Excerpt: ...ission Hospital Medical Center (“Mission”); (2) Manor Care of Fountain Valley (Manor”); (3) Memorial Care Saddleback Memorial Medical Center (“Saddleback”); (4) Orange Coast Memorial Medical Center (“OCMMC”); and (5) Hector Ramirez, M.D. For Nos. 1-4, Defendants issued separate subpoenas for: (a) Medical Records; (b) Radiology Records; and (c) Billing Records, for a total of 13 subpoenas at issue here. Both motions reflect that effo...

Excerpt: ... To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Here, the FAC fails to identify any duty of care or breach. Instead, the First Cause of Action attempts to characterize the various alleged contractual and intentional to...

Excerpt: ...ed are premised on its contention that under the written terms of the retainer agreement it is entitled to 33.3% of $250,000. But the facts established by Plaintiff's own evidence is that Rawag discharged Plaintiff before the settlement was agreed to and before the settlements were paid. [Smaili Decl, ¶¶ 12- 16.] By the terms of the retainer agreement – which on the face of the agreement appear to survive the handwritten emendations – as th...

Excerpt: ...alnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 40 [beneficiary may substitute trustee through its agent].) These exhibits trump inconsistent, conclusory allegations to the contrary. (See Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447; see also Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) 2nd-3rd causes of action, Civ. Code §§ 2923.5, 2923.55, 2924.17. The complai...

Excerpt: ...ely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky ...

Excerpt: ...e elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A Marvin claim is a claim to enforce a contract that is either express (that is, written or oral) or implied in fact (that is, “manifested by [the parties'] ...

Excerpt: ...ng unit,” and not a “transient” hotel occupant. (See Civ. Code, § 1940, subds. (a), (b).) 2nd cause of action, battery. The complaint fails to state facts sufficient to constitute this cause of action. It fails to allege facts showing defendant's intent to offend. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.) A demurrer does not admit the truth of “conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 4th...

Excerpt: ...l meet and confer in compliance with §430.41(a). Defendant to give notice. 1st COA: Demurrers are sustained. The nature of the relation between the mobilehome owner and the park owner, or the prospective homeowner and the park owner, is one of landlord tenant, or landlord and prospective tenant. (See Civ. Code § 798.2, .4, .8, .9; Cacho v. Boudreau (2007) 40 Cal.4th 341, 349; Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 249-51....

Excerpt: ...ons. Section 877.6 applies to a settlement between a plaintiff and an alleged tortfeasor or obligor under a contract in an action in which the tortfeasor is an alleged joint tortfeasor with another or the obligor is a co-obligor under the same contract with another. Cal. Code Civ. Proc. § 877.6(a)(1). Section 877.6 allows a settling defendant to obtain a determination that his settlement is in good faith, and thus to bar an action for equitable ...

Excerpt: .... Specifically, the parties may file a Supplemental MPA (and declaration(s)) in support of the Motion, a Supplemental Opposition (and declaration(s)), and a Supplemental Reply – all within the time periods prescribed by the Code based on the new hearing date. However, any supplemental MPA and opposition shall not exceed 7 pages, and the supplemental reply shall not exceed 4 pages. There is no precise yardstick for measuring “good faith” of ...

Excerpt: ...ho would be most competent to testify” to its financial condition. (Civ. Code § 3295(c).) Beyond the foregoing, no pretrial discovery by plaintiff is permitted without a court order; and such order can be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. Code § 3295(c); Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565.) Typically, to obtain suc...

Excerpt: ...ccord Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) That second path to summary adjudication requires plaintiff to show 2 things: (1) defendant does not possess the evidence, and (2) defendant cannot reasonably obtain it. Plaintiff met the first requirement. It offered defendant Community Care Rehab Center LLC's “factually devoid” discovery responses, showing defendant does not possess evidence needed to support its defenses. (Union Bank ...

Excerpt: ...in the body of the answer, it stated: “Defendant Matt Kolta, an individual, hereby answers Plaintiff's (“Plaintiff”) complaint.” Matt Kolta is not a named defendant in this action. Furthermore, almost all of the affirmative defenses refer to “Defendants”. The ninth, eleventh, and twelfth affirmative defenses refer to a “Defendant Satish.” Satish is also not a named defendant in this action. Most importantly, Mina Kolta is not iden...

Excerpt: ...for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elem...

Excerpt: ...rsion of any revised papers, including the Notice of Class Action Settlement (Class Notice). The pages of the Class Notice must be numbered. Section D(1) of the Class Notice should include an estimate of the Net Settlement Amount to be paid to the class, based on the Maximum Settlement Amount and the proposed deductions. The motion fails to provide the class members' estimated individual recovery under the proposed settlement, including the estim...

Excerpt: ...$200 each to plaintiffs Anacia Garcia- Ruiz, Anthony Bai, Anthony Stafford, Aree Said, Daniel Morones, Elisha Fiel, Jimmy Flores, Joanna Marin, Myron Galsim, Norman Garcia, Richard Carlson, Ryan Chan, Tu Bui, John Brian Jensen, Pauline Osofsky and Amal Radwan. There was nothing noteworthy about plaintiffs' attorneys' services to justify an award greater than 1/3 of the gross settlement amount. The court also notes that in the Motion for Prelimina...

Excerpt: ...are and breached it proximately causing the emotional distress damage to the plaintiff. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127; Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206.) As for a bystander claim, such a claim requires that the victim has suffered severe distress as a result of witnessing physical injury to a person who is closely rela...

Excerpt: ...o defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the case of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or defense thereto. The defendant or cross-defendant shall not rely upon the allegations or deni...

Excerpt: ...(1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the...

Excerpt: ...Plaintiff seeks attorneys' fees pursuant to California Labor Code §§ 218.5 and 1194(a). Plaintiff seeks $31,600 in fees for Attorney Alexander's work, $2,062.50 in fees for Paralegal Acosta's work, and $6,860.75 in costs. Plaintiff does not seek a multiplier. A. Attorneys' Fees Defendants do not contest that Plaintiff is the prevailing party or that Plaintiff is entitled to an award of attorneys' fees. Rather, Defendants argue that Plaintiff sh...

Excerpt: ...ullerton (“plaintiff” or the “City”) pursuant to Code of Civil Procedure §425.16, the “anti-SLAPP” statute. The second is a request by the City for an injunction prohibiting defendants from: (1) deleting, altering, or destroying documents from 20 Dropbox folders, (2) publishing or disseminating those documents, and (3) downloading data or further accessing City networks without permission. These motions - especially the second - have...

Excerpt: ...demurrer to the cross-complaint (Exhibit 3); and (4) this court's October 17, 2019 tentative ruling on cross-defendants' demurrer to the cross-complaint (Exhibit 4). This court will take judicial notice of its tentative rulings and documents filed in this litigation (Exhibits 1, 3-4). (Evid. Code, § 452, subd. (d).) The court denies judicial notice of the letter/quote (Exhibit 2). Evidence Code section 452, subdivision (h) provides that judicial...

Excerpt: ...mit a Joint Stipulation agreeing to adjudication of the issues, along with Declarations which assert the Motion will further the interests of judicial economy. (C.C.P. §437c(t)(1)). Following compliance with these requirements, the Court is required to notify the parties whether the Motion will be permitted. (C.C.P. §437c(t)(2)). The record of this action does not reveal compliance with C.C.P. §437c(t). Thereafter, the Motion for Summary Judgm...

Excerpt: ...nses to such a request must be accompanied by a separate statement.” However, the discovery at issue is limited and thus, the Court will exercise its discretion and address the motion on the merits. The subject subpoena seeks the following records: “Any and all writings pertaining to Elvira Jeronimo as follows: medical records, medical bills, defense medical examination reports, discovery propounded to and discovery responses of Elvira Jeroni...

Excerpt: ... good faith efforts were made to personally serve Nadiya Aziz prior to serving Defendant by substitute service. In Opposition, Plaintiff contends that the Motion should be denied because Plaintiff properly served Defendant at its current place of business identified on the Statement of Information filed by Defendant on 5/8/17 with the State of California Secretary of State's website; Defendant failed to timely respond; and nothing in the supporti...

Excerpt: ...um of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” Farah contends that Van Sickle and Cashman gave notice of the judgment on May 30, 2019, which makes the memo of costs filed on July 23, 2019 untimely...

Excerpt: ...d expert witnesses that are necessary to effectively defend this action and prepare for trial. Defendant seeks to add four additional retained-expert witnesses and twenty-five non-retained expert witnesses – all of whom are in the categories of psychiatrist, life care planner, economist, or biomechanical engineer. (See Van Buren Decl., ¶¶4 and 6, Exh. C.) In Opposition, Plaintiff contend this Motion is untimely as it is brought some 15 months...

Excerpt: ...ewart Drive, Orange CA 92868-4225; 4. Custodian of Records for Saint Joseph Hospital of Orange/Radiology, 1100 West Stewart Drive, Orange CA 92868; 5. Custodian of Records for Hoag Memorial Hospital/Medical, One Hoag Drive, P.O. Box 6100, Newport Beach, CA 92658; 6. Custodian of Records for Hoag Business Center/Billing, 2975 Red Hill Avenue, Suite 200, Costa Mesa, CA 92626; and 7. Custodian of Records for Hoag Memorial Hospital/Radiology, One Hoa...

Excerpt: ...6) 48 Cal.App.4th 976, 978–79.) Each case presents its own facts and circumstances, but the court will usually consider the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or compl...

Excerpt: ...as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc. § 36.5.) The attorney's declaration can consist entirely of hearsay and conclusions. (Fox v. Sup.Ct. (Metalclad Insulation LLC) (2018) 21 Cal.App.5th 529, 534.) Thus, the objections are overruled. Code Civ. Proc. § 36(a), permits a party who is over 70 years of age to petition the court for trial preference, which the court must grant if it makes both of the following f...

Excerpt: ..., consequently, “when plaintiff woke after 2 a.m.to use the restroom as she started for it, she hit the door with her head and then fell backward, slamming down onto the back of her head.” (See Prem. L-1 of Complaint). Defendant filed an answer to the complaint on November 26, 2019. Plaintiff seeks an order from the Court, pursuant to CCP § 36, setting trial within 120 days of this hearing. Analysis: CCP § 36(a) states as follows: A party t...

Excerpt: ... (Aguilar).) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a 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.App.4th 832, 840.) If the defendant meets this initial burden, ...

Excerpt: ...ough its principal Jay Wilton purchased a 2012 Ferrari, VIN ZFF73SKA1C01860029 for $160,000.00. On 11/16/19, Jay Wilton passed away, leaving most of his assets to his son, Plaintiff Brandon Wilton, including ownership of Plaintiff Wilton Partners, which owned the Vehicle. On 12/19/19, Plaintiff Brandon began receiving e-mails from Defendant Tracii Show Hutsona claiming that Jay had sold the Vehicle to Defendant Elite Lux Life, LLC on 08/29/19 for...

Excerpt: ... that the first cause of action for Violations of ICRAA, Cal. Civ. Code § 1786, et seq. fails to state facts sufficient to state a cause of action as it does not state that defendant's failure to comply did not result in a more favorable investigative consumer report. Defendant does not establish this is an element that must be pled by plaintiff. Rather, this is an affirmative defense for defendant to assert as it presumes a failure by defendant...

Excerpt: ... the 3 rd, 4 th, and 7 th COAs is that is that they are superseded by the CUTSA. However, UTSA does not displace noncontract claims that, although related to a trade secret misappropriation, are independent and based on facts distinct from the facts that support the misappropriation claim (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 506, as modified (Oct. 29, 2013), as modified on denial of reh'g (Nov. 7, 2013).) Here, in ...

Excerpt: ...laint. [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, provi...

Excerpt: ...position to the Demurrer is 21-pages. The Court will disregard any pages past the 15-page limit. Request for Judicial Notice: Defendants' Requests for Judicial Notice of Exhibits A-K are GRANTED, pursuant to Evidence Code section 452(d), however, the Court takes notice of the existence of the documents, only, and not Defendants' characterization of the same, within the Requests. Demurrer: As to whether the Court lacks jurisdiction based on the Ba...

Excerpt: ... provide discovery.” Code of Civil Procedure section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . [¶] (d) The court may impose a...

Excerpt: ...(“Related” or “defendant”) contends the first COA, for Violations of the Investigative Consumer Reporting Agencies Act (“ICRAA”), Cal. Civ. Code § 1786, et seq. fails to state facts sufficient to state a cause of action as it does not state that defendant's failure to comply did not result in a more favorable investigative consumer report. Defendant does not establish this is an element that must be pled by plaintiff. Rather, this is...

Excerpt: ...neous exchange” of a list of expert witnesses the parties “expect” to call as expert witnesses at trial. (Code Civ. Proc., §§ 2034.210(a), 2034.260(b).) Section 2034.300 provides that a party who has timely and completely engaged in the initial expert exchange may object and seek to exclude the expert opinion of any witness offered by any other party who has failed to: (a) list that witness as an expert under section 2034.260; (b) submit ...

Excerpt: ...�] (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. [¶] (b) A separate declaration must accompany the motion and must specify: [¶] (1) The ef...

Excerpt: ...tion of inability to comply is inadequate, incomplete, or evasive. [¶] An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with both of the following: [¶] (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration. [¶] (c) Unless notice of this motion is gi...

Excerpt: ...trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: [¶] (1) The necessity and the reasons for the discovery. (2) The diligence or lack of dil...

Excerpt: ...e or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4 th 1550, 1557; see also Wagner F...

Excerpt: ...e of service of written notice of entry of judgment or dismissal, or (3) 180 days after entry of judgment. (CRC 3.1700(a)(1); Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 228.) The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. (CRC 3.1700(a)(1).) If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in C...

Excerpt: ... certain 911 calls and a missing person report of Camden Nicholson, and (3) confessions, witness statements and physical evidence. By agreement, plaintiffs have withdrawn the deposition subpoena for the cell phone. As such, only the depositions subpoenas for the 911 calls/missing person report and confessions, statements and physical evidence are at issue. City contends that the information and documents sought are part of the investigate police ...

Excerpt: ...on” or “Trucking Corporation R” with the same counsel, the McNeil Tropp firm. The Court will ask its counsel to address the correct name of this party as well as to make any appropriate corrections of the name in the record. Motion to Consolidate The Court GRANTS the Motion to Consolidate the cases of Hernandez v. Guzman, 2019- 1079884, with Brown v. Valleguzman, 2019-1097580, for purposes of discovery and for trial. However, the cases will...

Excerpt: ...urther Answers to Request for Production of Documents, Set 2. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 5) To Compel Answers to Deposition Questions. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 6) To Compel Further Answers to Form Interrogatories. Moving Party Defendant Jeffrey Fairbairn. Responding Party Plaintiff Tobey Arietta. Ruling Motion 1: Plaintiff's motion ...

Excerpt: ... signature is, in fact, the signature of the person the proponent claims it is. The statute states: ‘(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.' (Civ.Code, § 1633....

Excerpt: ...mes both plaintiffs remain in the case. First Cause of Action (Negligence). The motion for summary adjudication is denied as to the first cause of action for negligence. To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) G...