Excerpt: ...eveal that an actual controversy exists between the parties.'” D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489. “[A] home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to ...

Excerpt: ...ently in her position. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355.) The complaint also fails to allege facts showing a discriminatory motive. (Id.) Rather, this is alleged as a conclusion only. (Complaint at Para. 10.) Statutory claims must be alleged with specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) The second cause of actio...

Excerpt: ...Act) and breach of contract. In doing so, Plaintiff alleges unlawful acts that can serve as a basis for violations of section 17200. See Lueras v. BAC Home Loans Servicing(2013) 221 Cal.App.4th 49, 81. Indeed, Plaintiff specifically alleges that “[b]y violating the Act, Neff has engaged in unlawful activities, thereby satisfying the ‘unlawful prong' of the UCL [section 17200 et seq.].” FAC ¶ 38. Relying on Prudential Home Mortgage Co. v. S...

Excerpt: ... service filed on January 19, 2018, show the notice of hearing was served via substitute service, deemed effective as of January 18, 2018. (See Code Civ. Proc., § 415.20 [substitute service deemed complete on the 10th day after mailing].) The last day to timely notice the hearing was January 9, 2018. (Code Civ. Proc., § 1005, subd. (b).) Plaintiffs to give notice. Future Hearings: CMC: 4/10/18 8:30 am ...

Excerpt: ...C does allege facts to support its claim as to her “creditor” status. (FAC ¶¶ 9 & 10.) Nor is the TILA claim clearly time-barred. Buyers argue that even if she is a creditor, there is a 3-year limitation on the right to rescind. But a demurrer on statute of limitations grounds will not lie where the action is not necessarily barred – the defect must appear clearly and affirmatively upon the face of the complaint. (Lee v. Hanley(2015) 61 C...

Excerpt: ......

Excerpt: ...ook steps reasonably calculated to apprise Pltfs of the existence of the program at the time of warranty disputes; Deny. ...

Excerpt: ......

Excerpt: ...nds of uncertainty; Pltf failed to allege facts showing that Deft published a defamatory statement of fact; Sustain with 10 days leave to amend; Strike Portions of Complaint Grant as to Item 1 [page 1, line 25 to page 2, line 2]; Grant as to Item 2 [page 2, lines 2-5] specifically the word ‘similarly'; Deny balance of Item 2; Deny as to Item 3 [page 3, lines 25-26]; Moot as to Item 4 [page 16, line 1]; Deny as to Item 5 [page 16, lines 3-4]; Gr...

Excerpt: ...o amend; 5 th cause of action [CC§2923 et seq]: Ruiz is not a borrower; Pltfs do not allege materiality of any purported violation; Has Trustee's deed been recorded? If not, Pltfs may only obtain an injunction; Sustain with 10 days leave to amend; 6 th cause of action [quiet title]: Pltfs have not paid the debt so this remedy is not available; Sustain with 10 days leave to amend; Strike Portions of Complaint Moot based on above. ...

Excerpt: ......

Excerpt: ...his litigation and prepare the case for trial. Client has also failed to assist counsel in the litigation and there is currently a breakdown of the attorney-client relationship.” The declaration submitted in support of this Motion supports withdrawal under Rules of Professional Conduct, rule 3-700, subdivisions (C)(1)(d) and (C)(1)(f). Moving Counsel will remain the attorney of record for Mr. Lee until Moving Counsel files proof of service of t...

Excerpt: ...Wholesalers of California dba Seemo Cars at the same location as the Notice of Default was served. As with any proceeding, the court cannot proceed unless the complaint, moving papers, and all the supporting documents are timely served (Code Civ. Proc., § 1005). Any TRO already issued will be dissolved if the hearing is thwarted due to lack of service. (Code Civ. Proc., § 527(d)(3).) Accordingly, Writ of Attachment and Writ of Possession is tak...

Excerpt: .... . . .” Code of Civil Procedure section 576 provides, “Any judge, at any time before or after the commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading . . . .” “A court, at any time before or after commencement of trial, may allow an amendment to a pleading in furtherance of justice. [Citation.] Where no prejudice is shown to the adverse party, the liberal rul...

Excerpt: ...s 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 met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense ther...

Excerpt: ...iable issue of material fact. Plaintiffs having not filed any opposition hereto, fails to sustain their burden and the motion is granted. MP to give notice. MP has sustained its burden of establishing it had no ownership or possessory interest in the vehicles involved in the accident. As such, it could not give permission to Defendant Stine to use the vehicle and thus, there was no duty owed by MP. Plaintiffs fail to sustain their burden to creat...

Excerpt: ...essional Conduct, rule 3-700, subdivisions (C)(1)(d) and (C)(1)(f). Moving Counsel will remain the attorney of record for Air802, LLC until Moving Counsel files proof of service of the signed order upon Air802, LLC. The order will become effective upon the filing of the proof of service upon Air802, LLC. Moving counsel to give notice. Moving Counsel's (Law Offices of Thomas F. Nowland) unopposed Motion to be Relieved as Counsel for Defendant—Mi...

Excerpt: ...es, “(a) If a deponent fails to . . . produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in . . . a deposition subpoena, the party seeking discovery may move the court for an order compelling that . . . production. [¶] (b) The motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declar...

Excerpt: ...eglect.” “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citation.] In such situations ‘very slight evidence will be required to justify a court in setting aside thre default.' [Citation.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see also, Fasuyi v. Permatex, Inc. (Fasuyi) (2008) 167 Cal.App.4 ...

Excerpt: ...e judgment, dismissal, order, or proceedings was taken.” Here, a copy of the proposed answer was not attached to the application. Further, the Proof of Service does not comply with Code of Civil Procedure section 1013a, subdivision (a), because the affidavit did not contain “. . . the name and address of the person served as shown on the envelope . . . .” Defendant is to file a proper Proof of Service of the moving papers no later than Febr...

Excerpt: ...ng party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general.” Code of Civil Procedure section 2030.220, provides, “(a) Each answer in a response to interrogatories shall be as complete and straight forward as the information re...

Excerpt: ...ests for mandatory injunctive relief that Plaintiff is simply not entitled to. With respect to request to prohibit Defendant from using corporate funds to pay its attorney fees, the harm lies in Defendant's favor. Essentially, Defendant Corporation may only appear by way of counsel (i.e., it cannot appear in pro per), and as a separate legal entity, it should be able to hire and pay for an attorney to defend itself from Plaintiff's lawsuit. At mi...

Excerpt: ... mediation provisions, to whatever extent those provisions condition an attorney fee award on completing pre- dispute mediation. It would be unreasonable to discount the attorney fee award because PatentRatings did not prevail on its declaratory relief claim. It did prevail on other claims addressing inextricably intertwined issues. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129- 130; Thompson Pacific Construction. Inc. v. City o...

Excerpt: ...erent facts, circumstances, or law are claimed to be shown.” CCP § 1008 CCP § 1008 allows the trial court to reconsider and modify, amend, or revoke its prior order where the moving party show different facts exist. Mink v. Superior Court (1992) 2 Cal.app. 4th 1338, 1342. The moving party "'must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time." Id. Application: Prio...

Excerpt: ...on. Id. at 270 (emphasis in original). Appellate courts have underscored the high threshold set by Walker: “[The plaintiff] may well not prevail on the factual disputes regarding the extent of his injuries . . . . But a [Walker] hearing is not to be perceived as a minitrial or an opportunity for a trial judge to put forth a well-educated guess of a verdict. The unlikeliness of a judgment in excess of $25,000 is not the test. The trial court rev...

Excerpt: .... Guide Civ. Pro. Before Trial Ch. 8F-3 [The Rutter Group] at 8:956.1.) The objection based on “burdensome and oppressive” will not lie solely on the basis of the number of questions asked; other reasons must be shown. (Id. at 8:1099.) Plaintiff is ordered to respond to the discovery within 45- days. Trial scheduled for March 12, 2018 will be continued, and counsel should come prepared to discuss a future trial date. All discovery and motion ...

Excerpt: ... the decedent, and to assert a cause of action for wrongful death. The proposed First Amended Complaint is attached to the moving papers. The motion is not opposed. Plaintiff is ordered to file and serve on all counsel of record and any new parties the First Amended Complaint within (5) five days from notice of this hearing. Plaintiff to give notice. 2. Case Management Conference To be continued by Court. ...

Excerpt: ...Plaintiff shall file and serve a clean, non-redlined version of the proposed FAC attached to counsel's declaration as Exhibit A within 10 days of this order. Plaintiff shall give notice. ...

Excerpt: ...ppeal, and the Commercial Guaranty signed by Defendant provides for the recovery of reasonable attorney's fees. (Civ. Code § 1717(a); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiff does not provide evidence to establish the reasonableness of counsel's rates. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084.) The court, thus, reduces the recoverable hourly rate for counsels Hurwitz and Lallas to $450 per hour. Based on t...

Excerpt: ...ill dismiss this case. The Court notes that Civil Code § 55.54 appears to only apply to attorneys, not plaintiffs who are in pro per. However, the Court finds that Plaintiff is a high frequency litigant, defined as a plaintiff or attorney who has filed 10 or more construction-related complaints within past 12 months. He is therefore required to pay a $1,000 supplemental high- frequency litigant filing fee. (Code Civ. Proc. § 425.55(b); Gov. Cod...

Excerpt: ......

Excerpt: ...y, we deem plaintiffs to have abandoned the issue.”].) In addition, the 1 st cause of action for breach of contract appears to be time-barred (Code of Civ. Proc., § 339.) In addition, for the 3 rd cause of action, it is fatally unclear what “intentional tort” Plaintiff is asserting against Defendants. Assuming Plaintiff is asserting some sort of conversion claim, the conversion claim appears to be time- barred. (Code of Civ. Proc., § 338(...

Excerpt: ...�FAC”) is overruled. Defendant are ordered to Answer the Complaint within 10 days. As to the fifth cause of action for IIED, Plaintiff now alleges that: “Defendants' conduct of, including but not limited to, subjecting Plaintiff to: yelling and making remarks during his employment such as calling him "incompetent" during conference calls with other employees on the phone, defendants spread rumors about plaintiffs disability to other employees...

Excerpt: ...amages and foreclosure on security). First, defendants have shown a defect of parties. (Code Civ. Proc., § 430.10, subd. (d).) Plaintiff should name Jerry Monroe's estate as a party. The FAC alleges defendants Nicole Seymour and Jeff Seymour failed to repay a loan from plaintiff and Jerry Monroe, which was secured by Jerry Monroe's shares in defendant Towne. (That is not a typo. The FAC alleges Jerry Monroe pledged his own shares to secure a loa...

Excerpt: ...rt further ORDERS plaintiff to SHOW CAUSE why the action should not be dismissed due to its apparent suspended status. The OSC is set for March 12, 2018 at 2:00 p.m. Plaintiff shall file its papers in opposition to dismissal no later than February 20; defendant shall file any papers in response thereto no later than February 17; plaintiff may file any reply to defendant's papers no later than March 5. I. Demurrer A. Suspended Corporate Status In ...

Excerpt: ...certain. (Code Civ. Proc., § 431.10, subd. (f).) It lacks any “statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) Instead, it is cluttered with confusing conclusions and citations. Plaintiff fails to show a reasonable possibility of curing the defects. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff has not cured these lingering defects despite repeated orders ...

Excerpt: ...ow that there are triable issues of material fact on whether the parties entered into a contract. In the County's Separate Statement, it listed only eight facts These facts do not established that a contract was never formed. The Union representatives were consulted on the job sharing agreement. (UMF 28). Ms. Kiddy signed on behalf on the County. (UMF 30). After Plaintiff signed the agreement, the County implemented it. (UMF 31). Plaintiff was ne...

Excerpt: ... above reason and because defendant's/cross-complainant's Separate Statement of Undisputed Material Facts does not comply with California Rule of Court Rule 3.1350(b). The issues specifically stated in the Notice of Motion are not repeated verbatim in the Separate Statement. Moving party to give notice. ...

Excerpt: ...amend as to the first through fourth causes of action and sustained without leave to amend as to the fifth cause of action. The motions to strike are moot. Plaintiffs' request for judicial notice of Exhibits “A” through “E” is granted. Actions. Evid. Code §§ 425(c)-(d), 453. The Court takes judicial notice of the court records, but not the truth of the contents of the matters therein. Fremont Indem. Co. v. Fremont General Corp. (2007) 1...

Excerpt: ...nted as to Issue Nos. 2, 3, 4, and 5 and denied as to Issue Nos. 1 and 6. Cross-Defendants' requests for judicial notice are granted. Cross-Complainants' objections to evidence submitted in support of Cross-Defendants' motion for summary judgment/adjudication are overruled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entit...

Excerpt: ... under Civ. Proc. Code § 473 (b). Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 620. The requirement to submit an answer or other pleading applies to the discretionary portion of the statute. When the court grants a relief under the mandatory portion of Civ. Proc. Code § 473 (b), “[t]he court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory lega...

Excerpt: ...fer. Lawyers' Escrow is ordered to comply with the Subpoena within 15 days after service of notice of this order. Monetary sanctions in the amount of $560 are awarded against Lawyers' Escrow and in favor of Plaintiffs. Code Civ. Proc., § 2025.480; see also Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-6 at ¶ 8:617.5 (“Monetary sanctions (as well as contempt) are available against nonparties who ‘flout the discovery process.'”). Plaintiff...

Excerpt: ...for trial on 10/24/16 without a biomechanic (see ROA 97, 100), further showing the absence of good cause for the late request. Plaintiff is here now seeking permission to once again add an expert to discuss forces associated with the impact (by way of an accident reconstructionist). Plaintiff also wants to include four additional treating physicians and expand the scope of testimony from economist Enrique Vega. This request is an expansion of pla...

Excerpt: ...20) days, Plaintiff and her attorney shall pay sanctions in the sum of $1,335.00 [($318.75 per hour x 4 hours) + $60.00 filing fee]. The requested sanctions were reduced by three hours, because there was no Opposition or Reply. Motion No. 2: Defendant's Motion for Terminating Sanctions is DENIED.The court orders Plaintiff to comply with the court's previous orders of previous discovery orders of April 24, 2017 and October 2, 2017. For failure to ...

Excerpt: ... to March 19, 2018 at 10:30 a.m. in Department C-26. Paramount is ordered to produce evidence of the costs it incurred in taking the depositions of Steve Martin and Brian Bergmark. No further briefing is permitted. Motion 2: Motion to Tax Costs. Moving Party: Paramount Petroleum Company (“Paramount”). Responding Party: Sully Miller Holding Company (“Sully Miller”). Opposition filed. Ruling Motion 2: Paramount's Motion to Tax Costs is gran...

Excerpt: ...dence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. Civ. Code § 3294(c)(1). In Taylor v. Superior Court (1979) 24 Cal.3d 890, plaintiff sued to recover compensatory and punitive damages for injuries sustained in an automobile collision with a car drive...

Excerpt: ... argues that decedent “died instantly,” but this appears to be a mischaracterization of Plaintiff's pleadings, as discussed more fully below under the third point. (Motion to Strike at p. 2, lines 5-6 [citing Complaint at ¶¶ 4-10. 17].) Defendant's argument tacitly imples that decedent's surviving spouse may maintain a wrongful death action, but cannot not bring a survival action because decedent's death was instantaneous. Where a decedent ...

Excerpt: ...Pacers Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690 [trial courts have the discretion to stay a civil action when a criminal matter is pending.]) All other discovery as to third party witnesses and documents is not stayed. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 310 [the trial court may devise a solution that fairly accommodates the interests of all parties and the judicial system in light of circumstances].) A status hearin...

Excerpt: ...e same terms as the TRO, to remain in effect until the property is seized by the levying officer. [CCP § 513.010(c)]. No undertaking, as Defendant has no interest in the subject vehicles. CCP§515.010(b). Clerk to give notice. ...

Excerpt: ... GRANTED. (CCP § 473(d).) The default judgment against Defendant Laterza is void as a matter of law due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1443-44.) Plaintiff attempted to serve Defendant by substituted service at Defendant's work, but did not locate or use the correct work address. Within 15 days of service of the notice of ruling, Defendant sha...

Excerpt: ...on 11/24/15. It sought a judicial declaration “as to whether Plaintiff or Defendant have acquired an easement over the other's property based on the location of the boundary line.” Complaint, Prayer at 12. In four separate causes of action – the Eighth through Eleventh – Plaintiff sought the establishment of “an easement across Defendant's property for use of Plaintiff's driveway.” Id. at 13. It does not appear that Plaintiff verified...

Excerpt: ......

Excerpt: ...e also ¶4 and ¶53-¶56 of FAC, ¶2 and ¶5 of Makemson Declaration and ¶3 and ¶6 of Walden Declaration). As a nominal defendant the corporation stands in conflict with the insider defendant who is being accused of fraud. Court issues no order regarding outside counsel for the corporation but notes that the Court in Forrest concluded that outside counsel for the corporation is the better approach while the corporate attorney represents the ins...

Excerpt: ...ndant has identified two groups of documents to which the subject requests pertain: (1) documents relevant to pricing and payment arrangements between Miracle Mile and plaintiff in the past, and (2) documents reflecting plaintiff's cost for durable medical equipment issued to the various defendants. It appears that the documents sought would be directly relevant to defendants' unclean hands and unjust enrichment defenses, as well as to the reason...

Excerpt: ...lance footage at issue. Thus, Plaintiff's motion is moot as to the video. Defendants have met their burden to establish the incident report at issue is protected from disclosure by the attorney-client privilege. (Evid. Code § 405; D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 736; Soltani-Rastegar v. Super. Ct. (1989) 208 Cal.App.3d 424; Payless Drug Stores, Inc. v. Superior Court (1976) 54 Cal.App.3d 988.) Here, the incident report ...

Excerpt: ...terrogatory No. 3 and DENIED, as to Special Interrogatory No. 4. The Court finds Plaintiff's response to Special Interrogatory No. 3 was evasive and incomplete and orders a further verified response, absent objections, within 15 days-notice of this order. No order of sanctions. Moving party to give notice. ...

Excerpt: ... regarding the use of Doe pseudonyms in court proceedings. “[F]ederal courts “have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations] ; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,' [citations]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engag...

Excerpt: ...ited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is co...

Excerpt: ...A 748) and BNY (ROA 764), except that judicial notice will not extend to any hearsay allegations or the truth of matters asserted therein. General Law “Any person, firm ... or other entity against whom double or multiple claims are made, or may be made, by two or more persons, which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several ...

Excerpt: ...otal payment” as follows:  Initial $12,000 payment by 06/25/15;  $1,000/month for 15 months;  Final balloon of $33,000. See Rptr Tx 1:26-2:7. Curiously, plaintiff's counsel who put the terms of the settlement on the record indicated that “we'll call for the entry of judgment if payment is not timely made. The amount would be $50,000 less credit for payment made by that point.” See Rptr. Tx 2:10-13. According to the Griesman Decl Pa...

Excerpt: ...s a matter of right, attorney's fees when authorized by contract. Here, plaintiff prevailed in its action for breach of the lease agreement by virtue of the default judgment recently entered in its favor. Plaintiff has established roughly $55,000 in compensable harm, making it the “prevailing party” per CCP §1032(a)(4). The lease agreement provides (at Para 17) as follows: “If after default this agreement is placed with an attorney for col...

Excerpt: ... conference. One of Citi's arguments is that Plaintiffs cannot adequately represent any class because they are represented by the law firm in which Plaintiff Anthony Graham is a named partner, and that the representation presents an insurmountable conflict between the interests of the class representative and class counsel, on one hand, and the putative class, on the other. (Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1261...

Excerpt: ...013) 219 Cal.App.4th 948, 960 [internal citations and quotation marks omitted.]” A claim under the UCL "may be based on representations to the public which are untrue, and also those which may be accurate on some level, but will nonetheless tend to mislead or deceive.... A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionab...

Excerpt: ... forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382. A plaintiff does not need to allege evidentiary facts. C.A. v. William S. Hart Union H.S. Dist. (2012) 53 Cal.4th 861, 872; Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102. There is no need to require specificity in the pl...

Excerpt: ...Albertson Companies, Inc., rather than Albertsons LLC and because Plaintiff's name was slightly misspelled. Defendant does not, however, point to any place in the complaint or provide any judicially noticeable evidence to support that Defendant was actually ignorant of the LWDA complaint within the one-year statute of limitations or that the LWDA did not have sufficient information to investigate. In determining a demurrer, the Court may look to ...

Excerpt: ...int on Defendants on 9/29/17, as confirmed by its proofs of service filed on 10/02/17. Under CCP 430.40 (a), Defendants were required to file their Demurrer within 30 days after being served with the summons and complaint, unless extended by stipulation or court order. The deadline for filing the Demurrer was on or about 10/29/17. Defendants filed their Demurrer nearly two months later on 12/27/17. There is no evidence before the court that the D...

Excerpt: ...uessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187; City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159-60.) Plaintiffs assert that the claim is meant to seek such relief based on a breach of contract. The demurrer is thus Sustained with leave to amend. The Fourth Cause of Action purports to state a claim for Discrimination in Violation of FEHA, ...

Excerpt: ...dicial Notice is granted as to Exhibits 3-26. The request is superfluous as to Exhibits 1, 2 and 27—all of which are documents on file in this case—and may be considered by the Court without a request. Defendants' demurrer on the ground of misjoinder is overruled. Defendants' demurrers on ground of lack of standing are sustained with leave to amend as to Plaintiffs Coye Decuir, Martha Diaz, Raivie Galura, Ruffel Galura, Michael Gauthier and B...

Excerpt: ... an agent of the tenant in Civ. Code § 1162(b)(2). The terms of the commercial lease agreement between the plaintiff and defendant provides that notices given are effective upon “…the earliest of the following: (i) personal receipt by either party or their agent…” The third amended complaint alleges that personal delivery of the notice to quit was made upon the defendant's officer manager on 03/10/17. The court finds that an allegation t...

Excerpt: ...ndant. In the absence of appearance, mail service of the application is insufficient. Where the defendant has not yet appeared in the action and personal service is required, service must be made in the same manner as a summons. (Code Civ. Proc., § 482.070, subd. (d).) Also, here, the proofs of mail service do not show service on Defendant as opposed to other defendants in this action. The court also notes that on their face, the promissory note...

Excerpt: ... Driver's Handbook [called “DMV Manual in the Motion] and exclusion of testimony that defendant Nguyen “refused” to take a blood alcohol test – were in error and prevented a fair trial. No authority has been cited that either of these evidentiary rulings are wrong as a matter of law and the Court has located no such authority. As such, the Court's rulings were within its discretion under Evidence Code §352. The Court does not find these ...

Excerpt: ... favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Plaintiff is not changing the nature of this case, and his new claims are based on the same nucleus of operative facts. The amendment would not result in any undue prejudice to defendants, since the new alle...

Excerpt: ...as Exhibit 3 to the Declaration Gabriella A. Pedone. The Plaintiff shall file the Proposed Order within 10 days. The Court finds that Ford has established that materials at issue in this case are entitled to trade secret privacy protections. The defendant has presented evidence which supports a finding that the subject documents Plaintiff wants Ford to produce include confidential, external communications between Ford employees and joint venture ...

Excerpt: ...ough the motion is captioned as a “motion for order of limited waiver of attorney-client privilege,” the relief requested in the Notice of Motion is for “an order requiring further testimony by Plaintiff MIKE JOHAR at deposition” and is based on CCP §§ 2019.010, 2025.010 and 2023.030. A review of the Fischbach Firm's moving separate statement indicates that the Fischbach Firm is also seeking to compel further responses to Request for Ad...

Excerpt: ...A "compelling need" is demonstrated where the information is "directly relevant" and "essential to the fair resolution" of the lawsuit. (Britt v. Superior Court(1978) 20 Cal.3d 844, 859.) Defendants have shown a compelling need for some of the requests. The First Amended Cross-Complaint ("FAX-C") includes causes of action for breach of contract, fraud, elder abuse, conversion, money had and received, and negligence. Plaintiff's Oppenheimer record...

Excerpt: ...or RFA 40, Plaintiff stated that she was diagnosed with bone-related conditions which “were in fact not indicated” as she “would later learn from other podiatrists,” but failed to identify the factual basis for that conclusion, such as the identity of the referenced “other podiatrists,” what they told her, and any corresponding records. Plaintiff also refers to an unspecified history of disciplinary proceedings and record of “making...

Excerpt: ...e amount it owes AWPA due to AWPA's judgment against KDF. However, KDF's cross- complaint which is going to trial is against Paul Harper, not AWPA. Although KDF named AWPA as a cross-defendant, the court sustained AWPA's demurrer to KDF's cross-complaint without leave to amend on December 10, 2014, and KDF did not appeal from the ensuing September 9, 2015 Judgment. Thus, AWPA is not responsible for any damages KDF may recover on its cross-complai...

Excerpt: ... in bad faith. (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4 th 97, 99-100.) But here, Defendant made a reasonable C.C.P. § 998 offer, for $151,000, plus Plaintiff's reasonable fees and costs. (Low Decl. ¶ 4 Ex. A.) Plaintiff did not accept. Trial then resulted in a defense verdict. In light of the recent decision in Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (Cal. Ct. App., Jan. 2, 2018, No. E061677) 2018 WL 259...

Excerpt: ...of a bond, and that their value exceeds the value of any bond required by statute. Code of Civil Procedure section 917.2 permits a stay if the “personal property” that is the subject of the judgment or order appealed from is assigned or delivered or “placed in the custody of an officer designated by the court.” (Code Civ. Proc., § 917.2.) Code of Civil Procedure section 995.710 permits a deposit in lieu of bond if the deposit is in one o...

Excerpt: ... 481, 486-487.) “The granting of a continuance for discovery lies in the discretion of the trial court, whose ruling will not be disturbed in the absence of manifest abuse.” (Id. at p. 487.) The court of appeal in Beckmanstated that there was no abuse of discretion, as Plaintiff had not made a sufficient showing to allow it to conclude that further discovery would “likely lead to production of evidence establishing jurisdiction.” (Ibid.) ...

Excerpt: ...is sold and transferred al rights, title, and interest in the subject property to her. (Martz Decl., ¶ 2.) Based on that Declaration, on 8/22/16, the court ruled that: “Gayle Martz is substituted as a plaintiff in this action, in Orange County Superior Court Case No. 30-2009-00120639 (which has been consolidated with lead case No. 01CC15035), instead and in place of Plaintiffs.” Plaintiff argues that the court should exercise discretion and ...

Excerpt: ...ction Company for Delay in Prosecution Pursuant to CCP 583.420 for Failure to Serve Cross-Complaint Within Two Years of It's Filing as to Carrier Johnson Motion 2 continued to 02/09/2018 at 9:00 a.m. 3) Cross-Defendant/Cross-Complainant Graham Downes Architecture to Dismiss Cross-Complaint of Turner Construction Company for Delay in Prosecution Pursuant to CCP 583.10 and 583.250 For Failure to Serve Cross- Complaint Within Three Years of Its Fili...

Excerpt: ...PD is GRANTED. The discovery requests were all properly served, and have been ignored without justification or the seeking of any protective order. Complete, substantive, verified, Code- compliant responses must be served within 20 days. Defendant's related request for monetary sanctions is also GRANTED. The basis for the award is CRC 3.1348(a), which permits sanctions even in the absence of opposition papers. Counsel's hourly rate of $200 is rea...

Excerpt: ...in Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741-742 [on MSJ, where medical expert declaration is offered based upon a review of records, such evidence must be before the Court], as some of the evidence which Dr. Klein considered in forming his opinions is not before the Court. Nor is it clear that the records upon which Dr. Klein relied were all submitted, as the Klein Decl. draws no such distinction, and instead refers generally to “the m...

Excerpt: ...ima facie showing that Defendants' recordings captured communications and that these communications were confidential such that Plaintiffs had a reasonable expectation of privacy in them. Triable issues of material fact remain as to those issues, as discussed below. PC 632 (a) makes it illegal to record a confidential communication intentionally and without consent of the parties thereto. Subdivision (a) provides as follows: “A person who, inte...

Excerpt: ... care and whether the treatment caused any injury. (See Disputed Material Facts 21 to25 and cited evidence therein; see Wachtel Decl. ¶ 14 vs. Starkman Dec. ¶ 26 – 39). The Court must construe the opposing evidence liberally for this motion. The differing opinions of experts creates a factual dispute that is not appropriately resolved by way of summary judgment. (Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 176; Garrett v. Howmed...

Excerpt: ...ned version of any revised papers (including the Notice of Settlement to the class). The moving papers variously reference an estimated class size of over 1,000 (p. 2 of settlement agreement), 1,560 (p. 1 of points and authorities) and 1,650 (Administrator's attached invoice). Which is it, and what is the most accurate class size estimate at this time? The settlement agreement suggests that the Administrator will resolve any workweek disputes. Th...

Excerpt: ...ord reflects that as of the date of Defendants' motions, Plaintiff failed to respond to the discovery. As a result, Plaintiff is ordered to provide verified responses, without objection, to the form interrogatories (set no. one), special interrogatories (set no. one), and requests for production of documents (set no. one), within 15 days of the notice of ruling. (Code Civ. Proc., §§ 2030.290, subd. (b); 2031.300; 2033.280, subd. (c); see Sinaik...

Excerpt: ...'s failure to comply with this court's orders to provide discovery was willful. Because the Plaintiff has failed and refused to comply with her obligations to provide discovery responses, and her failure to comply with this court's orders, Defendant Jamie Rico Olivarez's ability to prepare for trial has been substantially prejudiced. Given the short amount of time available before trial, an order of sanctions short of the requested terminating sa...

Excerpt: ...roper venue. CCP § 395(a). (“Where an individually joined defendant may be genuinely liable on the complaint, it has always been true plaintiff could choose that defendant's residence as the venue even though the corporate defendant was located elsewhere.” Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1667.) The Michaels defendants reside in this county and are sued as individuals in the 9 th cause of action for violation of...

Excerpt: ...preter fees actually incurred for the second session of Mr. Jin's deposition, not to exceed $1,200.00. Plaintiff to pay for the costs for the court reporter. The second session of the deposition shall occur on a date to be agreed between counsel, but no later than two weeks from today's date. The court finds that circumstances exist to make the imposition of other monetary sanctions unjust at this time, however, should Defendant be required to ap...

Excerpt: ... declaration of Plaintiff's counsel, none of which cite to the actual trial transcripts in this matter. By contrast, moving parties have provided specific cites to the trial record in support of their arguments against the sufficiency of any evidence concerning collectability. This matter is continued to February 1, at 2 p.m. Plaintiff is Ordered to file and serve a supplemental brief by no later than 4:30 p.m. on Monday, January 29, 2018, identi...

Excerpt: ...derance of the evidence. (Weil & Brown, Rutter Group, Civil Procedure Before Trial, Chapter 8H-5, Section 8:1454.10, citing Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) A party seeking a protective order must also provide a declaration showing a reasonable and good faith attempt to resolve the issue with opposing counsel. (CCP 2025.420(a).) “[T]he issuance and formulation of protective orders are to a large extent discretionary ...

Excerpt: ...ause it might be required to satisfy the judgment against its insured. The moving party has attached a copy of the proposed answer to th e motion. Colfer Dec. ¶ 2, Exhibit A. The default was enters on July 5, 2017 and default judgment was entered o n July 14, 2017. Rodriguez Dec. ¶¶ 16. This motion was filed on October 10 , 2017. Therefore, it is timely under CCP § 473(b). The moving party has established its insured's default and de-fault ju...

Excerpt: ...omplaint responses to the Defendant's discovery requests, and thereby suffer further prejudice in its preparation for trial, the Court reserves the right to revisit the issue of terminating sanctions and shall consider all of the evidence then presented, including the history preceding the date hereof. The Court Orders Plaintiff to serve second further non- evasive, verified responses to Defendant's Special Interrogatories Set No. One, and Inspec...

Excerpt: ...-opposition, stating she does not oppose the motion, and has not presented any evidence showing that moving party was properly served, as is plaintiff's burden. (Ziller, supra at 1232.) Plaintiff to give notice. ...

Excerpt: ...arge a daily fee if the expert is required by the requesting party to be available for a full day and the expert had to forego all business would have otherwise conducted but for the request that the expert be available all day for the scheduled deposition. The Plaintiff's Notice of Deposition for Dr. Haiavy states that: “If the deposition is not completed on the date set out above [01/03/18], the taking of the deposition will be continued from...

Excerpt: ...s required setting forth contact information and plaintiff Crystal Cove's pending motion for attorney's fees. See, Rule 3.1362(e). Third, attorney Peter Holzer and his firm failed to give notice of the continued hearing date of 1-25-18 as ordered. On the merits, assuming the service and other procedural defects are resolved, attorney Peter Holzer and the Law Office of Peter Holzer's motion to withdraw as counsel for defendants Se Yull Oh and Jo J...

Excerpt: ...rnational's 10 discovery motions filed in August 2017 and continued per ex parte order for hearing, motions relating to discovery were cutoff based on the August trial date. (8-28-17 Minute Order and Order filed 8-28- 17, as well as the 10-25-17 Minute Order.) Frank Li made no request for leave to bring any further discovery motions at the ex parte hearing on 8-28-17. Prevailing party to give notice 2) Frank Li's motion to compel further Response...

Excerpt: ...rtners, LLC Joinder Motions: Defendant Wailea Property Partners, LLC's (Wailea) joinder to defendant Colliers International Real Estate Management's (Colliers) demurrer to first amended complaint and motion to strike portions of first amended complaint is DENIED as both procedurally and substantively defective. First, the joinder is untimely. A joinder is timely if it is served and filed within the time for noticing the particular motion at issue...