Excerpt: ...ants' Special Motion to Strike Complaint (Anti -Slapp) Defendants Robert P. Mosier and Mosier & Company, Inc.'s motion to strike the entire Complaint filed by Plaintiffs, Simon Semaan, Pierrette Semaan, Mia Semaan, Simon Semaan, Jr., Melissa Semaan, a minor by and through her Guard ian Ad Litem Pierrette Semaan, and Gilberts Rizallah is GRANTED. Plaintiffs' request for Judicial Notice is GRANTED. (Evid. Code § 452, subds. (d), (h).) “Litigati...

Excerpt: ...s no defense to a ca use of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant . . . shall not rely upon the allegations or denials of its pleadings to show that ...

Excerpt: ...n will receive.' [Citations.]” (People ex rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 538 (Weitzman).) The term “qui tam” comes from the Latin expression “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means, “'who pursues this action on our Lord the King's behalf as well as his own'.” (Ibid.) The Insurance Frauds Prevention Act (IFPA) was enacted in 1993 to combat workers' ...

Excerpt: ...Plaintiff has failed to adequately allege a cause of action for intentional interference with expected inheritance (IIEI). An IIEI claim requires: 1) an expectancy of inheritance; (2) proof amounting to a reasonable degree of certainty that the bequest would have been in effect at the time of the testator's death; (3) that the defendant(s) had knowledge of the expectation of inheritance; (4) that interference was conducted by independently to...

Excerpt: ...est for judicial notice filed in reply (ROA 24) is DENIED as immaterial to the Court's decision. Statute of Limitations Defendants contend Plaintiff's complaint for legal malpractice and “(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of prof essional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence sh...

Excerpt: ..., ¶¶ 5, 6.) Defendant contends Plaintiff fails to allege compliance with paragrap h 15 of the contract, which requires the parties to attend mediation before initiating a lawsuit. However, paragraphs 11 -17 of the FAC allege Plaintiff asked Defendant to attend mediation and proposed a tolling agreement, and Plaintiff filed suit to preser ve its claims when Defendant did not promptly agree. Plaintiff has adequately alleged an attempt to comply ...

Excerpt: ...does not know” why her employment was terminated. However, paragraph 36 of the complaint alleg es, “Plaintiff is informed and believes and thereon alleges that her race and/or national origin and her complaint about discrimination and harassment due to race were substantial, motivating and/or determining factors in the discriminatory treatment Defen dant subjected her to, including the termination of her employment.” Plaintiff also alleges ...

Excerpt: ...urt's judgment. Plaintiff is mistaken. The filing of a notice of appeal does not deprive the trial court of jurisdiction to award costs and attorney fees. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052.) Plaintiff argues the court should consider his financial condition in awarding costs under Vill anueva v. City of Colton (2008) 160 Cal. App.4th 1188, 1202, which held that in a FEHA case, “a plaintiff's financial resources must...

Excerpt: ...excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) The FAC sufficiently alleges the elements of a breach of contract claim. The demurrer to the first cause of action is OVERRULED. Second, Third and Fourth Cause of A ction - Breach of Oral Contract: Commercial Code section 2201(1) states: “Except as otherwise provided i...

Excerpt: ...rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 5 38 (Weitzman).) The term “qui tam” comes from the Latin expression “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means, “'who pursues this action on our Lord the King's behalf as well as his own'.” (Ibid.) The Insurance Fraud s Prevention Act (IFPA) was enacted in 1993 to combat workers' compensation fraud. (People ex rel. State ...

Excerpt: ...thin 10 days after service upon the party of written notice of entry of the order.” (Code Civ. Proc., § 1008, subd. (a).) Defendant gave written notice of the court's ruling on defendant's motion for summary judgment on 7 -14 -23. (ROA No. 127.) The instant Motion was filed on 8 -14 -23, more than 10 days after Defen dant gave notice of the court's ruling. (ROA No. 148.) Even if the court were to find the motion timely, the court no longer h...

Excerpt: ...efendants' expert witness Carl Mellinger (ROA 334) are OVERRULED. Plaintiff's objections to the declaration of Defendants' expert witness Harvey Kreitenberg (ROA 335) are OVERRULED. Plaintiff's objections to the declaration of Defendant Freitas (ROA 336) are OVERRULED. Defendants' objections to the declaratio n of Plaintiff Chang (ROA 344) are SUSTAINED as to objection no. 10 (hearsay) and OVERRULED as to the remaining objections. Defendants' obj...

Excerpt: ...652 (citations omitted).) “By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511; see also Everest Invs. 8 v. Whitehall Real Est. Ltd. P'ship XI (2002)100 ...

Excerpt: ...he Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursua nt to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” (Code of Civ . Proc., §340.5, subd. (1).) To demonstrate Defendant qualifies under the above, Defendant offers the d...

Excerpt: ...costs pursuant to Code of Civil Procedure sec tion 998, subdivision (c)(1). According to defendant's opposition (ROA 202), defendant made two written offers to settle the case: (1) a written offer for $50,000 served by mail on December 8, 2021, when the plaintiff was representing herself (Exhibit A to opposition); and (2) a written offer for $65,000 served electronically on January 23, 2023 when plaintiff was represented by counsel (Exhibit D to ...

Excerpt: ... GRANTED. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 66062.) Defend ants Evariste Group Manager, LLC, Andrew Stupin, and Gerald Marcil joinder in Defendants' Motion is GRANTED. Defendants' Request for Judicial Notice of Exhibits A- G is GRANTED. Plaintiff's Request for Judicial Notice of Exhibits A -F is GRANTED. “The court may, on motion, change the place of trial . . . [w]hen the convenience of witnesses and the ends of justic...

Excerpt: ...g in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 113 2, 1158.) “Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises'…” (Ibid.) Homeowners' associations have been held to owe duties similar to the duties of a landlord. (Frances T. v. V illage Green owners Assn. (1986) 42 Cal.3d 490, 499.) A duty of care may not be imposed on a landlord without proof that he ...

Excerpt: ...., ¶ 2, Ex. 1.) After Plainti
¯ Þled his Motion, Defendant also served a veriÞcation for its initial response to the Form Interrogatories. (Williams Decl., ¶ 3, Ex. 2.) Plainti
¯'s request for sanctions is DENIED for failure to comply with Code of Civil Procedure section 2023.040. Plainti
¯ to give notice. Plainti
¯'s Motion to Compel Defendant Martin Lopez's Responses to Form Interrogatories General Set One, and Request for Sanctions Pla...

Excerpt: ... of motion and be repeated, verbatim, in the separate statement of undisputed material facts." Code of Civil Procedure section 437c, subdivision (f)(l) states, "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense...

Excerpt: ...sness/gross negligence. Defendant contends it cannot be held vicariously liable for acts that fall outside of the course and scope of Co-Defendant, Paul Alden Miller's employment, citing Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297 (Lisa M.) and Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005. In contending the conduct alleged against Miller fell outside the course and scope of his employ...

Excerpt: ...the plaintiff's damages or injuries." (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) "Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 621 (cleaned up).) Plaintiff has alleged (1) Defendant had a duty to maintain the common areas near where Plaintiff was injured, including the intersection of Sceptre...

Excerpt: ...s or to the prevailing party... " (Civ. Code, S 1717, subd. (a).) However, section 1717 does not apply to tort claims. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708.) "As to tort claims, the question of whether to award attorneys' fees turns on the language of the contractual attorneys' fee provision, i.e., whether the party seeking fees has 'prevailed' within the meaning of the provision and whether the type of claim i...

Excerpt: ... authority as to whether an arbitration clause in a Retail Installment Sales Contract (RISC), can be enforced by a nonsignatory car manufacturer under the doctrines of third-party beneficiary and equitable estoppel. (Cf. Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486; Ford Motor Warranty Cases (Ochoa) (2023) 89 Cal.App.5th 1324 (Ochoa), review pending; Montemayor v. Ford Motor Company (2023) 92 Cal.App.5th 958 (Montemayor).) In such a situatio...

Excerpt: ... controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [9] (a) The right to compel arbitration has been waived by the petitioner; or [q] (b) Grounds exist for the rescission of the agreement... ." "When presented with a petition to compel arbit...

Excerpt: ...ined in full. Defendants' Reply Separate Statement is improper and therefore not considered by the court. (See Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 252.) Defendants' requests for adjudication are technically improper pursuant to Code of Civil Procedure section 437c. The court views this motion as one for summary judgment. "The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach ...

Excerpt: ...he likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued." (Smith v. Adventist Health System/west (2010) 182 Cal.App.4th 729, 749.) ikelihood of Prevailing on the Merits Ahn has sufficiently shown a likelihood of prevailing on the ...

Excerpt: ...he fourth cause of action for misappropriation of trade secrets. The court disagrees. The CUTSA by its terms does not displace a contract claim, even if it is based on the misappropriation of a trade secret. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 506.) Nor does the CUTSA displace noncontract claims that, although related to a trade secret misappropriation, are independent and based on facts distinct from the facts th...

Excerpt: ...ecton 2923.5 Civil Code section 2923.5 precludes a trustee or mortgage servicer from recording a notice of default until 30 days after the loan servicer has made initial contact with the borrower to assess the borrower's financial situation and explore options for avoiding foreclosures, or has satisfied the due diligence requirements of the statute. (Civ. Code, S 2923.5, subd. (a)(l).) Due diligence requires sending a letter by first class mail, ...

Excerpt: ...tached as Exhibit A to the FAC, executed by Plaintiff and other parties, with a blank signature line for Defendant. Exhibit 4 to Defendant's request for judicial notice includes the Tolling Agreement with Defendant's signature. Plaintiff's FAC alleges Defendant, acting on behalf of VBI, engaged in misconduct related to a construction project between September 2013 and September 2015, after which Plaintiff initiated a request for AAA mediation. (F...

Excerpt: ...ern Mutual — Breach of Employment Contract Pursuant to California Labor Code section 2922, employment in California which has no specified term may be terminated at the will of either the employee or the employer. This means that "at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice" either party may terminate the employment relationship. (Guz v. Bechtel National, Inc. (2000) 24...

Excerpt: ...cases where the contract was fraudulently induced. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) The Complaint sufficiently alleges Plaintiff was induced to enter into the Joint Venture Agreement. (Complaint, 15-16.) Fraud The demurrer to the fraud cause of achon is SUSTAINED because the Complaint fails to plead with particularity, by who, where, and when the misrepresentations were made to Plaintiff by Defendants. (Lazar v. Superior Court (Laz...

Excerpt: ...s conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161.) For conduct to be outrageous for purposes of IIED, the conduct must ...

Excerpt: ...22. (Code Civ. Proc., SS 2030.260, 1013(a).) To date, Plaintiff has not served responses and indicated he threw the discovery requests into the trash. (Arjang Decl„ 5-6.) Plaintiff's Opposition consists of 20 pages in violation of California Rules of Court, rule 3.1113(d). The court has considered only the first 15 pages. Plaintiff is cautioned he must comply with all applicable statutes and rules. The court offers a self-help desk on the first...

Excerpt: ...n the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Notably, the other f...

Excerpt: ... person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief." (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 495.) "The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.) Plaintiff alleges, "[on] January 5th 2023 the Defendants took away the Plaintiffs gate pass which meant ...

Excerpt: ... or proceeding." Code of Civil Procedure section 1033.5 sets out the items which are allowable as costs under secton 1032. "[Ilf the ftems on a verified cost bill appear proper charges they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred. [Citations] However, where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs." (M...

Excerpt: ...d confer, the Court will construe the moton as a demurrer and rule on the merits because Cross-complainant has opposed the motion. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 ["lilt is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the moton."]) The Cross- Complaint alleges causes of action for frau...

Excerpt: ...roma) in the amount of $250,803.26. The Court entered judgment against Stroma in favor of Plaintiff for breach of the convertible notes in the amount of $270,130.00. The convertible notes contain provisions making attorney fees recoverable on the breach of convertible notes. (Cheng Decl. 27; Ex. 2.) Plaintiff is the prevailing party on these claims and can recover reasonable attorney fees. The Court entered judgment against Stroma in favor of Pla...

Excerpt: ... for nonperformance of the contract; (3) defendant's breach; and (4) damage to plaintiff resulting from the breach." (State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449.) The Cross-complaint alleges Cross-Defendants breached the terms of the First Amended and Restated Shareholder Agreement entered into by DFG, El Moussa, and Troy in April 2021 (the "2021 Agreement") by failing to appoint an appraiser to determine t...

Excerpt: ... also uncertain because it is so ptnrly pled Defendant cannot reasonably determine what issues must be admitted or denied, or what causes of action are directed against it. (Khoury v. Mays of California, Inc. (1993) 14 Cal.App.4th 612, 615.) Plaintiff is ordered to file a red-lined and a clean version of the amended complaint. Defendant to give notice. Defendant's Motion and Special Motion to Strike (Ant-SLAPP) Complaint Defendant Gordon Rees Scu...

Excerpt: ... In determining whether to stay the civil proceedings, the court should consider the follow-ng factors: "(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use ...

Excerpt: ...rous condition of public property against Does 1-200. Defendant was added by amendment as Doe 1 on 4/14/2021 and contends Plaintiff is only pursuing negligence against it. Plaintiff's opposition seems to concede this point, as it is undisputed Defendant is not a government entity and therefore does not own or control public property. In its motion, Defendant argues it did not owe a legal duty to decedent; the decedent's voluntary conduct bars his...

Excerpt: ...laration and requests for admission deemed admitted on 2/10/2023 and 3/17/2023. First Cause of Acton: Failure to Pay Wages Worked To establish a claim for nonpayment of wages under the Labor Code, Plaintiff must prove: (1) Plaintiff performed work for Defendant, (2) Defendant owes Plaintiff wages underthe terms of the employment and (3) the amount of unpaid wages. (CACI No. 2700.) Plaintiff has not met his burden as the moving party, because Plai...

Excerpt: ...ntiffs' claims against them are barred by the one-year statute of limitations in Code of Civil Procedure section 340.6, subdivision (a). The SAC alleges Defendant Holden is an attorney and a partner with GRSM who assisted Defendant Jeffrey Jacobson in carrying out his scheme to break the irrevocable Abraham Trust in order to get all of the trust assets solely into Jeffrey's name. (SAC, '1 7, 9, 55.) Between September 2W5 and August 2021, Defendan...

Excerpt: ...ts, Plaintiff has experienced severe emotional distress among other harm . . (Complaint, 24.) Plaintiff's conclusory allegation that does not list a single symptom is insufficient. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602.) The Court SUSTAINS the demurrer to the Thirteenth Cause of Action for Intentional Infliction of Emotional Distress with 15 days leave to amend. Plaintiff fails to state sufficient facts to state a cause of a...

Excerpt: ...ternative motion for protective order is DENIED for failure to meet and confer. The deponent is defendant's attorney. Depositions of opposing counsel are presumptively improper, severely restricted, and require extremely good cause. (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 (Carehouse).) Requests 1, 2, 3: Plaintiff has not shown the information sought is not available from Saddleback Plumbing, defendant,...

Excerpt: ...irect and independent knowledge of the facts alleged in her First Amended Complaint. (Ins. Code, § 1871.7(h).) Plaintiff fails to “allege[] that [she] was a percipient witness to any of the alleged facts upon which his allegations are based.” (State of California v. Pac. Bell Tel. Co. (2006) 142 Cal. App. 4th 741, 757.) It is unclear what allegations, if any, are based on her direct and independent knowledge. Defendants do not demonstrate th...

Excerpt: ...y; (3) the amount paid in settlement; (4) the allocation of settlement proceeds among plaintiffs; (5) a recognition a settlor should pay less in settlement than he would if he were found liable after a trial; (6) the financial conditions and insurance policy limits of settling defendants; and (7) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Tech-Bilt, Inc. v. Woodward-Clyde & Ass...

Excerpt: ...aintiffs added these causes of action to the SAC without leave of Court. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [following order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, plaintiff may amend complaint only as authorized by the order].) Here, Plaintiffs filed their SAC on 4/24/2023 without obtaining leave of court to insert additional causes of action. The court ORDERS the...

Excerpt: ... to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic...

Excerpt: ... be presented, court shall order a continuance].) Continuance of a motion for summary judgment is not mandatory when the declaration fails to make the necessary showing. (Johnson v. Alameda County Med. Ctr. (2012) 205 Cal.App.4th 521, 532 (Johnson).) An opposing party's declaration in support of a motion to continue the summary judgment hearing should show the following: (1) facts establishing a likelihood that controverting evidence may exist an...

Excerpt: ...r aiding and abetting breach of trust, and the seventh cause of action for unfair business practices. Defendant Vince is an attorney who allegedly assisted Defendant Jeffrey Jacobson in “breaking” the family trust in 2002 and wrongfully transferring its assets to Jeffrey Jacobson. (SAC, ¶¶ 16, 77, 108.) Plaintiffs allege they learned of the scheme after receiving a 20,000-page document production in a related case on 7/9/2020. (SAC, ¶ 55.)...

Excerpt: ...lege duty, Defendants' intent to induce reliance, or Plaintiff's justifiable reliance. A legal duty arises from a fiduciary or confidential relationship, privity of contract, or from special circumstances, oftentimes in cases dealing with the sale of property. (La Jolla VIII Homeowners' Association v. Superior Court (1989) 212 Cal.App.3d 1131, 1151 (La Jolla III); see Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161 [real estate seller's dut...

Excerpt: ...sel, Gordon V. Dunn III, have satisfied the meet and confer requirement prior to filing the motion. (Code Civ. Proc., § 2016.040.) Plaintiffs assert defendant's response to form interrogatory 15.1 is non-responsive, evasive and incomplete because it contains boilerplate, meritless objections and insufficient answers. Moreover, the responses are void of any facts supporting defendant's affirmative defenses. The court disagrees defendant's respons...

Excerpt: ...eid v. Google, Inc. (2010) 50 Cal.4th 512, 526.) Plaintiff moves for summary adjudication of the second cause of action for private nuisance in the First Amended Complaint. The elements of private nuisance include the following: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the...

Excerpt: ...ccident that occurred after the subject incident provide facts essential to opposing the motion. (Code Civ. Proc., § 437c, subd. (h).) “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See...

Excerpt: ...terms of the contract and/or whether the contract is written, or implied by conduct. (See Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98; Code Civ. Proc., § 430.10, subd. (g).) Breach of Fiduciary Duty The demurrer is OVERRULED. LaVine was the accountant to the Trust and the beneficiaries entrusted it with providing financial advice and oversight of their Trust. (See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 C...

Excerpt: ... Further Responses to Requests for Production from Plaintiff Colter Mertlich; Request for Order Awarding Monetary Sanctions in The Sum of $2,510.00 Defendant's Motion to Compel Further Responses to Requests for Production from Plaintiff Ken Ginn; Request for Order Awarding Monetary Sanctions in The Sum of $2,510.00 The above motions are CONTINUED to 8/11/2023 at 10:00 AM. Defendant filed these motions on 4/19/2023, after the parties agreed to ent...

Excerpt: ...Defendant has not shown these questions are likely to lead to discovery of admissible evidence regarding reasonableness of Plaintiff's medical bills or the extent of medical bills incurred by Plaintiff. Defendant has not cited legal authority holding the discovery of a medical provider's general billing practices is relevant to determine the reasonableness of Plaintiff's medical charges. The motion is DENIED to the extent it seeks a further respo...

Excerpt: ...ior Court Case No. 30-2022-01269276-CU-BT-CJC (the “Daniel Case”), and (2) Lawrence Jay Jacobson, etc., et al. v. LaVine & Associates CPA, Inc., etc., et al., Orange County Superior Court Case No. 30-2022-01269337-CU-RI-WJC (the “Lawrence Case”) is DENIED without prejudice in part, and GRANTED in part. “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or a...

Excerpt: ...alse Imprisonment “The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496.) “The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion.” (Fermino v. Fedco,...

Excerpt: ...part” of her body as required under Code of Civil Procedure section 1708.5. Jane Doe X.M.'s Fourth Cause of Action for False Imprisonment “The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496.) “The only mental state required...

Excerpt: ...) and (b) destroying, dismantling, disabling, or performing acts which diminish the value of the Sailboat is GRANTED. Code of Civil Procedure section 527, subdivision (a) provides: “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction ...

Excerpt: ...h, and Fifth Causes of Action is GRANTED. Defendants/Cross-Complainants' Objections to Plaintiff's Evidence are OVERRULED. DEFENDANT SAP PUBLIC SERVICES, INC. (“SAP”) Third Cause of Action for Retaliation in Violation of California Government Code § 12653 “To establish a prima facie case, a plaintiff alleging retaliation under the [California False Claims Act] must show: (1) that he or she engaged in activity protected under the statute; (...

Excerpt: ...ns. Plaintiffs/Cross-Defendants Eric Smith and Stacy Thorne (Plaintiffs) request that Cross- Complainant Eric Woolard's Cross-Complaint be dismissed as a terminating sanction and monetary sanctions in the amount of $1,850.00 as the reasonable costs and attorney fees incurred. When a party fails to obey a court order, the full range of discovery sanctions becomes available. (Code Civ. Proc. §§ 2023.010(g), 2023.030.) The behavior justifying term...

Excerpt: ...10:00 AM. The court, Honorable Derek Hunt presiding, previously disqualified the Lysaght Law Group LLP (“Lysaght”) from representing the Naswaris in the present action as Lysaght had previously represented the Rabadis in Rabadi v. Shoubash, Los Angeles Superior Court Case No. BC459192 (the “Original Action”). That ruling was upheld on appeal. The Rabadis now seek to disqualify Robert Tauler and his law Firm Tauler Smith LLP (“Tauler”)...

Excerpt: ...t bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of th...

Excerpt: ...s-complainants Diamond Pro, LLC and Diamond ZB Staffing Services filed suit against Cross-Defendants Bridge and Hanson in the United States District Court for the Western District of Pennsylvania, Case No. 2:21-cv-01718-AJS (the "Pennsylvania Action") (Oliver Decl, Ex. A) The Pennsylvania Action alleges nearly identical facts and causes of action to those pled in the instant Cross-complaint. The only difference is that Lake, the principal of the ...

Excerpt: ... pursuant to Section 128.5. Section 425.16, subdivision (c)(l) therefore incorporates the substantive and procedural requirements of section 128.5. (Chitsazzadeh v. Kramer & Kaslow (2011) Igg Cal.App.4th 676, 683.) Section 128.5, subdivision defines frivolous as totally and completely without merit or for the sole purpose of harassing an opposing party. A motion is totally and completely without merit if any reasonable attorney would agree the mo...

Excerpt: ...oid. A void action by the court may be attacked at any time. (See People v. North River Insurance Company (2020) 58 Cal .App. 5th 300, 313.) If the court were to proceed with entering a default judgment after determining the default was improperly entered, the default judgment would be void. (See Yeung v. Soos (2004) 119 Cal.App.4th 576, 582.) Therefore, the court will determine the matter notwithstanding the requirements of Code of Civil Procedu...

Excerpt: ...by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employe...

Excerpt: ...uaranty, (2) the borrower has defaulted, and (3) the guarantor failed to perform under the guaranty." (Grayl CPB, LLC v. Kolokotronis (2011) 202 cal.App.4th 480, 486.) Balboa has met its initial burden to produce admissible evidence on each element of the breach of guaranty cause of action. (Balboa's LJndisputed Material Fact ("IJMF") Nos. 2, 13, 6, 7, 42, 27.) The burden shifts to Defendant to show a triable issue of material fact exists. Defend...

Excerpt: ...y be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions." (McKell v...

Excerpt: ...as no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." Plaintiff's complaint alleges causes of action fo...

Excerpt: ...vantages, facilities, privileges, or services in all business establishments of every kind whatsoever, no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (Civ. Code, 51, subd. (b). ) Under the Unruh Act, anyone who denies, aids, or incites a denial, or makes any discrimination or di...

Excerpt: ...ourt, the unavailability of the first judge (such as by retirement) authorizes a new judge to entertain the reconsideration motion." (Int'l Ins. Co. v. Superior Ct. (1998) 62 Cal.App.4th 784, 786, fn. 2.) Here, Defendant moves for reconsideration of Judge Hunt's Order dated 12/23/2022 striking Defendant's Memorandum of Costs. The Motion was timely filed on 1/3/2023. Having retired, Judge Hunt is unavailable to hear the Motion. Defendant moves for...

Excerpt: ...ion for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) An agent is also a fiduciary. (Civ. Code, 2322; see Duffy v. Cavalier (1989) 215 cal.App.3d 1517, 1534.) The allegations against Gonzalez are sufficient. 36, 48.) Fourth Cause of Action for Breach of Contract DENIED. A cause of actio...

Excerpt: ...o grant a nonsuit. (See id., S 630; see also Acqua Vista Homeowners Ass'n v. MWI, Inc. (2017) 7 Cal. 5th 1129, 1139.) A defendant is entitled to a nonsuit when the judge determines as a matter of law plaintiff's evidence is insufficient to permit a jury to find in plaintiff's favor. (See id., S 581c; see also Holistic Supplements, LLC v. Stark (2021) 61 Cal .App. 5th 530, 430.) A motion for nonsuit concedes the truth of the facts plaintiff has pr...

Excerpt: ...gh g is GRANTED. Plaintiff alleges causes of action for Professional Negligence and Breach of Contract against Defendant. Both causes of action arise out of legal representation of Plaintiff in her dissolution action, In re Marriage of Beck, Orange County Superior Court Case No. 160005918 (the "Dissolution Action"). (Complaint, GN-I, BC-I.) Settlement and Release "In general, a written release extinguishes any obligation covered by the release's ...

Excerpt: ...v. McLoughlin (2009) 173 cal.App.4th 156, 179.) The Complaint does not allege Plaintiff is due any balance for which an accounting is required. The Complaint alleges "Plaintiff requests a complete accounting for all transactions, loans, letters, and the Closing/Revoking of his account for the year of 2022." (Complaint, II 22.) It is unclear whether Plaintiff alleges he is due an amount from any of these sources. Third Cause of Action for Declarat...

Excerpt: ...st the property manager Defendants for failure to take action to prevent an illegal sexual relationship between Plaintiff and a non-party adult tenant, Christy Knight (Knight), while Plaintiff was a minor. review of the cases addressing the question of duty in the landlord-tenant context reveals two primary considerations: the foreseeability of the harm and the burden on the landlord created by the duty to protect against the harm. In both Ann M....

Excerpt: ...ersy or claim arising out of, or relating to this Agreement, or the breach thereof, whether involving a claim in tort, contract, or otherwise, shall be settled by final and binding arbitration, upon the motion of either party, for arbitration under the appropriate rules of the AAA or JAMS, as agreed by the parties." Plaintiff does not dispute the Agreement is binding as between Plaintiff and HNI/HNCI. However, Plaintiff contends as a non-signator...

Excerpt: ...feree for 2/17/2023 at 10:00 AM. Each party is ORDERED to file a brief no longer than 5 pages no later than 48 hours prior to the hearing addressing: (1) whether they will stipulate to appointment of a discovery referee under Code of Civil Procedure section 638; (2) if not, why the court should not order appointment of a discovery referee for all purposes pursuant to Code of Civil Procedure section 639. Motion to Strike First Amended Cross-Compla...

Excerpt: ...inks to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” If the parties continue to fail to comply with this requirement, they risk their Motion being denied or their Opposition/Reply not being considered by the court. “When presented with a petition to compel arbitration, the initial issue before the [trial] court is whether an agreement has been formed.” ...

Excerpt: ...his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (fn omitted).) Code of Civil Procedure section 437c(p)(2) states, “A defen...

Excerpt: ...ings, LLC, a California limited liability company, Industrial Holdings, Inc., a Utah corporation's (Petitioners), is GRANTED. Business and Professions Code section 6180.2 states: “Notwithstanding the giving of notice pursuant to Section 6180.1, the superior court on its own motion, or a client of the attorney, the State Bar, or an interested person or entity may make application to the superior court for the county where the attorney maintains ...

Excerpt: ...(2021) 72 Cal.App.5th 158, 165 stating: “The moving party ‘can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.] . . . For this step, ‘it is not necessary to follow the normal procedures of document authentication.' [Citation.]”) Defendants' Request for Judicial Notice of Exhibits 1 through 3 is GRANTED. Plaintiffs entered ...

Excerpt: ...action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Defendant has met its burden to sho...

Excerpt: ...ly with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigatio...