Excerpt: ...is ruling is that only remaining claim in the lawsuit is the first cause of action for breach of contract. I. Evidentiary Objections A. Plaintiff's Objections Plaintiff filed a document entitled “Plaintiff's Objections to Defendant's Evidence.” (ROA 363.) The Court has reviewed these objections, which are not actually objections to evidence, and do not comply with CRC 3.1354(b). The rule requires the objecting party to identify items of evide...

Excerpt: ... cause of action is DISMISSED WITHOUT PREJUDICE. Defendants' request for judicial notice of Plaintiff's pre-filing letter to the LWDA, made in the reply papers, is GRANTED. Although not directly relevant to this motion, the Court is disturbed by Defendants' counsel's pronouncement that she will not communicate with Plaintiff's counsel except in writing. Beyond the fact that oral communication is required for certain meet and confer obligations (e...

Excerpt: ...as granted as to half of the factual allegation paragraphs and two of the three causes of action that Defendants sought to strike. As such, Defendants are entitled to an award of fees. Mandatory attorney's fees awarded under Section 425.16, subdivision (c), are those fees that the court deems reasonable. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.) It is Defendants' burden of proof to show the fees it incurred and that the fees were reasonab...

Excerpt: ... Warranty is sustained, with leave to amend, for failure to state sufficient facts to constitute a cause of action. (C.C.P. §430.10(e)). This cause of action is time-barred. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213 [four-year statute of limitations under Cal. Comm. Code 2725 applies to claims under Song-Beverly Act]; Commercial Code §2725(2) [“breach of warranty occurs when tender of deliver is made']; Cardinal ...

Excerpt: ...se of action, the fourth cause of action as to Plaintiffs Donovan and Curtis Reale only. The remainder of the demurrer is overruled. Request for Judicial Notice In support of both Motions, Defendants request that the court judicially notice the Complaint. The request is denied. It is 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 ...

Excerpt: ...mitations, Plaintiff raises various tolling arguments. Statute of Limitations. First, Plaintiff contends that the claims are tolled by the discovery rule. “Although a cause of action generally accrues, triggering the statute of limitations, when it is complete with all of its elements, accrual is postponed until a plaintiff discovers, or has reason to discover, the cause of action.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 147...

Excerpt: ...Cal.App.4th 471, 485 (when considering a demurrer, trial court may take judicial notice of answers to requests for admission.).) Defendants argue that the First Amended Complaint (“FAC”) is a sham pleading because the original Complaint alleged that Defendants' statements regarding imminence were fraudulent, but the FAC now claims Plaintiff actually agreed with the decision to delay the liquidity event, contradicting his prior pleading. The s...

Excerpt: ...s ruling on this motion will apply to the Fifth Amended Complaint. Defendant Residential Fire Systems (“RFS”) identifies itself as a “privately-owned small business that installs fire sprinkler systems for residential community developments and custom homes throughout Southern California.” Motion at 2:7-8. Plaintiffs were/are employees of RFS and brought this action alleging several wage and hour violations on behalf of a class of RFS emp...

Excerpt: ...the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) There are four circumstances in which concealment may constitute actionable fraud: (1) when t...

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

Excerpt: ..., the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Doheny Park Terrace Homeow...

Excerpt: ...n a residential, treatment and “work therapy” program through the Salvation Army in the hopes of perhaps, one day, achieving some degree of independent productivity. As part of the overall program, individuals like James are sometimes tasked with helping out in Salvation Army retail shops (aka family store and donation center). James helped out in the shop in Lake Forest. On 04/16/19, something caused James to snap. He had an altercation with...

Excerpt: ...' Request for Judicial Notice, Exs. A and B.) A party may demur to a pleading if “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10(c).) “The theory underlying this defense is that because the first action will normally provide an adequate remedy the second action is unnecessary and vexatious.” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 175.) Such demurrers are...

Excerpt: ...art, and SUSTAINED without leave to amend, in part. The demur to the First through Sixth, Ninth and Tenth causes o f a c ti o n i s OV E R R U LED . Th e de mu r t o the S ev en t h an d Ei g h th c a u ses o f a c ti o n is S U S T A IN ED without leave to amend. Defendants' request that the Court take Judicial Notice of the documents attached as Exhibit 1 to the Declaration of David Refice is GRANTED. (Evid. Code §§ 452(c) and 452(h).) To the...

Excerpt: ...paid in settlement. Rather that work it out, the parties took a trip to the DCA, and then the Supreme Court, and then back to the DCA, and now back here. Despite the journey, from this Court's perspective, nothing has changed. Pertinent History This action was commenced on 07/19/18 with the filing of a six-count complaint. Despite the number of claims, the clear crux of the case was unpaid wages – which subsumed the 1st, 2nd, 3rd, 5th and 6th c...

Excerpt: ...ties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Willia...

Excerpt: ...on the lodestar, which is the amount of time reasonably spent and the reasonable hourly compensation of each attorney. Meister v. Regents of the University of California (1998) 67 Cal.App.4 th 437, 449; Chodos v. Borman (2014) 227 Cal.App.4 th 76, 91-92 There is no challenge to the propriety of the hourly rates – which are $300/hr for pre- dismissal work and $330-360/hr for work on the appeal for Attorney Couch and $330 for work done by Appeal ...

Excerpt: ... (f). However, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d). Additionally, the court observes that the font used by defendants in the moving and reply brief may run afoul of the font requirements of California Rules of Court 2.104 and 2.105. The parties are urged to review the California Rules of Court and observe all formatting conventions. Because defendant...

Excerpt: ...udication shall be granted only if it “completely deposes of …an affirmative defense.” Code Civ. Proc. § 437c(f)(1). Plaintiff therefore has the burden of disproving each of the challenged affirmative defenses. This is a different burden than plaintiff would bear if she was moving for summary judgment or adjudication on her own complaint or cause of action. Issue 1 – relating to the second affirmative defense. The second affirmative defe...

Excerpt: ...torney's annual salary. On 06/10/19, defendant formally retained/employed a candidate presented by plaintiff. Based on that candidate's salary, plaintiff was entitled to a finder's fee in the amount of $27,750.00. Plaintiff sent an invoice for payment, to no avail. Plaintiff followed up with numerous telephone calls and emails, all to no avail. Finally, plaintiff requested a substantive explanation for the refusal to make good on the agreement, t...

Excerpt: ...g class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification. In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.” (Gutierrez v. California Commerce Club (2010) 187 Cal.App.4th 969, 976.) Resolving issues of class certifi...

Excerpt: ...December 28, 2019, a Saturday; the filing of the cost bill the following Tuesday, December 31, 2019, or two court days thereafter, was thus timely. The defendant failed to meet his burden to show that the costs were unreasonable or unnecessary because no evidence was submitted in support. The “declaration” of attorney Carl Pentis filed with the motion was not filed “under penalty of perjury” (Code Civ. Proc., § 2015.5), and thus the moti...

Excerpt: ...t Uliana Kozeychuk has no ownership interest therein. She, however, claims that he orally promised her a 1/3 ownership interest in the business. On 8/23/18, Ms. Kozeychuk filed her own action: Kozeychuk v. Honetschlager, case no. 2018-1011885. Her complaint alleges five causes of action for: 1. Breach of Oral Partnership Agreement 2. Promissory Fraud 3. Quantum Meruit 4. Promissory Estoppel 5. Declaratory Relief The cases were consolidated on Feb...

Excerpt: ...s interference with contract; (6) intentional interference with contract; (7) legal malpractice; (8) unfair competition/business practices; (9) disgorgement of salary and benefits; (10) fraud by intentional misrepresentation; (11) fraud by intentional concealment; and (12) duress and coercion. In summary, plaintiff and defendant Peter LePort were friends, and defendant suggested that plaintiff invest in his company, LePort Educational Institute. ...

Excerpt: ... of a patent for an emergency repair plug for boats, notwithstanding that the US Patent and Trade Office [“USPTO”] has issued a patent identifying Artelier as the assignee. On 12/17/18, defendants Artelier Studio, LLC, Henry Goldman and Richard Joseph Benveniste filed an answer in response to plaintiff Forespar's complaint. On 1/23/19, defendant Fitzgerald was dismissed. On 2/13/19, the Court granted defendants' motion to bifurcate trial, ord...

Excerpt: ...Plaintiffs to provide “asset protection” service in connection with an adverse ruling/judgment in a lawsuit in the State of Hawaii where Mr. & Mrs. DeMarco were plaintiffs. Defendant attorneys drafted an irrevocable trust which turned out to be held a fraudulent transfer. In an effort to hide their assets from the judgment creditor in Hawaii, Plaintiffs gave $105,000.00 in cash to Defendants, who then refused to return it. Plaintiffs filed th...

Excerpt: ...he complaint (filed on 5/14/18) by Plaintiff Five Star Turf, Inc. against Defendants George Toubbeh and Jobbers Wholesale, Inc. contains causes of action for (1) Breach of Contract; (2) Open Book Account; (3) Intentional Misrepresentation (Fraud); and (4) Negligent Misrepresentation. According to Plaintiff, the original lease between the parties allowed Defendants to use a common space for two offices and the shared use of restrooms. Thereafter, ...

Excerpt: ...y served an Amended Statement of Damages on him by mail, as opposed to personal service, rendering the default void. Defendant relies on Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, and Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308 (“Schwab”), but these cases do not appear to apply here if plaintiff properly served the Initial Statement of Damages, and plaintiff is seeking less than what was originally sought in t...

Excerpt: ... or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is ma...

Excerpt: ...ular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propou...

Excerpt: ...ons filed on 1-30-20 under ROA No. 107: The court SUSTAINS Objection No. 1. (See below.) Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the d...

Excerpt: ...7c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more ma...

Excerpt: ...lief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judg...

Excerpt: ...dant Piecemakers' Person Most Knowledgeable; 4. Plaintiff's Motion to Compel Deposition of Defendant Brenda Stanfield; and 5. Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Production of Documents, Set Two. The Court CONTINUES the five motions to 4-2-2020, Dept. C11, at 2 pm, as set forth below. (1) Defendant Piecemakers' Motion for Protective Order: Code of Civil Procedure section 2031.060(a) provides that when a requ...

Excerpt: ...to oppose the demurrer can be treated as an implied concession to the merits of the same. Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a). Thus, the court can and does sustain the demurrer on these grounds. In addition, the Court sustains the demurrer on the additional ground that it has merit. A public entity is not l...

Excerpt: ...t of the deed of trust by MERS to The Bank of New York Trust Company was “void” because it was not signed by a MERS employee with authority. The California Supreme Court recently held a plaintiff may challenge an assignment of a deed of trust when the allegations, if true, would render the assignment “void, and not merely voidable at the behest of the parties to the assignment ....” Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 9...

Excerpt: ...ressed by the Family Law court in April 2020). This leads this Court to pose the question whether any of Plaintiff's claims in this action involve community property or potential breaches of fiduciary duties with respect to community property. The parties shall appear at the hearing to address this preliminary issue. The demurrer by Defendant Kristi Sar (“Defendant”) to the second and fifth causes of action in the First Amended Complaint of P...

Excerpt: ...s against St. Joseph Heritage Health and its employees. (RJN 1). “'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ... 'clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.'” Skrbina v. Fleming Companies (1996) 45 Cal....

Excerpt: ...geous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does the FAC allege “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes, supra, 46 Cal.4th at p. 1051 [internal quotation marks omitted]; accord Wong v. Jing (2010)...

Excerpt: ...ould have known of the alleged misconduct. (See CACI 426, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591, and Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Here, the only allegations as to Group are cursory and conclusory. (See FAC at ¶¶ 11, 26 and 49-52.) No facts are alleged to state how or why Group was allegedly negligent in hiring, supervising or retaining Dr. Trivedi. The D...

Excerpt: ... (See Civ. Code § 3345 and Compl. ¶ 50 and Prayer ¶5.) The arbitration provision eliminates the Plaintiffs' statutory right to claim attorney fees under the Elder Abuse Act. (See Welf. & inst. Code § 15657.5; see Compl. at Prayer ¶ 7, praying for attorney fees).) But an arbitration agreement “may not limit statutorily imposed remedies such as punitive damages and attorney fees….” (Armendariz v. Foundation Health Psychcare Services, Inc...

Excerpt: ... promise,” in order to recover tort damages); Aas v. Superior Court (2000) 24 Cal.4th 627, 632; KB Home v. Superior Court (2003) 112 Cal.App.4th 1076, 1088 (“whether the economic loss rule applies depends on whether property damage… has occurred rather than on the possible gravity of damages that have not yet occurred”).) With regarding to misrepresentation theories, “[i]n California, fraud must be pled specifically; general and conclus...

Excerpt: ...itioned on future developments.” The statute provides a nonexclusive list of types of payments potentially subject to an assignment order, including wages, rents, commissions, and royalties. Greenbaum v. Islamic Republic of Iran, 782 F.Supp.2d 893, 895 (C.D. Cal. 2008). As explained in the Legislative history: “Section 708.510 provides a new procedure for reaching certain forms of property that cannot be reached by levy under a writ of execut...

Excerpt: ...1) 25 Cal.4th 826, 854; see also Def. SSUF #9-10, 13-18, & 20-26.) Plaintiff has not met her shifted burden to show a triable issue of material fact. (See Code Civ. Proc., §437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at p. 854.) Contrary to defendant's contention, this issue disposes of only the 6th through 9th causes of action. It does not dispose of the 1st through 5th or 10th causes of action, which also allege defendant knew or s...

Excerpt: ...rement concerned the adverse party in this litigation and the owner of record the property. This requirement did not apply to Stern Investments, because it did not own the properties when the two Lis Pendens were recorded. “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content s...

Excerpt: ...he parties can fairly litigate these issues even if the employee's medical records are kept highly confidential under the stipulated protective order. (Cf. 2 CCR § 11069(g).) Motions to Compel re Form Interrogatories Plaintiff Jean Weil's motions to compel further responses to form interrogatories are granted as follows. Defendants Weil & Drage APC, Christine Drage, and Jacqueline Pons-Bunney contend they cannot answer the form interrogatories b...

Excerpt: ...s the California Horse Racing Board (“CHRB”). While the trial court reviews administrative actions to determine whether an agency's decision “was arbitrary, capricious, or entirely lacking in evidentiary support . . . [,] [t]he trial court reviews legal questions, including questions of statutory construction, de novo.” (City of Scotts Valley v. County of Santa Cruz (2011) 200 Cal.App.4th 97, 23-24.) In assessing the weight due to an agen...

Excerpt: ...mits 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) 238 Cal.App.4th 200, 208.) The motion may be used to attack portions of a cause of action, even if the motion does not defeat the entire purported cause of action. (Baral v...

Excerpt: ...enges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdiction is purely one of law.” (Snowney v. Harrah's Enterta...

Excerpt: ...ng for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint, as “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Footb...