Excerpt: ...of James Kim is OVERRULED Defendants' Marshall B. Ketchum University, Edward Fisher, and Monica Trivedi's Motion for Summary Judgement is DENIED. Their Motion for Summary Adjudication is also DENIED. The Court considers this as a Motion for Summary Judgment only. To the extent the Separate Statement purports to support a motion for summary adjudication, it does not comply with California Rule of Court Rule 3.1350(b). The “issues” are not stat...

Excerpt: ...gment pursuant to the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citati...

Excerpt: ...tion for Right to Attach Order and Writ of Attachment as to The Steven Martin Rees and Ann Marie Rees Revocable Trust, filed on 5-1-19. The court's 5-1-19 Minute Order deemed the Ex Parte Applications as the moving papers. Code of Civil Procedure section 484.040, states, “No order or writ shall be issued under this article except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all ...

Excerpt: ...e following: [¶] (a) A copy of the summons and complaint. [¶] (b) A notice of application and hearing. [¶] (c) A copy of the application and of any affidavit in support of the application.” “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) “ . . . [A]n attachment may be issued only in an action on a claim or claims for mo...

Excerpt: ... must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. Of course, the scope o...

Excerpt: ...ed by the court's order. (See Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.) This Court previously sustained without leave to amend Plaintiff's cause of action for breach of contract, and Plaintiff did not move for leave to add any additional cause of action prior to filing the First Amended Complaint (“FAC”). (See Code Civ. Proc., § 472.) Thus, the first cause of action is hereby stricken on the court's order. The general and...

Excerpt: ... requirements are similar to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause, and damages (Id.), as well as additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In a...

Excerpt: ..., § 831.4, the County is immune from liability, injuries caused by a physical defect of a recreational trail. Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929. Trail Immunity: Gov. Code, § 831.4 provides that “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to ...

Excerpt: ...nce; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402.) In its SAC, Plaintiff alleges that after receiving medical services in Mexico, third-party Howard Hamilton assigned to Plaintiff his right to payment under his health insurance policy with Defendant. However, the insurance plan prohibits assignments of the type pleaded. Specifical...

Excerpt: ...viously granted by this court 03/20/2019. Defendants do not object to the FAC on that ground and instead attack the three new causes of action pursuant to Code of Civil Procedure Section 430.10(e). The FAC pleads causes of action for cancellation of instruments, wrongful foreclosure, and slander of title. All three causes of action are based on the allegation that the 2007 Deed of Trust, the 2015 Assignment of Mortgage, and the subsequently recor...

Excerpt: ...gligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) “A plaintiff ‘must allege a causal connection between the negligence ... and the injury he suffered …. [W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specif...

Excerpt: ...Cause of Action (Battery) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (...

Excerpt: ...ion alleged in the SAC are beyond the scope of the Court's order sustaining Brokers' demurrer to the FAC with leave to amend and (2) in any event, all claims are barred by the applicable statute of limitations. Brokers' request the Court to take judicial notice of the notice of ruling on their demurrer to the FACT and their meet and confer declaration filed in this action. This request is denied because it is unnecessary to ask the court to take ...

Excerpt: ...rtainty is overruled. Plaintiff shall have 15 days leave to amend. Plaintiff's requests for judicial notice are granted. First Cause of Action for Negligent Supervision To establish a claim of negligent supervision, a plaintiff must prove the traditional elements of actionable negligence. (Thompson v. Sacramento City Unified School Dist., 107 Cal.App.4th 1352.) To prevail on an action in negligence, the plaintiff must show that the defendant owed...

Excerpt: ... statements of law” is without merit. Interrogatories may properly ask about a party's contentions of fact or law, and the facts, witnesses, or writings on which these contentions are based. CCP §2030.010(b); Burke v. Superior Court (1969) 71 Cal.2 nd276, 281. Moreover, plaintiff included the statements of law in her complaint, although their inclusion was not authorized by CCP §425.10(a)(1) and (2). Having alleged these statements of law, pl...

Excerpt: ...make a determination that Plaintiff was discriminated against by Defendant or that Plaintiff was fired on the basis of her disability or inability to perform the duties required of her. The MSA seeks adjudication as to the Business Necessity affirmative defense. “Where the plaintiff is the moving party and the defendant relies upon an affirmative defense, it is incumbent upon a moving party plaintiff . . . to show that there is no material fact...

Excerpt: ... identification of witnesses to “the incident.” But that term here is quite broad, as MP stayed at Hospital for 10 days. Hospital responded under C.C.P. § 2030.230, which allows records to be produced where a compilation would otherwise be required. Hospital has also shown that it produced roughly 1300 pages reflecting the entire record, offered to assist in identifying any personnel identified therein, and agreed to provide addresses and ph...

Excerpt: ...rom Tara Hill (owner of the premises where the interaction occurred). The third motion is another motion to quash by specially appearing defendant Albaro Parada, claiming he was not effectively served. This Court will take each in turn. Discovery Motions – Granted Defendant Chief Financial Services first seeks an order compelling a further response to Form Interrogatory number 4.1 regarding available insurance coverage for the incident. Co-defe...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ...vings Bank, N.A. Motion to Quash There is no tentative ruling on Plaintiff Richard Mateos's motion to quash subpoenas for various bank records. In a minute order dated May 3, 2019, the Court explained potential problems with the subpoenas and suggested how they should be limited. The Court also ordered the parties to meet and confer to attempt to agree on the timing and scope of the records to be produced pursuant to these subpoenas and to finali...

Excerpt: ...al, but plaintiff alleges in ¶38 that due to the taping of the sprinkler heads the fire sprinkler covers would not open as required during a fire, and the sprinklers would not deploy to put out the fire, creating a serious safety issue that put tenants and visitors at risk. Defendant argues plaintiff fails to allege that defendant had knowledge of the concealed defects, but plaintiff alleges in ¶97 that defendant knew of the material fire sprin...

Excerpt: ...allocated to the PAGA claim. Moreover, given other significant issues with respect to both the structure and explanation of the settlement (detailed below), the Court can see no reason for merely continuing the motion to allow for “corrections.” If the parties want this Court to approve the release of penalties for 146 employees, then they will need to rethink the settlement terms. The Motion is DENIED in view of the following significant iss...

Excerpt: ...'s evidentiary objections to defense counsel's billing records, among other things. As plaintiff has not had an opportunity to respond to attorney Hatch's supplemental declaration or additional exhibits, the hearing is continued for this purpose. Second, the hearing is continued for both parties to provide further briefing. Moving defendants cite Sections 6.01(a) and 6.01(b), Section 7.20, and Section 5.01(b)(2), of the alleged Asset Purchase Agr...

Excerpt: ... of efforts and inefficiency. Although plaintiff has cited cases authorizing this court to award a fee multiplier to the lodestar, this court will not do so, just like 40 of the 44 courts did not do so in the 44 cases cited by plaintiff in paragraphs 34-77 of his attorney's declaration. Plaintiff's counsel's contingency and payment delay risks appear to be taken into consideration in setting counsel's hourly rates in this contingency case, making...

Excerpt: ...nted such a request. Thus, the court lacks subject matter jurisdiction to consider this motion. (See Sayta v. Chu (2017) 17 Cal.App.5th 960, 966- 968; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180-182 [court lacks jurisdiction to consider a motion for reconsideration after dismissal]; ROA Nos. 35-37, 108-110.) Even if the court had jurisdiction, the motion would be denied. Plaintiff previously brought a motion for entry ...

Excerpt: ...iled on or before July 26, 2019. 1. Per the May 30, 2019 declaration of Kevin Mahoney, the class now comprises 393 members. (Mahoney Decl. ¶ 27.) The executed settlement agreement, on the other hand, estimates the class at 290 members. (Settlement at 14.) Counsel previously identified, at preliminary approval, a class of 280-290 members. (Mahoney Decl. of 01/09/19 [ROA 87], ¶¶ 43, 57.) Please explain the approximately 35% increase in class siz...

Excerpt: ...etween the parties. The evidence shows UCMI owes the District a duty to defend as a matter of law. The duty to defend is not contingent upon a showing of negligence on the part of UCMI. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjud...

Excerpt: ... owed to the aggrieved employees will be paid to the participating class members. PAGA claims are subject to a one- year statute of limitations while the class wage and hour claims are subject to a four-year statute of limitations. This means there may be class members who cannot be “aggrieved employees” as they were not employed within the proper time frame. Such employees are not entitled to payment of the LWDA penalties as the statute requ...

Excerpt: ...Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 429 (holding that Iskanian governs PAGA claims even when the agreement is controlled by the FAA); Mandviwala v. Five Star Quality Care, Inc. (9th Cir. 2018) 723 F. App'x 415, 417-418 (same); and Whitworth v. SolarCity Corp. (N.D.Cal. Aug. 21, 2018) 2018 WL 3995937 (same). Defendant also argues that Plaintiff's PAGA claim must be compelled to arbitration because Plaintiff seeks, in part, unp...

Excerpt: ...eal Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) A court may not, however, award costs in the judicial proceeding to confirm an arbitration award that should have been sought and awarded, if at all, in the arbitration. “ ‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and a...

Excerpt: ...ht to bring this action. But as indicated below, the Court will not take judicial notice of “Exhibit 3” to the Complaint: such an “exhibit” was not attached to what was filed with the Court. Even so, the parties agree as to the language of the assignment. A fair reading of the assignment from Downey Savings could be that while the plaintiff is not entitled to receive the percentage rents, it is entitled to one-third of the percentage rent...

Excerpt: ...Sue letter and are barred by the applicable statute of limitations. Those arguments have merit as the Second Amended Complaint is now pled. The plaintiff has attempted to resolve that issue by procuring an amended Right-to-Sue letter which he has now filed with the Court. (ROA 118.) Because there is a jurisdictional burden on the plaintiff to plead the timely filing of a sufficient complaint with the Department of Fair Employment and Housing, the...

Excerpt: ...ent inducement” and “concealment,” and seeks general as well as punitive damages. This is the heart of the Complaint. They allege the defendant manufacturer knew that: (a) the transmissions were defective; (b) these safety defects are not repairable; (c) the defects were not publicly known; and, (d) the defects in this vehicle were not disclosed but actively concealed from the plaintiffs at the time of the dealer sale and repair attempts. T...

Excerpt: ... how, when, where, to whom, and by what means the representations were tendered.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) “We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. The second is to permit a court to weed out meritless fraud claims on the basis of the ple...

Excerpt: ...d Complaint was to be filed within 10 days of the order. A “proposed” Fourth Amended Complaint had been “received” by the Court on March 6, 2019 (ROA 148); i.e., six days earlier, but that pleading was never filed, only received, and no subsequent amended complaint was filed with the Court in accordance with the Court's March 12 order. In the interests of justice, and because the parties appear to accept the amended complaint received Mar...

Excerpt: ...4,045 in attorney's fees and $787.58 in costs, for a total of $34,832.58, plus a 1.25 multiplier. The hourly rates claimed appear reasonable here, in light of the experience and expertise of counsel, the contingent nature of the claim, and the attendant delays in potential recovery. The number of hours devoted to the case for the services rendered also appear reasonable under the circumstances here. Jaguar argues that the hours billed are excessi...

Excerpt: ...th Lakes Land Acquisitions, LLC v. Town of Mammoth Lakes(2010) 191 Cal. App. 4th 435, 463. Plaintiff contends that all of these elements have been established by the request for admissions that were deemed admitted by the Court on 2/7/19. There is a valid contract between the parties for student loans and Defendant promised to repay all student loans. SS, 1- 2. Plaintiff performed pursuant to the contract by making student loans to Defendant in t...

Excerpt: ...bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not mee...

Excerpt: ...ble evidence ….” (Code Civ. Proc., § 2017.010.) “Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221.) Here, each request for production follows the same format: “ALL emails between email address [...

Excerpt: ...discovery, professional courtesy generally warrants allowing one. In another context, the DCA has recently said: “The policy of the state is that the parties to a lawsuit ‘shall cooperate.' Period. Full stop.” (LaSalle v. Vogel 2019 ___ Cal. Rptr. 3d ___ (June 11, 2019, No. G055381) 2019 WL 2428668, at *1 (published, pending citation). The Court continued, “We conclude by reminding members of the Bar that their responsibilities as officer...

Excerpt: ...rported to act in court, as a guardian ad litem (GAL) for his mother, even though the son was not formally appointed a GAL. Plaintiff alleges that the orders that issued in the case concerning payment of legal fees and spousal support, are void therefore. He is seeking a declaration that orders were void and to have the son pay for the alimony and legal fees that were ordered in the family court. Plaintiff is suing the son, Defendant Sridhar Redd...

Excerpt: ...n. In support of its motion to set aside the default, TRD makes the following arguments: (1) TRD was not properly served with the Complaint; (2) TRD lacked actual notice of the action; (3) relief should be granted under CCP § 473(b) based on TRD's mistake, inadvertence, surprise, or excusable neglect; and (4) Plaintiff's counsel violated California Attorney guidelines of Civility and Professionalism. (1) Service of the Complaint on TRD: TRD cont...

Excerpt: ...seeking. Plaintiff did not oppose the motion substantively. Instead, plaintiff contends that the motion was not properly served or timely noticed – requiring a continuance of the hearing. The matter was continued to this date to permit further briefing. The Court has now looked to the further briefing and issues the 2nd tentative. Pursuant to CCP §473.5, “when service of a summons has not resulted in actual notice to a party in time to defen...

Excerpt: ...2018-01019366. It has also reviewed the Declaration of Scott A. Brooks filed on June 10, 2019 (“Brooks Declaration”). Pursuant to Code Civ. Proc., § 404.1, the petition for coordination is GRANTED. All three actions have already been deemed complex by their respective courts. (Code Civ. Proc., § 404.) Further, coordination of the actions will promote the ends of justice. The actions have a substantial amount of overlap of factual and legal ...

Excerpt: ...n is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a tr...

Excerpt: ...m Fund I Trust, Zieve, Brodnax & Steele, LLP, Wells Fargo Bank, N.A. s/b/m Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB, and Wells Fargo Bank South Central, N.A. The complaint alleges eight causes of action: (1) violation of 12 CFR §1026.39; lender failure to provide proper mortgage transfer disclosures; (2) lender / servicer negligence; (3) accounting of loan amounts; (4) violation of CC §2923.5; (5) violation of CC §2923.7; (6) viola...

Excerpt: ...s to supply 10,000 mini-hookahs, but defendants only delivered approximately 6,000 units and misrepresented their intention to fulfill the contract. No trial date is set. Defendant demurs to all C/As of the complaint on the grounds of failure to state facts sufficient to constitute a C/A and uncertainty (CCP §430.10(e), (f)) Analysis: Moving Party's Request for Judicial Notice in support of Reply: With the Reply, MP submitted a request for judic...

Excerpt: ...rchitect/engineer and the design/build general contractor over improvements to the 91 freeway. Defendant Atkinson/Walsh Joint Venture retained Plaintiff to provide architectural/engineering services in connection with a bid by Defendant to provide general contracting services to the Riverside County Transportation Commission in connection with works of improvement on the 91 freeway. The agreement provided, among other things, that Defendant purch...

Excerpt: ...ted in a “red tag” of plaintiffs' apartment. Plaintiffs contend, among other things, they have been denied access to the personal property located in their apartment and have suffered both physical damages and emotional distress. The Second Amended Complaint consists of the following causes of action: 1. Breach of the implied warranty of habitability 2. Tortious breach of the warranty of habitability 3. Violations of Civil Code section 1940.2...

Excerpt: ...f used a ride share service operated by Defendant Lyft on 7/31/18 in Huntington Beach to drive him to second location in the same city. Plaintiff was carrying a $7,500.00 cash deposit in a fabric deposit bag in his pocket. While Plaintiff was either entering or exiting the vehicle, the deposit bag fell out his pocket into the vehicle being driven by Defendant Smith. After exiting the vehicle, Plaintiff noticed the deposit bag was missing. He cont...

Excerpt: ...of gross revenue you made from Moneytips.com generated by a free credit reporting product offered on your website each month from June 2016 to the present; Code-compliant response to be provided within 10 days; #36: Interrog should be limited as follows: State the amount of net profit you made from Moneytips.com related to a free credit reporting product offered on your website for each month from June 2016, to the present; Code compliant respons...

Excerpt: ...its complaint, and that defendants were entitled to costs. Moving Party contends as follows: Item 12 – equipment rental for exhibit presentation Defendants claim costs of $4,475.84. However, defendants have not shown the costs resulted in documents that were “reasonably helpful to aid the trier of fact” and should therefore be disallowed. Even if they were helpful to the trier of fact, the expense is excessive. Other The evidence doesn't su...

Excerpt: ...of the authority to grant cable television franchises from the Public Cable Television Authority resulted in the “termination” of the franchise within the meaning of the law or terms of the parties' JPA; It has not been shown that the Court has the authority to dissolve the JPA and PCTN and distribute its assets; Deny motion. ...

Excerpt: ...(McGhee) (collectively, the security defendants), alleging the following three causes of action: 1. Assault/battery, 2. Negligence, and 3. Negligent infliction of emotional distress. On April 2, 2019, plaintiff filed an amendment to complaint, identifying Doe 1 as Kaiser Foundation Health Plan, Inc. (Health Plan or KFHP), erroneously sued as “Kaiser Foundation Health Plans.” On May 8, 2019, plaintiff filed another two amendments to complaint,...

Excerpt: ...ngers, an injury under his right eye, multiple chipped teeth requiring reconstructive dental work, and a concussion. He went to an ER immediately after the incident and again a few days later. On 2/23/17, Plaintiff filed his complaint alleging two causes of action for battery and assault. On 4/26/17, Defendant filed his cross-complaint against Viscomi and SHR MLB LLC (the Montage Hotel), alleging four causes of action for: 1. Indemnification 2. A...

Excerpt: ...uests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or ...

Excerpt: ...one must be a party to invoke an arbitration agreement: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” (Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.) “‘By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, ...

Excerpt: ...The court OVERRULES Cross-Defendant's Objections filed on 6- 13-19. Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of 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 me...

Excerpt: ..., Request for Admission (set 3), Form Interrogatories (Set 5), and Request for Production Set 8.” (Motion; 2:5-8.) Defendant requests a protective order as to these discovery requests pursuant to Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080. (Motion; 2:10- 13.) The parties have adequately met and conferred. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), and 2033.080, subd. (a); 3-15-19 Berman Decl., ¶¶ 3...

Excerpt: ...otice of Exhibits 5 and 6. Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code of Civil Procedure section 438, subdivision (d)...

Excerpt: ...s no collusion, fraud, tortious conduct or effect to injure the non-settling defendants; that Defendant BONILLA will pay $29k of the $30k GEICO auto insurance policy limits to GERMAN PLAINTIFFS in exchange or settlement of all claims; and that Defendant BONILLA will pay $1k to the ESCAMILLA PLAINTIFFS in exchange for a release of all claims. (See Hodge Decl., ¶¶ 5 and 6.) Defendant BONILLA also presented evidence that he has no appreciable asse...

Excerpt: ...omplaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, pr...

Excerpt: ...y associated with the physical injuries claimed,” and that he “will not present expert testimony regarding the usual mental and emotional distress at trial in support of his claim for damages.” (Carrillo Decl. ¶ 11, Exh. J [Exh. 2 attached thereto].) Moving Parties have not demonstrated exceptional circumstances to persuade the Court to grant the motion despite the stipulation. Further, Moving Parties do not sufficiently demonstrate how De...

Excerpt: ...pp.4 th 1228, 1238). Having done so, the Court finds sufficient factual allegations to support claims for conversion, either directly or via a theory of civil conspiracy. (See ¶29, ¶65, ¶69, ¶71 and ¶74 of TAC). “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (See Quelimane Co. v. Stewart Titl...

Excerpt: ... appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the l...

Excerpt: ...eillance video taken of Plaintiff. Defendants decline to produce surveillance video of Plaintiff on the grounds of the qualified work product privilege. Plaintiff contended that the surveillance video was no protected under the work product rule and that there was a special need for the production of the tape. “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified prot...

Excerpt: ...under submission. Void Judgment: The Cross-Complaint did not allege personal injury or wrongful death. The pleading alleged no specific sum of damages. Since the Cross-Complaint failed to allege any amount of the Default Judgment is void. “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to ...

Excerpt: ... separate statement provide “all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Here, the “Separate Statement” submitted by the Mr. Weed does not comply with Cal. Rules of Ct., Rule 3.1345(c). It simply attac...

Excerpt: .../2019, Defendants to submit a declaration showing a notice to employee was properly served and the subpoena was properly issued and served on the custodian of records. Hearing on this Motion continued to 7/22/2019 at 1:30 p.m. AFTER THE CONTINUANCE AND ASSUMING THE SUBPOENA WAS PROPERLY ISSUED AND SERVED Plaintiff Maria Arrieta seeks an order quashing the subpoena defendant ASAS Group, Inc. issued to SWH Mimi's Café, LLC, Plaintiff's current emp...

Excerpt: ...any statute prohibiting the filing of an amended costs memorandum, so long as the memorandum is timely under CRC 3.1700. Insofar as the Reply in support of this Motion addresses costs not listed in the costs memorandum filed on March 29, 2019, such arguments are disregarded, as new arguments or evidence are not permitted on reply, particularly where Plaintiff has not had an opportunity to respond. Filing and Motion Fees Defendant argues that the ...

Excerpt: ...in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Sup...

Excerpt: ...ment that may be filed by Defendant, until the final resolution of this action is had. The Motion is denied. A corporation whose powers have been suspended for nonpayment of the corporate franchise tax lacks capacity to sue in California courts; and, if sued, it lacks capacity to defend. (Rev. & Tax Code, § 23301; Reed v. Norman (1957) 48 Cal.2d 338, 342; see Bourhis v. Lord (2013) 56 Cal.4th 320, 324; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App...

Excerpt: ...ed as of June 30, 2016. Plaintiff's lawsuit was filed on May 12, 2017; she timely filed her PAGA letter with the LWDA on May 15, 2017. Without any stays, the deadline for filing a PAGA cause of action was November 2, 2017. (See Labor Code 2699.3; Brown v. Ralphs Grocery Company (2018) 28 Cal. App. 5 th 824, 839; Defendant's Reply at 3.) Defendant's motion to compel arbitration was filed on September 13, 2017 and was decided on October 27, 2017. D...

Excerpt: ..., marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status of any person, to . . . discharge the person from employment . . . or to discriminate against the person. . . .” (Govt. Code, § 12940, subd. (a).) Plaintiff must allege facts to demonstrate that: (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the...

Excerpt: ... defendant may demur to a pleading on the basis “[t]here is another action pending between the same parties on the same cause of action.” The above provision codifies “the common law plea in abatement.” The “rule of exclusive concurrent jurisdiction,” which is the principle Defendant seeks to enforce herein, is similar (see People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, 770), and may be raised by demur...

Excerpt: ...aint (FAC) is OVERRULED, and its motion to strike portions of the FAC is DENIED. Plaintiff De Trinh's request for leave to file a second amended complaint is DENIED AS MOOT. Defendant's unopposed request for judicial notice is GRANTED. Defendant shall have until June 28, 2019 to file an answer to the FAC. DEFENDANT'S DEMURRER TO FAC Defendant demurs only to Plaintiff's ninth cause of action alleging a PAGA claim. In general, Defendant argues that...

Excerpt: ...Business and Professions Code section 17200; (4) negligence; and (5) equitable relief. Defendants Westpark Corte Bella Community Association, Optimum Professional Property Management, and Josephine Perez demurred to the Complaint. Because Plaintiff failed to oppose the demurrer, the demurrer was sustained with 15 days leave to amend. On December 31, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). Defendants Westpark Corte Bella Comm...

Excerpt: ...filed on or before August 9, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. Provide a valuation for each individual cause of action. 2. There still is no mechanism within the stipulation for payment of the $625 (25% of the LWDA amount) to “aggrieved employees” as opposed to class members. T...

Excerpt: ... injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts ma...

Excerpt: ..., hearsay. 2. Sustained, lack of foundation, hearsay. 3. Overruled. 4-5 Sustained, hearsay Declaration of Steve Rader. 1. Sustained as to “…after the homebuilder's counsel…” through end, hearsay, overrule as to balance. 2. Sustained, lack of foundation, improper expert opinion. 3. Sustained, lack of foundation, hearsay. 4-9 Sustained, Evid. Code § 1520. 10. Sustained, lack of foundation, hearsay. 11-12 Overruled. 13-18 Sustained, hearsay...

Excerpt: ... motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th 1569, 1575. The burden rests with the party seeking to compel arbitration ...

Excerpt: ... 2), or (2) establishing that only Plaintiff could have accessed her work email regarding the revised agreements by, for example, demonstrating by way of admissible evidence (rather than “information and belief” or “an understanding”) that after initially signing on at the commencement of her employment using the default password she was required to create a unique password or identifier that only she could use. While the declarations cre...

Excerpt: ... Plaintiff filed this class action seeking to recover for alleged labor code violations on behalf of individuals employed by Defendant as “Job Coaches.” Over time, Plaintiff filed a First and Second Amended Complaint. Each time, Plaintiff sought to recover on behalf of individuals employed as “Job Coaches.” On March 12, 2019, Plaintiff filed a Third Amended Complaint. In this complaint, Plaintiff sought to recover for the same alleged vio...

Excerpt: ... of the petition to compel arbitration is without prejudice in the event that the Supreme Court, in theLawson case, rules that the part of a PAGA case seeking victim-specific relief in the form of unpaid wages is subject to arbitration pursuant to Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 (Esparza). Grounds for Ruling This is a PAGA-only action based primarily on alleged minimum wage and rest break violations. Plaintiff alleges vi...

Excerpt: ...ct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the county in which the property is located.” [Emphasis added.] Vincent Decl., Ex. A. “[P]olicies favoring the efficiency of private arbitration as a means of dispute resolution must [] sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed.” [...

Excerpt: ...t approval of a PAGA or Class Action settlement files the settlement agreement, and the parties must do so here as well. If the parties want to file the settlement agreement conditionally under seal, and file a Motion to Seal, they are free to do so, and the court will consider the motion pursuant to CRC Rules 2.550 and 2.551. The court notes that it does not appear that the individual settlement amount is confidential, because the motion disclos...

Excerpt: ...scope of the responses thereto, which were not produced, and that reasons existed to compel further production for these, then the Court reasonably required and requested a separate statement in accordance with CRC 3.1345(c). After the Motion was filed, MP filed a Separate Statement, however, the document is transforming the matter into another dispute, namely one to compel a further response – for some 45 RFPs approximately. The Separate State...

Excerpt: ...videntiary sanctions, or instructions to the jury, were to be fashioned. Failing to respond to an authorized method of discovery is a misuse of the discovery process. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516. Imposition of sanctions for misuse of discovery lies within the trial court's discretion. Doppes v. Bentley Motors, ...

Excerpt: ... Plaintiff's supplemental request for judicial notice filed on 6/7/19 is DENIED. (See Evid. Code § 453 (“trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.”).) The Court did not consider Plaintiff's reply papers filed on 6/7/19, in r...

Excerpt: ...pellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Currently, there are two binding appellate decisions that contain conflicting holdings on whether claims for unpaid wages under Labor Code § 558 are arbitrable: Zakaryan v. Men's Wearhouse, In...

Excerpt: ...Defendants South Coast Behavioral Health Inc., Charles A. McPhail, and Abdull Khan move to compel arbitration of this dispute and to stay this action pending resolution of the arbitration. (CCP 1280, et seq.; 9 USC § 4, et seq. the Federal Arbitration Act [FAA].) Co-Defendants South Coast Behavioral Health LLC and South Coast Behavioral Health Guesthouse Inc. also join in the motion. The court DENIES the motion as to all three Defendants, for th...

Excerpt: ...71). This privilege should be differentiated from the privilege protecting confidential marital communications. (Evid. Code § 980). The privileges are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal. App. 3d 706.) Here, the court finds that both apply. Plaintiff argues in Opposition that she discussed the ongoing alleged harassment and hostile work environment with witness Mrs. Hulme as it was occurring. But Mrs. H...

Excerpt: ...depose Toyota's Person Most Knowledgeable to obtain relevant information regarding how Toyota handled his warranty claims under the Act. (See McGaffey Decl. at Ex. B, Notice of Deposition.) In particular, Plaintiff argues that in order to recover a civil penalty of twice the amount of damages for his claim under Civil Code 1793 (c), he must prove that Defendant's failure to replace the vehicle or make restitution to him was willful and was not th...

Excerpt: ...tlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Cal. Civ. Proc. Code § 664.6. Defendant contends that Plaintiffs and Defendant entered into a valid and binding settlement agreement before the court on February 25, 2019. In ruling on a motion to enter judgment pursuant to section 664.6, the trial court acts as a trier of fact. Kohn v. Jaymar- Ruby, Inc. (1994) 23 Cal.App.4 ...

Excerpt: ...r hearing on 6/27/19. In support of that motion, Servite filed the declaration of its former president Peter Bowen. Servite moves to seal paragraph 29 of the Bowen declaration because it contains confidential information regarding its former employee Larry Toner, who is not a party to this action. Disclosure of that information would invade Toner's third- party privacy rights in the details of his personnel file and his former employment. The cou...

Excerpt: ...al or emotional injury'; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” Britt v. Sup. Ct., 20 Cal.3d 844, 864 (1978). And even where information is directly relevant to the plaintiff's claim, any compelled di...

Excerpt: ...erefore unnecessary to the litigation. For the following reasons, M.D.A.'s motion is denied. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable...

Excerpt: ...sidering all of the parties' papers, including their supplemental briefs, the court issues the following tentative ruling: Defendants' Petition to Compel Arbitration and Stay Litigation On 11/13/18, Plaintiff Kenneth B. Blye filed his Complaint alleging 15 causes of action against the following named Defendants: 1. Cresa Management LLC (CM) 2. Cresa Partners of Orange County LP (CPOC) 3. Cresa Partners-West Inc. (CPW) 4. Jeff A. Manley 5. Wayne L...

Excerpt: ...is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. Counsel's valuation of the wage statement claim states there are “46 pay periods in the wage statement Class Period and 26 full time equivalent employees who each worked 46 pay periods ….” (Ackermann Decl., ¶ 31.c.) Counsel should explain whether the “wage statement Class Period” differs from the “Cla...