) "Additionally, any judge, at any time before or after...

Excerpt: ...sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been...

Excerpt: ...ing on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berry...

Excerpt: ...”) to serve further responses to form interrogatory numbers 14.1, 17.1, 50.4, 50.5, and 50.6, special interrogatory numbers 5, 6, and 14-19, and requests for admission numbers 3, 4, and 6. Plaintiff also seeks monetary sanctions in the amount of $850 for each motion against the respective defendant Plaintiff's Motions To Compel are GRANTED in part and DENIED in part as follows: Background Plaintiff alleges on or about 11/8/2019, Plaintiff and B...

Excerpt: ...y extension to respond as they had a motion to be relieved as counsel filed and set to be heard in late January 2021. The extension was granted. Counsel was relieved and no responses were served. In early March 2021, Defendant's counsel wrote to Plaintiffs reminding them of their obligation to respond. No responses were received, Defendant filed the pending motions on 03/25/2021. On 04/21/21, Plaintiffs retained new counsel who contacted Defendan...

Excerpt: ...cked and called “limpy,” or “gimpy.” He further alleges other discriminatory comments were made about his age, mobility, and fitness to work. (FAC, ¶23). Plaintiff alleges that in 2019 and 2020, he observed under age employees of Defendants serving alcohol to customers. Plaintiff states he told the underage workers to stop serving alcohol. Plaintiff also claims he reported the problem to his supervisors, but that Defendants continued to ...

Excerpt: ...ake judicial notice of wage history information from the website for the State of California Department of Industrial Relations. However, the printout described is not attached to their request. In any event, even as to matters which are appropriate for judicial notice, the court may not take judicial notice of the truth of the matters stated within. Analysis In ruling on the sufficiency of a complaint against a general demurrer, the court must "...

Excerpt: ...ubmitted a declaration in support of Defendant's reply. “The general rule of motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...' and if permitted, the other party should be given the opportunity to respond.” ( Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Defendant's newly submitted evidence...

Excerpt: ...iency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations." (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Because a demurrer tests only the sufficiency of the complaint, "a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial n...

Excerpt: ...vision, and Retention) Causes of Action Plaintiff's Complaint is OVERRULED. Background Plaintiff sues Defendants for wrongful termination. Plaintiff's Complaint asserts the following five Causes of Action: 1. First Cause of Action for Sexual Harassment and Retaliation in Violation of Government Code §12940(j); 2. Second Cause of Action for Negligent Hiring, Supervision, and Retention; 3. Third Cause of Action for Wrongful discharge; 4. Fourth Ca...

Excerpt: ... Discrimination in Violation of Gov. Code § 12940 et seq. 3. Age Discrimination in Violation of Gov. Code § 12940 et seq. 4. Failure to Accommodate in Violation of Gov. Code § 12940(m) 5. Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n) 6. Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k) 7. Retaliation in Violation of Gov. Code §12940(h) 8. Wrongful Termination 9. Violation of Business & Pr...

Excerpt: ...that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Non-intentional torts may form the basis for punitive damages when the conduct constitute...

Excerpt: ...ions.”). Plaintiff moves for an order “reconsidering the orders of the Honorable Thomas Delaney of 11/19/2020 denying continuance.” (Not. of Mot. at 1.) Although the authority for the motion is not cited in the notice, Plaintiff cites to CCP section 1008(a) in the Points and Authorities. (Mot. at 4.) Under section 1008(a), when an application for an order has been “refused in whole or in part,” a party seeking reconsideration can make a...

Excerpt: ...d. In 2018, Plaintiff retained Defendant to represent her as a plaintiff in a lawsuit against Michael Goguen. In connection with her retention of Defendant, Baptiste and Defendant entered into a written Attorney-Client Fee Agreement. The Fee Agreement provided Defendant would be paid on a contingency basis. Baptiste made the $525,000 deposit required by the Fee Agreement, and Defendant began its representation of Baptiste in 2018. Plaintiff alleg...

Excerpt: ...53,130.00 for a good faith deposit. The lease was contingent upon Plaintiff's receipt of a conditional use permit. Plaintiff did not obtain a conditional use permit and requested the refundable prepaid fees, but Defendant refused to return it. On 08/17/2020, Plaintiff filed a Complaint against Defendant for: 1) Breach of written contract; 2) Breach of written contract for failure to return security deposit; 3) Common count; and 4) Violation of Ci...

Excerpt: ...ative complaint). (Register of Actions/Docket (“ROA”) No. 140.) On November 21, 2019, Plaintiffs filed a Motion for Leave to Amend their TAC. (ROA No. 227.) Plaintiffs sought to add Western States Cabinets, an unknown entity, and Peter Godden as defendants, as well as add additional causes of actions against Defendants Tyler and David Kokx. (Id.) On January 10, 2020, the Court denied Plaintiffs' Motion for Leave to Amend. (ROA No. 261.) On Ja...

Excerpt: ...ories and 27 inspection demands; Plaintiff Higueron propounded 56 special interrogatories and 27 inspection demands. (Id.) On 08/07/2020, Plaintiffs requested responses without objections be served. (Bosse Decl. ¶ 9.) No responses were received as of the date of filing. (Id.) In late 09/2020, Defendant Gallardo retained new counsel. New counsel immediately met and conferred with Plaintiffs regarding outstanding discovery, and on 10/12/2020, Defe...

Excerpt: ...A”) on May 16, 2016. (See Cassidy Decl., ¶¶ 2-8, Exh. A.) Plaintiff does not dispute that he entered into the IRA and affirms that he did sign the IRA as a pre-condition to his employment with Defendants. (See De Leon Decl., ¶¶ 2-8, Exh. A.) The Court, however, finds that Plaintiff met his burden of establishing the IRA is both procedurally and substantively unconscionable and that the unconscionable provisions cannot be served from the IRA...

Excerpt: ...s, Inc. (2007) 149 Cal.App.4th 402, 412, 57 Cal.Rptr.3d 156; Oakland Raiders v. National Football League, supra, 131 Cal.App.4th at pp. 652–652, 32 Cal.Rptr.3d 266 [applying sham pleading doctrine to request for leave to amend in summary judgment context].) Here, the Court does not perceive the Second Amended Complaint (“SAC”) to have omitted harmful allegations asserted in the First Amended Complaint (“FAC”), nor does the Court perceiv...

Excerpt: ..., unduly burdensome, oppressive, and harassing and precluded under C.C.P. section 2017.010, 2018.010, and 2025.420(b) by seeking information protected by the attorney-client and work product privileges. Initially, the Court finds that Defendant failed to establish a protective order is warranted based on undue burden, oppression, or harassment. “Oppression must not be equated with burden. The objection based upon burden must be sustained by evi...

Excerpt: ...xception based on fraudulent concealment. (Id. at 993). Unlike Robinson, where the provision of “false certificates of conformance” was readily found to be “independent” from the “contract loss” of “nonconforming clutches,” the alleged failure of Defendant to disclose the alleged engine defect completely overlaps what is sought by a contract/warranty remedy. Additionally, leave to amend is DENIED, as Plaintiff has not indicated an...

Excerpt: ...aint Frames the issues A summary judgment motion must show that the “material facts” are undisputed (CCP § 437c(b)(1)). The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. [Laabs v. City of Victorville (2008) 163 CA4th 1242, 1258]. Here, although the Notice of Motion to indicate upon which pleading MPS seek summary judgm...

Excerpt: ...oss-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” Where a defendant does not file a cross-complaint at the same time as the answer to the complaint, the defendant shall obtain leave of court. (Code Civ. Proc. § 428.50(a)-(c).) ...

Excerpt: ...uses of action against LASC and QME: (1) medical malpractice, and (2) loss of consortium. The motion, however, focuses solely on the medical malpractice claim, as a spouse's loss of consortium claim rises or falls with the other spouse's medical malpractice claim. (See Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256.) The elements of a medical negligence cause of action are: 1. duty of professional to use such skill, prudence...

Excerpt: ... Cal.4th 245, 255.) The court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a Fifth Amendment privilege. (Pacers, Inc. v. Sup.Ct. (Needham) (1984) 162 Cal.App.3d 686, 689—depositions postponed for one year, at which time criminal prosecution would be barred.) However, Defendant has no right to a blanket stay on F...

Excerpt: ... [disapproved on other grounds, Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919].) The Court also take judicial notice of the fact that IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision, which appointed the Federal Deposit Insurance Corporation as receiver for IndyMac on July 11, 2008. (Ev C § 452(c) and (h).) Preliminary Injunction. For an injunction to issue, the moving party must establish a likelihood of prevailin...