Excerpt: ...n 128.5, filed by Plaintiff on July 21, 202 3, as ROA 285; (5) The “Motion for Sanctions” under Code of Civil Procedure section 128.5, etc., filed by Plaintiff on July 21, 2023, as ROA 290; (6) The “Motion for Reconsideration” filed by Plaintiff on July 21, 2023, as ROA 280; (7) The “Motion to Reconsideration” filed by Plaintiff on December 18, 2023 as ROA 363; and (8) The “Motion to Quash Service of Summons” filed by defenda...

Excerpt: ...v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [“A “presentation o f extrinsic evidence is...not proper on a motion for judgment on the pleadings.”] As to the 12th cause of action for Unfair Business Practices, the Court finds the cause of action is not sufficiently pled. Here, Plaintiff alleges that as a result of Defendant's discrimination and retaliation toward Plaintiff and his wrongful termination, which constitutes unfair a...

Excerpt: ...cial Council.” Id., § 583.410, subd. (b). A court may not dismiss an a ction under section 583.410, subdivision (a), unless the defendant was not served within two years after the action was commenced or the action was not brought to trial, or conditionally settled, within two years after commenced against the defendant. Cod e Civ. 6 Proc., § 583.240, subd. (a), California Rules of Court, rule 3.1340(a). The computation of time for the aforem...

Excerpt: ...roperly subject to judici al notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or i...

Excerpt: ...e allegations in the Complaint that concern Defendant Sherwood all identify conduct that was part of the exercise of Sherwood's discretion vested in her in her capacity as a public employee. Accordingly, she is not liable for any injury resulting from any act or omission alleged in the Complaint, and amendment would not cure this defect. (Cal. Govt. Code § 820.2.) Plaintiff fails to address this argument at all in opposition to the demurrer. As ...

Excerpt: ...(Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 14041 405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to be true. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190 [citation omitted].) As to the Trespass cause of action, the disputed issue is ...

Excerpt: ...upport of each of these causes of action. S pecifically, the complaint alleges plaintiff Oscar Camarena (plaintiff) and defendants (both of them) entered into a contract by which defendants agreed “to act plaintiff's real estate agent/brokers” with respect to the subject real estate transaction and provide plaintiff with “1% of the purchase price as credit towards plaintiff's closing costs,” and plaintiff agreed to pay defendants for the...

Excerpt: ...st cause of action. Defendant's request for judicial notice is denied as unnecessary. See Cal. Prac. Guide, Civil Procedure before Tr ial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers. Such papers, however, are not necessarily admissible evidence. Exc ept for admissions in pleadings, matters stated in ...

Excerpt: ...NIED in part. The two motions and arguments are largely duplicative and t hus will be handled together. Plaintiff seeks to compel Defendant Marriot to produce all documents and ESI responsive to Requests for Product (“RFP”) (Set One) Nos 2, 6, 14, and 26. As to Defendant Lerma, Plaintiff seeks to compel him to produce all docu ments and ESI responsive to RFP (Set one) Nos 2, 6, 14, 18, 20, 26, 30, and 32. As to the format of the ESI, Under C....

Excerpt: ...ffected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process…” the court may impose monetary, issue or evidentiary sanctions. CCP § 2030.290(c) provides: The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes ...

Excerpt: ... element of his negligent misrepresent ation cause of action. (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173174 [elements].) Numerous facts in plaintiff's separate statement are not supported by the evidence cited, in particular, Fac t Nos. 7, 13, and 14, where plaintiff's separate statement cites numerous portions of the deposition transcript of Dr. Wakim, which were not provided. As t...

Excerpt: ... burden of showing that a cause of action has no merit if the party has shown that one or mo re elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -com plainant to show that a triable issue of one or more material facts exists as to the cause of actio...

Excerpt: ... extent Cross -Complainant moves for summary adjudication, the Notice of Motion fai ls to comply with California Rules of Court, rule 3.1350, subdivision (b) which provides in pertinent part: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affir mative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion ...

Excerpt: ... as required by the Rules. (Cal. R. Ct. Rule 3.1354, subd. (b); see Hodjat v . State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8.) The Court also did not consider any fact purportedly in dispute, where the response did not provide “the nature of the dispute and describe the evidence that supports the position that t he fact is controverted.” (Cal. R. Ct. Rules 3.1350, subd. (f)(2); Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal...

Excerpt: ...overy responses. (See Oppositions: 4:2 -12 [ROA Nos. 73, 75 and 79] a nd ¶6 of Reynolds Declarations [ROA Nos. 85, 86 and 87].) Indeed, Plaintiff concedes Defendant's new counsel has “worked diligently in providing code compliant Responses.” (See Replies 2:6 -8 and 5:20 -21 [ROA Nos. 89, 91 and 93].) Nonetheless, dueling req uests for sanctions remain. Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), “[t]he court shal...

Excerpt: ...or [¶] (2) They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.” (Code Civ. Proc., § 378, subd. (a), emphasis added.) “It is not necessary that each plaintiff be interested as to every cause of action or as to all re lief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.” (Id., § 378, subd. (b).) S...

Excerpt: ...mount be added to the gross settlement amount? How will the class mem bers be advised of this potential change in the settlement amount? If defendants have not paid the late fees, when will they do so? 2. Paragraph 4(e) of the Second Amended Settlement Agreement (ROA 459, Ex. 1) states defendants may void the settlement i f the number of persons who submit requests for exclusion is equal to or in excess of 10% of the total number of persons to wh...

Excerpt: ...led in support of the motion (ROA 187, 194 and 197) do not reflect servi ce on the LWDA. Plaintiff must file a proof of service identifying the specific documents served on the LWDA, when plaintiff served the documents, and how service was effected. 2. The motion does not provide sufficient information for the court to evaluat e whether the consideration being received for the release of class members' claims is reasonable in light of the stre...

Excerpt: ...costs pursuant to Code of Civil Procedure sec tion 998, subdivision (c)(1). According to defendant's opposition (ROA 202), defendant made two written offers to settle the case: (1) a written offer for $50,000 served by mail on December 8, 2021, when the plaintiff was representing herself (Exhibit A to opposition); and (2) a written offer for $65,000 served electronically on January 23, 2023 when plaintiff was represented by counsel (Exhibit D to ...

Excerpt: ...Plaintiff's counsel should submit a declaration i n support of the requested attorneys' fees and litigation costs that includes: a. A statement that the hourly rate for each attorney is the reasonable and usual hourly rate charged by that attorney for similar services; b. The total number of hours worked by each attorney on the case; and c. If fees are sought for paralegals, verification that each paralegal meets the requirements of Business & P...

Excerpt: ...e court on the basis of affidavits served wit h the notice of hearing and any counteraffidavits filed in response. (Id. at § 877.6(b).) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co -obligor from any further claims against the settling tortfeasor or co -obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or compa...

Excerpt: ...he attachment is greater than zero . (See Code Civ. Proc., §§ 483.010 and 484.090; see generally King Decl.; Vanecek Decl., ¶ 3, Exh. F at 80:10 -18; verified application at ¶ 4). The court also finds Apex has shown a probability of prevailing on its contractual claim against Christiansen. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperform...

Excerpt: ...ss unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. (b) A governing document other than the declaration may be enforced b y the association against an owner of a separate interest or by an owner of a separate interest against the association. ...

Excerpt: ... under the Labor Code against Defendant Ladera Lending, Inc . (Defendant) and Does 1-10. ROA 2, Complaint. On March 8, 2023, Plaintiff filed an amended class action complaint adding a PAGA claim (FAC). ROA 33, FAC. On May 12, 2023, Plaintiff sought dismissal of the class claims without notice to the class. See generally, ROA 42, Bradley Decl. Plaintiff represents that he signed an arbitration agreement with Defendant. ROA 52, Bradley Decl., ¶2....

Excerpt: ...009) 46 Cal.4th 969, 986 . 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 filed in support of plaintiff's motion for approval of ...

Excerpt: ...m Pleading Defendants argue that Plaintiff should n ot be allowed to amend his pleadings because the facts alleged regarding the amount due is incorrect and any subsequent complaint will be a sham. Under the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 C...

Excerpt: ... to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, i...

Excerpt: ...f the Eighth Cause of Action in Plaintiff's Complaint ROA 186 Before the Court are two dem urrers to the complaint of Plaintiff Glenn Knott, as well as a motion to strike. Defendants Albertsons Companies, Inc. and The Vons Companies, Inc. (collectively, “Vons”) demur to the class allegations in Knott's complaint on the ground that the class clai ms (but not Plaintiff's individual claims) are barred by a class settlement in an action file...

Excerpt: ...rcise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the de fendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to...

Excerpt: ... versions must be provided as ordered. (ROA 260.) As to the Settl ement (Issue Numbers below are carried over from the Court's prior order (ROA 260): 1. The proof of service on the LWDA does not include a fully executed settlement and none is before the Court. Counsel explains the parties “intend” to file it prior to the hearing (Decl. ¶ 3 n.1), which at any rate would be untimely, but as of 02 -2124, an executed settlement has not been fi...

Excerpt: ...d to stay the action. UPCOMING EVENTS: None FACTS/OVERVIEW: T his is an employment discrimination matter, as well as an individual wage -and -hour class and PAGA action. On September 6, 2023, Plaintiff Elida Martin (“Plaintiff”) filed a Complaint against Defendants Contactability.com LLC dba SmartFinancial and Stephani e Schneider (collectively, “Defendants”). (ROA 2.) The Complaint alleges the following 16 causes of action: 1. Discrimin...

Excerpt: ...it if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross - com...

Excerpt: ... move to seal the following exhibits to the decla ration of Yvette Golan: 1. Exhibit AN: an email from Chapman's disability services office to plaintiff Findlay Grant informing him of accommodations the school will provide in response to his January 2020 request. 2. Exhibit BN: an email from Chapman's pr esident Daniele Struppa to the Chapman community announcing a phased return to campus in October 2020. 3. Exhibit BP: an email from Struppa to t...

Excerpt: ...icial notice is granted. Defendants' request for judicial not ice that was included as part of the declaration of Christopher Hoo is denied. (Hoo Decl., at ¶ 17.) Requests for judicial notice should be filed as a separate document. (Cal. Rules of Court, rule 3.1113(l).) Also, this request does not comply with Calif ornia Rules of Court, rule 3.1306. Procedural Issues Plaintiff's opposition suffers from a number of procedural defects. First, Pla...

Excerpt: ...glas Hughes should not be held in contempt for willfully violating sever al Court Orders. 2. Plaintiff moves for monetary and terminating sanctions against Defendants Elena Medo and Adrianne Weir for the spoliation and intentional destruction of evidence by Medo in violation of the Court's TRO and Preliminary Injunction Orders. FACTS/OVERVIEW: This is a trade secret misappropriation case. In the operative Fourth Amended Complaint, filed November...

Excerpt: ...652 (citations omitted).) “By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511; see also Everest Invs. 8 v. Whitehall Real Est. Ltd. P'ship XI (2002)100 ...

Excerpt: ...-1538; see ROA 221.) Plaintiff's evidentiary objection to Dr. Lewandowski's declara tion is overruled. Dr. Lewandowski's evidentiary objections nos. 1 and 2 are overruled; nos. 3 and 4 are sustained. Any party to the action or the witness may bring a motion to quash a subpoena and may request the court to quash it entirely, modify it, o r direct compliance with it upon those terms and conditions as the court shall declare including protective ord...

Excerpt: ... is DENIED. EVIDENTIARY MATTERS The Court incorporates by refe rence the portion of its prior tentative ruling regarding Best Buy's evidentiary objections. The Court DENIES Best Buy's request for judicial notice (ROA 179) as unnecessary. GROUNDS FOR RULING While the Court originally sought further briefing and evidence on the issue of whether Best Buy's counsel actually received an invoice from AAA by email on September 7, 2023, the Court ultima...

Excerpt: ...3, Fuentes reached a settlement with Plaintiff for $90,000. (Settlement Agreement attached as Exh. A to Application.) Fuentes then filed an application for a good faith settlement determination under Code of Civil Procedure section 877.6. In response, Garcia filed the instant motion contesting the good faith of the settlement. The party asserting the lack of good faith shall have the burden of proof on that issue. (Code Civ. Proc. § 877.6(d).)...

Excerpt: ...e in the actions; it may order all the actions consolidated and it may make such orders co ncerning proceedings therein as may tend to avoid unnecessary costs or delay." (Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339; Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701.) Where the actions at issue presen t essentially the same or overlapping issues, they should be consolidated and disposed of as a sin...

Excerpt: ...ed to appear for examinati on that was set for 9/13/23. (Hook Decl. ¶¶ 8, 13, Exh. G.) Plaintiff's counsel appears to have objected to Defendant unilaterally setting Plaintiff's deposition. (Hook Decl. ¶ 9, Exh. H.) Plaintiff's counsel also opposed Los Angeles as a location for Plai ntiff's in-person deposition and requested that the parties discuss the option for Plaintiff's deposition to be taken via Zoom. (Id.) Defendant has complied with t...

Excerpt: ...D pending completion of arbitration. An arbitration review conference will take place in Department CX -101 on November 18, 2024 at 8:30 a.m. Because no prejudice will result from consideration of Plaintiff's untimely, overlong opposition papers, the Court has elected to consider them. EVIDENTIARY MATTERS I. Plaintiff's Initial Objections A. Monica Stombaugh 1. Overrule. 2. Sustain on foundation grounds to the extent she testifies Plaintiff sign...

Excerpt: ...atment Process and Mutual Arbitration Agreement” (the “Arbitration Agreement”) and Acknowledgment of the Tenet Health employee handbook (the “Employee Handbook”). (Stip. re Authentication of Arb. Agmt. and Handbook Acknowledgment [Def.'s Evid. at p. 97]; Doe Decl. ¶ 2.) The Arbitration Agreement “covers all disputes relating to or arising out of an employee's employment with the Company or the termination of employment.... Examples o...

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

Excerpt: ...ers similarly situated SERVICE: 1. Proof of Service not provi ded 2. December 15, 2023, by email RELIEF SOUGHT: 1. Plaintiff moves for an order certifying the putative class. 2. Defendant moves for an order striking the declaration, opinions, and testimony of Plaintiff's expert witness, Dr. William Ingersoll, filed i n support of the Motion for Class Certification. UPCOMING EVENTS: None FACTS/OVERVIEW: This is a putative class action for violat...

Excerpt: ...ct to “fit the crime.” (Reedy v. Bussell (2007) 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. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Caryl Richards , Inc. v. Superior Court, 188 Cal.App.2d at 303.) Before issuing terminating sanctions, the court should usually g...

Excerpt: ...he Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursua nt to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” (Code of Civ . Proc., §340.5, subd. (1).) To demonstrate Defendant qualifies under the above, Defendant offers the d...

Excerpt: ...quested amended judgment. Recovery of Attorneys' Fe es by Memorandum of Costs rather than Motion for Attorneys' Fees Typically, recovery of attorneys' fees that requires the court decide prevailing party or amount must be sought by way of a noticed motion. Plaintiff contends that this general rule does not apply here because she is seeking recovery of fees she is entitled to by statute. Code Civ. Proc. §1033.5 provides for the recovery of attorn...

Excerpt: ...t to C.C.P. § 177.5; (4) imposing an issue sanction against Defendants L anham, Cutler, and Riley ordering that the fact that they breached their fiduciary duties shall be taken as established in the action; and (5) subjecting Defendants to other monetary or nonmonetary sanctions as the Court deems appropriate. The Motion is m ade pursuant to Code of Civil Procedure sections 1209, 1211, 177.5, 583.150, 2023.030 as well as Evidence Code sections...

Excerpt: ...(names): ARMSTRONG GARDEN CENTERS, INC.” Defendant contends that the second count of Plaintiff's First Cause of Action for Premises Liability is not drawn and filed in conformity with California law and should be stricken under Code of Civil Procedure section 436 because no facts are alleged with respect to actual or constructive noti ce of the allegedly dangerous cement walkway, or that injury on the walkway was probable, and no facts are all...