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: ...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: ...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: ... (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: ...” (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: ...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: ...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: ...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: ...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: ...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: ... 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...