Excerpt: ...rty propounding the interrogatories may move for an order compelling response to the interrogatories.” On 8-26-19, Defendant/Cross-Complainant served Cross-Defendant (Brett Moore) with Defendant's “Texcaz Transborder Insurance Services, Inc.'s Special Interrogatories (Set One) to Brett Moore.” (12-12-19 Dixon Decl., ¶ 4 and Exhibit A.) Defendant/Cross-Complainant extended the time for Cross-Defendant's response to this discovery to 10-25-1...

Excerpt: ...s an order granting issue and/or evidentiary sanctions, as follows: a. Issue sanctions ordering that it is established that Defendants have not suffered any lost profits or other damages; and/or b. Evidentiary sanctions precluding all evidence and testimony regarding Defendants' alleged lost profits and damages. (CCP§2023.030(b) and (c)). In the alternative, Plaintiff moves to compel further verified responses, without objection, to Plaintiff's ...

Excerpt: ...e case. Even if there was, Defendant showed a legitimate, nondiscriminatory reason for the termination. (UMF 1 to 26). DENIED. There were triable issues of Nos. 16, 21, 24 & 25. There is a factual dispute whether Plaintiff was terminated, because of poor performance or assisting wife due to her illness. Arguable, Defendants terminated Plaintiff as a result of “distraction.” Issue No. 2: The Second Cause of Action for Failure to Reasonably Acc...

Excerpt: ...emaining against Defendant is the 1st cause of action for general negligence. The Court notes that Defendant appears mistaken in believing that the second cause of action for premises liability is still at issue. The Court also notes that the motion was served on 4/13/2020. As to the remaining cause of action, the elements of a negligence cause of action are: duty, breach, proximate or legal cause of injury to Plaintiff resulting from the breach,...

Excerpt: ...es: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213. Separately, Code Civ. Proc. § ...

Excerpt: ... and is ordered off calendar. California courts allow great liberality at all stages of the proceeding in permitting the amendment of pleadings to resolve cases on their merits. IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal. App. 3d 451, 461. Plaintiffs are not changing the nature of this case, and their new allegations are based on the same nucleus of operative facts. The amendment would not result in any undue prejudice to defendant...

Excerpt: ...arties, X Border Media USA, LLC (“X Boarder”) and Hong Hanh Le Dao (“Hanh Le”); 2. Since the inception of this litigation, cross-defendant, Vietface Media Group LLC (“VFMG, LLC”) has formed an additional subsidiary, S Channel, Inc. (“S Channel”), which ought to be included as a cross-defendant in this shareholders derivative suit; and 3. Ton seeks to add additional instances of breaches of fiduciaries duties to his existing claim ...

Excerpt: ..., for a total additional attorneys' fees award of $110,801.25. Plaintiff seeks $37,087.50 for the Knight Law Group, LLP, $23,655.00 for the Altman Law Group, and $13,125.00 for Wirtz Law APC. Plaintiff also seeks costs in the amount of $29,081.93. The court addresses Plaintiff's costs award in its concurrent order on Defendants FCA US LLC and McPeek's Dodge of Anaheim's motion to tax costs. For the following reasons, Plaintiff's second motion for...

Excerpt: ...rits since it appears unlikely that requiring the parties to meet and confer would resolve the issues raised in the demurrer. Page Limits: Cross-Complainant correctly objects that Cross-Defendants exceeded the 15- page limit for a supporting memorandum. (Cal. R. Ct. 3.1113(d).) Since the excess pages contain the conclusion and signature, the court will consider the entire memorandum in support. Judicial Notice: In support of their demurrer and mo...

Excerpt: ...defendant negates any essential element of a particular cause of action. (See Cantu v Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) In ruling on a demurrer, the court accepts as true the facts alleged and inferences therefrom. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Thompson v Ioane (2017) 11 Cal.App.5th 1180, 1190; Cundiff v GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405, 125.) However, the court need not assu...

Excerpt: ...ssume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [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...

Excerpt: ...rt a cause of action for elder abuse against Defendant Carehouse Health Center (“Carehouse”). (See FAC, ¶¶ 11-13.) Specifically, the FAC fails to allege specific facts demonstrating ratification or authorization by Carehouse. As a statutory “cause of action,” elder abuse must be pleaded “with particularity.” (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Second COA (Professional Negligence) and Fourth COA (W...

Excerpt: ...e section 1281.2, states, in part, “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration...

Excerpt: ...oney, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. . . . [¶] (b) The undertaking shall be on condition that if the judgment or order or any part of it is affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount of the judgment or order, or the part of it as to which the judgment or order is affirmed, as entered after the receipt of the rem...

Excerpt: ...t all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436. Further, “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is n...

Excerpt: ... seeking damages, costs, and attorney fees remains. When a money judgment is satisfied in full, the judgment creditor must file with the court an acknowledgement of the satisfaction of the judgment. (§ 724.030.) The judgment debtor may serve a demand on the judgment creditor to comply with this requirement, and if the judgment creditor fails to do so within 15 days after receipt of the demand, the judgment debtor may file a noticed motion with t...

Excerpt: ...arties, counsel, and their agents are also directed not to disseminate the third parties' contact information, and to keep it confidential, except for disclosures as needed in the course of investigation and pursuit of this litigation. (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1259; Williams v. Superior Court (2017) 3 Cal.5th 531, 559, n10.) Defendant is awarded a reduced monetary sanction of $2,900 payable by Plaintiff within 60...

Excerpt: ...1) is also DENIED. Defendants' separate statement is deficient as to the alternative motion for summary adjudication. On a motion for summary adjudication, the separate statement must tie each “undisputed material fact” to the particular claim, defense or issue sought to be adjudicated. (Cal. Rules of Ct., Rule 3.1350(b).) Here, the notice of motion seeks in the alternative, summary adjudication as to the four causes of action for wrongful de...

Excerpt: ...5/20 minute order.) Plaintiff Souzan Baaj's request for a preliminary injunction is denied. Plaintiff has not shown an injunction is warranted after weighing both “the likelihood [she] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Most notably, plaintiff failed to show a sufficiently probabi...

Excerpt: ...tioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or ser...

Excerpt: ...nded complaint states facts sufficient to constitute this cause of action. (See CACI No. 2430 [elements]; see also SAC ¶¶ 5, 6, 12-34.) 2nd cause of action, FEHA violation. The second amended complaint states facts sufficient to constitute this cause of action. (See Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 [elements]; see also SAC ¶¶ 5, 6, 12-34, 29-31, 36-40.) 6th cause of action, declaratory relief. This is functional...

Excerpt: ...) Therefore, the court may properly consider the merits of this matter. Request for Judicial Notice: Pursuant to Evidence Code § 452(d)(1), the court may take judicial notice of records of “any court of this state.” However, while the court may “judicially notice a variety of matters, only relevant material may be noticed.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569.) Further, the court may take judicial notice of court re...

Excerpt: ...false representations. Cote is awarded attorney's fees and costs in the total amount of $1,710.00. Code of Civil Procedure section 425.16 provides: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the cou...

Excerpt: ... second cause of action is alleged against Jacquet and Freedom Capital Partners, LLC. The seventh cause of action is alleged against Jacquet, E.A. Jacquet, and Kohen-Leasure. The demurrer is overruled in part and sustained in part. The demurrer as to the first, second, and seventh causes of action is overruled. The demurrer as to the third, fourth, and fifth causes of action is sustained without leave to amend. A demurrer presents an issue of law...

Excerpt: ... subject matter of the action nor likely to lead to the discovery of admissible evidence. If the Landry defendants have discoverable documents, they must produce them (subject to other potential issues). Conversely, if any of the requested categories of documents have never been in the possession, custody or control of the Landry defendants, they can respond to those requests pursuant to CCP §§2031.210(a)(2) and 2031.230 and will have no burden...

Excerpt: ... 7-11); 8:7-8 and 9-10; 9:28 and 10:5-6 and 15-16  The following page and line references from the Anwandter Declaration filed in opposition to the motion to enforce (ROA 154): 2:8-20; 3:24-28; Exhibit A at i:12- 14, 2:11-14 and 21-28, 3:1-3, 5:11-23, 8:15-27, 14:16-17 and 20-26, pp.15-18, 19:13-28, 20:1-3, 22:15-17; Exhibit B at i:12-14, 2:12-14 and 22-28, 3:1-4, 5:14- 24, 8:23-28, 9:1-7, 14:23-28, pp.15-19, 20:1-5 and 18-23, 21:1-10, 24:3-5;...

Excerpt: ...rse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (Code Civ. Proc., § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Id.) Plaintiff Hagendorf amended his Complain...

Excerpt: ...overy, LLC (see ROA 155); Harry L. Haroutunian, M.D. (see ROA 154); and, Dr. Harry Recovery & Wellness Network (see ROA 153). Each subpoena requests the same nine categories of documents. In her separate statements, Plaintiff did not include categories 4 and 5. Thus, Plaintiff only challenges categories 1 through 3, and 6 through 9. (See Cal. Rules of Court, rule 3.1345(a)(5).) Code of Civil Procedure section 1987.1, subdivision (a) provides: “...

Excerpt: ... of Hyung Kim dated May 21, 2020 are SUSTAINED because the declarations were not signed under penalty of perjury. Defendants' objections to Declaration of Hyung Kim are SUSTAINED as to paragraphs 10, 12, 13, 21, and 28 and OVERRULED as to the remaining paragraphs. The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481. “A superior court must ...

Excerpt: ...Decl., ¶¶ 12-14.) Plaintiff's counsel also presents evidence that when he prepared the Case Management Conference Statement, he was focusing only on Plaintiff's Complaint—not the Cross- Complaint, and that when he checked “nonjury trial” that was intended only to apply to Plaintiff's Complaint. (Id., ¶¶ 6-8.) Plaintiff's counsel also presents evidence that he and his client assumed there would be a jury on the Cross-Complaint since the ...

Excerpt: ...gations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited 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 §§ 451 or 452. Although California courts take a liberal view of in- artfully drawn complaints, it remains essential that a complaint set f...

Excerpt: ... negligent misrepresentation; and (9) unfair competition. The FAC alleges that plaintiffs have been providing addiction treatment services to defendant's insureds as out-of-network providers since 2012 and 2015 (FAC, ¶ 79) and that, beginning in 2016, defendants engaged in a pattern of unjustified denials and claim processing roadblocks to deny payment, underpay claims, or withhold payment to plaintiffs (FAC, ¶ 89). It alleges that plaintiffs' ...

Excerpt: ...ically identify what damages she alleges were caused by Defendant's alleged concealment. Allegations in the FAC: The FAC alleges that Plaintiff was harmed by (1) purchasing a vehicle that she would not have purchased had she known the true facts about the engine defect, (2) unknowingly exposing herself to the risk of liability, accident and/or other injuries, (3) $2,511.55 for repairs of the subject vehicle, and (4) at least $1,100.00 in earnings...

Excerpt: ...se of action. See Kraner v. Halsey (1889) 82 Cal. 209, 212. Current case law takes a different approach. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The failure to plead the dates of the tort does not require that the Demurrer be sustained. St...

Excerpt: ...resentation; (6) violation of Penal Code section 496 [which was dismissed on 3/20/19]; and (7) concealment. The TAC alleged that plaintiff and defendants were shareholders in Autocrib, Inc. and that defendants improperly reduced plaintiff's share ownership through a variety of means, including fraud. On 8/17/15, defendants moved to compel arbitration, which motion was denied on 9/9/15. The court's minute order of said date provides additional rel...

Excerpt: ...ant Harris and owned by defendant O'Connell, while in course and scope of his employment. County of Orange v. Harris, OCSC Case No. 2018-01033469: The complaint was filed on 11/19/18 by plaintiff County of Orange against defendants Steven A. Harris, O'Connell Landscape Maintenance, Inc., and Preston Edward Nunez-Ruiz, seeking subrogation for workers' compensation benefits paid to plaintiff Jennifer Anckaer. On 1/24/19, pursuant to stipulation, bo...

Excerpt: ...ernative, summary adjudication as to all causes of action alleged against them. In each motion, moving party offers the same exact facts in support of the motion for summary adjudication as those offered in support of the motion for summary judgment. Indeed, each of the three designations of the issues in the Separate Statement of Undisputed Material Facts in Mr. Jiadai's motion indicates that moving party is entitled to summary judgment, not to ...

Excerpt: ..., Case Number 30-2018-01014579. (Evid. Code, § 452(d).) Demurrer based on Standing: The FAC alleges Plaintiff and Defendants entered into an oral agreement according to the terms of which Defendants agreed to, in exchange for valuable consideration, design, manufacture and install bridges and veneers for Plaintiff's daughter, Ms. Bond. (FAC, Attachment BC-1.) The FAC adequately alleges facts demonstrating that Plaintiff, as a contracting party, ...

Excerpt: ... [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, provides, �...

Excerpt: ...n dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [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 allegation...

Excerpt: ... Defendant also contends plaintiff has not shown Defendant was properly served with the Initial Statement of Damages such that the default is void. Defendant further contends plaintiff's death necessarily changed the nature of the Complaint which requires that Dr. Hajj be allowed to respond, and that the court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those pled in the Complaint. Under Code ...

Excerpt: ...n Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321. “The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.'” ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020. Reasonable Billing Rate: “The reasonable hourly rate is that prevailing in the community for similar work.” PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. “The tr...

Excerpt: ... cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Eckler v. Neutragena Corporation (2015) 238 Cal.App.4 th 433, 439, states, “ ‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.]' As with a demurrer, ‘[t]he grounds for a motion for judgment on t...

Excerpt: ...njunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the . . . injunction is issued.' [Citations.] These two showings operate on a sliding scale: ‘[T]he more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.' [Citation.] [¶] Although preliminary injunctions are generally des...

Excerpt: ...d, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to on...

Excerpt: ...ned inspections re same and had provided a guaranty as to the work performed (when, in fact, the work was performed by unlicensed cross-defendants). The XC further alleges that Genesis was defamed and wrongfully sued in this action. Based on the alleged fraud, these allegations are sufficient to support the punitive damages claim at issue. The claims as presented are also sufficient, for pleading purposes, to support the prayer for fees based on ...

Excerpt: ...forth below. This is Hooper's second attempt to set aside the default judgment first entered against him on 6/4/19. In Hooper's first attempt, the Court denied the motion without prejudice on 9/23/19 as Hooper did not file a proposed answer to the Complaint and failed to meet the minimal threshold requirement to show good cause for setting aside the default, such as a declaration as to why the default should be set aside. As both of those issues ...

Excerpt: ...Defendants' employees address, telephone number, social security number, driver's license, employment history, education, references or professional and technical qualifications may be disclosed at this time. Plaintiffs' request for monetary sanctions is DENIED since the motion was not brought in bad faith and defendants' position was substantially justified. Defendants objected to all categories of documents sought in the subpoena on the followi...

Excerpt: ...D. A deposition subpoena that commands only production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the records designated by it. CCP §2020.410(c) It appears that a third party may timely object to production, meaning on or before the production is due. Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4 th 123,128 A motion to compel production of business records...

Excerpt: ...) 138 S.Ct. 1612, 1622.) [FAA preserves “‘generally applicable contract defenses,” including unconscionability]; Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4 th 83, 114 [same]; Ramos v. Superior Court of San Francisco County (2018) 28 Cal.App.5th 1042, 1055, 1063 [same].) Plaintiff showed the agreement is procedurally unconscionable as an adhesion contract and condition of employment. (See Armendariz, supra, 24 Cal.4th...