Excerpt: ...e Civ. Proc. § 1281.2 provides, inter alia: “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 arbitr...

Excerpt: ...”) is barred by the statute of limitations. The court sustains the demurrers on both of these grounds. 1) FAC was untimely filed and is barred On 9/9/19, the Court sustained both defendants' demurrers and gave leave to file the FAC within 21-days of service of the notice of the ruling. On 9/10/19, defendants filed and served by mail the Notice of Ruling on the original demurrers and motions to strike. The FAC was required to be filed by 10/6/19...

Excerpt: ... of the allegations 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 inartfully drawn complaints, it remains essential that a compl...

Excerpt: ...ch addresses the issues within the exclusive jurisdiction of the Probate Department. (Probate Code §17000 and Probate Code §17200(b)). Plaintiff shall inform the Court in writing, no later than April 6, 2020, whether such an action has been commenced. Pursuant to Probate Code §17000(a), “[t]he superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of t...

Excerpt: ...ditionally, “[f]acts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” (Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4 th 1, 6). Within the First Amended Complaint, Plaintiff alleges he entered into a “Home Equity Conversion Mortgage Adjustable Rate Loan Agreement” with Defendant Pacific Residential. (¶5 of FAC). The Agreement, attached as Exhibit A to ...

Excerpt: ...aintiff has met its burden to show that those requirements are also satisfied. Minakov argues that probable validity is not shown because the contract with Plaintiff was modified or terminated in August 2016 based on an oral agreement. But the only evidence offered to support that claim is his own statement. (Minakov Decl. ¶ 6.) This statement is insufficient to defeat Plaintiff's showing of probable validity based on the written contract here. ...

Excerpt: ...of great liberality in permitting amendments . . . at any stage of the proceedings, up to and including trial. . . .'” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Defendant's challenges to the FAC's legal sufficiency are better handled at a later stage. (See Atkinson, supra, 109 Cal.App.4th 739, 761; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:644.) The court may condition a...

Excerpt: ... unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) As to nos. 6, 7, and 8, the declarations in an exhibits are hearsay. Judicial notice of other court records and files is limited to matters that are indisputably true. Thi...

Excerpt: ...ings. The Status Conference set for April 3, 2020 will remain on calendar pending entry of judgment for defendants. Plaintiffs have not alleged any new facts in their Second Amended Complaint that would support a ruling different from the one this court made as to plaintiffs' First Amended Complaint, and have not set forth any facts warranting further leave to amend. Plaintiffs have had three opportunities to allege the causes of action challenge...

Excerpt: ...f, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) ...

Excerpt: ...ides that a plan shall not request reimbursement for the overpayment of a claim unless the plan sends a written request for reimbursement to the provider within 365 days of the date of payment on the overpaid claim. However, Kaiser cites Ogo Associates v. City of Torrance, (1974) 37 Cal. App. 3d 830, 834, for the proposition that the doctrine of exhaustion of administrative remedies has several exceptions, including where the aggrieved party can ...

Excerpt: ...efects that appear on the face of the pleading, or from matters outside the pleading of which judicial notice has been properly requested].) The request for judicial notice filed on 02/20/20 by defendant Rahgoshay is denied on the grounds that it is untimely in support of the demurrer, and constitutes improper new evidence submitted with a reply. Moving party to give notice. 2. Defendant Abhari's demurrer to plaintiff's second amended complaint. ...

Excerpt: ...  the allocation of settlement proceeds among plaintiffs  recognition that the settlor should pay less in settlement than he would if he were found liable at trial  the financial conditions and insurance policy limits of settling defendants  the existence of collusion, fraud or tortious conduct aimed to injure the interests of non-settling defendants.  These factors are not exhaustive and may not apply in every case. Dole Food Comp...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) 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 ...

Excerpt: ...discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may re...

Excerpt: ...by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173 (Goldman); Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6 (Young); see Eusey Decl. ¶¶ 4, 6-8, 14, Ex. A.) Emeritus has not met this burden. Emeritus has failed to submit any competent evidence of an actual agency between decedent Lois Christie (Christie) and plaintiff Donna Lewis (Lewis). (See Eusey Decl. ¶¶ 2, 4, 6-8, 14, Exs. A, B...

Excerpt: ...lable penalties. Attorneys' fees and costs, class representative enhancements, settlement administration costs (excluding employer's share of withholding taxes) shall be paid out of the GSA to calculate the Net Settlement Amount (NSA) to be distributed to the class.” The MOU stated that plaintiff would file an amended complaint including a PAGA claim. Under the terms of the MOU, “in addition to the GSA”, plaintiff was to receive a specified...

Excerpt: ...isted in Plaintiff's Notice of Motion is denied without prejudice to Plaintiff refiling timely separate motions to quash each subpoena and paying resultant filing fees. Plaintiff's motion concerns a subpoena duces tecum (“Subpoena”) issued by counsel for Stater Bros. on October 9, 2019, and served on deponent Hoag Hospital Irvine - Records. (Ng Decl., Ex. 2.) The Subpoena requests: “[a]ny and all medical records, charts, files, doctors' not...

Excerpt: ...nt is “guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust har...

Excerpt: ... stricken, and Verona Collection's default should be entered, because Verona Collection is a foreign corporation that “does not hold a valid certificate from the California Secretary of State in violation of [Corporations Code] Section 2105,” and “lacks the right and the capacity to defend and/or maintain any action or proceedings in any court of this state” under Corporations Code section 2203. (Mot., at p. 3.) Corporations Code section ...

Excerpt: ...lemental briefing from the parties regarding the applicability of Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500. Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 23...

Excerpt: ... and declaratory relief. Cross-defendants demur to all six causes of action. Cross-defendants also move to surgically excise a number of averments within the operative pleading pertaining to the underlying agreements between the parties. Initially, this Court notes that the First Amended Cross-Complaint is narrowly-tailored, consuming a relatively scant nine pages. The essential facts are set forth clearly, and with adequate precision to acquaint...

Excerpt: ...egations 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 complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from th...

Excerpt: ...ruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (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 demurr...

Excerpt: ... days leave to amend. Alter Ego Allegations: “ ‘Before the acts and obligations of a corporation can be legally recognized as those of a particular person, and Vice versa, the following combination of circumstances must be made to appear: First, that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corpor...

Excerpt: ...Cause of Action for Breach of Covenant of Good Faith and Fair Dealing in the Third Amended Complaint (“TAC”) filed on 9/16/19, by Plaintiffs, Michael Alladawi (“Alladawi”), Nour Khedraki, Umbrella Capital Group, Inc., dba The Plaza Realty Group, Umbrella Investment Group, LLC, Ikon, LLC, and Acacia Properties 1, LP (collectively “Plaintiffs”). A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, ...

Excerpt: ...ndant's outrageous conduct. Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. at p. 229. To avoid a demurrer, the plaintiff must allege with great specificity the acts that he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. Vasquez v. Franklin Ma...

Excerpt: ...ge the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. Every element must be pled specifically. Ibid. Moving defendants contend that the cause of action fails to meet this standard, and they are correct. The first cause of action all...

Excerpt: ... Civ. Code § 1708.85(a)); and ordering all parties and their agents and attorneys to use the pseudonym Jane Doe to refer to Plaintiff and the pseudonym John Doe to refer to Plaintiff Jane Doe's husband in all pleadings, discovery documents, and other documents filed or served in the action, and at hearings, trial, and other court proceedings that are open to the public (Cal. Civ. Code § 1708.85(f)(2)(A)), and to exclude or redact any identifyin...

Excerpt: ... 531, 549.) As to the Settlement 6. Please confirm Plaintiff is the only aggrieved employee. 7. Plaintiff must provide valuations for each component of the PAGA claim so the Court can assess whether the $1,000 allocated to PAGA is fair. Plaintiff must also state the documents it reviewed in determining its valuations. 8. What claims if any remain pending against defendants who are not party to the settlement? 9. Do any of the parties know of any ...

Excerpt: ...e case was settled when it is not, which caused all future hearing dates in this case to be vacated; and that counsel failed to timely remedy the problem when the erroneous filing was brought to their attention. Pursuant to CCP § 128.5, a Court may order a party or counsel, or both, “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or s...

Excerpt: ...tion for Attorneys' Fees California Civil Code §1794(d) provides that a prevailing plaintiff in a Song-Beverly case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. Civ. Code § 1794(d). The plain wording ...

Excerpt: ...lding themselves out or their offices out as plaintiff's new offices or otherwise as successors to plaintiff; and 3. Using business names that include “Focus Financial”. Defendant Williams' objections to paragraphs 3, 4, 10, 12, 19, 21, 23, 31, 32, 33, and 34 of the Cho Declaration are OVERRULED, and the objections to paragraphs 13, 14, 15, 16, 17, 22, 25, 26, 27, 28, 29, and 30 of the Cho Declaration are SUSTAINED. Although the court has bro...

Excerpt: ...(CA. LAB. CODE § 510) FAILS AS A MATTER OF LAW (Undisputed Material Facts (“UMF”) 1 to 138) The elements of a cause of action for failure to pay overtime are: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (2) plaintiff was not paid and/or paid less than the overtime rate for some or all of the overtime hours worked; (4) the amount of overtime pay owed. CAC contends that this cause of action has no merit bec...

Excerpt: ..., 88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” Navellier, supra, 29 Cal. 4th at 89. In order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have “'...

Excerpt: ... the NIB to real party in interest Cummings Industries, Inc. dba North American Crane Company (“NACC”). Factual Timeline On 04/27/18, the NIB was issued by OCSD, and it required bids to be submitted by 05/29/18. (AR 128.) According to paragraph 3.1 of the NIB, OCSD reserved “the right to reject any or all Bids, waive any or all irregularities and accept or reject any portion of each individual Bid.” (AR 135.) While “[a]ny missing bid re...

Excerpt: ... defendant KSL Resorts Corporation is dismissed from the lawsuit. When does Plaintiff intend to dismiss the claims against defendant KSL MBR Management II, LLC? 2. As set forth in the 1/23/2020 minute order, Plaintiff must provide an estimate of the low and high recovery of the “aggrieved employees,” and state the amount expected to be received by Plaintiff. Plaintiff has only provided the average recovery of the aggrieved employees. (See Sup...

Excerpt: ...evin Long on 1/22/18, alleging causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence. Defendant Long answered the complaint on 2/13/18. Plaintiff amended the complaint on 5/2/18 to identify Erika Garcia as DOE 1. Defendant Garcia answered the complaint on 6/18/18. Defendant Long's motion for summary judgment was denied on 10/23/19. The case is set for an MSC on 02/28/20, and a continued trial on 09/28/20. Moving Party con...

Excerpt: ... other things, breach of contract. Defendant filed a cross-complaint for, among other things, breach of contract. The complaint has now been dismissed. Only the cross-complaint is still at issue. On 11/7/18, the Court granted Moving Party's unopposed motion for judgment on the pleadings to the answer, with leave to amend on the ground that cross-defendant, as a corporation, could not represent itself in this action. Cross-defendant was granted te...

Excerpt: ...y duty; (6) breach of contract; (7) money had and received; and (8) deposit in court. Plaintiff alleges that Marik has failed to pay legal fees and that defendant Saba, a former law associate, has interfered in plaintiff's ability to collect fees from Marik and others. Concurrently with the complaint, on 4/18/19, plaintiff filed a Notice of Related Cases, indicating that this case is related to Saba v. San Jacinto Z, LLC, OCSC Case No. 2017- 0095...

Excerpt: ...ts/Overview: In light of the significant amount of law and motion activity in this action, including pleading challenges, discovery disputes, summary judgment motions, and motions for sanctions, and the Court's belief that all parties are well acquainted with the facts and procedural history of the case, a limited statement of facts and overview is provided herein. Most recently, trial had been set for 11/25/19. On 11/21/19, defendants' ex parte ...

Excerpt: ... of the Huntington Beach Police Department, and Plaintiff has not exhausted less intrusive methods/sources of discovery.” (Notice of Motion & Motion at p. 2.) Facts/Overview: On August 28, 2019, plaintiffs Huntington Beach Police Officers' Association (HBPOA or Association) and Yasha Nikitin (collectively, plaintiffs) commenced this action against defendant City of Huntington Beach (City or defendant) alleging the following three causes of acti...

Excerpt: ...mplaint alleges causes of action for: (1) Premises Liability; and (2) General Negligence. Plaintiff alleges she was injured due to a fall at Defendant's CVS Pharmacy location, caused by a malfunctioning automatic entry door. Defendant claims that an elderly gentleman was trying to enter the store through a marked exit door, that he fell down attempting to do so, and that he knocked down Plaintiff, causing her to become injured. On 04/17/19 Plaint...

Excerpt: ...ran is the apartment manager for Plaintiff's building. His father, Donald Duran, helps him manage the building. B&C Properties is the owner of the apartment building. Plaintiff also alleges that Defendants Joel and Donald Duran hacked into his cellphone and obtained written information and audio; and installed cameras that took photographs or video of Plaintiff while he was in his apartment. Defendants Joel and Donald Duran tracked everything tha...

Excerpt: ...r (1) breach of contract, (2) breach of contract, and (3) fraud – intentional misrepresentation. On July 30, 2019, the court granted plaintiff's first amended ex parte application for right to attach order and writ of attachment in full. On July 31, 2019, the court entered an order granting plaintiff a writ of attachment in the amount of $326,250.00 with respect to the property located at 28602 Silverton Drive, Laguna Niguel, California 92677. ...

Excerpt: ...Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. [Citation.] When the plaintiff...

Excerpt: ...FA Nos. 11, 13, 15, and 18 these requests are compound. The Requests should be propounded as separate requests. As to RFA Nos. 5, 6, 7, 10, 16, 17, 19, and 10, the Motion is GRANTED. Despite Defendant's objection, these requests are not compound, and the defined term of “PROFESSIONAL NEGLIGENCE” is not vague, ambiguous or compound. Defendant is required to provide to provide a complete and straightforward response as the information reasonabl...

Excerpt: ... no e-mails responsive to any of the requests at issue, defendant is to provide a supplemental response concerning the inability to comply which complies with Code of Civil Procedure section 2031.230. Good Cause and Relevance: Defendant's supplemental responses contain statements of compliance with the demand that are incomplete. Code of Civil Procedure section 2031.220 provides, in relevant part, that “[a] statement that the party to whom a de...

Excerpt: ...d to discuss the appropriate amount of the mandatory bond. (See Code Civ. Proc., § 529, subd. (a).) 15 Almeria. Plaintiff has shown an injunction is warranted after weighing both “the likelihood [he] 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.) Plaintiff has shown a sufficient probability ...

Excerpt: ...ot accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.” Assuming a valid Section 998 offer, it...