Excerpt: ...or the following reasons, the motion for summary adjudication is DENIED as to Issue 1; and Issue 2 is treated as a motion for judgment on the pleadings and GRANTED with 15 days' leave to amend. ISSUE 1: The undisputed material facts establish that Plaintiff cannot recover noneconomic damages pursuant to Civil Code section 3333.4 because Plaintiff was an uninsured driver at the time of the subject automobile accident. Defendants' first issue is an...

Excerpt: ...for judicial notice pursuant to Evidence Code S 452(h). Defendants Rena Akhlaghi and Farideh Akhlaghi's Motion to Strike is DENIED as MOOT in light of the Court's ruling on the Demurrer. Demurrer Sham Pleading Defendant argues that Plaintiff should not 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 ...

Excerpt: ...ntends that there is no merit to the Second Cause of Acton for Violation of Civil Code section 1793.2(b) because the undisputed facts show no single visit lasted longer than 30 days as required under Civil Code secton 1793.2(b); that Plaintiff has failed to provide any evidence, and no evidence exists, that any visit lasted longer than 30 days or that any repair to the subject vehicle was not initiated promptly; and that Plaintiff has failed to p...

Excerpt: ...rtments, LLC's ("Plaintiff") First amended Complaint. First Cause of Action for Breach of Written Indemnity Agreement Defendant argues that the FAC'S first cause of action is insufficiently pled for the following reasons: (1) Plaintiff cannot plead consideration at the time the 8-28-02 letter was issued because Plaintiff did not have a viable claim for breach of contract at that time, as Plaintiff's predecessor believed that the Property had been...

Excerpt: ...n v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343— 344 for the proposition that: " 'Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [Y] However, an exception to this rule is found where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is m...

Excerpt: ...r constructive knowledge that serious injury was a probable (as opposed to a possible) result; or that moving defendant acted with deliberate indifference and conscious disregard of the peril/probable serious injury. (Dæ v. United States Youth Soccer Assoc. , Inc. (2017) 8 Cal.App.5th 1118, 1140 [elements]; Aubryv. Tri—City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [on demurrer, while the court is required to assume the truth of alleged facts,...

Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...

Excerpt: ....) 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 possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...

Excerpt: ...pute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the 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 ...

Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...

Excerpt: ...he action was "friwlous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." The Court finds that defendant was not the prevailing party here. The principles of res judicata and collateral estoppel do not apply because there was no adjudication on the merits. The principles permitting a prevailing party finding after a voluntarily dismissal do not apply, again because there was no determin...

Excerpt: ...ff contends that he is an elderly 81-year-old senior, and is in fear of his body and life from Defendants and their potential physical, violent threats and retaliation against him and his property for this lawsuit, the FBI investigation, and the criminal indictment filing in the United States District Court. Plaintiff also contends that requiring Plaintiff to submit to separate depositions in the civil and criminal actions would subject Plaintiff...

Excerpt: ...ovides in pertinent part: (b) The court, for good cause shown, may make any order that justice requires to protect any party or other person 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: ... (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. (5) That a trade...

Excerpt: ... a reasonable time after receipt of the subject discovery. (See Code Civ. Proc., SS 2031.060, subd. (a), 2030.090, subd. (a).) The County served the subject discovery on 2/2/23 (ROA No. 85—Mtn. at Exs. 4-6 [attached proofs of service)); plaintiff provided responses tothe same on or about 3/13/23, 3/20/23, and 3/27/23 (see id. at Exs. 1-3); and plaintiff did not move for a protective order until a month after he had already served responses. To ...

Excerpt: ...pril 26, 2023, the court ordered Defendant Anthony Bell to serve verified responses without objections to Plaintiff's Form Interrogatories , Set Two, Special Interrogatories, Set Two, and Requests for Production of Documents, Set Two within 30 days of service of notice of ruling. (ROA No. 183, [04/25/23 Minute Order].) Plaintiff's counsel served notice of the ruling on Defendant Robert Bell on April 27, 2023. (Stark Decl. '1 8, Ex. A; ROA No. 201...

Excerpt: ...onstitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Code 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].) "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demu...

Excerpt: ...town Business Improvement District's ("BID") Opposition it was filed and served one day late. However, Petitioner was able to timely file and serve a substantive reply on the merits, despite the Opposition having been served one day late. Thus, the Court finds Petitioner's objections to be waived and will exercise its discretion to consider the Opposition. Petitioner requests as part of his Motion that BID be ordered to produce its BID membership...

Excerpt: ...me of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code." (Code Civ. Proc., S 473, subd. (a)(l).) Amendments to pleadings...

Excerpt: ...herance of justice, and on any terms as may be proper, allow a party to amend any pleading." (Code Civ. Proc., S 473(a)(1).) "If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse ...

Excerpt: ...ss-complaint that Defendants intend to bring a new party into the action, "Cross-Defendant, Gazi Gori." (See Proposed Cross- Complaint93.) As explained by Rutter, "[t]here are no compulsory cross-complaints against parties other than plaintiff." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial Ch. 6-D (The Rutter Group 2022) 96:524.) However, as long as there is one permissible "related" cause of action in the crosscomplaint, defe...

Excerpt: ...n the basis that Plaintiff's compensation was reasonable and approved by the Board, with no self-dealing, and there is insufficient evidence to surmount the business judgment rule. In the alternative, Defendant moves for an order granting summary adjudication in favor of Defendant and against Plaintiff on the following issues: • Plaintiff's cause of action for "injunctive or declaratory relief necessary to change and/or reform Westview's corpor...

Excerpt: ...gh contnuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules Ct., Rule 3.1332(c).) A party moving to continue trial must make an affrmatve showing of "good cause" justifying the requested relief. (See Cal. Rules Ct., Rule 3.1332(c).) In addition, the motion must be made "as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules Ct., Rule 3.1332(b...

Excerpt: ...denied as untimely. There are two ways to seek vacation or correction of an arbitration award: (1) Code of Civil Procedure section 1288 provdes: "A petition to vacate an award or correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner," or (2) Within 10 days of service of a party's petition to confirm the award, file and serve a timely response. (Civ. Proc. C...

Excerpt: ...Nos. 1-31; (2) striking Defendant's objections and compelling Defendant to produce amended verified responses to Plaintiff's Requests for Production of Documents Nos. 1, 14, 15, 16, 17, 22, 23, 24, 25, 30, 31, 32, 33, 38, 39, 40, 41, 44, 47, 48, 51, 52, 53, and 54 and all responsive documents correspnding to those Document Requests; (3) that Defendant comply within 10 calendar days; and (4) that Defendant is ordered to pay monetary sanctions to P...

Excerpt: ...on, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney." (CLD Construction, Inc. v. City of San Ramon (2CN) 120 Cal.App.4th 1141, 1145.) "It must be represented by licensed counsel in proceedings before courts of record." (Ibid.) Next, the Motion is not accompanied by a proof of service showing the M...

Excerpt: ...quest for judicial notice is DENIED as to the remaining exhibits. (Eivd. Code S 452.) The webpages do not consist entirely of facts "that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code S 452(h).) California's long-arm statute permits courts in California to exercise jurisdiction "on any basis not inconsistent with the Constitution...

Excerpt: ... or her through his or her mistake, inadvertence, surprise or excusable neglect." Relief under Code of Civil Procedure section 473, subdivision (b) may be based either on an "attorney affdavit of fault," in which event, relief is mandatory, or on declarations or other evidence showing "mistake, inadvertence, surprise or excusable neglect," in which event relief is discretionary. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Th...

Excerpt: ...laintiffs Vince Rinner ("Vince"), Diana Rinner ("Diana"), Nicholas Estanislau ("Nicholas"), and Laura Estanislau ("Laura") (collectively, "Plaintiffs") commenced this action against defendants Brian Hoyt ("Brian"), Alain Hoyt ("Alain"), William Kalpakoff ("William"), and Sandra Kalpakoff ("Sandra") (collectively, "Defendants"). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel ("Carbon...

Excerpt: ..., or the economy and effciency of handling the litigation would be promoted thereby, on moton of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except fo...

Excerpt: ...y further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [q] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [q] (2) To stay or dismiss the action on the ground of inconvenient forum. [91 (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8." "Per...

Excerpt: ...nce of justice, and on any terms as may proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other res#ct; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or in ...

Excerpt: ...bit 4 pursuant to Evidence Code section 452, subdivisions (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4th 919, 939, footnote 13.) the court DENIES the RJN as to Exhibit 3 as immaterial to the court's decision. Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silv...

Excerpt: ...way of email on 12-1-22. (ROA No. 554.) Plaintiff filed this Motion on 2-1-23 which is 62 days after the Notice of Entry of Judgment or Order. Plaintiff's Reply (Reply), filed on 5-25-23 under ROA No. 578, states, "Code of Civil Procedure adds additional two court days to the deadline in the event service is effectuated electronically, as it was here." (Reply; 3:18-20 (Emphasis in Reply.).) California Rules of Court, rule 3.1702(b)(1), state,: "A...

Excerpt: ...(q).) The court DECLINES TO RULE on Defendants' Evidentiary Objections (filed on 8-28-23 under ROA No. 427, 428, and 429) as immaterial to the court's decision as set forth below. (Code Civ. Proc., S 437c, subd. (q).) Code of Civil Procedure section 437c, subdivision (p)(2) provides, "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, e...

Excerpt: ...the following apply: [9] (1) An answer to a particular request is evasive or incomplete. [q] (2) An objection to a particular request is without merit or too general. [9] (b)(l) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Secton 2015.040... . [q] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific lat...

Excerpt: ...ounty of orange (2011) 197 cal.App.4th 282, 307, fn. 18 (Silverado.) The court OVERRULES the objection as to Exhibit N. The court SUSTAINS the following objections as set forth in Evidentary Objections: (1) Hand Decl., 7 and 18,; (2) Hand supp. Decl„ 10, 11, 12, 16, 17, 26, 30, 34, and (3) Fink Supp. Decl., 5, 8, 9, 10, 12, 13, 15, 17, 19, and 20 (except for the reference in 20 as to the need for expert testimony). The court OVERRULES the remai...

Excerpt: ...m. in Department N15. Defendants Christopher Paliska, Stephen Paliska, Aaron Vazquez, Rebecca Quarress, and Peter Maldonado (Paliska Defendants) move to stay proceedings in this action pending the completion of the bankruptcy proceedings of Defendant Western Express Lending (Defendant WEL). Standard to Stay Proceedings "Trial courts generally have the inherent power to stay in the interests of justice and to promote judicial efficiency." (Freiber...

Excerpt: ...espondents' (Ed Sachs, Wendy Bucknam, Greg Raths, and City of Mission Viejo) Evidentiary Objections filed on 7-12-23 under ROA No. 432: The court DECLINES TO RULE on the objections asto Exhibits 8, C, D, E, F, G, H, l, J, K, L, M, N, O, and P as immaterial to the court's decision as set forth below under Silverado. The court SUSTAINS the following objections as set forth in Respondents' Evidentary Objections: (1) Hand Decl„ 14, 15, 16, 36, 37, ...

Excerpt: ... required to be physically present with the deposition officer when being sworn in at the time of the deposition. [9] (b) Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply ...

Excerpt: ...ecial Interrogatories, Set One is taken OFF CALENDAR as moot. Defendant Shelby Hospitality, LLC's Motion to Compel Answers to Special Interrogatories, Set One is taken OFF CALENDAR as moot. Defendant Ken Pansuria's Motion to Compel Answers to Requests for Production of Documents, Set One is taken OFF CALENDAR as moot. Defendant Ken Pansuria's Motion to Deem the Truth of Matters and Genuineness of Documents Specified in Requests for Admission, Set...

Excerpt: ...are characterized as 'quasi-criminal,' with the judgments of conviction governed by rules applicable to criminal cases. [Citations.] For purposes of federal due process rights, however, contempt proceedings are either civil or criminal, depending on the nature of the proceedings and the relief afforded. [Citation.] If the punishment is remedial, and for the benefit of the complainant, it is civil. [Citation.] The basic idea of civil contempt has ...

Excerpt: ...ilverado.).) The court DECLINES TO RULE on cross- Defendants' Evidentiary Objections (filed on 8-28-23 under ROA Nos. 207, 208, and 209) because they are immaterial to the court's decision as set forth below. Cross-complainants' (Chade M. Joher and Hussam H. Joher) Request for Judicial Notice, filed on 8-15-23 under ROA No. 191, is DENIED as immaterial to the court's ruling as set forth below. (Silverado Modjeska Recreation & Parks District v. Co...

Excerpt: ...iolation of PAGA for Failure to Provide Meal Periods; 2. Violation of PAGA for Failure to Provide Rest Periods; 3. Violation of PAGA for Failure to Pay Minimum Wages; 4. Violation of PAGA for Failure to Pay Overtime Wages; 5. Violation of PAGA for Failure to Provide Accurate Itemized Wage Statements; and 6. Violation of PAGA for Failure to Timely Pay Wages at Separation Plaintiff alleges she was employed as a non-exempt worker for Defendant, a no...

Excerpt: ...lity under Labor Code § 226.7 4. Rest Break Liability under Labor Code § 226.7 5. Failure to Reimburse for Business Expenses 6. Failure to Provide Accurate Itemized Employee Wage Statements 7. Failure to Pay All Wages Owed Timely and upon Separation of Employment 8. Violation of Labor Code § 1174(d) [Failure to keep accurate payroll records] 9. Bus. & Prof. Code § 17200 10. Penalties Pursuant to Labor Code § 2699 [PAGA] The Complaint alleges...

Excerpt: ...tten arbitration agreement exists that covers plaintiff's claims and is governed by the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; McCachern decl., Ex. 5 ¶ 17.) All plaintiffs' causes of action “arise[] out of” or are “related to” plaintiff's use of Lyft's ride- share service. (McCachern decl., Ex. 5 ¶ 17(a); accord EFund Capital Partners v. Ples...

Excerpt: ...pondent City of Laguna Beach, and Real Party in Interest (RPI) 1902 Ocean Way, LLC. The City and RPI elected to file a joint supplemental brief. Upon review of all filings related to Petitioners' motion for a preliminary injunction, the motion is DENIED. I. Factual and Statutory Background This is a CEQA challenge to the City's adoption of its new Historic Resources Element, part of its overall updated Historic Preservation Program. As described ...

Excerpt: ...n employer who drafts an arbitration agreement does not pay its share of required fees or costs to initiate arbitration within 30 days after they are due, the employer is in “material breach” of the agreement, in default of the arbitration, and waives it right to compel arbitration. (Code Civ. Proc., § 1281.97, subd. (a).) In the event of that material breach by the employer, the employee can elect to withdraw her claim from arbitration and ...

Excerpt: ...ge Forfeiture; 2. Failure to Reimburse Employment Expenses; 3. Failure to Provide Meal and Rest Periods; 4. Failure to Provide Accurate Wage Statements; 5. Waiting Time Penalties; 6. Unlawful Business Practices; 7. Unfair Business Practices; and 8. Declaratory Relief. Plaintiff alleges he was employed by Defendant as a mortgage banker, and his terms of employment were governed by a Compensation Agreement. The Compensation Agreement included a pro...

Excerpt: ...ndants Priority Workforce, Inc. and Fresh Grill, LLC stipulated with the respective plaintiffs, Quetzally Sanchez and Maria Valencia, to dismiss their class claims, arbitrate their claims on an individual basis, and stay proceedings. Sanchez and Valencia responded by filing four separate demands for arbitration: each plaintiff filed a FEHA demand and a wage-and-hour demand. Each wage-and-hour demand simply attaches the operative class complaint i...

Excerpt: ...No. 21-01237766, and Valencia v. Priority Workforce, No. 22-01244163. The Court will address both motions in a single order. These cases are overlapping wage-and-hour class actions. In both cases, defendants Priority Workforce, Inc. and Fresh Grill, LLC stipulated with the respective plaintiffs, Quetzally Sanchez and Maria Valencia, to dismiss their class claims, arbitrate their claims on an individual basis, and stay proceedings. Sanchez and Val...

Excerpt: ...ls for the Ninth Circuit of the district court's order granting Plaintiff's motion to remand. UPCOMING EVENTS: 1. Case Management Conference, 9-6-2023 2. Motion to Appear Pro Hac Vice FACTS/OVERVIEW This is a putative class action for alleged violations of patients' medical privacy rights. On January 13, 2023, Plaintiff Jane Doe, individually and on behalf of all others similarly situated (“Plaintiff”), filed a Complaint against Defendant Hoa...

Excerpt: ...ditional 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 respond.” (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 evidence created by opposition. (Id. at p. 1538.) Here, the court exercises its discretion and declines to consi...

Excerpt: ...Civil Procedure section 2031.310,subdivision (b)(1). To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court...

Excerpt: ...f California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Here, the causes of action pled against Cross- Defendant are not so unclear as to render them indecipherable. Accordingly, the demurrer based on uncertainty is OVERRRULED. First Cause of Action - Negligence Cross-Defendant again contends the negligence cause of action is barred by the Economic Loss Rule, as this action is purely a contractual dispute. The economic loss rule ordinarily prevents...

Excerpt: ...ual 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.” Plaintiffs accepted Defendant's third Section 998 Offer to Compromise in the amount of $41,499.03 on March 28, 2023. The Section 998 Offer states: “KA will pay Plaintiffs' attorney's fees, expenses a...

Excerpt: ... on appeal must be claimed and contested pursuant to Judicial Council rules]. As a general rule, the party “prevailing” on appeal is entitled to recover costs on appeal. [CRC 8.278(a)(1)]. Here, the Court of Appeal held that Defendant was the prevailing party: “Respondent is to recover its costs on appeal.” (ROA 446). The actual assessment and recovery of costs occurs in the trial court, in accordance with the procedure prescribed by CRC ...

Excerpt: .... Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ultimate facts that, as a whole, ...

Excerpt: ...A for breach of fiduciary duty. Thus, the demurrer to these causes of action is SUSTAINED. All of Plaintiff's Claims are Subject to MICRA and Barred by The Statute of Limitations - Overrule Defendant argues all of Plaintiff's claims are subject to MICRA and that Plaintiff is attempting to plead around the applicable 1-year statute of limitations. While the allegations arise out of dental treatment Plaintiff received, her allegations for the remai...

Excerpt: ...all that is necessary is to call the court's attention to such papers”. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:53.1a.) Defendant's unopposed Supplemental Request for Judicial Notice (ROA 28) of Exhibit A is GRANTED. (Cal. Evid. Code § 452(h).) The Court declines to rule on the request as to Exhibit B as the document is immaterial to the Court's ruling. The noticed documents are not accepte...

Excerpt: ...alleges that he was Defendants' employee and therefore was not required to hold a valid contractor's license to recover under the contract. Plaintiff claims that he is an employee pursuant to Labor Code section 2750.5, which “provides in relevant part that a person performing an activity requiring a contractors' license “shall hold a valid contractors' license as a condition of having independent contractor status.” (Fillmore v. Irvine (198...

Excerpt: ...t BLD, made certain representations, either orally or in writing, to Plaintiff on either February 24, 2018 or March 23, 2018. The FAC also alleges that the representations made by Defendants were false and incorrect at the time they were made; that Defendants knew them to be false when the representations were made; that the statements were made with the intent to deceive and defraud Plaintiff in order to induce him to enter into and continue per...

Excerpt: ...nic bookmarks per the California Rules of Court. If required, an amendment to the settlement agreement is directed, rather than ‘amended settlement agreement', to avoid use of limited Court resources. As to the Settlement 1. The settlement provides that after 180 days, uncashed checks will be transmitted to cy pres recipient “Public Counsel”. (Settlement ¶ 71.) However, part of the individual settlement payments is considered wages owed an...

Excerpt: ...raw 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 possibility that the defect can be cured by amendment.” (G...

Excerpt: ...able to fraud claims because they signed the purchase agreement in 2008 and were provided with copies of everything they signed including the settlement statement which states the final purchase price was $753,584. Defendant further contends that Plaintiffs' contention that the limitations period began to accrue on December 12, 2019 when they received an email from Defendant's representative lacks merit as they cannot rely on Defendant's most rec...

Excerpt: ...905, “there is no recovery in tort for negligently inflicted ‘purely economic losses,' meaning financial harm unaccompanied by physical or property damage.” (Id. at 922.) Additionally, “the rule functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.” (Ibid.) “[T]here is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contr...

Excerpt: ...nt is directed, rather than ‘amended settlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Since the parties believe they know the identity of every purchaser of at least one non- listed VA2 or VA4 air gap, why should this be a “claims made” settlement, rather than sending the $30 payment to every class member who does not opt out? 2. How will the injunction be enforced in the event the VA2 and VA4...

Excerpt: ...ts, the Court is inclined to consider Plaintiffs' untimely opposition. Application of Litigation Privilege: Defendants challenge all seven causes of action alleged in the FAC on the grounds that Defendants are immune from liability pursuant to the litigation privilege. Specifically, Defendants contend that the litigation privilege bars Plaintiffs claims because the claims arise out of the Associations' recording of an assessment lien against Plai...

Excerpt: ...ving party presents evidence that it did not request plaintiff to provide any services, a quantum meruit claim can arise where the services are provided pursuant to an implied agreement, as well as an express one. (Ochs v. PacifiCare (2004) 115 Cal.App.4th 782, 794 [“To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or...

Excerpt: ...mary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party 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...

Excerpt: ... accurate itemized wage statements, failure to pay all wages due on separation, unfair business practices, and intentional infliction of emotional distress. A jury trial in this matter is scheduled for November 13, 2023. Summary Judgment Plaintiff alleges he was an employee; defendants assert he was an independent contractor. In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, our Supreme Court held that a worker is presumed ...

Excerpt: ..., Cal. Practice Guide: Civil Procedure Before Trial (2022) ¶6:795, p. 6-207.) Rather, it adds new allegations which occurred after the original pleading was filed. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.) Here are the critical pleadings: 1. On August 25, 2021, the plaintiff filed a complaint alleging five causes of action arising out of his employment with the District. Named as defendants were District and employee Richard Kwiecien; ...

Excerpt: ...sponses to Interrogatories, filed 2-17- 23 under ROA No. 279 is GRANTED in part and DENIED in part. Defendant moves for an order compelling Plaintiff Michael Pierce (Plaintiff) to provide further responses to Defendants' Form Interrogatories, Set One, numbers 2.7(d), 2.12, 6.1, 6.3, 6.4, 6.7, 7.2, 8.8, 9.1, 9.2, 11.2, 12.1, 14.1, 17.1, 50.1, 50.5 and Special Interrogatories, Set One, numbers 9, 12, 17, 19, 22-26, 33 and for an order imposing mone...

Excerpt: ...very v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59-60.) “If a party to a civil action asks the court to compel arbitration of [a] pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exists.' [Citations] ‘Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by ...

Excerpt: ...er under the doctrine of equitable estoppel. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District in Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr. 3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement....

Excerpt: ...e FAA provides that a “written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) “The ‘principal purpose' of th...

Excerpt: ... arbitration. (Code Civ. Proc. § 1281.4.) Agreement to Arbitrate “The threshold question presented by every petition to compel arbitration is whether an agreement to arbitrate exists. The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence an agreement to arbitrate a dispute exists.” (Trinity v. Life Ins. Co. of N. Am. (2022) 78 Cal. App. 5th 1111, 1120, citations omitted; Code Civ. Proc. § 128...

Excerpt: ...hrough 37. This motion was filed on 2-21-2023 and was originally on calendar for 7-18-2023. On that date, the Court ordered counsel to meet and confer in good faith and file a joint separate statement. On 8-16-2023 counsel filed their joint separate statement. However, even after a review of that document, it is unclear whether the meet and confer advanced any resolution of the disputes here. For instance, Plaintiff alleges “Defendant represent...

Excerpt: ... and severally pay monetary sanctions in the amount of $2,963.15. Plaintiff also moves for an order deeming admitted Plaintiff's Requests for Admission, Set One to Horizon and an order that Horizon and its counsel of record Fred Hayes and Rogers, MacLeith & Stolp, LLP jointly and severally pay monetary sanctions in the amount of $2,963.15. Lastly, Plaintiff moves for an order deeming admitted Plaintiff's Requests for Admission, Set One to Defenda...

Excerpt: ...clude “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a cont...

Excerpt: ...edite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel.” (Cal. Rules of Court, rule 3.400(a).) Relevant herein, among the factors to be considere d i n d e c i d i n g w h e t h e r a n a c t i o n i s c o m p l e x , is whether an action is likely to involve “[n]umerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve” and “[m]anag...

Excerpt: ...y the unlawful detainer action pending the outcome of this Unlimited Action. (ROA 86, 89.) After oral argument, the Court permitted the parties to file simultaneous briefs regarding authority and justification for an undertaking and the amount of an undertaking. Said briefs were due no later than 08/24/2023, with no reply to be filed. (Ibid.) In his supplemental brief, Campbell contends that there is no statute that authorizes an undertaking or b...

Excerpt: ... following reasons, the unopposed motion is GRANTED. 1. Code of Civil Procedure section 877.6 & Overview of “Tech-Bilt” Factors Code of Civil Procedure section 877.6 provides in pertinent part: (a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other c...

Excerpt: ...- complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The def...

Excerpt: ...he deposition until the day before (Id. at ¶ 4.) On January 30, 2023, Plaintiff's counsel stated that he was unable to confirm whether his client would appear for deposition on January 31, 2023. (Id. at ¶ 4.) On January 31, 2023, neither Plaintiff nor her counsel appeared for the deposition. (Id. at ¶ 5.) Defendant took a Certificate of Non-Appearance. (Id. at Ex. C.) On February 1, 2023, Defendant served a Notice of Second Continuance of Taki...

Excerpt: ...s confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.), However, “[t]hese rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other ...

Excerpt: ...imited by this code. Code of Civil Procedure section 576 states, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41-42 (Royal) , states, “ ‘[Code of Civil Procedure] section 437 permits the trial court in its disc...

Excerpt: ...alsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. [Citation.]” (Id. at p. 990.) “‘A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]' [Citation.]” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) How...

Excerpt: ... Breach of the Implied Covenant, on this same basis. (Demurrer: 6:14-24.) Defendant is correct in asserting there are contradictory and unclear allegations, with respect to the parties to the alleged agreement. For example, the Complaint includes allegation stating both, that Defendant Cloud 9 hired Plaintiff (¶2 of FAC) and that all Defendants, collectively, hired Plaintiff. (¶5 and ¶43 of FAC.) Similarly, the Complaint alternates between all...

Excerpt: ...ed, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made befo...

Excerpt: ...iled on 8-24-23 under ROA No. 141) as immaterial to the court's decision as set forth below. (Code Civ. Proc., § 437c, subd. (q).) Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete ...

Excerpt: ...a petitioner seeks to compel arbitration: ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden ...

Excerpt: ...of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to pr...

Excerpt: ... Inc.'s; CT Logistics, Inc.'s; Cal West Commodities, Inc.'s; and Michael Devon Toole's Form Interrogatories (Set One), Motion to Compel Responses to Special Interrogatories (Set One), and Motion to Compel Responses to Request for Production of Documents (Set One) without objections and within 30 days of service of the notice of ruling. The court ORDERS that Plaintiff Amelia Lopez pay to Defendants Commodity Transporters, Inc.; CT Logistics, Inc.;...

Excerpt: ...on, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” “Irrelevant matter” includes allegations not essential to the claim. Code of Civil Procedure §431.10(b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual ...

Excerpt: ...n, filed under ROA No. 744. Objections 6 and 9-11 are SUSTAINED. The Court declines to rule on ROI's Objections to Evidence in Support of Reply filed under ROA 756 as such objections are not dispositive to the Court's ruling on this motion. ROI's Request for Judicial Notice in Support Opposition, filed under ROA No. 752, is GRANTED pursuant to Evidence Code section 452, subdivisions (d) and (h). INC moves for an order striking ROI's Cross-Complai...

Excerpt: ...orders the dismissal of this matter pending in Orange County Superior Court, with prejudice. A party may seek confirmation by filing and serving a petition at least 10 days, but no more than 4 years, after service of the award on that party. (C.C.P. 1288, 1288.4). The petition must name as respondents all parties to the arbitration and may name any other persons bound by the award. (C.C.P. 1285). The petition must also set forth the substance of ...

Excerpt: ...splitting the cost for a mobile copying service is a reasonable compromise and, if not, why not. Basic Law re Post-Judgment Discovery, particularly RFPs, and Motions to Compel Further Responses to RFPs The methods available for post-judgment discovery are not as broad as those for pre- judgment discovery. Post-judgment discovery options are delineated in Code of Civil Procedure (“CCP”) sections 708.010 through 708.030 (in Article 1 of the Enf...

Excerpt: ...he court for an order requiring Plaintiff to appear. (Civ. Proc. Code § 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Civ. Proc. Code § 2032.320(a).) Plaintiff previously underwent a physical IME with Luke Macyszyn, M.D. (“Macyszyn”), which focused solely on Plaintiff's alleged spine injuries. (Opposition, Ex. 5 at p. 1 ¶ 5.) Defendants now seek a sec...

Excerpt: ...erating Company, L.L.C., Orange City Mills Limited Partnership, and Mall at White Oaks, LLC's (“Landlords”) Motions to Compel are GRANTED in part and DENIED in part. Landlords seek an order compelling Fitness International, LLC “(LA Fitness”) to produce documents and provide further responses to RFAs 5-6, Form Interrogatory Nos. 12.1, 15.1 and 17.1, Special Interrogatory Nos. 3, 6 and 18 and RFP Nos. 1-5, 8, 9, 12, 13 and 15. The unresolv...

Excerpt: ...he instant motion. The agreement at issue states: “Both I and the Company agree that any claim, dispute and/or controversy that I may have against the Company…or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (‘FAA'), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. Sect 1280 et seq….).” (Perez Decl. ¶6 a...