Excerpt: ...position. "The general rule of motion practice...is that new evidence is not permitted with reply papers... '[Tlhe inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case' and if permitted, the other party should be given the opportunity to (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the e...

Excerpt: ...: Sex Discrimination (FEHA) • C/A 2: Harassment (FEHA) • C/A 3: FEHA Retaliation Plaintiff alleges that while she was an employee for the LLC Defendants, Antonio Perez and other kitchen staff were sexually harassing her. Plaintiff alleges that Perez had previously worked for the LLC Defendants and had been fired for sexual harassment, but was rehired. Plaintiff alleges that because she refused Perez's advancements, Perez refused to help Plain...

Excerpt: ...v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "A party may move for summary judgment in an action or if it is contended that the action has no merit or that there is no defense to the action or (CINIe Civ. Proc., S 437c, subd. (a)(l).) "The motion for summary judgment shall be granted all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...

Excerpt: ... Defendants—Brenna Johnson's, Johnson Employment Law's, Virginia Ksadzhikyan's, and 8/8 Law Group's Special Motion to Strike Portions of Plaintiffs Complaint filed on 11-9-22 under ROA No. 53. (8-25-23 Minute Order.) Based on the Notice of Appeal, the court STAYS this action pursuant to Code of Civil Procedure section 916. Code of Civil Procedure section 916 states, "(a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Secton 11...

Excerpt: ...ll 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." Code of Civil Procedure section 435, subdivision (b)(l), states, "Any party, within the time allowed to respond to a pleading may serve and file, a notice of moton to strike the whole or any part thereof, but this tme limitation shall not apply to motions specified in subdivision (e)." Pierson v. Sharp Memorial Hos...

Excerpt: ... with the Court's May 24, 2023 Order granting Defendant's motons to compel production and responses to form and special interrogatories. The trial court should tailor the sanction for such conduct to "fit the crime." (Reedy v. Bussell 148 Cal.App.4th 1272, 1293.) The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to. (Doppes v. B...

Excerpt: ...21-23 under ROA No. 449, is GRANTED. Code of Civil Procedure section 2025.420 states in part, " . "(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . " . . . The 2...

Excerpt: ...f any new matter constituting a defense." Code of Civil Procedure section 430.20, provides, "A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this 'uncertain' includes ambiguous and unintelligible. [q] (c) Where the answer pl...

Excerpt: ...emurrer, 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 allegatons in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal. , Inc. (2002) 101 Cal.App.4th 1395, 1404- 05.) Questions of fact cannot be decided on demurrer. (Berryman v. Me...

Excerpt: ... is a substantial probability they will prevail on the claim for punitive damages. (Civ. Code S 3295(c); Jabro v. Superior Ct. (2W2) 95 Cal. App. 4th 754, 757 ("Jabro").) "[B]efore a court may enter an order permitting discovery of a defendant's financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim f...

Excerpt: ...(See Hoffman v. Brandt (1966) 65 Cal.2d 549, 552-553 [new trial granted based on improper closing argument including facts not in evidence].) However, moving plaintiff has not presented any evidence that an objection was made at the time, or that a mistrial or curative instruction was requested. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) Further, plaintiff fails to provide evidence showing that this statement was prejudicial. (ld. ...

Excerpt: ...otice of the truth of the statements in Exhibit 2, i.e., the article entitled "Mites that 'Bug' People." (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 171, fn. 3.) 1st COA for Breach of the Implied Warranty of Habitability "The elements of a cause of action for breach of the implied warranty of habitability 'are [II the existence of a material defective condition affecting the premises' habitability, [2] notice to the land...

Excerpt: ...of postjudgment attorneys' fees in its fawr against Plaintiff City of San Clemente. UPCOMING EVENTS: Moton to Strike/Tax Costs - December 15, 2023 FACTS/OVERVIEW: This is an eminent domain action. On July 31, 2020, Plaintiff City of San Clemente ("City") filed a Complaint in Eminent Domain against Defendants Emergency Shelter Coalition and Rancho San Clemente Business Park Community (collectively, "Defendants"). (ROA 2). A lis pendens was filed o...

Excerpt: ...ne any of the following: ... "(4) Reported a work-related ... injury „ except in cases where the employee alleges they have been retaliated against because they have filed or made known their intention to file a workers' compensation claim pursuant to Section 132a, which is under the exclusive jurisdiction of the Workers' Compensation Appeals Board. Plaintiff alleges that he injured his head and neck while entering a car, and as a result of rep...

Excerpt: ...lt abuse/neglect. "The purpose of the [Elder Abuse Act] is essentally to protect a particularly vulnerable portion of the from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the "negligent failure of any person having the care or custody of an elder or a dependent adult to exerc:ise that degree of care that a rea...

Excerpt: ...uired. As a second initial matter, the Joint Statement filed on 04/11/23 (ROA 242) states that Defendant Swapsy, Inc. filed for bankruptcy on April 6, 2023 and the parties agree that this matter is stayed as to Swapsy. The individual Defendants have raised the issue of whether the matter can proceed against them. Plaintiffs believe it should. There are also several discovery motions filed by Plaintiffs and Swapsy set for hearing in May 2023. The ...

Excerpt: ...nts of this claim are: (1) conduct which is extreme/outrageous, that is conduct which exceeds all bounds of decency and is more than mere insults, indignities, threats or annoyances; (2) directed at the plaintiff and carried out with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (3) resulting in severe emotional distress, that is emotional distress of such substantial quality or enduring quali...

Excerpt: ...at there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment...

Excerpt: ...r Title Loans Inc. dba 18WTitlleLoan and the Irvine Police Department. Standard for Writ of Possession A party wishing to obtain possession of pro#rty may seek a writ of possession through the claim and delivery procedures set out in Civil Procedure Code section 512.010, et seq. Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judg...

Excerpt: ... Class Nurses, Inc. (ROA 2). The Complaint alleged 13 causes of action for: 1. Training / Orientation Indemnification 2. Illegal Waiver of Training / Orientation Indemnification; 3. Failure to Indemnify for Business Expenses; 4. Illegal Wage Non-Disclosure Agreement; 5. Illegal Non Competition Agreement; 6. Overtime; 7. Minimum Wages; 8. Regular Wages; 9. Rest Periods and Rest Premiums; 10. Meal Periods and Meal Premiums; 11. Failure to Pay Timel...

Excerpt: ...a, and Letter from Sarah Ferris, MD, because the evidentiary objections are not material to the disposition of this motion. (See Code Civ. Proc., S 437c, subd. Defendants Marriott Hotel Services, Inc. and AMH, LLC move for summary judgment on the Complaint filed by Plaintiff Angela Cleavenger. Standard for Summary Judgment "Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact an...

Excerpt: ...nce. Thus, Plaintiff was not given notice that John F. Ramey and RAMEY LAW, P.C. would not be representing her with sufficient time to appear or arrange for someone to appear on her behalf at the last case management conference. Therefore, the court will contnue the Order to Show Cause re: Failure to Appear and set a Case Management Conference to give sufficient time for Plaintiff to be given notce and to appear or arrange for someone to appear o...

Excerpt: ...soya and to stay these pending completion of arbitration. Standard for Compelling Arbitration When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and stay any pending lawsuit. (See Condee v. Longwind Management Corp. (2001) 88 Cal.App.4th 215, 218.) This right is contained in Civil Procedure Code section 1281.2, which states: On petition of a party to an arbitrati...

Excerpt: ...ed the deposition of Defendant to take place on December 15, 2022. (Bournazian Decl. '14-5, Exh. 3.) aut as the court previously ruled in a nearly identical motion, Defendant was in default from November 21, 2022 to July 7, 2023, and could not appear at the deposition. (See Req. for Entry of Default [ROA 14]; 5/19/2023 Minute order [ROA 521; 7/7/2023 Minute order [ROA 901.) Because defense counsel was unable to obtain a stipulation to set aside t...

Excerpt: ...6.040 or, when the deponent fails to attend the depsition and produce documents, by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. Code Civ. Proc. S 2025.450(b)(2). Defendants served the notice on August 25, 2023 with a deposition date of September 11, 2023. Declaration of Eric D. Houser '1 4. At that time, Plaintiff was selfrepresented. ROA 33. His present counsel, Matt Cortez, substituted ...

Excerpt: ...e of the proof of service filed in this achon on May 24, 2023, is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may "simply call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) '1 9:53.1a.) Defendants move for an order quashing the service of summons and complaint purportedly effected by Plaintif...

Excerpt: ... Compel Documents. (See ROA Nos. 385, 387, AND 395.) As the relevant documents were filed solely in the context of a discovery motion, neither California Rules of Court rule 2.550 nor rule 2.551 apply. (Cal. Rules of Court rule 2.550(a)(3).) "[Tlhere is no generalized presumption of access to all court-filed discovery material" and the applicable standard is "good cause." (Mercury Interactve Corp. v. Klein (2007) 158 Cal.App.4th 60, 100, 107.) Th...

Excerpt: ...plaint; the request for entry of default. „ and a copy of the judgment." Code Civ. Proc., S 670, subd. (a). Ajudgment, void on its face, is not governed by Code of Civil Procedure S 473. [Citation.] Such a judgment may vacated upon motion or may be set aside by the court on own motion. Montgomery v. Norman (1953) 120 Cal.App.2d 855. A trial court has the inherent power to set aside a judgment void on its face at any time. Connelly v. Castillo (...

Excerpt: ...n states, "An application for a provisional remedy under subdivision (b) shall not operate to waive any right of arbitration which the applicant may have pursuant to a written agreement to arbitrate, if, at the same tme as the application for a provisional remedy is presented, the applicant also presents to the court an application that all other proceed-ngs in the action be stayed pending the arbitration of any issue, question, or dispute which ...

Excerpt: ...(5) Any and all other references to punitive or exemplary damages. Civil Code section 3294, subdivision (a), permits the recovery of punitive damages upon a clear and convincing showing a defendant is guilty of oppression, fraud, or malice. "Malice" means 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 saf...

Excerpt: ...es to Form Interrogatories — General (Set One) is GRANTED. Defendant Sabin Burrell is ORDERED to serve full, complete, and verified responses to Special Interrogatories (Set One) without objections within 30 days of service of the notice of ruling. Defendant John Beckman is ORDERED to serve full, complete, and verified responses to Requests for Production of Documents (Set One) without objections within 30 days of service of the notice of rulin...

Excerpt: ... fees and costs is DENIED. Defendants Karson Construction, Inc. (Defendant Karson) and Dustin Lawson (Defendant Lawson) (collectively, Construction Defendants) move to compel arbitration of the claims brought by Plaintiff Debra Allen and to stay these proceedings pending completion of arbitration. Construction Defendants also request attorneys' fees and costs. Standard for Compelling Arbitration When a party to an arbitration agreement refuses to...

Excerpt: ...Appeal issued its opinion. (ROA 179 [case number G051416].) The May 6, 2022 order denying Defendant Sylvia Nuttall's special motion to strike (Code Civ. S 425.16) as to the third, fourth, fifth, eighth, ninth, and tenth causes of action was affirmed. The order was also affirmed with respect to allegations of theft and related misconduct, which in part, support the second, sixth, and seventh causes of acton. (ROA 179.) The Court of Appeal held tha...

Excerpt: ...rvices to W&N which did not fall below the standard of care for an attorney retained to collect a judgment in the Orange County area"; that "the only function of W&N during the time period alleged in paragraphs 10 and 11, above, was to receive and distribute any profits received (such as any monies received pertaining to the Rawji lawsuit) to Wildish and Nialis"; that "W&N was merely a 'strawman" and thus Wildish was truly the client"; that [ilt ...

Excerpt: ...notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. What is the relationship between the two defendants? 2. Defendant's LWDA letter appears to menton only IClean, not Experience. Have administrative remedies been exhausted as to Experience? If not, can the Court approve a release of PAGA claims against Experience? 3. Apart from the Sanchez matter, are there any other acti...

Excerpt: ...ecently filed for Romana Medina on 10/5/23, the court notes that the address for the purported substituted service stated in the proof of service differs from the address prov-ded for service of the instant motion. Compliance with the statutory procedures of service of process is essential to establish personal jurisdiction. (Code Civ. Prtw, S 410.50; Ellard v. Conway (2W1) 94 Cal.App.4th 540, 544.) Absent valid service of summons, the court does...

Excerpt: ...roma) in the amount of $250,803.26. The Court entered judgment against Stroma in favor of Plaintiff for breach of the convertible notes in the amount of $270,130.00. The convertible notes contain provisions making attorney fees recoverable on the breach of convertible notes. (Cheng Decl. 27; Ex. 2.) Plaintiff is the prevailing party on these claims and can recover reasonable attorney fees. The Court entered judgment against Stroma in favor of Pla...

Excerpt: ...oujade (Poujade) and Tri-Emerald Financial Group, Inc. (TFG). 2. The disclosure of any such discovery shall be limited to the parties to this action; said parties' counsel of record in this action, including counsel's offce staff; and the court, including court staff. 3. The use of any such discovery shall be limited to this action, and for purposes of this action only. Plaintiffs have demonstrated they are very likely to prevail on their punitiv...

Excerpt: ...ovided, "The Receiver shall manage and oversee the 0#rations of Synrgo, including, if and as he deems necessary and appropriate, taking steps necessary to properly wind down Synrgo's business, with due regard for the rights of all of Synrgo's creditors." Further, "The Receiver may take all actions he deems necessary to safeguard, preserve, protect, and maximize the value of the Property and the Business; to operate, sell, liquidate, and/or wind d...

Excerpt: ... to be deceived." Tucker v. Pacific Bell Mobile Services (2012) 208 Cal. App. 4th 201, 225. Defendant argues that the First Amended Complaint contains no factual allegations that the public would likely be deceived. However, plaintiff alleges in "27-29 that the 4% surcharge is not disclosed until after a purchase is complete, and then only as a small line item on a receipt, and misrepresents a price increase as a supply-chain surcharge. Additiona...

Excerpt: ...he alleged open book account was in writing, or otherwise in a "reasonably permanent form and manner." (Code Civ. Proc., S 337a.) The remainder of this cause of action appears sufficiently pled. (CACI 372 [elements]; FAC, "1 7, 10, 12; see also 4 Witkin, Cal. Proc. 6th (2023) "Pleading" S 561, subds. (1), (3) [general pleading of common countsl.) 2nd cause of action: account stated This cause of action states sufficient facts. (Zinn v. Fred R. Br...

Excerpt: ...rtionment. Re Requests for Judicial Notice The Court GRANTS LREP's request for judicial notce of the Order from the United States Bankruptcy Court for the District of New Jersey. The Court GRANTS G Companies' request for judicial notice of (A) its Cross-complaint, (B) Plaintiff's operative Second Amended Complaint, and (C) the Court of Appeal's opinion in G Companies Management, LLC v. LREP Arizona, LLC (2023) 88 Cal.App.5th 342. The court DENIES...

Excerpt: ...e showing all changes, deletions and additions must be submitted as well. In addition, please ensure that any factual assertions made in supplemental briefing are supported by admissible evidence (e.g., declarations). 1. As noted previously, the class is defined in terms of employees of the "Released Parties," which principally consist of LCC, Stauffer and Meiji. The definition has amended to exclude their attorneys, but their insurers remain par...

Excerpt: ... if the circumstances warrant. Plaintiff's Complaint states viable causes of action for declaratory relief and for reimbursement, and defendant's demurrer relies on facts that go outside plaintiff's Complaint and matter that may be judicially noticed, which is -mproper. Plaintiff is entitled to a declaration as to whether or not defendant is entitled to a defense and/or ccwerage in the Hobart litigation in Ohio. Even if there are some overlapping...

Excerpt: ...ng six causes of action, asserted against both Teletron and Hoang: (1) breach of contract, (2) fraud, (3) breach of covenant of faith and fair dealing, (4) money had and received, (5) intentional infliction of emotional distress, and (6) violation of business and professions code et seq. The court notes that a demurrer to the 5th cause of action was previously sustained without leave and is thus not a subject of the instant motion. The FAC allege...

Excerpt: ...The motion is GRANTED. An arbitration review conference will take place on June 11, 2024 at 8:30 a.m. in Department CX-IOI. The Court has not considered the evidence submitted with Defendants' reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 he general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers."].) GROUNDS FOR RULING This is a PAGA-only action involving the employees of Defen...

Excerpt: ...ration demand with the American Arbitration Association, Retired Judge Ronald S. Prager was chosen as arbitrator. (O'Hare Decl. 4.) Judge Prager conducted an evidentiary hearing in February and March 2023. (ld., '15.) In May 2023, he issued an interim award on the issues presented at the evidentiary hearing, reserving other issues for a final award. (ld., 6.) Following a hearing on the issue of attorney's fees and costs, Judge Prager issued a fin...

Excerpt: ... stated therein. Motion to Consolidate The court GRANTS Plaintiff Mordekah's Motion to Consolidate the two actions. When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated, or such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Code Civ. Proc. S 1048(a).) The semi...

Excerpt: ...d confer, the Court will construe the moton as a demurrer and rule on the merits because Cross-complainant has opposed the motion. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 ["lilt is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the moton."]) The Cross- Complaint alleges causes of action for frau...

Excerpt: ...ndants' Evidentiary Objections to Plaintiff's Declaration are overruled as to #1-2, 6-17 and 23-27, and are sustained as to #3-5, 18-22 and 28-29. Defendants' Evidentiary Objections to Plaintiffs Request for Judicial Notice are overruled; the court has disregarded all the commentary included within Plaintiff's Request for Judicial Notice and has simply ruled on the propriety of taking judicial notice of the cmuments referenced therein. Plaintiff ...

Excerpt: ...ical services in the future was legally unavailable, noting it was impossible for Kaiser to defintively know the reasonable and customary value of emergency medical services until a jury fixed that value. 71 Cal. App. 5th at 343. Yet plaintiffs here allege in 965 of their First Amended Complaint at 15:6—8, "KPC HOSPITALS seek an injunction prohibiting Kaiser from continuing to deduct the items and services from KPC HOSPITALS' bills when paying ...

Excerpt: ... the Court concludes there is no prevailing party in this matter. As a result, the motion is GRANTED and Defendants' claimed costs are stricken. At the hearing, the parties should be prepared to discuss the effect of the Court's prevailing party determination on Providence's memorandum of costs, which was filed on October 12. l. Background Providence's underlying lawsuit largely sounded in defamation. In brief, it alleged that Lozamira, Inc. and ...

Excerpt: ... special Interrogatories (Set one), Nos. 2, 5, 8, 11, 12, 13, 14, 18, 21, 23, 24, 26, 27, 29, 30, 31, 32, 33, 34, 35, and 37; and 3. Request for Prtxluction of Documents (Set One), Nos. 144. Enclave also seeks monetary sanctions totaling $14,548.50 against Huynh or McNamara and their counsel of record, (i.e., $2,257.25 for each motion re form interrogatories, $2,673 m for each moton re special interrogatories, and for each moton re requests for p...

Excerpt: ...sons set forth the writ petition is GRANTED, and the request for declaratory relief is DENIED. l. Factual Background Ray is the owner of a single-family residence at 337 Hawthorne Road in the City. The property is listed on the City's historic register as a C-rated structure. (AR14.) C-rated structures are "structures which contribute to the overall historic characteristic of the but are not unique or distinctive; however, these properties are st...

Excerpt: ... Indemnity; (4) Breach of Contract; (5) Declaratory Relief Re: Duty to Indemnify; (6) Declaratory Relief Re: Duty to Defend; and (7) Declaratory Relief Re: Failure to Maintain Insurance as follows, pursuant to the Notice of Motion: 1. CRH's First Cause of Action for Equitable Indemnity and Second Cause of Acton for Contribution fail because there is no evidence that Winnelson had independent fault for the subject incident. 2. CRH's Third Cause of...

Excerpt: ...event the VA2 and VA4 air gaps are delisted. The court also inquired about the likelihood that the VA2 and/or VA4 air gaps will be delisted. 8/31/23 Order (Judge Wilson). Plaintiff states in his supplemental brief (ROA 115) that he will monitor the listed status of the VA2 and VA4 air gaps by checking the "appropriate website monthly," and will bring an appropriate moton "in the event of violation of the injunction." How long will plaintiff monit...

Excerpt: ...litigation costs (not to exceed); $7 for settlement administration costs (not to exceed); and $90ßW03 total PAGA penalties ($67,500.W to the LWDA). Plaintiff is ordered to submit a revised order within 5 court days that includes the following revisions: A. The title of the document on the caption page should include "and PAGA" before "settlement." 8. The preliminarily approved disbursements and not to exceed amounts should be set forth in the pr...

Excerpt: ...ant to Code Civ. Proc. S 2023.030, the court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010, misuse of the discovery process includes: a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. b) Using a dis...

Excerpt: ...ion with the Demurrer, which reflects an attempt to present new evidence and argument, was untimely. The Court has thus elected not to consider it here. The Demurrer fails on the merits in any event. It is premised on the argument that the Seventh Cause of Acton fails as a matter of law because B&P Code S 6148(d) states an applicable exception, and that the appellate opinion issued on 11/20/20 found the exception applicable here. But while that e...

Excerpt: ... entitled to attorney fees. The matter has since been reassigned to this department because Judge Marks has retired. It is this court's understanding that Judge Marks' retirement is official and that she will not be returning on assignment. Thus, this court may rule on the motion. The court has reviewed the minute order statement of decision, the judgment, and the papers filed by the parties in support of and in opposition. It is undisputed that ...

Excerpt: ...vides: "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment 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." To recover attorney's fees, a preva-ling party bears the ...

Excerpt: ...ambiguous since it is not limited to claims, etc. for civil penalties under PAGA." 8/3/23 Order (Judge Wilson). The parties revised some of the releases, but did not address this issue with res#ct to section D.I. of the settlement agreement. In its September 14, 2023 order, the court observed that the release in section 0.1. remained overly broad and ambiguous. 9/14/23 Order. The release in section D.l. remains overly broad and ambiguous as it is...

Excerpt: ...ed, Inc. ("KI"), based on theories of agency and estoppel. Agency Page 49 of 51 With regard to the agency theory, the Outlier Defendants argue that Plaintiff has clearly alleged agency in paragraph 11 of the FAC and that no other facts are specifically alleged against them. They argue that because the only facts Plaintiff has alleged to include the Outlier Defendants are the allegations of agency, those allegations cannot be ignored— they eithe...

Excerpt: ...n District. The first cause of achon is for racial discrimination. The second alleges retaliation. And the third complains that defendant failed to prevent the discrimination, harassment, and retaliation. On a moton for summary judgment and/or summary adjudication of issues brought by the employer in a case alleging employment discrimination, the court engages in a 3-step, burden-shifting process under McDonnell Douglas Corp. v. Green (1973) 411 ...

Excerpt: ...d every allegation set forth in the First Amended Complaint pursuant to Code of Civil Prmædure, section 431.30, subdivision (d)." (See ROA 53, Answer.) Defendant's Answer also alleges one defense: "[t]he Complaint fails to state facts sufficient to constitute a cause of action against the Defendant." (Ibid.) The operative First Amended Complaint contains one cause of action: violations of the California Constitution Article l, SS 7 and 19. The F...

Excerpt: ...tion depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. ld. ...

Excerpt: ...Court will exercise its discretion to consider the opposition. Defendant is admonished to abide by all filing deadlines for all future filings with this Court. Interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., S 2030.220, subd. (a).) "If an interrogatory cannot be answered completely, it shall be answered to the extent possible." (ld., subd...

Excerpt: ...sponses to interrogatories waives any objection to the requested discovery. (Code Civ. Proc., S 2030.290, subd. The party propounding the interrogatories may move for an order compelling responses to the discovery. (Code Civ. Proc., S 2030.290, subd. (bj.) "Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45—day time limit, and the propounding party does not have to demonstrate either good cause or t...

Excerpt: ...aid in settlement is an unlawful penalty. See Graylee v. Castro (2020) 52 Cal.App.5th 1107, 1118; Vitatech Internat., Inc. v. Sporn (2017) 15 Cal.App.5th 796; Creditors Adjustment Bureau, Inc. v. Imani (2022) 82 cal.App.5th 131, 135—136; and Gormley v. Gonzalez (2022) 84 cal.App.5th 72, 82, 89. Otherwise, the motion meets the requirements of Code Civ. Proc. S 664.6. Code Civ. Proc. S 664.6 provides: "If parties to pending litigation stipulate, ...

Excerpt: ...e words "willfully and intentionally"); Paragraph 44, line 27 (the word "willful"); Paragraph 50, line 9 (the word "abhorrent"); Paragraph 62, line 25 (the word "willfully"); Paragraph 98, line 20 (the word "intentional"); Paragraph 109, lines 4 (the words "reckless and willful"); Paragraph 127, lines 16-17 (the phrase, "Because they did not act at all to maintain the Tree, it cannot be said that Anaheim Hills orthe Anaheim Hills Board acted in f...

Excerpt: ... rule, or an order of the court. Cal. Civ. Proc. Code S 436. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notce. Civ. Proc. Code S 437(a). Defendant contends the court should strike several portions of the first amended complaint in which plaintiff allegedly defines the class period as follows: "'[t]he term Class Period is defined as any t...

Excerpt: ...division defendant provides no evidence that shows these costs were unnecessary or unreasonable. Defendant has not met its burden. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Item No. 8 Defendant argues the $1,530 claimed for expert fees was unreasonable because Lemon Law plaintiffs do not need to present expert testimony to prevail. Its reliance on Oregel v. American Isuzu Motors, Inc. Cal.App.4th 1094 at page 1102, footnote 8, is mispl...

Excerpt: .../22 CMC. (ROA 57). The Court ruled in relevant part: "The Court orders plaintiffs counsel into court. Failure to comply may necessitate the implementations of sanctions or dismissal of the case." (ROA 57). The Clerk served notice of the Order on 3/30/22 to the same address listed on the Substitution of Counsel form. (ROA 58). Plaintiff's Counsel again failed to appear at the 4/25/22 CMC. (ROA 61). The Court ruled in relevant part: "The Court orde...

Excerpt: ...by February 1, 2022. As responses were served by email on February 2, 2022, they were a day late and Defendant's objections were waived. Defendant asserts the responses were timely but provides no argument or support for that assertion anv,'here in the papers. As to the Interrogatories, interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Ccyde Civ. Proc., S 2...

Excerpt: ...protected speech or petitioning; and 2) lack even minimal merit. (Navellier v. Sletten (2002) 29 C4th 82, 88-89 ("Navellier"); Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the ant-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.) "As us...

Excerpt: ...ices of Haight Brown & Bonesteel LLP, 555 South Flower Street, Forty-Fifth Floor, Los Angeles, California 90071. The parties may agree in writing to conduct the deposition at a different date, time, and/or location, or to conduct the deposition by remote means rather than in person. The motion is DENIED as to of documents requested in the deposition notice, as moving party has not provided evidence showing cause. (Code Civ. Proc., S 2025.450, sub...

Excerpt: ...tce Guide: Civil Procedure Before Trial (The Rutter Group 2020) '1 9.53.1a.) Plaintiffs' evidentiary objections are sustained as to nos. 5 and 6; they are otherwise overruled. Defendant's evidentiary objections are overruled as to nos. 2, 11, and 8; they are otherwise sustained. Basic Rules for Summary Judgment "A party may move for summary judgment in an acton or if it is contended that the action has no merit or that there is no defense to the ...

Excerpt: ...oceedings. (Cal. Rules of Ct., rule 5.2(c).) By the application, Plaintiff seeks writ of possession of "TUMBLES, a dog, approximately 6 years old, male Cockapoo," during the pendency of this action. (ROA 46.) California's claim and delivery law is found under CCP secton 511.010 et seq. Although it is "based upon the common law writ of replevin," claim and delivery is a "strictly statutory remedy." (Cal. Prac. Guide Enf. J. & Debt at 4:560; see al...

Excerpt: ...pleading on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (CINIe Civ. Proc., S 430.10, subds. (e) & (f)l ; see S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) 1 All further statutory references a...

Excerpt: ...51-452.) 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 suffciency 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.4th 1395, 1404-05.) Questions of fact cannot be decided on d...

Excerpt: ...the Complaint filed by Plaintiff Ravichandran Ramakrishnan for failure to state facts sufficient to constitute a cause of action and for uncertainty. LBMMC's demurrer is SUSTAINED, with 20 days leave to amend. LBMMC initially contends that the statutes of limitations for the first three cause of action should be measured by L8MMC's actions only and not any other defendant, and that the claims are barred by the statutes of limitations. LBMMC conte...

Excerpt: ...) violation of Penal Code S 496. A defendant moving 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. S 437c(p)(2). The scope of this burden is determined by the allegatons of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serv...

Excerpt: ...ions. A. Qui Tam Plaintiffs In actions brought under the Act, the State, the subdivision, or the qui tam plaintiff is required to prcwe all essential elements of the cause of action, including damages, by a preponderance of the evidence. Gov. Code, S 12654, subd. (c). The Court notes that Plaintiff cites no case to support his contention that his discovery obligations are altered because of his status as a qui tam plaintiff. B. Prtxluction of Doc...

Excerpt: ... of Contract, (2) Account Stated, and (3) 800k Account. Plaintiff alleges that it entered into a written commercial agreement with Defendant, where Plaintiff agreed to provide services to Defendant for a fee. (Complaint, 11 & Ex. 1.) The parties signed the agreement on November 23, 2020, and, pursuant to the agreement, Defendant agreed to pay service fees to Plaintiff through April 2024. (ld., "1 12 & 16.) The agreement also provided that Plainti...

Excerpt: ... California Rules of Court, rule 9.40. Moving attorney to give notice. The unopposed Application of Victoria H. Buter to Appear Pro Hac Vice for Plaintiff and Cross- Defendant, Second TL Holdings, LLC is CONTINUED to November 20, 2023 at a.m. in this Department. Moving attorney met the requirements of California Rules of Court, rule 9.40 except that the prtnf of service attached to the Application documents does not reflect that the State Bar of ...

Excerpt: ... merit if he has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. [Citations.]" (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926 (Caloroso).) The following facts regarding the...

Excerpt: ...ppears that Petitioner has attempted to file a Request for Judicial Notce on 8-22-23 under ROA No. 306. The document filed contains exhibits and does not comply with California Rules of Court, rule 3.1306(c). To the extent the ROA No. 305 is a request for judicial notice, the court GRANTS the request as to the existence of Exhibits 1 and 6. (Sosinsky v. Grant (1992) 5 Cal.App.4th 1548, 1564- 1570.) The court DENIES the Request for Judicial Notice...

Excerpt: ... the proper court... Code of Civil Procedure section 395, subdivision (a) states in part, "Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the achon. Ifthe action is for injury to person or personal property or for...

Excerpt: ... S 473(a).) When a party seeks to amend a pleading, the motion to amend must include a copy of the proposed amendment, state the allegations to be deleted, and state allegations to be added. (Cal. Rules of Court, rule 3.1324, subd. (a).) Moreover, the moving party must submit a declaration that specifies: "(1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegation...

Excerpt: ...nd nonissuance of the injunction. [Citations.]" (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442; footnote 7 omitted.) "A trial court deciding whether to issue a preliminary injunction weighs two interrelated factors— the likelihood the moving party will prevail on the merits at trial and the relative balance of the interim harms that are likely to result from the granting or denial of preliminary injunctive relief. [Citation...

Excerpt: ...ar accidents; (3) the City is entitled to design immunity and had no notice of any alleged dangerous condition; and (4) the Cross-complaint is barred by the Government Claims Act because Snell filed his pleading before submit-tng a government claim. Snell's Evidentiary Objections Objections 1-4: OVERRULED. The City's Evidentiary Objections Objections 1-3: OVERRULED. Snell's Cross-complaint against the City alleges a cause of action for Comparativ...

Excerpt: ... Procedure secton 2031.310 states in part, "(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may mcwe for an order compelling further response to the demand if the demanding party deems that any of the following apply: ['ll (1) A statement of compliance with the demand is incomplete. [q] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [9] (3) An objectio...

Excerpt: ...to arbitrate.' [Citation]." (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396, emphasis in original.) The court is to determine whether a valid arbitration agreement exists, and if so, whether the agreement encompasses the dispute at issue. (Omar v. Ralphs Grocery co. (2w4) 118 cal.App.4th 955, 960-961, citing Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84; Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 20434) 363 F.3d...

Excerpt: ...mmons and complaint related to this lawsuit; (2) he is a resident of Montana; (3) he and his wife are separated; (4) his wife lives in Utah with her daughter, Sofia Chapparo, a minor; and (5) he has never resided or stayed at 13311 S. Fort Street in Draper, Utah. [ROA 15, Stringham decl., 2-4.1 "[Clompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]" (Dill v. Berquist Constru...

Excerpt: ...sts in the amount of $18,968.50. Motion is DENIED. No sanctions. Joinder (ROA 35) by Defendants ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP, RACHEL M. SANDERS, and KARINE AKOPCHIKYAN is granted. The only thing that defendant needs to show to invoke the protection of the antiSLAPP statute is that plaintiffs lawsuit "arises from" defendant's exercise of free speech or petition rights as defined in Code of Civil Prmædures secton 425.16(e). [Equi...

Excerpt: ...e demand may move for an order compelling response to the demand." Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288 (Moghaddam), states, " 'Section 1013, subdivision (a), provides that the mailing of a notice is complete when it is in an envelope "addressed to the person on whom it is to served, at his office address as last given by him on any document which he has filed in the cause and served on the party making service by mail; otherwise at ...

Excerpt: ...Civil Procedure section 581, subdivision (f), states, "The court may dismiss the complaint as to that defendant when: [q] (1) Except where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal. (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and eit...

Excerpt: ...that it is reasonably probable it will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442; Weil & Brown, 9:632.1.) Additionally, "[i]n deciding whether to issue a preliminary injunction, a trial court we-ghs two interrelated factors: [1] the likelihood the moving party ultimately will prevail on the merits, and [2] the relative interim harm to the parties from the issuance or noninsurance...

Excerpt: ...n, Set One ("Motion 3" below). Plaintiffs' motions are procedurally deficient. First, they improperly purport to compel responses to three different discovery devices in the motion. Inexplicably, Plaintiff attempts to remedy the problem not by separating the motons but in filing the same moton three times. For each, Plaintiffs failed to submit a declaration evidencing meet and confer efforts as required by C.C.P. SS 2016.040, 2031.310(b)(2), and ...

Excerpt: ...is that a section 998 offer must be strictly construed in favor of the party sought to be subjected to its operation." (Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 799, 101 Cal.Rptr.2d 167; **849 Elite Show Services, Inc. v. staffpro, Inc., supra, 119 cal.App.4th at p. 268, 14 cal.Rptr.3d 184.) Timed Out LLC v. 13359 corp. (2018) 21 Cal.App.5th 933, 942 [230 Cal .Rptr.3d 842, 848—849] " ' "[Closts" of a civil action consist of the exp...