Excerpt: ...S the following evidentiary objections: Nos. 7, 8, 21, 22, 26, 35, 36, 37, 38, and 44. In addition, the court SUSTAINS the evidentiary objections to the quoted portions below: • Portion of No. 6, "As has been throughout this process, FANA did not care." • Portion of No. 10, " due to the illegal foreclosure by BANA." • Porton of No. 11: "during BANA's illegal foreclosure" • Portion of No. 19: another example of the SPOC failing to interact...

Excerpt: ...riefs. Also, "[i]f a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance." (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 375.) Re Demurrer to FAC The court SUSTAINS the demurrer of all named defendants to ...

Excerpt: ... Plaintiffs for (1) breach of written contract, (2) quantum meruit, and (3) breach of the implied covenant of good faith and fair dealing. (ROA 32.) ay way of the proposed pleading, CLS seeks to add new parties to its cross-complaint (LONG SWIMMING POOL STEEL ("LSPS"); JARMAN CUSTOM CONSTRUCTION, INC; and PACIFIC WATERSCAPES) and to add new causes of action for those new cross-defendants (for contribution and apportionment, declaratory relief, an...

Excerpt: ...ntry of Defendant's default, which it did not do. On the merits, the court OVERRULES the general demurrer filed by Defendant LILIA LOO FONG ("Fong") to the form Complaint filed by Plaintiff ANNE RICKEY ("Plaintiff"). The Complaint contains a single cause of action for premises liability against Fong and others. The Complaint alleges that Plaintiff slipped and fell while walking on grass near the driveway next to her condo, which condo is owned by...

Excerpt: ...s Defendant Harrison to admit or deny if the sledgehammer was a construction used for work on the SUBJECT PROPERTY. Defendant Harrison objected on the following grounds: compound and argumentative and contains undefined terms. Subject to those objections, Defendant Harrison states he "has no knowledge or belief of what tools Mag Works owns". The court finds the response insufficient. Notably, the request does not ask if the sledgehammer was owned...

Excerpt: ...t could nonetheless reasonably to the RFP despite the obvious clerical error. Further, a protective order would protect any confidential and/or trade secret material responsive to these RFPs. Plaintiff, however, does not show good cause justifying further production as to RFP Nos. 1, 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 50, 51, 52, 53, 58, 59, 58, 76, 78, 79, 86, and 89. These RFPs seek dtNuments relating to vehicles other than...

Excerpt: ...Deposition Subpoena on Chi Thuy Anh Nguyen at the address of 1527 E. Commonwealth Avenue, Fullerton, CA 92831. (Janssen Decl. ¶ 3, Exh. A.) Evidence Code section 647 creates a rebuttable presumption affecting the burden of producing evidence of the facts stated in a valid registered process server's return. (See also, Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing of proof of service that complies with the ...

Excerpt: ...NIGUEL POINTE HOMEOWNES ASSOCIATION, and for sanctions. Plaintiff first takes issue with “General Objections” asserted by Defendant and purportedly incorporated into each response. Defendant prefaced each of its responses with a series of “General Objections,” including objections at times to the definition of “YOU” and “YOUR” in the RFAs, objections to the extent the RFAs seek information protected by the attorney-client privileg...

Excerpt: ...he discovery process warranting sanctions. (Code Civ. Proc., § 2023.010(d).) So too is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010((g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See Code Civ. Proc., §§ 2030.290(c) (interrogatories), 2031.300...

Excerpt: ...prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.”  (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)  “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts ...

Excerpt: ...es seeking Gene Ventura's contact information. First, Thauer failed to provide an adequate expert witness declaration, as required by Section 2034.260 of the Code of Civil Procedure. Thauer's Amended Expert Designation does not comply; it does not provide a brief narrative statement of the general substance of Thauer's expected expert testimony. Second, regarding Ventura's contact information, Thauer contends that Ventura's contact information wa...

Excerpt: ...FELDER requests the court take judicial notice of: (A) Ford Motor Warranty Cases (Ochoa v. Ford) 2023 WL 2768484; (B) Ngo v. BMW of N. Am., LLC (9th Cir. Jan. 12, 2022) 23 F.4th 942; and (C) Morgan v. Sundance, Inc. (2022) 142 S. Ct. 1708. The court GRANTS the request, albeit unnecessarily. The court can consider case law without a request for judicial notice. Defendants seek to compel arbitration pursuant to the terms of a Retail Installment Sal...

Excerpt: ...ranty): These causes of action are based on the alleged breach of four different written agreements: (1) Equipment Financing Agreement No. 291390-000 (“EFA”) (Ngo Decl., Ex. 1); (2) Guaranty for Equipment Financing Agreement No. 291390-000 (“EFA Guaranty”) (Ngo Decl., Ex. 3); (3) Equipment Lease Agreement No. 291390-001 (“ELA”) (Ngo Decl., Ex. 4); and (4) Guaranty for Equipment Lease Agreement No. 291390-001 (“ELA Guaranty”) (Ngo ...

Excerpt: ...MAS TONELLI, who in turn assigned his rights and interests before the close of escrow to Plaintiff ASSET DEVELOPMENT LLC (“ADL”). Subsequently, ADL assigned a joint tenancy interest in the Property to Plaintiff LUNAR MARIA OPERATIONS. The Property was transferred via a grant deed that is attached to the Complaint. The deed did not accurately depict the whole land Plaintiff thought they were purchasing. Apparently, a 1975 deed divided land wit...

Excerpt: ...- GRANTED Plaintiff argues that the filing fee for a first response is $435, citing sections 70611, 70602.5, and 70602.6 of the Government Code, and not $450 as indicated in the Memorandum of Costs. Williams, in opposition, does not address this item. Nor does he provide any explanation or documentation to support that he paid $450 rather than $435. The court therefore GRANTS Plaintiff's request to tax $15 from the filing fees. Re Mediation Fees ...

Excerpt: ...ek a bifurcation order pursuant to Sections 1048(b) and 598 of the Code of Civil Procedure. Bifurcation is permissive, not mandatory here. Section 1048(b) of the Code of Civil Procedure states inter alia, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action … or of any separate issue or of any number of causes of ...

Excerpt: ...t Vu Nguyen first appeared in this action when Attorney Fang L. Chen of LA OC Lawyers Group filed an Answer on his behalf on 3/7/23. (ROA 23.) The proof of service attached to the moving papers shows that Defendant Nguyen was mail-served at an Anaheim address, the same property that gives rise to this partition action. (ROA 13.) The motion was not apparently served on Defendant Nguyen's attorney. Such service does not appear to comply with Sectio...

Excerpt: ... made at least two other earlier attempts to file a "Motion to Dismiss." First, as noted by Plaintiff, Defendant Aljazzar attempted to file a motion on 1/9/23, which was rejected by the Clerk's Office because "[l]egal formatting is required." (ROA 14.) Second, Defendant Aljazzar attempted to file a motion on 1/27/23, which was again rejected by the Clerk's Office because of procedural deficiencies (e.g., failing to provide hearing information in ...

Excerpt: ...ssional negligence is not sufficiently pled. The cause of action appears to be premised on the theory that a legal duty arises generally from being a real estate agent and/or from knowing Plaintiff. For example, the FAC specifically alleges that "Sai is a licensed real estate agent and therefore has a professional duty to use such skill, prudence and diligence as other members of the profession commonly possess and exercise. More importantly, Sai...

Excerpt: ...n the subject property. "Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency." (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see Code Civ. Proc., S 128(a).) "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for couns...

Excerpt: ...S the request, albeit unnecessarily. The court can consider case law without a request for judicial notice. The RISC provides that: EITHER YOU [PLAINTIFF] OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), ...

Excerpt: ... the surrounding sidewalk that were not properly maintained by the defendants. More specifically, "for many years, the manhole cover was sinking into the sidewalk" and "[t]he sidewalk concrete surrounding the manhole cover was broken and contained jagged edges of concrete that posed a hazard to pedestrians". (SAC, GN-I.) It appears undisputed by the parties that the City owns the sidewalk, while Pac Bell owned the manhole cover. The City makes th...

Excerpt: ... defendant shows no duty of care existed to support the 5th cause of action and without the alleged negligence cause of action or other wrongdoing by moving defendant, the 6th cause of action likewise fails. Peter & Associates rely on Weseloh Family Ltd. Partnership v. K.L. Wessel Const. Co. (2004) 125 Cal.App.4th 152. In Weseloh, property owners hired a general contractor, who in turn hired a retaining wall subcontractor, who in turn hired engin...

Excerpt: ...a reasonable person in the same or similar circumstances would. Compl. 'l GN-I. The Complaint further alleges the City, through its agents, voluntarily assumed a protective duty towards Decedent and undertook action on her behalf, but did so negligently. (ld.) The 2nd cause of action for premises liability alleges the City created or had actual or constructive knowledge of, with lack of adequate warning or safeguards to the members of the public ...

Excerpt: ...nt ("TAC") (ROA No. 88) and a Supplemental Complaint (ROA No. 89) on 5/26/20. The 7th cause of action (first count), Th cause of action (second count), 7th cause of action (third count), 7th cause of action (fourth count), 7th cause of action (fifth count), 8th cause of action, 11th cause of action, 12th cause of action, and 14th cause of action are alleged against FCI. 7th Cause of Action - First Count (Intentional Misrepresentation - Fraud and ...

Excerpt: ...the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors. The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing and any counteraffidavits filed in response. (Code Civ. Proc., 5 877.6(b).) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against...

Excerpt: ...case law without a request for judicial notice. Motion: It is undisputed that Plaintiff Gladders entered into a Retail Installment Sale Contract with Selma Chrysler Dodge Jeep Ram (the "RISC"). (Sandhu Decl. 2, Ex. A.) The RISC provides that: EITHER YOU [PLAINTIFF] OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. Any claim or dispute, whether in contract, tort, statute or otherwise (includi...

Excerpt: ...mary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving 1. Defendant Thanh (Manson) Ly's MSJ/A The court OVERRULES Ly's objections to the declarations of Hao Wang, Xiehua Gu, and Haitian Zhu. Ly's objections to Plaintiffs' additional facts are not objections to evidence. As explained below, the court DENIES Thanh (Manson) Ly's ("Ly") Motion for Summary Judgment or, in the Alternative, Motion for Summary ...

Excerpt: ...the 3rd cause of action for breach of contract and the 4th cause of action for negligence) are preempted, as a matter of law, by the Montreal Convention. In response, Plaintiff argues that the Montreal Convention does not apply here. The court finds that DHL proffers sufficient evidence showing that the Montreal Convention applies, that the Montreal Convention provides the exclusive remedy for Plaintiff's alleged damage to cargo, and that Plainti...

Excerpt: ...nable to attend his depositions, which had been set for March 6 and 7 of 2023. (Declaration of Jason N. Cirlin, '1 17.) To that end, on 3/2/23, Defendants objected to the two deposition notices. (Exhibits F & G to Declaration of Dixon Gardner in Support of Reply.) In one of those objections, Defendants stated, "Defendants and Defendants' counsel are unavailable on March 7, 2023." (Exhibit G to Gardner Declaration in Support of Reply.) The Court n...

Excerpt: ...d Sur-Reply filed 4/26/23. The tentative remains the same: The court DENIES Defendants FCA US LLC and John L. Sullivan Chrysler Doge Jeep Ram's Motion for Judgment on the Pleadings as to Plaintiffs 5th cause of action (for fraud by inducement) and 6th cause of action (for negligent repair) of the Complaint. 5th Cause of Action (Fraudulent Inducement) First, Defendants argue that Plaintiff's 5th cause of action is barred by the economic loss rule....

Excerpt: ...l notice of Fullerton Municipal Code section 9.06.070, which was discussed by both sides and provided via link in Defendant's written Request for Judicial Notice (ROA 101). (See, e.g., Evid. Code, § 452(b); The Kennedy Comm'n v City of Huntington Beach (2017) 16 Cal.App.5th 841, 852 [the court may take judicial notice of municipal codes].)  2nd cause of action (premises liability) The First Amended Complaint (FAC), the operative pleading, all...

Excerpt: ...e Control (ABC)– DENIED. (3) Gallaghers' Instagram postings – DENIED. (4) 1/16/2019 default judgment in Case No. 30-2018-01005800 – DENIED. (5) Huntington Beach Municipal Code 5.04.090 –GRANTED. (6) Gallaghers permit to sell food in 2020 issued by the County of Orange – DENIED. The court notes that Exhibits 1, 2, 3, 4 and 6 are not certified or authenticated, as noted in Plaintiff's untimely objection to the Request for Judicial Notice....

Excerpt: ...st cause of action (elder abuse) and 4 th cause of action (EMTALA): As to the 1 st cause of action for elder abuse and the 4 th cause of action for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), Moving Defendants argue that the Complaint fails to allege sufficient facts to state such causes of action. Plaintiffs do not address the merits of the demurrer to either cause of action in their “Opposition (Response).” R...

Excerpt: ...es v. Superior Court (1984) 157 Cal.App.3d 159, 166.) And while the necessary facts can be stated as ultimate facts or conclusions of law, they are sufficient only when "read in context with the facts alleged as to defendants' conduct [so as to] adequately plead the evil motive requisite to recovery of punitive damages." (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) Here, the SAC fails to allege specific facts to support a claim of pu...

Excerpt: ...operty located at 3 Via Palma, Unit 27, Laguna Nigel, CA (the "Unit"). (Pl. Separate Statement No. 1 [Chapman Decl. 9-10, Exs. 8- 9, RFA and Responses Nos. 1-2]); Unit 27 is part of a condominium development managed by Defendant Niguel Pointe Homeowners Association in accordance with an Additional Declaration of Covenants, Conditions, and Restrictions and Reservations of Easements (the "CC&Rs") (Pl. Separate Statement No. 2 [Chapman Decl. 9-10, E...

Excerpt: ...that each Memorandum of Costs was untimely filed. The argument lacks merit. "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal ...." (Cal. Rules of Court, rule 3.1700(a)(1).) The deadline is extended b...

Excerpt: ...en discovery requests; to the extent it objects to the request, is unable to comply with the discovery request, or lacks sufficient information or knowledge to provide a complete and straightforward response, it must so state. (Code Civ. Proc., SS 2031.210- 2031.240.) Upon receipt of the discovery responses, the propounding party may move for an order compelling further responses if it deems the responses to be evasive, inadequate or incomplete, ...

Excerpt: ...ted cases that are attached to the Declaration of Daniel O. Nickfardjam, filed in support of Plaintiffs Opposition Brief. They too are improper and counsel is admonished not to improperly cite to rulings or opinions without precedential value. (See Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761, 87 Cal. Rptr.3d 174 [citation of unrelated trial court order improper].) The court GRANTS Defendant Nissan North America, Inc.'s motion to com...

Excerpt: ...6] is that you have a right not to be dragged through the courts because you exercised your constitutional rights." (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317, emphasis in the original.) Protected activity is defined in the statute as the following: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written o...

Excerpt: ...was a 60% ownership in Congolese Wireless Network (CWN). "An action is deemed derivative '"if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets."' [Citation.] When a derivative action is successful, the corporation is the only party th...

Excerpt: ...lacking. The court SUSTAINS Defendant's evidentiary objection nos. 2, 3, 7, 8, 10, 12, and 13 to the Declaration of Mark J. Burns; and OVERRULES all other objections, including the remaining portions of the Burns Declaration and to portions of the Plaintiffs Declaration. The court DENIES Defendant Huntington Beach Union High School District's Motion for Summary Judgment. As explained below, Defendant fails to meet its burden on summary judgment. ...

Excerpt: ... 32nd, 33rd, and 34th affirmative defenses WITH 10 days LEAVE TO AMEND; and the motion is DENIED as to the through 30th (inclusive) affirmative defenses. "'Motions for judgment on the pleadings are usually made by defendants. In such instances the motion is the equivalent of a general demurrer, and on appeal from the judgment the appellate court will assume the truth of all facts properly pleaded in the complaint. [Citation.] Motions by a plainti...

Excerpt: ...rbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action."...

Excerpt: ...ous condition to exist on the premises – namely, a negligently maintained wooden railing – that led to plaintiff's injuries. In moving for summary judgment, defendant argues that plaintiff cannot establish causation, as the allegedly faulty wooden railing did not cause plaintiff's injuries. Here, defendant met its initial burden to show that causation is lacking here. Defendant proffers evidence that plaintiff fell from the roof, and not from...

Excerpt: ...greement between plaintiff and the decedent (Mary Nguyen, defendants' mother). Defendants are not alleged to be parties to that oral agreement. More specifically, plaintiff entered into an oral agreement with the decent in 2015, whereby they would co-purchase certain property, would reside together and split costs, that title would be held in the decedent's name only (because plaintiff was not yet eligible to own a mobile home in the Bali Hi Mobi...

Excerpt: ...e court notes that the alleged contract was for compensation, not for employment. (See 4thAC, Exh. A [“This compensation plan is not a contract for employment…”].) As such, defendants' arguments regarding an at-will employment are not well taken. Further, Asmus v. Pacific Bell (200) 23 Cal.4 th 1, relied upon by defendants, is not helpful at this pleading stage. Defendants cite Asmus for the proposition that an employer is within its rights...

Excerpt: ...s),  5th AD (equitable abstention),  6th AD (good faith),  7th AD (unforeseen circumstances), and  8th AD (estoppel). Importantly, the general answer responds to a complaint based on a single cause of action for violating Section 17200 et seq of the California Business and Professions Code, commonly referred to as the Unfair Competition Law (UCL). The answer contains mostly boilerplate defenses that often appear in answers, and withou...

Excerpt: ...al.App.4th 556, 570. Here, Plaintiffs have not provided any evidence, let alone evidence to establish the court has jurisdiction over moving defendant. The court notes that Plaintiffs' First Amended Complaint is not verified, and “an unverified complaint has no evidentiary value in determination of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) By contrast, moving defendant has presented a declaration that ...

Excerpt: ...ter notice to the parties, if the action is not brought to trial within the time prescribed ….” (Code Civ. Proc., § 583.360(a).) Dismissal is mandatory and “not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.360(b).) “Under the press of this statutory requirement, anyone pursuing an ‘action' in the California courts has an affirmative obligation to do what is necessary to...

Excerpt: ... According to the moving papers, Defendant refused to respond at all, other than objections. The party asserting objections bears the burden of establishing the validity of those objections. (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220‐221.) Because Defendant failed to meet this burden, the motions are granted. Because Defendant failed to provide the court with substantial justification for the objections, the finds that sanctions are warranted...

Excerpt: ...defects in the First Amended Complaint (“FAC”). On 08/29/2022, the court sustained with leave to amend the demurrer to the FAC, ruling in relevant part that “[w]ith respect to a claim for active concealment or suppression of the facts, the FAC does not allege facts to show that Defendant Shen had any duty to disclose to Plaintiff.” Here, the SAC cures that defect, alleging that Defendant Shen's references to the business as a “clinic,�...

Excerpt: ...2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Also, pursuant to subsection “b”, a separate declaration must accompany the motion and must spe...

Excerpt: ...ented evidence that, prior to the telephonic meet-and-confer, she advised Plaintiff's counsel of Moving Defendants' intent to demur to the second through sixth causes of action. She also represents that, during the subsequent telephonic conference, the parties discussed the demurrer to all five causes of action. Based on the evidence presented, the Court finds Moving Defendants substantially complied with section 430.41, subdivision (a) of the Co...

Excerpt: ...judicially noticeable matters. In sum, this appears to be an improper “speaking demurrer”. Request for Judicial Notice: Moving Defendant requests the court take judicial notice of certain filed documents – to wit, (1) Plaintiff's Motion for An Order to Set Aside Dismissal of Plaintiff's Complaint and the accompanying Declaration of Ernest J. Lingerfelter and Exhibits Thereto and (2) a Minute Order dated August 18, 2022. The request is GRANT...