Excerpt: ...tson v. Osman (1986) 185 Cal.App.3d 308, 315 [disapproved on other grounds in Woods v. Young(1991) 53 Cal.3d 315].) Defendant to give notice. ...

Excerpt: ...out of the employment, the employee or the employee's dependents may receive compensation or death benefits from the employer even though the cause is the wrongful act of a third party. However, a right of action for damages also arises against the third-party tortfeasor. (Lab. Code, § 3852; Lamoreux v. San Diego & Arizona Eastern Railway Co. (1957) 48 Cal.2d 617, 625.) Here, the court has already determined on summary judgment that AAM committe...

Excerpt: ...irectly relevant to the issue of possession may be raised as a defense in an unlawful detainer action. See, Barela v. Superior Court (1981) 30 Cal.3d 244, 249. Second, Civil Code § 2924.11(a) authorizes a party to bring an action to seek an injunction to enjoin a violation of Section 2924.11, but such action must be brought before a Trustee's Deed Upon Sale has been entered. A Trustee's Deed Upon Sale has been entered against the subject propert...

Excerpt: ...d in an individual capacity is entitled to pursue remedies in both capacities.” (Denevi v. LGCC (2004) 121 Cal.App.4th 1211, 1221-1222; see Goles v. Sawhney(2016) 5 Cal.App.5th 1014, 1018.) “An action is deemed derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation ...

Excerpt: ... which indicate that defendant might be prejudiced by nonjoinder . . .” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870. Motion to Strike Portion of First Amended Complaint: The Motion by Defendant Zaky to Strike Portion of First Amended Complaint is DENIED. Defendant moved to strike Paragraph 23, which stated, “Plaintiff is entitled to all reasonable costs of collection, as related to the unpaid balance due and owing by Defendants.” Cod...

Excerpt: ...confer requirement for demurrers, was implemented to limit the involvement of the Court, and to encourage the parties to resolve the issues. (CCP §430.41(a); 2015 California Senate Bill No. 383, California 2015-2016 Regular Session). The Court is of the view that there is scope for resolution of some issues among these parties, and for amendment of the pleading. (See Reply Brief). This hearing is continued for the parties to meet and confer. Hea...

Excerpt: ... suffering an involuntary loss of counsel at this time. It appears the Plaintiffs are adding counsel. (See Reply Brf.). This does not reflect the sort of exigent circumstances that case law illustrates as supporting a trial continuance in relation to the substitution of counsel. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 196 (where attorney abandoned the client shortly before trial, and plaintiffs sought to bring in new counsel, trial continu...

Excerpt: ...sts to establish that they are excessive or not reasonable. See, Lunada Biomedical v. Nunez (2014) 230 Cal.App.4 th 459, 488. The court finds that the $4,527.50 in challenged legal services sufficiently related to the surety action and therefore recoverable. Finally, the claimed $3,588.75 in legal services to analyze the reply, conduct legal research, and draft the reply and supporting reply declaration are reasonable. Moving party to give notice...

Excerpt: ...ion for Judgment on the Pleadings against Savage Enterprises, Inc.'s entire Cross-Complaint and in the alternative against each and every individual cause of action is Granted with 15 days leave to amend. The Cross Complainant Savage Enterprises, Inc.'s has indicated that it intends to amend the Cross-Complaint to remove the current four causes of action and replace them with a single cause of action for Declaratory Relief. This is the first amen...

Excerpt: ...d the Court that Mr. Meehan had passed away earlier that day. (11/20/2015 minute order.) But on a party's death, this estate is not automatically substituted in for that party. A judgment cannot be given for or against a decedent until the personal representative has been made a party by substation. (Johnson v. Simonelli (1991) 231 Cal.App.3d 105, 107 fn. 1.) An application to, and order by, the court is required. (See Code Civ. Proc., § 377.32;...

Excerpt: ... notice to the class. Service of the moving papers by mail on March 21, 2018 provided defense counsel with insufficient notice of this hearing (only 16 court days, without the five additional days per CCP §1005(b)). Notice also was less than 28 calendar days as required for a provisional certification request in conjunction with settlement under CRC Rule 3.764(c)(1). Plaintiff also must provide the LWDA, the real party in interest as to the PAGA...

Excerpt: ...evised Notice to Class to the “Claims Administrator” should be changed to the “Settlement Administrator” to avoid confusion to Class Members. The Notice to Class (on p. 4) must reflect that the court will resolve any disputes not otherwise resolved by the Settlement Administrator and the parties. The court needs a brief explanation of the reasons for the increase in plaintiffs' attorneys' cost ceiling from $21,000 to $24,000. A realistic ...

Excerpt: ...d have been set forth in the lawsuit, if amended” must be deleted from the second paragraph of the Release section on p. 3 of the Notice to Class. Because attorney Marcus S. Loo's new declaration reflects (at p. 2, para. 4) that the Administrator is accepting $5,000 as the maximum Administrator fee to be paid, p. 2 of the Notice to Class should also reflect that number, rather than the estimate of $7,788.41. The proposed Order Preliminarily App...

Excerpt: ...till finds, that a stay in these civil proceedings, while the Probate matters are resolved, is appropriate to avoid the risk of inconsistent trial court rulings on common issues. The instant Motion for Relief from Stay is therefore Denied. The Request for Judicial Notice is Granted, as to the existence of and legal effect of the documents presented therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundati...

Excerpt: ...te the 60–day deadline. (Id. at 682; see also Hewlett-Packard Company v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1189 [in the absence of some event which has reopened the 60–day period, the trial court cannot abuse its discretion by refusing to hear an untimely motion].) Here, no explanation has been offered to excuse the tardy filing, and Plaintiff claims to have incurred additional litigation costs in the interim. The Motion could t...

Excerpt: ... Unpaid Overtime; (2) Unpaid Minimum Wages; (3) Non-Complaint Wage Statements; (4) Unpaid Business Expenses; (5) Wages not timely paid on termination; (6) Unlawful Wage Deductions; (7) Failure to Provide Seating; (8) PAGA claims; and (9) Violation of B&P Code § 17200. All of these claims stem from Plaintiff's allegations that she was not compensated for off-the-clock (“OTC”) time that she spent working at home and going through the bag-check...

Excerpt: ... “Emily Graves”, with whom MP's counsel has communicated, is an authorized agent for “Vape It Up.” (See Corp. Code § 17701.16, CCP §416.10 et seq.; CCP §2020.220(a)(2). See also CRC 3.1346.) The court notes, an entity called Vapeitup LLC or Vape It Up LLC has been named in certain pleadings in the case. Would it be the same entity as the deponent here? If so, in information that is publicly available on the website of the California Se...

Excerpt: ...t ORDERS sanctions in the amount of $470.95 for each of the three motions (for a total sanctions award in the amount of $1,412.85) against both the attorney and the defendant. The sanctions shall be paid within 30 days. The plaintiff shall give notice. ...

Excerpt: ...te Statement, Fact Nos. 1-4, 25, 266, 267, 279.) As to the second cause of action for breach of contract, there are triable issues as to the terms of the alleged contract, plaintiff's performance, and breach. (Moving Party Separate Statement, Fact Nos. 23-30 [contract terms], 33-35 [performance and/or excuse for nonperformance, damages], 37, 38 [breach]; Responding Party Separate Statement, Fact Nos. 23, 24, 25 [terms], 31, 34, 303-305, 307, 308 ...

Excerpt: ... I. Whether CHOC complied with the requisite standard of practice CHOC's staff of nurses and non-physicians met the standard of care in treating Plaintiff DENIED on this issue. CHOC carries its initial burden of production to make a prima facie showing, by a preponderance of the evidence, that CHOC's staff met the standard of care in Feb. 2015 and specifically during the surgery on 2/23/15. (SS at Facts 1-21, Exs. A-D.) In support, CHOC submits t...

Excerpt: ...range Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Arvind Nirula, M.D complied with the applicable standard of care at all times and no act or omission on the part of Arvind Nirula, M.D caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 8-10. Dr. Brown further noted that although Arvind Nirula, M.D is associated with California Heart Associates, all of Ms...

Excerpt: ...on must demonstrate that it is entitled to summary judgment on both of Plaintiffs' causes of action. Flatiron has not done so. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling...

Excerpt: ...so fails to include a statement of the facts constituting the cause of action in ordinary and concise language (Code Civ. Proc., § 425.10), and fails to identify the particular causes of action and who each cause of action is against (Cal. Rules of Court, rule 2.112). Motion to Strike The motion to strike is MOOT. The defendants shall give notice. ...

Excerpt: ...determining whether to issue a preliminary injunction: (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or non-issuance of the injunction. The greater the showing on one, the less must be shown on the other to support an injunction. Ibid. Plaintiff contends that he “and his corporation,” i.e., nominal defendant Ital Pizza, Inc., have the...

Excerpt: ...ufficient evidence to meet its initial burden of showing that cross-complainant cannot prove an essential element of her claim(s) or that Hughes Cione has a complete defense to the claims. Triable issues remain as to material facts 5-9, 17-38, 39-45 and 48-70. Attorney Hughes' declaration in support of the motion purports to authenticate exhibits A through Z (e.g. “[A] true and correct copy of said Charge is being attached hereto and shall be r...

Excerpt: ...aintiff's memorandum and the supporting declaration of attorney Nedda Mehrou and the court did not consider attorney Mahrou an expert in the areas of attorney's fees and/or reasonableness. See, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4 th 1084, 1095. The lodestar calculation (respective hourly rates multiplied by hours worked) provides the total sum of $122,585.65 sought by TUSD. (Reply, 10:19.) The Court reduces that amount on two separate bas...

Excerpt: ...stitutes a failure to state a cause of action. 2. Libel Per Se: As pled, it appears the alleged defamatory statements were made after a default was entered but before any default judgment had been entered. Without any judicial findings of fraud, statements made in reliance solely on the entry of default are actionable. 3. Defamation: Same as Second Cause of Action. 4. Declaratory Relief: This claim is identical to the defamation count which provi...

Excerpt: ...ge in the meet and confer process set forth in Code of Civil Procedure §430.41. That section mandates the “demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Cal. Civ. Proc. Code § 430.41 The declaration filed in connection with this...

Excerpt: ...ction by plaintiff Wyatt. Defendant's challenge to this cause of action is improperly based on extrinsic evidence. Defendant's request for judicial notice is denied. OVERRULED as to the 4th cause of action. Although false imprisonment is an intentional tort because it entails an intentional act resulting in confinement, it can arise through negligence. (Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 888.) The facts pled sufficiently supp...

Excerpt: ...eading stage. Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 958. As to breach of contract, plaintiff Revel failed to attach the residential lease agreement as Exhibit 1 as alleged, but has alleged sufficient facts as to the legal effect of the contract and the nature of the breaches to state a cause of action for breach of contract. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 126 Cal.4 th 1...

Excerpt: ...move to augment their expert witness list to add Dr. Laura Audell as a retained defense expert pain management specialist. The court has read and considered the briefs, declarations and other evidence submitted in support of and in opposition to Defendants' motions. Defendants submitted with their reply various exhibits that had not yet existed at the time Defendants filed their motions (e.g., transcripts of depositions not taken until after Defe...

Excerpt: ...opposition) and on 3-22-18 (Exhibit G to opposition). As a result, the motion is moot. The request for a monetary sanction of $3699 is denied. II. Motion to Compel – RFA Defendant moves to compel a further response to the first set of requests for admissions that contains supplemental answers to requests 9, 22, 28, 29, and 30. Plaintiff served a supplemental response on 3-2-18 (Exhibit F to the opposition) and provided supplemental answers to a...

Excerpt: ...985) 38 Cal.3d 18, 30; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289.) Directions to Self-Represented Party (Ms. Galian) The Court orders Ms. Galian to include a proof of service with future papers that are filed with the court. A form of Proof of Service-Civil is available at the website of the California Courts (see http://www.courts.ca.gov/forms.htm). Further, Ms. Galian is directed to...

Excerpt: ...dant Nu Flow America, Inc., for installation of cured in-place pipe (“CIPP”) restoration process for repair of potable water copper piping via epoxy relining on plaintiffs' property. As noted, plaintiffs are both self represented, however plaintiff Erin Chwialkowski did not sign the complaint. Additionally, she did not sign the 02/08/18 Amendment to Complaint (Doe 1) identifying Nu Flow America, Inc., as a DOE defendant. Pursuant to CCP § 12...

Excerpt: ...ice of summons for lack of jurisdiction, the burden of proof is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. Kroopf v. Guffey (1986) 183 Cal.App.3d 1351. According to the recent case of Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1779-1780: Since our seminal decision in International Shoe, our decisions have recognized two types of personal jurisdiction: “general” (sometimes...

Excerpt: ...e of material fact regarding whether they caused plaintiff's alleged injury. Plaintiff's Complaint alleges that the dismissal of the underlying case was due to the fact that defendants withdrew expert designations in the case. (Compl., p. 4.) Defendants present evidence that they designated experts in the case on 02/22/16. (Def.'s Ex. 12.) Defendant Strongin further avers that he did not withdraw the expert designations, and that, to the best of ...

Excerpt: ... POS in the court's file. The Declaration of plaintiff's father, Harold Beverly, confirms that the address where the plaintiff was served by certified mail is the last known address for the plaintiff. The declaration also confirms that the declarant has not had verbal or physical contact with the plaintiff since January 2016. The plaintiff's father's declaration establishes that plaintiff cannot be located despite diligent efforts. Therefore, the...

Excerpt: ...enting, allowing, assisting, conducting, permitting, or in any way granting authority to make any use of the Property, or any other location in the City of Huntington Beach, to dispense or distribute marijuana and/or any products containing marijuana;..” (Proposed Order, 2:14-17) It should read: The Court granted Plaintiffs preliminary injunction prohibiting “Leasing, renting, allowing, or in any way granting authority to make use of the prem...

Excerpt: ...ued Terrazas, its former employee, and others on August 22, 2016, alleging that Terrazas and others embezzled from Avenal and otherwise misused Avenal funds. Cross-Defendants Yuan Hong Taiwan Enterprises (Yuan Hong) and Neoteric Entertainment, Inc. (Neoteric) also sued Terrazas the same day based on similar allegations. Yuan Hong alleges in its complaint that Cross-Defendant Reggie King is Yuan Hong's principal. Cross-Defendants contend Terrazas'...

Excerpt: ...f to set aside this Court's order dismissing the action. Since defendant agreed to settle, and has now reneged on that agreement, the dismissal ought to be set aside. The question then remains what to do with the case. Plaintiff wants to re-open everything and go after the restaurant owner personally because he feels that earlier representations regarding the restaurant's solvency, liquidity and/or insurability were false. This plaintiff cannot d...

Excerpt: ...ive order has been withdrawn and taken off calendar, and thus, any alleged procedural defects with respect to it are moot. The court declines to consider any new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey(2013) 218 Cal.App.4th 1522, 1537-1538.) Moving party to give notice. ...

Excerpt: ...endants presented evidence negating any substantial, continuous and systematic contacts with this forum. See, Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, at 445. Also, general jurisdiction is now limited to a company's state of incorporation or principal place of business. See, Daimler AG v. Bauman (2014) 571 U.S. 117, 134 S.Ct. 746, 761 to 762 and Martinez v. Aero Caribbean (9 th Cir. 2014) 764 F.3d 1062, 1070. It is undis...

Excerpt: ...the mediation on March 6, 2018, but that the mediation is not concluded as Defendants are to provide Plaintiff with certain financial information and the parties are to meet telephonically with the mediator on 3/19/18. (Id., ¶11.) Accordingly, the Court ORDERS the parties to agree on mutually agreeable dates for the property inspection and depositions as they previously agreed to do in their 2/9/18 email exchanges to occur within the next 30-cal...

Excerpt: ...me. There are two subpoenas at issue, one to defendant Michael Cannivet and the other to the custodian of records for non-party Silverlight Asset Management. Both request production of the same thing: “Documents sufficient to identify clients known to Silverlight Asset Management, LLC to have formerly been clients of Palo Capital, to which Silverlight Management, LLC provided investment advisory services, at any time after December 2, 2016.” ...

Excerpt: ...033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion if filed after that time, even in the absence of wr...

Excerpt: ...rgues correctly that the attorney-client privilege does not apply to physical evidence collected by counsel, because it is not a communication from client to counsel or vice versa, but a physical object transmitted to the attorney. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176-177.) Under Suezaki the court must determine whether the work product privilege applies. And even if it were to apply, the work product privilege is not absolute, so...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...ss and overbreadth. For the following reasons, Plaintiff's motion is granted in part and denied in part. Defendant hired attorney Michael Robbins and his firm EXTTI, Inc. “to provide limited legal services in the form of a workplace investigation” related to Plaintiff's allegations. Robbins Decl. ¶¶ 2, 5-8 & Ex. A. Defendant contends that the attorney-client privilege shields all of the information and documents sought by Requests for Produ...

Excerpt: ...dividual capacity, and then derivatively, and the latter complaint is not necessarily barred. (See Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 222-223 [later derivative complaint not barred].) Although there is a final judgment in the 2014 case, unlike Favila where there was no prior judgment, claim preclusion still does not apply because the claims may involve different primary rights, and some of the alleged bad acts occurr...