Excerpt: ... authority which support that incorrect information in a caption to a Memorandum of Costs warrants striking the entire Memorandum of Costs. When legal argument with citation to authority is not furnished on a particular point, the court may treat the point as forfeited and move on without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1.) Tentative Ruling: The Court DENIES the motion to the extent it seeks to ...

Excerpt: ... untimely. A demurrer must be filed “within 30 days after service of the complaint.” (Code Civ. Proc., § 430.40, subd. (a).) The “demurring party shall be granted an automatic 30 -day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining...

Excerpt: ...nia 92651 (the “Property”) and (2) awarding Defendants their reasonable attorney's fees in the amount of $5,692.50 incurred in preparation, filing, attendance and argument on this Motion. In this instance, there is no dispute that the case involves a real property claim . In this transaction for the purchase of real property in Laguna Beach, several offers and counteroffers went back and forth. However, the gist of the agreement was that the...

Excerpt: ...Legislature enacted sec tion 1102.5 in 1984 to provide whistleblowers with protection from employer retaliation. [Citation.]” (People ex rel. Garcia -Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 722.) Section 1102.5(b) “ ‘reflects the broad public policy in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.' [Citations.]” (Id. at p. 723.) “Section 1102.5 provides whistleblower protections to emp...

Excerpt: ... or regula tion per Labor Code section 1102.5(c). Defendants Hancock Jaffe Laboratories, Inc. (“HJL”) and Robert Berman (“Berman” and, collectively, “Defendants”) separately move the Court to interpret material provisions of Plaintiff's Employment Agreement and for t he following findings: A. Section 6(d) of the Agreement Required Plaintiff to Provide Written Notice of Specific Circumstances Constituting “Good Reason”, Allow 30 ...

Excerpt: ...business in California, nor ever had any offices in California, it has no employees in California, it has no customers outside of Florida, and it does not advertise outside of Florida. Defendant's request for judicial notice as to Exhibit B (Plaintiff's Complaint) is GRANTED. (Evid. Code, § 452(d).) The request as to Exhibit C i s DENIED, as the material is not relevant to a resolution of the issues raised in this Motion. (State Compensation Ins...

Excerpt: ...an be raised at any time (even for the first time on appeal). It can be raised: — by demurrer to the complain t where the defect appears on the face of the complaint or from matters judicially noticeable (CCP § 430.10(a)); — by motion to strike (CCP §§ 435, 437); — by motion for judgment on the pleadings (CCP § 438); — by motion for summary judgment (CCP § 437c); or — as an affirmative defense in the answer. [Greener v. Workers...

Excerpt: ... be awarded reasonable attorney's fees and costs.” “This language has been interpret ed to allow recovery of not only litigation costs, but also reasonable attorney fees and costs expended in prelitigation alternative dispute resolution (ADR) pursuant to the Davis -Stirling Act. [Citation.]” (Rancho Mirage Country Club Homeowners Assn. v. H azelbaker (2016) 2 Cal.App.5th 252, 258.) A homeowner association's complaint seeking relief in the f...

Excerpt: ...cts sufficient to constitute a cause of action and uncertainty. Initially, the op posing points and authorities is over the 15- page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21 -23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discriminati on in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show that...

Excerpt: ...ly noticed. ( Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796 [117 Cal.Rptr. 305, 527 P.2d 1153]; Code Civ. Proc., §§ 430.30, 430.70.) “Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” ( Iram Enterprises v. Veditz (1981) 12 6 Cal.App.3d 603, 608 [179 Cal.Rptr. 1].) Taking judicial notice of a document is not the same as accepting the truth of its co...

Excerpt: ...et seq., (6) quiet title, and (7) injunctive relief. I. All filings were untimely. As an initial matter, the Demurrer, Opposition, and Reply were all untimely. First, the First Amended Complaint was served by email on November 8, 2022. Thus, the declaration for the automatic 30 -day extension was due December 8, 2022. Defendant did not file its declaration for an extension until a month later on January 8, 2023. This was untimely. Since the dea...

Excerpt: ...in aid of her claims for medical battery, assault and medical malpractice. Plaintiff has already been given an opportunity to amend, and she has not explained how further opportunity to amend could cure the deficiencies. Thus, no leave to amend is warranted with respect to these non-cognizable theories of relief. Additionally, Plaintiff's claim for negligence, without leave to amend, because it wholly overlaps with her claim for medical malpracti...

Excerpt: ...'s "purchase or condition of this vehicle" or "any resulting transacton or relationship (including any such relationship with third parties who do not sign this contract)". (RISC, Exhibit 2 to Ameripour Decl., page 6.) But this is taken out of context. In the RISC, it says that the arbitration agreement is between Plaintiff and "us" identified as the Seller-creditor. The RISC further says that any dispute with the Seller even if that arise out of...

Excerpt: ...opposition. After several rounds of meeting and conferring and supplemental responses, Defendant's final response to SRFP no. 2 is assertion of the attorney-client privilege and attorney work product protection, along with the statement that such document are not discoverable if intended to be used solely for impeachment. [ld.; id. Exs. 8-1.] Defendant also later produced a privilege log in response to other discovery with related requests. The l...

Excerpt: ...f action for fraud-fraudulent inducement- concealment is governed by the 3-year statute of limitations in CCP section 338, subdivision (d). "In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred." (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Plainti...

Excerpt: ...e Hills Drive, Laguna Beach, California 92651 ("Subject Property"). As an initial matter, the Court notes Plaintiffs attempted to file a notice of stay on 11/17/2023, which was rejected by the Filing Clerk. Banesto noted the bankruptcy in their opposition and provided a copy of the chapter 13 petition. (Betpera Decl., '1 7, Exhibit 2.) On 11/17/2023, Banesto served and filed an objection to Plaintiffs' notice of stay. (ROA No. 54.) the filing of ...

Excerpt: ...aintiff") and his counsel, at the deposition noticed by Cross-Defendant. Plaintiff has already noticed, and taken, Mr. Castro's deposition. (Knaack Decl. at 7, 9, Exh. C.) Plaintiff is barred from taking a subsequent deposition of Mr. Castro, because Plaintiff has not shown that an exception to the "one deposition" rule applies. (Code Civ. Proc., S 2025.610.) Because Plaintiff's notice of taking a subsequent deposition of Mr. Castro violates CCP ...

Excerpt: ... 1145 (quoting Code Civ. Proc„ S 128, subd. (a)(5)). "[D]isqualificaton motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility." ld. "The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations t...

Excerpt: ...e to Request for Production of Documents, Set Two. Plaintiffs' request for the Court to take judicial notice of an opinion issued in Michaels v. Pentair Water Pool and Spa, Inc. pursuant to Evidence Code section 452, subdivisions (a) and (h) is DENIED. Plaintiffs did not show the opinion is relevant to making a determination on this motion. (Bell v. Greg Agee Construction, Inc. (2CN) 125 Cal.App.4th 453, 459, fn. 2.) Because Defendant did not sho...

Excerpt: ...ied responses, and has not served verified responses as of the date the motion was filed. Defendant also seeks monetary sanctions in the amount of $469.50 for each motion. At the 9/25/2023 hearing, the Court noted Defendant attached copies of Plaintiff's responses to form interrogatories instead of copies of Plaintiff's responses to the discovery at issue. On 10/2/2023, Defendant filed amended declarations showing Plaintiff served unverified resp...

Excerpt: ...question." (ld. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., S 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings...

Excerpt: ...f statutory liability must be pleaded with particularity, including the existence ofa statutory duty." (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) "A public entity is not liable for any injury caused by the act or omission of the public entity or a public employee unless such liability is imposed by statute (Govt. Code S 815, subd. (a)), and liability imposed upon a public entity by statute is subject to statutory imm...

Excerpt: ...ntiff dismissed her second cause of action for elder abuse. [ROA #84.] Defendants make two arguments against Plaintiff's constructive fraud cause of acton. First, she does not sufficiently allege the elements of constructive fraud. Second, because Plaintiff's claim is really one for medical malpractice in their treatment of Plaintiff's decedent for COVID-19, her claim is barred under the federal Public Readiness and Emergency Preparedness Act, 42...

Excerpt: ... actions forced Plaintiffs to incur unnecessary attorney's fees that could have been entirely avoided. Referee David M. Goodrich (“Referee”) moves for an order approving the Referee's Final Report, approving the fees and costs of the Referee, authorizing the Referee to distribute funds, authorizing the Referee to execute any and all documents necessary to close all bank accounts and issue 1099s, relieving the Referee of any further duties and...

Excerpt: ...060 states: “If the defendant desires to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall file and serve upon the plaintiff no later than five court days prior to the date set for the hearing a notice of opposition. The notice shall state the grounds on which the defendant opposes the issuance of the order or objects to the amount sought to ...

Excerpt: ...Civil Procedure section 425.16(c)(1) as the prevailing party under the anti-SLAPP statute. MCWE requests an award of $53,494 against Cross-Complainants, inclusive of fees for the anti-SLAPP motion ($41,339), and the instant fee motion ($12,155). Code of Civil Procedure section 425.16(c)(1) provides that a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney's fees and costs.” “[U]nder Code o...

Excerpt: ...ntoya, asserts a cause of action for loss of consortium. First Cause of Action for Medical Negligence The elements of a professional negligence cause of action are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resu...

Excerpt: ...and for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must set forth specific facts showing good cause to justify the discovery sought and be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues present...

Excerpt: ...n, Set One, and Requests for Admission, Set One. Plaintiff/Cross-Defendant Grant Robicheaux filed one motion to compel Defendant/Cross- Complainant Kasra Rowshan, M.D. to provide further responses to Request for Production, Set One. “[W]hen both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter...

Excerpt: ...ly, “Plaintiffs”) on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous, and unintelligible. The HOA, Muirhead, and Vazquez also move to strike Plaintiffs' prayer for punitive damages and attorney fees. As an initial matter, the Court notes that the meet and confer requirement has not been satisfied. Defendants' counsel attempted to reach Plaintiffs' counsel but was unsuc...

Excerpt: ...ranted in part and denied in part as stated below. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. See Williams v. Superior Court (2017) 3 Cal.5th 531, ...

Excerpt: ...ing a transaction involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) It is undisputed that the FAA applies here. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the resp...

Excerpt: ...tion caused his fall, Chevron did not have notice of the condition. “It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205). “In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and...

Excerpt: ...aintiff did not suffer a materially adverse employment action, Plaintiff's complaints were not a contributing factor to any adverse employment action, and all of the Regents' actions were undertaken for independent, legitimate business reasons; and (2) Second Cause of Action for Intentional Infliction of Emotional Distress as the Regents did not intend to cause Plaintiff emotional distress and the Regents' conduct was neither extreme nor outrageo...

Excerpt: ...e 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 furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order....

Excerpt: ...tic for several reasons. First, Plaintiff's declaration does not suffice as competent evidence as it was not signed under penalty of perjury. [See CCP § 2015.5.] Second, even assuming Plaintiff did serve responses prior to the hearing, the Court was still entitled to grant the motion if the responses did not substantially comply. [CCP§2033.280]. Plaintiff has not argued or established that the responses substantially complied. Indeed, the respo...

Excerpt: ...to file a declaration no later than nine (9) court days before the continued to hearing date describing the meet and confer efforts, and the status of the issues, clearly stating what issues remain for the Court to resolve, or if all issues have resolved, providing that the demurrer is being taken off calendar. (ROA 158.) Defendant Gulaya, was also ordered to give notice. (Ibid.) It does not appear that Defendant Gulaya gave notice. However, it a...

Excerpt: ...lastic surgery Plaintiff received from Dr. Sadati at the Gallery of Cosmetic Surgery Professional Corporation. Plaintiff's operative Second Amended Complaint contains one remaining cause of action for professional negligence. Legal Authority: “Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Hanson v. ...

Excerpt: ...and one to compel a third party, Sylvia Wetzel, to comply with a subpoena. This ruling will encompass both matters. Motion to Compel as to Kimberly Wetzel There is no opposition brought on behalf of Kimberly Wetzel. However, Sylvia Wetzel has filed an opposition, based in part, on privacy. “The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one's confidential financia...

Excerpt: ...liance with the demand is incomplete, a representation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) As an initial matter, Defendant argues this Motion should be denied or held in abeyance while its Motion to Compel Arbitration is pending. However, as Plaintiff points out, a separate motion to stay is required; an action will not be stayed automatically upon the filing of...

Excerpt: ...unsel. A motion to strike pursuant to sections 435 and 436 is subject to the deadlines stated therein. Specifically, a motion to strike may be served and filed “within the time allowed to respond to a pleading.” (Code Civ. Proc., § 435, subd. (b)(1).) This rule is reiterated in California Rules of Court, rule 3.1322, which states: “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed,...

Excerpt: ...Code, § 3294(a).) The statute defines “malice” to mean conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294(c)(1).) The statute defines “oppression” to mean despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person...

Excerpt: ...present evidence that four attorneys billed time on this matter: Brian J. Bickel at a rate of $665 per hour; Jordan K. Sannipoli at a rate of $585 per hour in 2022 and $565 per hour in 2021; Sharona Silver at a rate of $475 per hour in 2022 and $425 per hour in 2021; and John P. Myers at a rate of $515 per hour in 2022 and $475 per hour in 2021. (Myers Decl., ¶ 48.) Plaintiffs have presented sufficient evidence that the hourly rates charged by t...

Excerpt: ...have failed to comply with the notice requirements set forth in California Rules of Court, rule 3.1382. A notice of motion for good faith settlement determination “must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.” (California Rules of Court, rule 3.1382.) Further, Defendant, High End Development (HED) makes an alternative request for a continuance to all...

Excerpt: ...; and (5) slander of title. 1st cause of action for cancellation of instrument. THOMPSON contends the limitations period for cancellation of instrument is either three or four years pursuant to Code of Civil Procedure sections 343 or 338(d). In Opposition, Cross- Complainants contend it is governed by the 5-year limitation set forth in Civil Code section 3412 and cites to Robertson v. Superior Court (2001) 90 Cal.App.4th 1319 as legal authority. ...

Excerpt: ...SA, LLC's locations for 15.5 cents per square foot, cleaned daily in sections, such that the entire facility was cleaned weekly”; that starting on or about June 1, 2020, Plaintiff started to clean four locations identified in paragraph 10 by street address and square footage; that by August 6, 2020, Plaintiff started to clean nine more locations identified in paragraph 11 by street address and square footage; that Plaintiff gave Defendants cons...

Excerpt: ...r of California and Naji Khatib (the “State Bar Defendants”) move for an order sustaining the demurrer to the First through Eleventh Causes of Action of the First Amended Complaint filed by Plaintiff, David Elias (“Plaintiff”). Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion o...

Excerpt: ...provision now used by MBUSA is unconscionable such that the order compelling arbitration must be set aside and the stay lifted so the case can proceed in state court; that the Court should find that JAMS may conduct the arbitration as the arbitration organization selected by Plaintiffs; and that a JAMS arbitrator should make the determination as to whether JAMS can arbitrate this matter. On August 9, 2021, the hearing on Moving Defendants' Motion...

Excerpt: ...t 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. (Code Civ. Proc. § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) The motion shall be supported by affidavits, declarations, admission, answer...

Excerpt: ...ork for what was then called the 24 Hour Fitness project located at 6140 Laurel Canyon Blvd, Ste 170, North Hollywood for the sum of $91,850.00. Plaintiff was the general contractor for the project and Defendant Gard was one of many subcontractors. Gard commenced its work. FAC¶6. However, soon thereafter COVID hit, resulting in the closing of gyms. 24 Hour Fitness filed for Bankruptcy (BK) and work on the project ceased. Id. 5/12/2020, GARD reco...

Excerpt: ... (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.' [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534-535, em...

Excerpt: ...80) 111 Cal.App.3d 82, 88–89.) “In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896.) “One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he ther...

Excerpt: ...inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310(b)(2).) On June 29, 2022, Plaintiff sent a meet and confer letting requesting further response...

Excerpt: ...ix months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was n...

Excerpt: ...” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495, review denied (Nov. 24, 2020).) “However, there are several exceptions that allow a nonsignatory to invoke an agreement to arbitrate.” (Ibid.; citing JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237].) “The doctrine of equitable estoppel is one of the exceptions.” (Ibid.) “Under the doctrine of equitable estoppel, as applied in both federal and Califor...

Excerpt: ...ontract he (“Contract”) and the Contract contains an arbitration provision in paragraph 22B thereof which covers the claims asserted against him. (See Smith Decl., ¶ 2, Exh. 1, at paragraph 22B.) Although the Contract states it is entered into Plaintiff KYLE as “Buyer” and Defendant PEPIN as “Seller” and is executed by Plaintiff Maloney as KYLE's Manager, the Verified First Amended Complaint (“FAC”) alleges that Plaintiff MALONEY...

Excerpt: ...will not be substantially prejudiced in maintaining that party's action or defense on the merits. (c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery ...

Excerpt: ...th alternative and peremptory writs, an application for an alternative writ, a memorandum in support of the application, declaration of counsel re ex parte notice, and a proposed alternative writ with blanks for the date and time of the OSC hearing. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 18:110.) Normally, the memorandum filed with the application for alternative writ will be the memora...

Excerpt: ...alice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (CC § 3294(c)(2).) “Fraud” is defined as an...

Excerpt: ...es/curriculum vitaes. The pertinent time frame is from the start of their employment through the reduction-in-force in November of 2019. Defendant objected on the grounds the Requests seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; is overly broad and unduly burdensome in scope; and seeks confidential information protected by privacy rights of its non-party employees. The crux o...

Excerpt: ...st her fail to state sufficient facts. The HOA contends that the Trespass and Breach of Contract causes of action against it also fail to state sufficient facts. Hyland also moves to strike Plaintiff's claim for punitive damages and the HOA moves to strike Plaintiff's claim for costs of repair and attorneys' fees in connection with her trespass claims. As an initial matter, the Court notes that Hyland failed to properly meet and confer prior to f...

Excerpt: ...the red traffic signal, a vehicle driven by Defendant Justin Mayall Installations, Inc.'s employee, Defendant Romualdo Lobatopozos [sic], rear-ended Plaintiff. As a result of the collision, Plaintiff suffered severe personal injuries requiring medical treatment. It is further undisputed that Mayall is being sued under the theory of respondeat superior. “Under the doctrine of respondeat superior, an employer is liable for the torts of his employ...

Excerpt: ...ery at this time. It appears that the photographs constitute expert writings that were developed as a result of the initiative of counsel in preparing for trial. Shimano's counsel testified that in January 2020 he attended an inspection of the subject bicycle along with Shimano's retained expert consultant at the offices of Plaintiff's counsel, Sutton & Murphy. (ROA # 99, Declaration of Michael R. Mauge (“Mauge Decl.”), ¶ 2.) RNR representat...

Excerpt: ...rsal (“Terra”), Plaintiff's employer subsequent to Defendants, and seeks documents reflecting Terra's hiring of Plaintiff, any request for accommodations made by Plaintiff, any notice of disability provided by Plaintiff, any accommodation provided by Terra to Plaintiff, and Plaintiff's earnings during his employment with Terra. (Id., Ex. 3.) Pursuant to Code of Civil Procedure section 1987.1(a), “[i]f a subpoena requires the attendance of a...

Excerpt: ...ion, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including pro...

Excerpt: ...ny scope as to time or the Hyundai Sonata model for which the documents are sought. 2. Request No. 31 Request No. 31 states: “All communications between Hyundai executives and various employees about the manufacturing defect of the subject vehicle's engine.” Plaintiffs claim these communications establish the fraud alleged in Plaintiffs' complaint. Plaintiffs provided the names of 36 executives who they suspect were involved in the communicat...

Excerpt: ...App.4th 1, 15.) Defendant has failed to meet this burden. First, contrary to Defendant's contentions, Plaintiff did not expressly agree to arbitrate her claims against Defendant HYUNDAI. The arbitration agreement explicitly requires only that the Plaintiff and the signatory-seller to resolve “any dispute between us”—i.e., any disputes between plaintiffs and the nonparty seller (including the seller's employees, agents, assigns)—by binding...

Excerpt: ... B thereto). Moreover, there appears to be no dispute that all moving Defendants are entitled to enforce the Agreement. Per the Acknowledgement, the term “Company” is defined as “Lennar Corporation and all of its subsidiaries affiliate companies.” (¶6 and ¶9 of Barnes Declaration, as well as Exhibit D thereto; See also ¶3 of Cruz Declaration and Exhibit B thereto). Additionally, per the Acknowledgement, the ADR Policy includes claims a...

Excerpt: ...thority to rule on motions to compel other than to deny them. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Here, Plaintiffs assert that the motion is timely because “Defendant's counsel granted Plaintiffs a four (4) week extension to file the present motion in exchange for a reciprocal extension to allow the parties to continue their meet and confer efforts. [Citation.]” (Motion, 5:12-14; (Declaration of Assal Assassi (“Assa...

Excerpt: ...t (1987) 192 Cal.App.3d 1251, 1261-62 [““If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. [Cit...

Excerpt: ...for another case, Louis Nava v. Related Management Company, L.P., Case no. 30-2019-01096579. In addition, Plaintiff's Opposition does not include a copy of Plaintiff's 998 Offer that Defendant accepted. As such, on the initial hearing date of May 2, 2022, the Court continued the hearing to July 11, 2022 and ordered Defendant to file and serve a supplemental declaration including a copy of Plaintiff's 998 Offer no later than nine court days before...

Excerpt: ...ithin the time allowed for that party to amend the initial pleading. The defendant or cross- defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party's time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for r...

Excerpt: ...al notice of Exhibit D pursuant to Evidence Code section 452(c) and (h). The Court grants Plaintiffs' request for judicial notice of Exhibit 6 in support of the Reply pursuant to Evidence Code section 452(c) and (h). Motion: Plaintiffs seek an order for judgment on the pleadings in their favor on CHILANG 1279 Association's (“CHILANG 1279”) Cross-Complaint on the grounds CHILANG 1279's status as a California corporation has been suspended. Alt...

Excerpt: ...uments are not disclosed. (Rutter Group, Civil Procedure Before Trial, Sections 8:1495.3 and 8:1495.6.) Once a showing of good cause is met, it is then the responding party's burden to justify the objections asserted. (Rutter Group, Civil Procedure Before Trial, Section 8:1496, citing Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) MP's initial burden of good cause must be supported by admissible evidence, such as declarations. (Calcor ...

Excerpt: ...t have standing to enforce the judgment as evidenced by a number of declarations and other records that were purportedly filed in the underlying action, and that WestLB is the current and only judgment creditor with standing to enforce the judgment. (Id. at pp. 4, 7-9.) All of these arguments fail in the first instance. As an initial matter, a demurrer only tests the sufficiency of a complaint. “A demurrer tests the pleadings alone and not the ...

Excerpt: ... the expert fees from the claimed $13,159.08 down to $10,814.13, as agreed to by ATPA (see Hall Decl. ¶ 6, Ex. 5; Opp. at p. 2, fn. 1). $105.35 – This amount reflects the reduction of what appear to be excessive e-filing costs totaling $175 ($25 each) claimed on 7/16/19, 10/9/19, 10/25/19, 3/5/21, 4/26/21, 5/12/21 and 7/9/21, down to the more reasonable amount $9.95 each. $1,535.25 – This amount reflects those costs claimed for certain unspe...

Excerpt: ...nths of entry of default and notice of entry of judgment, so the motion for relief under section 473.5 is timely. Relief Under CCP § 473(b). CCP § 473(b) provides, in pertinent part: “[Discretionary relief provision.] “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surpri...

Excerpt: ...yer for relief seeks punitive damages as to all causes of action. (See SAC, at p. 19.) The SAC alleges that “DEFENDANTS' conscious disregard of the rights and safety of others, including, but not limited to, Mr. Holcomb, warrants the imposition of punitive damages pursuant to California Civil Code Section 3294. These acts and failures to act by DEFENDANTS constitute fraud, oppression, and/or malice as well as willful and reckless misconduct, co...

Excerpt: ...Exhibit 5 (Promotional Application for Jeremy Hill dated October 20, 2017). California Rules of Court, Rule 2.550(d) states the court may seal records only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the reco...

Excerpt: ...where a party fails to appear at deposition or where a party fails to comply with a court order compelling attendance, testimony, and production at a deposition, respectively. “To justify imposition of such discovery sanctions, the trial court must expressly find that the disobedient party's failure to obey was wilful. [Citation.] The burden of proof is upon the disobedient party to establish the lack of wilfulness of his failure to perform. [C...

Excerpt: ...ly, the Court notes that the parties have satisfied the meet and confer requirement prior to the filing of this Motion. Code of Civil Procedure section 2025.420(a) states that the Court may, for good cause shown, grant a protective order before, after, or during a deposition. Such order may include “any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, ...

Excerpt: ...arge the time for answer or demurrer. Code Civ. Proc. § 473(a)(1). Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. Code of Civ. Proc. § 576. A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (2) state what allegations...

Excerpt: ... their costs as 3/21 cost of $529.42 paid to One Legal for motion for summary judgment”; that Defendants also joined in the motion for summary judgment filed by co-defendant Experian which is also reflected in Defendants' costs (3/21 costs for joinder); and that Defendants did not file any other motions for summary judgment. As such, it appears the $560.00 is duplicative and not recoverable. In Opposition, Defendants contend that all costs were...

Excerpt: ...ion 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.' [Citations.]” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375 (“McClatchy”).) “Absent compliance with Code of Civil Procedure section 474, service of sum...

Excerpt: ...Tell me everything you discussed with [trademark attorney] Amanda Dwight” (see Volume II of his deposition transcript, p. 231:3-5) and any appropriate following up questions on the topic; and (2) compelling Mr. Nguyen to appear for an additional seven hours of deposition testimony to cover not only the topic of communications with attorney Dwight, but to cover other topics necessary to Plaintiffs' preparation of trial that were not covered in p...

Excerpt: ... that attorney's fees 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….Reasonable attorney's fees shall be fixed by the court, and shall be an elemen...

Excerpt: ...] Here, while Defendant argues some uncertainty exists as to Complaint¶¶4, 17, Defendant has not suggested that this uncertainty is so pervasive as to prevent him from knowing what counts are alleged against him, nor could he make such an argument. It is clear that the gravamen of the Complaint is a failure by Defendant to repay a loan. Any ambiguity in relation to ¶¶14, 17 can be cleared up through discovery. Tentative Ruling: The Demurrer b...

Excerpt: ...des: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” B. Prevailing Party Plaintiff accepted Defendant's sett...

Excerpt: ...peting requests have been made. The timeline of this Motion, as relevant to the issue of sanctions, is as follows: Per Counsel for Plaintiff, Supplemental Responses were served on November 1, 2021. (¶8 of Arnold Declaration and Exhibit E to Notice of Lodgment). A review of the Exhibit demonstrates these responses were served electronically. (Id.). Applying the 45-day deadline included in C.C.P. §2031.310(c), along with the two court-day extensi...

Excerpt: ...ainant Mohsen Ahmadi, and against Mohsen Ahmadi's Second Amended Cross-Complaint for Cancellation of Trust Deed. The Motion is DENIED in its entirety. In order to move for summary adjudication, the moving party must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Sa...

Excerpt: ...er possession and is thus able to comply with the Court's Order.” (1/10/22 OSC re: Contempt, Attchd. Avetoom Affdt. ¶¶ 27-30.) The record discloses that this is false. On 11/30/20—i.e., more than a year before Avetoom sought the presently pending OSC re: contempt, filed the charging affidavit in support of this OSC, and obtained the OSC—Fridman filed a document titled in part, “notice of compliance,” within which she repeatedly explai...

Excerpt: ...ists, but the method is not defined within the statute or contract, courts will weight various factors to reach a “reasonable” amount to award as fees – commonly referred to as the lodestar. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. Courts begin with an independent review of the evidence to determine the reasonableness of the hours actually spent litigating the matter and to assess whether there was padding, over-staffing, d...

Excerpt: ...ration is improper, as a demurrer only addresses defects appearing on the face of the pleading, or from matters outside the pleading of which judicial notice has been properly requested. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Accordingly, there is no need to consider RP's declaration, nor moving party's (MP's) evidentiary objections thereto. Meet and confer: The moving papers each include a declaration by MP attorney attesting to a telephon...

Excerpt: ...l OVERRULED. Defendants' objections to plaintiffs' evidence (ROA No. 86) are SUSTAINED as to objection Nos. 3-5, 7-9, 13-15 (i.e., all three objections that are numbered “15”), 18, 19, 21, 22, 36, 37, and 39, and otherwise OVERRULED Analysis: Plaintiffs James Nassios (Nassios) and J. Nass Real Estate Development Group LLC's (collectively, plaintiffs) complaint does not properly allege a “real property” claim. (See Code Civ. Proc., §§ 40...

Excerpt: ...r, defendants) demur to “amended” second amended complaint (ASAC). First cause of action for intentional infliction of emotional distress (IIED): The ASAC fails to state facts sufficient to constitute this cause of action. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [elements]; see also Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [emotional distress must be pled with specificity].) The court further notes that contrar...

Excerpt: ...ge and failure to abate regarding the same. Plaintiff alleged that she suffered bed bug bites for months despite notifying Defendants' agents including Melody Xicotencatl, Sebastian Krol, Abrahan Salazar and Jamie Sheets during her exposure period and bedbugs were not abated. (paragraph 102). For a demurrer, the Court must accept the allegations as true. The conclusory language of paragraph 99 does not mandate the sustaining of the demurrer. Plai...

Excerpt: ... statements "I neglected to articulate the third-party privacy objection in the accompanying written responses" lack foundation. (Opp at p. 3, FN 1.) RPs also argue in the Opp that “there is no admissible evidence it took Defendants 61.6 hours to prepare responses and produce documents” (Opp at 4:4-5), although there is no specific evidentiary objection to this statement in MP attorney's declaration. MP attorney has firsthand knowledge of the...

Excerpt: ...ith respect to this cause of action. (See Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same].) Defendant's own evidence raises multiple triable issues of material fact with respect to this claim. (See Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972 (Swanson) [interactive process, continuing duty to engage in the process in good faith]; Scotch v. Art ...

Excerpt: ... required or permitted by law, (2) made in a judicial or quasi-judicial proceeding, (3) by litigants or other participants authorized by law, (4) to achieve the objects of the litigation, and (5) have some connection or logical relation to the action. [Action Apt. Ass'n, Inc. v. City of Santa Monica (2007) 41 C4th 1232, 1241, 63 CR3d 398, 406] At minimum the alleged statements were made in connection with plaintiff's claims against his ex-employe...

Excerpt: ...ith on the grounds: (1) BOLTABOUT failed to provide any evidence to support a determination that the settlement amount it entered into is in good faith; (2) the proposed settlement is not a rough approximation of BOLTABOUT's potential liability and is grossly disproportional to Plaintiff's allegations of $3M in damages; (3) BOLTABOUT's waiver and release of liability is not enforceable and cannot form the basis of its allegations concerning non-l...