Excerpt: ...is important public policy mandates the minimization of judicial intervention in the process of arbitration because, inter alia, the parties thereto expect arbitration to be final rather than the prelude to further litigation. Thus, the Supreme Court has proscribed judicial review of the merits of the controversy, the validity of the arbitrator's reasoning, or the sufficiency of the evidence supporting the arbitrator's award. (ld. at 11.) The onl...

Excerpt: ... default. See also Ins. Code 11580(b)(2). There are several reasons to grant intervenor's request. First, under CCP 473(b), "the court shall, whenever an application for relief is made no more than six months after entry of judgment ... vacate any (1) resulting default entered by the clerk" proVded that the moving party files an appropriate affidavit demonstrating "mistake, inadvertence, surprise, or neglect." Here, intervenor has demonstrated, a...

Excerpt: ...per].) On its own motion, the court takes judicial notice of the following proofs of service filed as to this defendant: ROA 16, 148, 156, 183. (Evid. Code, S 452, subd. (d) [court records].) As to defendant Phan, plaintiffs' original proof of service indicates he was served on 9-29-22 via substitute service to Aileen De Los Santos, "office staff," at 340 S. Lemon Ave., # 8771, Walnut, California 91789. (ROA 16; Phan Decl. in support of motion, "...

Excerpt: ... Civil Procedure section 437c(f)(2) provides, in pertinent part: "A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." The court has analyzed defendants' current motion and comp...

Excerpt: ...37c [authorizing motion].) Moving parties' request for judicial notice is GRANTED as to Exs. 8-11 (Evid. Code, S 452, subd. (d)), and DENIED as to Ex. 12. As to Exs. 8 and 10, the court takes judicial notce of the fact that the documents were filed, but not of the truth of their contents. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.) Responding parties' request for judicial notice is GRANTED as to Exs. A-D (Evid. Code, S 452, subd. ...

Excerpt: ...s." The filing of a complaint as a "Doe" impairs the public's right of access to court records. (See Cal. Rules Court, rule 2.550(c).) The California Legislature has expressly provided for certain exceptions to the standing rule, and has allowed the use of pseudonyms. (See e.g. Civil Code 1708.85.) Courts have affirmed the ability to proceed as a pseudonymous plaintiff under exceptional circumstances in which privacy rights are implicated. "The j...

Excerpt: ..., Set One, and Request for Production of Documents, Set One, are GRANTED. (Code Civ. Proc., SS 2030.290, 2031.300.) Defendant George Katsivalis is ordered to provde full, complete, and verified responses to Form Interrogatories, Set One, and Special Interrogatories, Set One, without objection, within 15 days. Defendant George Katsivalis is further ordered to provide full, complete, and verified responses to Request for Production of Documents, Se...

Excerpt: ...urden then shifted to plaintiff to establish that the arbitration agreement was unconscionable or unenforceable for other reasons. (See OTO, LLC v. Kho (2019) 8 Cal. 5th 111, 126.) Unconscionability must be both procedural and substantive to avoid enforcement of the arbitration agreement. ld. at 125. Procedural and substantive unconscionability are evaluated on a sliding scale: "The more substantively oppressive the contract term, the less eviden...

Excerpt: ...hird amended complaint (TAC) continued to name Doe 1 as a defendant. The mere failure to specifically re-identify US Bank as Doe 1 in the TAC was at most a technical procedural error, which plaintiff could cure by amendment (as it has now done in the 4AC) without compromising the benefit of the relation-back doctrine. (See generally, Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176-177 (Woo) [failure of amended complaint to identify newly add...

Excerpt: ..., in that the court takes judicial notice of the fact that the documents were filed with the respective government agencies, but not of the truth of their contents. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608.) The motion is GRANTED asto cross-defendant Diamond entirely, on grounds of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., S 438, subd. The only basis of liability alleged as to this c...

Excerpt: ... (See Calif. Rules Court, rule 1320 (a), (c); Code Civ. Proc. S 430.60.) As defendant has failed to file a demurrer, the court construes defendant's motion as a demurrer on the grounds of uncertainty and a general demurrer. The demurrer on the grounds of uncertainty is overruled. The complaint is not so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general de...

Excerpt: ...s of material fact as to Noticed Issue No. 1. (See Code Civ. Proc„ S 437c, subd. (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 [burden.] A triable issue of material fact exists as to undisputed material fact ("UMF") 25 as to whether Falcon purchased lights from Luxx in 2019. This triable issue is created by Plaintiff's Exh. l, Nichols as PMK Depo., 139:1-25.) Triable Issues of material fact exist as to UMFs 29, 3...

Excerpt: ...trating the claim has no merit, that plaintiff cannot prove an element of the claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) If the defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal....

Excerpt: ...the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation,...

Excerpt: ...oposal" or the "master lease." Defendants' argument that the "lease is not a contract fails at the summary judgment phase, as plaintiffs have shown triable issues. As it relates to the "master lease," the version defendants' attached to the motion is illegible. In reply, a legible version is attached, but it simply raises additional questions of material fact. Did the "master lease" su#rsede any other agreement? The evidence submitted shows dispu...

Excerpt: ...orders the dismissal of this matter pending in Orange County Superior Court, with prejudice. A party may seek confirmation by filing and serving a petition at least 10 days, but no more than 4 years, after service of the award on that party. (C.C.P. 1288, 1288.4). The petition must name as respondents all parties to the arbitration and may name any other persons bound by the award. (C.C.P. 1285). The petition must also set forth the substance of ...

Excerpt: ...s. Here, it is undisputed that the CC&Rs govern the Harbor Creek community which includes the units owned by Plaintiff. (See Response to SSUMF No. 1.) Paragraph 1.13 of the CC&Rs defines “Common Area” as “all areas on the Project, except the Units, and shall further include, without limitation, for maintenance purposes of the Association, but not necessarily by way of fee title, all gas, water and waste pipes, all sewers, all ducts, chutes,...

Excerpt: ...ing competent testimony based on personal knowledge of irreparable harm, immediate danger, or other statutory basis for granting relief ex parte. Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1097 (citing Cal. R. Ct. 3.1202(c)). A trial court should deny an ex parte application absent the requisite showing. Newsom, 51 Cal.App.5th at 1097. None of the declarations filed in support of defendants' ex parte application establish irreparable ha...

Excerpt: ...ne or more elements of the plaintiff's cause of action cannot be established. A motion for summary judgment or adjudication is framed by the pleadings. Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; County of Los Angeles v. Superior Court (2009) 181 Cal. App. 4th 218, 226 (overruled on other grounds by Leon v. County of Riverside (2023) 14 Cal. 5th 910). There is no dispute between the parties regarding the elements of the single...

Excerpt: ...(Code Civ. Proc., 5 430.10, subd. (e). The remainder of the demurrers are OVERRULED. Plaintiff shall have 10 days to file an amended complaint. Defendants Max Sandoval, 6 Star, and Maxx's request for judicial notice is DENIED. (Evid. Code, 453, subd. (a) [adequate notice required]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal .App.3d 369, 374 ["The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of h...

Excerpt: ... claimed privilege. (See Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619.) The privilege log raises two bases for defendant's objections: “proprietary business information,” and “third party privacy.” Proprietary Business Information. The court's June 5, 2023 order did not include objections on the basis of “proprietary business information.” Additionally, defendant's second amended verified responses failed to preserve any ...

Excerpt: ...Kirk has failed to engage in discovery throughout this case. As a result, defendant has successfully moved the court for multiple orders compelling plaintiff to comply. (Chung Decl.—June 16, 2022 and February 6, 2023 Orders). Those orders reflect that plaintiff was present for both hearings when those orders issued. Defendant's moving papers also demonstrate protracted meet and confer efforts expended by defendant to gain plaintiff's compliance...

Excerpt: ...dence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that plaintiff cannot prove an element of the claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) If the defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the moti...

Excerpt: ... in which the defendant has engaged. [CCP 425.16(b) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67] If the defendant carries his burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” [Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384] Based upon the all...

Excerpt: ...ments]; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 [a plaintiff may plead the legal effect of the contract rather than its precise language]; see also FAC ¶¶ 9-21, 31.) Second cause of action for fraud. The FAC states facts sufficient to constitute a cause of action for promissory fraud, with the requisite specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 645 [promissory fraud...

Excerpt: ...) The motion is DENIED as to defendant OC Auto Imports, Inc. dba OC Autohaus, as this defendant has not met its initial burden of presenting evidence showing that plaintiff Romeo Buenaventura cannot establish an essential element of his claims, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) First, this moving defendant cites no authority allowing summary judgment / adjudication based on a minor's unreprese...

Excerpt: ... SAC ¶¶ 10-28, 31-43.) To the extent defendant contends the claim is barred by workers' compensation exclusivity, the exclusive remedy provisions of the California Workers' Compensation Act do not preempt FEHA claims even as to work-related disabilities. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156; Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 106.) To the extent defendant attempts to ar...

Excerpt: ...s and assertions, the prior orders stated that the submittal of the HARM report constituted protected activity under a whistleblower claim. However, those orders noted what has again failed to be addressed by Plaintiff Reynolds: a causal link between the protected activity and an adverse employment action. Reynolds efforts to align his resignation with Plaintiff Robinson's termination (SAC para. 67) to create Reynolds' adverse employment action f...

Excerpt: ...igation by other judicial officers. For example, Husley again argues in her current motion that she was never served with the Summons or Cross-Complaint. Instead of addressing the court's prior rulings on this issue – that Hulsey waived any objections to service of the cross-complaint, Hulsey once again argues that she was never served with the aforementioned documents. This court (Judges Stephanie George and Melissa McCormick) previously addre...

Excerpt: ...��) are SUSTAINED, WITH LEAVE TO AMEND, on the ground of failure to state a COA. [CCP §430.10] Exhaustion of administrative remedies is not alleged by plaintiff in the 1 st and 3 rd COA. The demurrer to the 4 th COA is SUSTAINED, WITH LEAVE TO AMEND, on the ground of failure to state a COA. [CCP 430.10(e)] The Complaint does not allege which statute, regulation, rule, or ordinance has been violated, as required by Labor Code §1102.5(b). The dem...

Excerpt: ...ourt's limited resources. As a result of the pending motions discussed above, the court sets for hearing on July 3, 2023 at 2:00 p.m. in C28 an OSC why the court should not appoint a discovery referee to hear the pending discovery motions and determine all future discovery disputes in this case. (See Code Civ. Proc., § 639 et seq.; see also Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 101-105 [factors].) The parties are ordered to meet a...

Excerpt: ...rden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 570.) The plaintiff must demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.) If the plaintiff establishes that the defendant has minimum contacts w...

Excerpt: ...pecializes in spinal injuries, on 6/20/23 at 8:30 a.m. at 360 San Miguel, Suite 701, Newport Beach, California 92660. This examination will focus on plaintiff's alleged spinal injuries and symptoms. Claims of continuing, ongoing or permanent problems, if any, will be within the scope of the examination, including claims for future care and/or surgery. The examination will be consistent with the orthopedic practices in Southern California and cons...

Excerpt: ...to the discovery of information relevant to the subject of this lawsuit nor to the discovery of admissible evidence." (See Separate Statement or 18 of Toepel Declaration and Exhibit 2 thereto; See also of Amended Toepel Declaration.) A review of the requests for admissions, however, indicates that each refers to the funds in dispute, the collection efforts through which they were obtained, the underlying action in which this dispute arose, Plaint...

Excerpt: ... rule does not apply "where the contract was fraudulently induced," or where "the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm"]; see also Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 923-924 [same]; Dhital v. Nissan North America, Inc. (2022) 84 Cal .App.5th 828, 838-843, cert. granted, Dhital v. Nissan North America (Cal. 2...

Excerpt: ...n agree to arbitrate "gateway" questions of "arbitrability," such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.' [Citation.] Similarly, ' "Cp]arties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement." The answer to 'the question "who has the primary power to decide arbitrability" turns upon w...

Excerpt: ...e evidence objected to was not material to the Court's decision. CCCP S437c(q)) Desacola Declaration Objections 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 are OVERRULED. Defendant M. K. Products, Inc.'s Objections are ruled on as follows: Objections 5, 6, 7, 10, 12, 14, 15, 16 and 17 are OVERRULED. Objections 8, g and 11 are SUSTAINED. The Court declines to rule on Objections 1, 2, 3, 4, 18 and 19 because the evidence objected to was not ...

Excerpt: ...s reflected in ROA Nos. 11, 12, 45, 46, 51 and 52. The Court notes, however, that it is not addressing the sufficiency of service completed on April 18, 2023. (ROA Nos. 169 and 170.) Pursuant to C.C.P. a Defendant may, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, serve and file a notice of motion to quash service of summons, on the ground of lack of jurisdiction. (C.C.P....

Excerpt: ...P") section 403 describes the pertinent legal standard for addressing Defendant's motion to transfer, and CCP section 1048 describes the legal standard for Defendant's motion to consolidate. In short, upon a motion a judge may order a transfer of "an action involving a common question of fact or law" when the matter is not complex. CCP 1048 provides that actions may be consolidated when they involve "a common question of law or fact" and may be h...

Excerpt: ...nderlying the plaintiff's cause of action fits one of the categories spelled out in the anti-SLAPP statute. (Ibid; Bonni v. St. Joseph Health System (2021) 11 Cal.5th gg5, 1008-1009 Cthe moving party's "burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. [Citation.]".) "[T]he anti-SLAPP statute often will not apply to cross-complaints: ...

Excerpt: ...rt (1985) 169 Cal.App.3d 703, 710 [plaintiff's burden]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-448 [elements of specific jurisdiction); Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 ["contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum Cr]ather, a court must evaluate the contract terms and the surrounding circumstances to determine wh...

Excerpt: ...317(f), "[e)xpenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the agent to repay that amount if it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this section." (Corporations Code 5317(f) [emphasis added.]) The language in Corporations Code 5317(f) is discretionary and p...

Excerpt: ... breach, and (4) the resulting damages to the plaintiff. (Oasis west Realty, LLC v. Goldman (2011) 51 cal.4th 811, 821). Plaintiff's cause of action against TEC fails for two reasons. First, Plaintiff admits that TEC was not a party to the agreement. (TAC, Tl 30). Second, Plaintiff fails to allege breach by TEC. Plaintiff contends that the pleading is adequate because she alleged a conspiracy. Plaintiff's bare and conclusory allegation that "Defe...

Excerpt: ...her by insulting and degrading her; ignoring her numerous requests for benefits and rights due to her under the CC&Rs for the maintenance of the Common Area that directly affects her unit; subjecting her to harassing and threatening letters while she was in the ICU for a serious infection potentially tied to the bacteria and mold in her unit caused by the sewer water intrusion; and engaging in such conduct to cause her to withdraw all of her clai...

Excerpt: ...es 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." J; SAC, Ex. 3, pg. 1 [contractual provision for attorneys' fees and costs]). If a contractual atto...

Excerpt: ...Labor Code. S 1102.6 [O]nce it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by...

Excerpt: ... and fair dealing are DISMISSED without prejudice pursuant to plaintiff's voluntary dismissal of these claims. (See Opp. at pp. 15:25-28, 16:21-23, 19:4-7.) The court has addressed the noticed issues below in the same order in which they appear in the moving memorandum of points and authorities, which begins with the second cause of action for retaliation. Issue No. 2. Defendants have met their initial burden to demonstrate plaintiff's "second ca...

Excerpt: .... S 1026.41 does not apply to this Home Equity Line of Credit (HELOC). (See 12 C.F.R. 1026.41, subd. (a)(l) ["This section applies to a closed-end consumer credit transaction secured by a dwelling, unless an exemption in paragraph (e) of this section applies. A closed-end consumer credit transaction secured by a dwelling is referred to as a mortgage loan for purposes of this section. "J; 12 C.F.R. [definition of close-end credit]; 12 C.F.R. S 102...

Excerpt: ...lden Decl. 3, Ex. A.) The motion is also DENIED AS MOOT to the extent it seeks further responses from mMax Communications, Inc. (MCI) and mMax Communications Pte. Ltd. (MCSG) to HPI's first set of special interrogatories, Nos. 4-6, as these defendants have now served amended responses to these interrogatories as of 3/15/23. (See Golden Decl. 4-5, Exs. B-C.) The motion is GRANTED as to the remaining special interrogatories at issue. MCSG is ORDERE...

Excerpt: ...auses of action under the federal Magnuson-Moss Warranty Act. (Code Civ. Proc., S 437c, subd. (c) [authorizing summary judgment where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"]; see also Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4&' 981, 1001 [where a party seeking summary judgment has not addressed all of the...