Excerpt: ... filing an answer or a responsive pleading, Neil Nam Hoang, doing business as aest Home Construction and Repair, filed a Case Management Conference Statement on November 2, 2021. (ROA 39.) On March 9, 2022, the plaintiff and the court attempted to determine who was the proper defendant. It was suggested that Neil Nam Hoang was not a party, and that the named defendant, Best Home Construction and Repair, was a non-existent entity and that is why i...

Excerpt: ...dules. That resulted in an over-reporting of plaintiff's income, causing him to pay more taxes than he owed. He also alleges the defendant intentionally concealed the error. When the California Franchise Tax Board made numerous audit inquiries, apparently to determine whether all California income was properly reported on the California returns rather than the returns of other states, defendant hid key documents that would have disclosed defendan...

Excerpt: ...ce forum selection clauses contained in a contract freely and voluntarily negotiated at arm's length unless enforcement would be unfair or unreasonable. Although the forum selection clause here is contained in an adhesion contract, that clause in an adhesion contract is enforceable even though the defendant did not actually read as long as the clause provided adequate notice to the defendant that he was agreeing to the jurisdiction cited in the c...

Excerpt: ...cessarily timed barred and not that it may be time-barred. In Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, the court explained that: "A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Citation omitted) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; i...

Excerpt: ....e„ a class action in the Central District of California. Civ. Proc. Code S 430.10(c); Notce of Motion at 2:8-10. This is a plea in abatement: "A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action." Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787. This special demurrer lies only where th...

Excerpt: ...certification that render proceeding as a class superior to the alternatives. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class." Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (internal quotes and citations omitte...

Excerpt: ...n counsel for each party, plaintiff Noel Duarte and defendant Lisa Rochelle Siegel-Foigelman shall only appear at depositons in the above-captioned action by remote video or audio conference, and not in person. 2. Absent written agreement between counsel for each party, plaintiff Noel Duarte and defendant Lisa Rochelle Siegel-Foigelman shall only appear at pre-trial court hearings in the above-captioned action by remote video or audio conference,...

Excerpt: ...Hoang alleges that the homeowner's association foreclosed on and then sold his condominium unit in a nonjudicial sale. It was sold, according to the association, for Hoang's failure to pay certain assessments. Defendants were the successful bidders and purchasers of the unit at the foreclosure sale. Hoang suggests that during this time he was overseas, and when he returned, he was unaware of the redemption period. This is an old case. Hoang filed...

Excerpt: ...urt, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement." (Code Civ. Proc., 5564.6, subd. (a).) This provision "provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement." (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) Here, the parties entered into a "Settlement Agreement and General Release" in May ...

Excerpt: ... 2.) The party in interest, James Manry ("Claimant"), filed a Claim Opposing Forfeiture on October 8, 2021, (ROA 9), but has not opposed this motion. The Court notes that Claimant has waived any right to a jury trial. (Code Civ. Proc., S 631, subd. (b); People v. $17,522.08 united states currency (2006) 142 cal.App.4th 1076, 1079-1083.) Further, Claimant has not opposed proceeding by a moton for summary judgment, based on the admissions deemed ad...

Excerpt: ...rogatories, Sets One from Defendant FEC and General Form Interrogatories from Defendant David Limones. Preliminarily, the Court notes that each opposition to each motion before the Court today was filed and served 4 days late, on 9-25-23 instead of 9-21-23, when they were due. The Court will exercise its discretion to consider the merits of each opposition given that Plaintiff filed substantive replies to each opposition. 1. Merits Code of Civil ...

Excerpt: ...Motion to Compel Production 10) Motion to Compel Response to Requests for Admissions 11) Moton to Compel Response to Requests for Admissions 12) Motion to Compel Response to Requests for Admissions 13) Motion to Deem Facts Admitted Motion 1 Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/8/A Shellpoint Mortgage Servicing's (Defendant)'s Motion to Compel Further Responses to Interrogatories, filed 2-17-23 under ROA No. 279 is GRANTED in par...

Excerpt: ...ron Allen to Request for Admission, Set Two, Nos. 28-35 plus $19,875 in sanctions, ROA 56; (4) Motion to Compel Further Responses by Plaintiff Byron Allen to Form Interrogatories, Set Two, No. 17.1 plus $19,875 in sanctions, ROA 65. The court notes that the replies request $9,875 in sanctions. The parties agree that the meet and confer efforts were sufficient and that the Motions were timely filed based on the parties Page 11 of 13 agreements dur...

Excerpt: ...m Requests for Admission, Set One propounded on Defendant/Cross-Defendant John Andraos Admi
©ed, plus $860 in sanc
Ÿons, and (4) Mo
Ÿon to Deem Requests for Admission, Set One propounded on Defendant/Cross-Defendant Golden Foods Admi
©ed, LLC plus $860 in sanc
Ÿons. Neither Defendant/Cross-Defendant John Andraos nor Defendant/Cross-Defendant Golden Foods, LLC opposed the Mo
Ÿons. Mo
Ÿons to Compel Responses to Form Interrogatories Pursuant...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...ed complaint alleges four causes of action against the Commenda entities: breach of fiduciary duty; aiding and abet-tng breach of fiduciary duty; negligence; and receiving stolen property pursuant to Penal Code section 496. Plaintiff's claims arise out of California transactions, including an Assignment for the Benefit of Creditors (ABC) and the creation of a California subsidiary (GPAR) to serve as the assignee for the ABC transaction. For the f...

Excerpt: ...Agreement The Arbitration Agreement at issue prov-des in pertinent part: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered or not rendered, will be determined by submission to arbitration as provided by the Federal Arbitration Act, 9 U.S.C. Section 1 etseq ("F.A.A.").... It ...

Excerpt: ...ac vice applications. For the reasons set forth below, the Motion to Intervene and the pro hac vice applications are all GRANTED. Pending Motions On April 6, 2023, Gulfstream filed a motion to intervene. Gulfstream argues that mandatory intervention applies because Gulfstream claims an interest in property that is the subjection of this action—the Tooling. Cadence, which is not a party to the contracts that memorializes Gulfstream's alleged own...

Excerpt: ...P Nos. 76-78 request documents relating to the subject store's vault, including the training provided to employees regarding verification of the contents of the vault, policies and procedures regarding verification of the contents of the vault, and policies and procedures for filling out the "Vault Admittance" document. Defendant Costco responded asserting various objections. In its supplemental responses, Defendant Costco states: "Costco is will...

Excerpt: ...subd. (b).) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., S 473, subd. (bj.) "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after en...

Excerpt: ...ion for Breach of the Covenant of Good Faith and Fair Dealing) "A cause of acton for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom." (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489.) Defendants contend the first cause of action fails because Exhibit A is not a contract and, even if it was, Plaintiff is ...

Excerpt: ...endant cannot reasonably ' [Citations.] ' "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." ' [Citations.]" (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) First, the court finds that the Complaint is not so uncertain as to prevent Defendant from providing an informed response. Second, t...

Excerpt: ...he complaint. [Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provid...

Excerpt: ...Notice, filed on 9-19-23 under ROA No. 34, as immaterial to the court's decision set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) "A demurrer tests the pleading alone, and not the evidence or the facts alleged. . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that ...

Excerpt: ...ubdivision (h). The court DENIES the Motion as to Exhibits 14 and 15. The court GRANTS Plaintiff's (Ashley Raminfard) Request for Judicial Notice (PRJN), filed on 9-19-23 under ROA No. 254, as to Exhibits 1, 2, 3, 4, and 5 pursuant to Evidence Code section 452, subdivision (h). The court DECLINES to rule upon Defendants' Objections, filed on 9-25-23 under ROA No. 261, as immaterial the court's decision as set forth below. (Code Civ. Proc., S 437c...

Excerpt: ... expressly alleged in the complaint. [Citations.)" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 58 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App...

Excerpt: ... through his or her mistake, inadvertence, surprise, 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. However, in the case of a judgment, dismissal, order, or other pro...

Excerpt: ...tion as to the entire Seventh Cause of Acton based on the grounds set forth in Issue No. 21, but not the grounds set forth in Issue No. 23. There was no piecemeal adjudication of the Seventh Cause of Action. "A motion for summary adjudication shall be granted only it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc. S 437c(f)(1).) Soderling Defendants to give notice. Plai...

Excerpt: ... specified in the notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [q] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040... " Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1294-1295, states, "The purposes of Califo...

Excerpt: ...e with Prospective Advantage; and 4. Intentional Misrepresentation This action arose from a commercial lease of property located at 13692 Harbor Blvd. #C in 15 Garden Grove, California. (91, 94 and 97 of Complaint.) Specifically, the action references a Lease Agreement executed on or around April 1, 2020. (97 of Complaint.) The relevant agreement is attached as Exhibit 1 to the Declaration of Defendant Vinh Nguyen. (91 -92 of Nguyen Declaration a...

Excerpt: ...As such, the only issue involved in a demurrer hearing is whether the complaint, unconnected with extraneous matters, states a cause of action. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77. If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend there is a reasonable possibility the defect can be cured by amendment. Blank, supra, at 318. On the other hand, "a trial court does no...

Excerpt: ...l Death) and Second Cause of Acton (Premise Liability and Wrongful Death): Defendants challenge these causes of action on the ground Plaintiffs fail to adequately allege facts establishing Defendants had actual or constructive notice of a defective condition on the property and Defendants failed to correct the alleged condition. Defendants also contend these two causes of action are duplicative. The court disagrees with Defendants' challenge thes...

Excerpt: ...nintelligible" (Code Civ. Proc., 5430.10, subd. (f)), "[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Additionally, "[d]emurrers for uncertainty are disfawred, and are granted only if the pleading is so incomprehensible that a defendant cannot rea...

Excerpt: ...iency of factual allegations in a complaint." (Rakestraw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibili...

Excerpt: ...rsuant to Evidence Code section 452, subdivision (d), Defendants have not identified or provided the specific court records for which judicial notice is being sought. Evid. Code 5453, subd. (b) and California Rules of Court, rule 3.1305(c). Additionally, the request is denied as irrelevant. Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1474, fn. 5. The criminal case referenced by Defendants is against an unidentified non-party and no relevance ...

Excerpt: ...e Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant's argument is based on the 2022 Release, signed between the parties to settle a dispute about the profit-sharing clause in the original employment agreement. While the General Release signed in 2020 specifically excluded issues related to the profit-sharing clause, the 2022 Release cove...

Excerpt: ...sserts a claim for "Fraud and Deceit." Where fraud is alleged, every element must be alleged in full, factually and specifically. The policy of liberal construction of pleading will not be invoked to sustain a pleading defective in any material respect. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the repr...

Excerpt: ...hird amended complaint (TAC) continued to name Doe 1 as a defendant. The mere failure to specifically re-identify US Bank as Doe 1 in the TAC was at most a technical procedural error, which plaintiff could cure by amendment (as it has now done in the 4AC) without compromising the benefit of the relation-back doctrine. (See generally, Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176-177 (Woo) [failure of amended complaint to identify newly add...

Excerpt: ...child abuse" (Amended Complaint, pp. 1-2), such causes of achon are insufficiently pled because the Amended Complaint does not plead the elements of defamation and "child abuse" is not a cause of action. Pursuant to Code of Civil Procedure secton 430.10(f), a party against whom a Complaint has been filed may object by demurrer when the pleading is uncertain. "Uncertain" includes ambiguous or unintelligible. (ld.) Additionally, pursuant to Code of...

Excerpt: ...ions; and (2) fails to state fact suffcient to allege a cause of action. "A fraud cause of action, whether based on intentional misrepresentation or concealment, is governed by the three -year limitations period set forth in Code of Civil Procedure section 338, subdivision (d)." Ivanoffv. Bank of America, NIA. (2017) 9 Cal.App.5th 719, 734. The FAC alleges Plaintiffs purchased the Subject Vehicle on March 21, 2019. (FAC, '14.) The lawsuit was fil...

Excerpt: ... Architectural Guidelines): The HOA contends this cause of action fails to state a claim because it is barred by the doctrine of judicial deference set forth in Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, and its progeny. Under this doctrine, "'courts [generally) will uphold decisions made by the governing board of an owners associaton so long as they represent good faith efforts to further the purposes of...

Excerpt: ...for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." Code Civ. S 438(d). Within this action, Plaintiff seeks to hold Defendants liable for a judgment issued against United National Exterminator, Inc., pursuant to alter ego liability. Comp„ 2-9 4, 11 and '1 13. "In general, two requirements for applying the alter ego doctrine are that (1) there is such...

Excerpt: ...sition of Janice M. Vinci not be taken pursuant to Code of Civil Procedure section 2025.420, as well as monetary sanctions against Defendant/cross-complainant Eric Dubin and his counsel in the amount of $2,652.50. The Motion to Quash is GRANTED. The Motion for Protective Order is GRANTED. A party may "move for an order staying the taking of the deposition and quashing the deposition notice." Cal. Code Civ. Proc. S 2025.410(c). "The taking of the ...

Excerpt: ...n — Elder Abuse Elder abuse is defined in Welfare & Institutions Code section 15610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welt & Inst. Code S 15610.07(a)(1)-(2).) Neglect is defined in secton 15610.57 as "[tlhe negligent fai...

Excerpt: ... no duty to disclose. GM also moves to strike Plaintiff's claim for punitive damages on the ground that the fraudulent concealment cause of action fails and there is therefore no proper basis for such damages. l. Specificity "The elements of a claim for fraudulent concealment require a plaintiff to show that: '(1) the defendant ... concealed or suppressed a material fact; (2) the defendant [was] under a duty to disclose the fact to the plaintiff;...

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.) "As used in this section, "act in furtherance of a person's right of petition or free s#ech under the United States or Califo...

Excerpt: ...ion under Section 2016.040. [9] The court, for 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: [9] (1) That the deposition not be taken at all." (Code Civ. Proc., S 2025.420, subds. (a),...

Excerpt: ...y Injunction is GRANTED. "An injunction is a writ or order requiring a person to refrain from a particular act." Code Civ. Proc., S 525. "It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court." Code Civ. Proc., S 525. Pursuant to Code of Civil Procedure section 527: "A preliminary injunction may be granted at any time before judgment upon a ve...

Excerpt: ...azavi's ("Mortazavi") various responses to sets two and three of requests for production. A motion to compel further responses is proper under certain circumstances as laid out in Civ. Proc. Code S 2031.310(a). RFP, Set Two: RDI seeks Primevere and Zibasara's further responses to RFP Nos. 106, and Mortazavi's further response to RFP No. 111. These requests and the responses thereto are identical. The issue here is that RD' seeks documents relatin...

Excerpt: ..., Set One, and Request for Production of Documents, Set One, are GRANTED. (Code Civ. Proc., SS 2030.290, 2031.300.) Defendant George Katsivalis is ordered to provde full, complete, and verified responses to Form Interrogatories, Set One, and Special Interrogatories, Set One, without objection, within 15 days. Defendant George Katsivalis is further ordered to provide full, complete, and verified responses to Request for Production of Documents, Se...

Excerpt: ...erve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. 'l (b) A notice of moton to set a...

Excerpt: ... court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc„ S 436.) "Irrelevant" matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting...

Excerpt: ... Capital Corporation, Set Two, and Plaintiffs James H. Renzas' Request for Documents to Keith Tian Tong, Set One. Service of Discovery and Service of Motions Discovery requests, such as interrogatories and requests for production, must be served upon the party from whom the discovery is requested and all other parties who have appeared in the action. (See Code Civ. Proc., SS 2030.080, 2031.040.) In addition, a motion must be served on all parties...

Excerpt: ...nts sought therein. Defendant appeared for his deposition, but failed to produce any documents. Code of Civil Procedure section 2025.480 authorizes a motion to compel a party to produce documents sought in a deposition notice that the deponent failed to produce at his deposition. Here, Defendant's counsel apparently failed to inform Defendant of the need to search for or produce documents prior to the deposition, and Defendant did not produce any...

Excerpt: ..., 30-40, 42-45, 47, 50, 51, and 52. For request nos. 11-13, Tenant states production should be allowed subject to an attorneys'-eyes-only provision, which the protective order presently in place does not contemplate. Landlord responds it will agree to adding such a provision into the protective order. Counsel for the parties are thus to promptly confer as to a proposed amendment to the existing protective order which will allow attorneys' eyes on...

Excerpt: ...urden then shifted to plaintiff to establish that the arbitration agreement was unconscionable or unenforceable for other reasons. (See OTO, LLC v. Kho (2019) 8 Cal. 5th 111, 126.) Unconscionability must be both procedural and substantive to avoid enforcement of the arbitration agreement. ld. at 125. Procedural and substantive unconscionability are evaluated on a sliding scale: "The more substantively oppressive the contract term, the less eviden...

Excerpt: ...hat plaintiff's action has no merit: Issue No. (1): Defendant Louise X. Ye-Liew, D.O. complied with the standard of care in the care and treatment rendered to the decedent Keith Hose, negating breach of duty; Issue No. (2): there is an absence of legal causation between any negligent act and/or omission on the part of defendant Louise X. Ye-Liew, D.O. and the death of Keith Hose alleged by plaintiffs. The elements of a medical malpractice cause o...

Excerpt: ... is a complete defense to the cause of action. Cal. Code Civ. Proc. S 437c(p)(2). The scope of this burden is determined by the allegations of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary judgment motion). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the exi...

Excerpt: ... summary judgment, a plaintiff has met its burden of showing that there is no defense to a cause of achon if it has proved each element of the cause of action entitling the party to judgment on the cause of action. Code Civ. Proc. S 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. ...

Excerpt: ...sion contained in a residential lease or rental agreement is ordinarily void as contrary to public policy. (Civil Code S 1953; Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 520-521 (Henrioulle).) Defendant maintains the exculpatory provision in the Lease is nonetheless enforceable because the injury at issue occurred while Plaintiff was using the Subject Propertvs amenities, which go beyond shelter and habitability. Defendant relies on...

Excerpt: ... defects. On December 20, 2022, Plaintiff Residential Holdings M2, LLC ("Plaintiff") filed a Complaint against Defendant Winkle Custom Homes ("Defendant"). (ROA 2). he Complaint alleges the followng causes of action: 1. Breach of Contract; 2. Breach of Express and Implied Warranty; 3. Breach of Implied Covenant of Good Faith and Fair Dealing; 4. Negligence; and 5. Violation of Statutory Standards for Residential Constructon Pursuant to Civil Code...

Excerpt: ...ts, Plaintiff has experienced severe emotional distress among other harm . . (Complaint, 24.) Plaintiff's conclusory allegation that does not list a single symptom is insufficient. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602.) The Court SUSTAINS the demurrer to the Thirteenth Cause of Action for Intentional Infliction of Emotional Distress with 15 days leave to amend. Plaintiff fails to state sufficient facts to state a cause of a...

Excerpt: ...s of the first amended complaint. For the reasons set forth below, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The motion to strike is therefore DENIED AS MOOT. Defendants' unopposed request for judicial notice of documents filed in Wyatt v. Orange County Courier Logistics, LLLP, No. 17-00937565, is GRANTED. l. Procedural History This is Defendants' second challenge to SCL's pleadings. The Court previously sustained Defendants' demurrer to ...

Excerpt: ...riefs. Also, "[i]f a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance." (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 375.) Re Demurrer to FAC The court SUSTAINS the demurrer of all named defendants to ...

Excerpt: ...lly Appearing Defendant Sofregen Medical Inc.'s Notice of Motion and Motion to Quash Service of Summons ROA 83 DEFENDANTS ABBVIE, INC. ET AL'S MOTION TO QUASH The Court has reviewed the supplemental briefing filed by the parties. Defendants AbbVie, Inc., Allergan USA, Inc., Allergan Sales, LLC, and Allergan, Inc.'s (collectively, the "Allergan Defendants") motion to quash service of summons is GRANTED. l. Standard of Review California courts may ...

Excerpt: ...ers and the motions to strike filed by each defendant are nearly identical, the demurrers will be addressed together, as will the motions to strike. Motions 1-2: Demurrers to the FAC Defendants demurrers are OVERRULED in part and SUSTAINED in part as set forth below. To the extend the demurrers are sustained, Plaintiff is granted 15 days leave to amend. Statute of limitations - Overruled Moving Parties contend the entire FAC is barred by the stat...

Excerpt: ...e three companies headed by Hootan Ataian, who is their chief executive officer. (ROA 309 1.) PSC performs build-outs and remodels of commercial and residential properties, PDC fabricates and installs countertops, and PSDC manages the sales of countertops. (ld., '1 2.) Employment records produced in discovery reflect that Viramontes was formally employed by PDC, Vaquerano was formally employed by PDC and PSDC, Castro was formally employed by PSDC...

Excerpt: ... Boudreaux. (The Court's docket does not reflect the filing of a joinder by Defendant Sofregen Medical, Inc.) This motion is CONDITIONALLY GRANTED provided the Allergan Defendants stipulate to make available to the Louisiana courts their current and former employees who are California residents, as well as any documents maintained in California. (See Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 758.) Assuming the Allergan Defendants agree to thi...

Excerpt: ...PAGA settlements are subject to trial court review "to determine whether [they are] fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws." Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. The court has reviewed and considered the papers, including the supplemental papers, filed in support of plaintff's motion for approval of a...

Excerpt: ...ce a list of putative class members' contact information to a third-party administrator for purpose of Belaire privacy notce. UPCOMING EVENTS: Case Management Conference, October 25, 2023 FACTS/OVERVIEW: This is a putative wage-and-hour class action. On January 20, 2023, Plaintiff Candace Bailey, individually and on behalf of all others similarly situated ("Plaintiff"), filed a Complaint against Defendant Golden Age Companions, LLC ("Defendant")....

Excerpt: ...S the following evidentiary objections: Nos. 7, 8, 21, 22, 26, 35, 36, 37, 38, and 44. In addition, the court SUSTAINS the evidentiary objections to the quoted portions below: • Portion of No. 6, "As has been throughout this process, FANA did not care." • Portion of No. 10, " due to the illegal foreclosure by BANA." • Porton of No. 11: "during BANA's illegal foreclosure" • Portion of No. 19: another example of the SPOC failing to interact...

Excerpt: ...al" violation]; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505 [UCL claim falls with predicate claims].) First cause of action, violation of Civil Code section 2923.7. under the first cause of action, plaintiff Carmen Bevia aka Carmen Kleinecke (plaintiff) alleges defendant violated the California Homeowner Bill of Rights (HBOR), specifically Civil Code section 2923.7, by failing to provide her with a "single point of contact" (SPOC) that ...

Excerpt: ... judgment as a matter of law, as to defendant's Answer. (Code Civ. Proc., S 437c, subd. (c).) Summary adjudication is GRANTED as to the Fourth Affirmative Defense of Statute of Limitatons. (Code Civ. Proc„ S 437c, subd. (f) [authorizing summary adjudicaton].) There is no dispute that all relevant acts associated with this lawsuit occurred within the four-year statute of limitations period. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal...

Excerpt: ...FACTS/OVERVIEW: This is a PAGA-only action. On May 13, 2019, Plaintiffs Keith E. Riley and John Styles, on behalf of themselves and all others similarly situated ("Riley Plaintiffs"), filed a Complaint against Defendants B. Braun Medical, Inc. and staffing company, Manpower US, Inc. alleging several wageand-hour violations. (ROA 2). On October 7, 2019, pursuant to a stipulation of the parties, the Riley Plaintiffs filed the First Amended Complain...

Excerpt: ...on is denied as to Plaintiffs request to tax $1,245.70 in filing and motion fees. The "verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary." (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.) While Plaintiff objects to the filing and moton fees, plaintiff has offered no counterdeclaraton or other ev...

Excerpt: ...12.1, 12.3, 12.6, 12.7, 14.2, and 17.1. The responses are not complete and straightforward. Both plaintiffs either did not directly and separately respond to the interrogatories and/or did not respond to each interrogatory subsection. Plaintiffs ERANIO E. CORDOVA SR. and ERANIO E. CORDOVA JR. SHALL serve verified, code-compliant responses to Defendant ANDREW IMPARATO, M.D.'S Form Interrogatories, set one, Nos. 6.2, 6.3, 6.6, 9.2, 12.1, 12.3, 12.6...

Excerpt: ...W: This is a coordinated proceeding arising out of alleged malpractice by a dentistry group, commonly known as the Children's Dental Group ("CDG"). Plaintiffs allege that minor patents suffered from serious bacterial infections (some of which required hospitalization) from the water used at CDG and that CDG dentists performed unnecessary dental procedures. A. Relevant Procedural History 4/21/17 — Original petition to coordinate filed by Law Off...

Excerpt: ...acopian Decl. Ex. A) is not signed. 2. The First Amendment does not address whether the deadline for submitting workweek challenges for remailed Class Notices is 60 days from the date of remailing. The revisions in paragraph 56(c) of the First Amendment address opt-out requests, and paragraph 57(c) does not address the extension of the challenge period for remailed notices. The revised proposed order applies the extension to challenges. See Revis...

Excerpt: ...t related to this action be barred. Circle K Defendants' motion previously came on for hearing on 9-14- 23. The motion was continued to 9-28-23 to allow Defendants to respond to Circle K Defendants' settlement agreement submitted with their reply pursuant to Mediplex of California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748, 754. Defendants filed their supplemental opposition on 9-21-23 and Circle K Defendants filed their supplemental reply...

Excerpt: ..., trespassing onto, or interfering with the Receiver's possession, clean out work and remediation of the Property, is granted. Relevant Facts This action was initiated on September 13, 2022, by Petitioner the City of Westminster against Respondents Dianna E. Webb, Bank of America, N.A„ Kin'Ole Hawaii Kai Solar and Sunrun, Inc. The Petition seeks the appointment of a Receiver, for the purpose of abating substandard building conditions located at...

Excerpt: ... that if escalator clause applies "the Gross Settlement Amount shall be increased proportionally by the Workweeks worked in excess of 11,550 workweeks multiplied by the per Workweek Value"). Also, citing section 3.2.4 of the settlement agreement, the Supplemental Gould Declaration states the escalator clause is not applicable and Workweek Value "is calculated based upon the agreed upon GSA amount." Supp. Gould Decl. (ROA 96) 3. Section 3.2.4 stat...

Excerpt: ... suit between the same parties or parties in privity with them.' [Citation.) Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of the claim altogether." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; see also Grande v. Eisenhower Medical Ce...

Excerpt: ...everly Consumer Warranty Act [l, are subject to abuse. Because Plaintiffs may recover their attorney fees from Defendant, Plaintiffs' attorneys have no incentive to keep their fees and costs to a reasonable minimum, or to exercise any judgment or restraint in the number of hours they bill. Despite the absence of any evidence that this case was in any way unusual, Plaintiffs claim they are entitled to $58,134.37 in fees, costs and expenses in a ro...

Excerpt: ... parte for an order finding that bringing this matter to trial prior to April 15, 2024, would be "impossible, impracticable, or futile." UPCOMING EVENTS: 1. Pretrial conference, April 2, 2024 2. Jury Trial, April 15, 2024 FACTS/OVERVIEW: This is a malicious prosecution action that arose out of a decades-long business dispute between Plaintiff Dan W. Baer ("Baer") and Defendant David H. Tedder ("Tedder"). To give some context to this matter, the u...

Excerpt: ...ties Agency (2011) 198 Cal. App. 4th 611, 529.) No later than 10/13/23, Defendants shall file and serve a supplemental brief, not to exceed five pages, stating what issues remain to be decided via demurrer in light of the Court's ruling on their ant-SLAPP moton to strike. Plaintiff may file and serve a responsive supplemental brief, not to exceed five pages, regarding the demurrers no later than 10/18/23. Ant-SLAPP Motion to Strike The Anti- SLAP...

Excerpt: ...r v. Superior Court (1996) 12 Cal.4th 631, 645 [heightened pleading requirements]; Hahn v. Mirda (2007) 147 Cal. App.4th 740, 748 [elements for fraudulent concealment].). Plaintiff argues on opposition that his claim for fraud is fraudulent concealment, but his cause of acton refers to alleged misrepresentations in support of that claim, and states that Plaintiff "relied on [Defendant's] representations." (SAC, "1 21, 22, and 25). To the extent P...

Excerpt: ...Jacobson Declaration, objections to 7b, 7f, and 9 are SUSTAINED. The remainder are overruled. This action concerns a single cause of action for professional negligence. "The elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863.) "'Proof of legal...

Excerpt: ...t objection or a request for a protective order, and were used within the litigation and settlement process. The court has been advised that the matter has now "settled" but the parties are unable to consummate the settlement because the plaintiff is demanding that his medical records in the possession of defendant and defendant's counsel be destroyed. Defense counsel apparently refuses to agree to execute a protective order for various reasons, ...

Excerpt: ...a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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." (Code Civ. Proc., S 1281.2.) Pursuant to Code of Civil Procedure section 1281.6: "If the arbitration agreement provides a method of appointing an arbitrator, that method sh...

Excerpt: ...re are no detectable warnings" as required under the Uniform Building Code. He alleged "the lack of an accessible path of travel (i.e., accessible route) at the Property is a violation of the Americans with Disabilities Act [l and therefore per se violation of the Unruh Civil Rights Act." (Italics in original.) Plaintiff has failed to meet his initial burden of proof and thus the motion must be denied. First, plaintiff does not establish that he ...

Excerpt: ...r failure respond. Plaintiffs have also shown that their failure to obey the discovery orders was not willful, but inadvertently caused by their counsel's staffing issues and calendaring mistakes. (See Panah Decl. "1 2-4, 7-10, Exs. 1-2 [responses served on 6/2/23 and 5/7/231.) As for plaintiffs' failure to pay the court-ordered monetary sanctions, "a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is ...

Excerpt: ...ed at a default prove-up hearing; or, in the alternative (b) a fourth order compelling Hyundai to comply with the Court's March 18, 2021, April 22, 2022, and April 6, 2023 Orders and for prospective sanctions of $1000 per day for each day that Hyundai does not comply. Plaintiff brings this Motion is made pursuant to California Code of Civil Procedure Sections 128(a)(4) and 2023.030(d)(1) & (4). Code Civ. Proc. provides, "Every court shall have th...

Excerpt: ...arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute. (b) Determination of applicability—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and t...

Excerpt: ... is ordered to provide initial responses without objections to Requests for Production of Documents, Set One, and provide all responsive documents within 30 days of notice of this Order. Legal Standard Health & Safety Code, SS 114769 to 11495 set forth a detailed procedure for the seizure and forfeiture of specified property traceable to unlawful drug transactons. Forfeiture proceedings involving property seized in connection with criminal offens...

Excerpt: ...n issue by alleging in the complaint that he suffers and continues to suffer embarrassment, emotional distress, and mental anguish. He also seeks damages for "pain and suffering, and emotional distress." These allegations seek damages for what is more than garden-variety emotional distress. He makes the same requests in his responses to basic discovery requests. Courts generally do not issue orders compelling a mental examinaton of a party unless...

Excerpt: ...sted in Rule 3.1332(c) of the California Rules of Court. Here, no good cause has been shown. The complaint was filed February 9, 2022, for an accident that allegedly occurred on March 3, 2021. (ROA 2.) According to the complaint, plaintiff was walking along the sidewalk in a residential street when a branch from a tree that was being trimmed fell on her head. Defendant Douglas Landscape, Inc., filed its answer on April 21, 2022. (ROA 40.) Defenda...

Excerpt: ...Thomas Marantz as the named defendant and Doe defendants. (ROA 7.) The gist of these allegations was that Thomas Marantz was the driver of the other vehicle that caused plaintiff's injuries. Thomas Marantz filed an answer to the complaint (perhaps unaware of the first amended complaint on file?) on May 11, 2022. (ROA 36.) Nowhere in his answer does he indicate he was not the driver. Indeed, his last affrmative defense—imminent peril—suggests ...

Excerpt: ...9241(a) prov-des: "In the event that a trustee under a deed of trust is named in an action or proceeding in which that deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee, then, at any time, the trustee may file ...

Excerpt: ...ries 8) Motion to Compel Production Defendant and Cross Defendant Linda Votaw mcwes to compel Defendant, Cross-Defendant and Cross-complainant Aaron Brower to serve further verified responses, without objections, to: (1) Form Interrogatories, Set One, Interrogatory Nos. 2.3-2.4, 7.1-7.3, 8.2-8.8, 9.1-9.2, 12.1-12.7, 13.1-13.2, 14.1-14.2, 15.1, 17.1, and 50.1- 50.6; (2) Special Interrogatories, Set One, Interrogatory Nos. 27-44, 69-80, and 84-92; ...

Excerpt: ...ecovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) An exception to the Privette doctrine was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. "[A1 hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained con...