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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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...