Excerpt: ...onmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, [the court] believe[s] that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial. ” New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431. In footnote 15, the New Albertson court referenced CACI Jury Instruction 204, w...

Excerpt: ...follows: 1. Defendants misappropriated AGA's trade secrets, and were unjustly enriched in the amount of $1,028,431.00; 2. Defendants negligently interfered with AGA's prospective economic advantage – but caused no economic harm; 3. Johnson breached his duty of loyalty – but caused no economic harm. Judgment was entered thereon, ordering all three defendants to be jointly and severally liable for the whole of the enrichment obtained by defenda...

Excerpt: ... that provision applies only where SAI is sought on “a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty.” (C.C.P. § 437c(t).) Here, every “Issue” presented seeks to dispose of an entire cause of action (“COA”). Plaintiff is thus in error in claiming that §437c(t) applies here. Issues 1 and 2 are directed to COA 2. However, COAs...

Excerpt: ...nd. It is a rare case in which a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case. (Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) It is premature to attempt to decide the merits of the proposed amendment. “[T]he preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demu...

Excerpt: ... on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it ...

Excerpt: ...or Court (1981) 30 Cal.3d 244, 249. Next, a complaint for unlawful detainer can be verified on information and belief by a corporate officer or managing member of a limited liability company. See, C.C.P. § 446. Civil Code § 1812.10(a) provides that it is applicable to: “An action on a contract or installment account under this chapter shall be tried in the superior court in the county where the contract was in fact signed by the buyer, where ...

Excerpt: ...ovide a supporting declaration which specifies: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The original declaration filed in support of the motion fails to satisfy the second, third or fourth requirement. The declaration centers on Christi Torres' September 2014 tra...

Excerpt: ...aintiffs' ability to bring a noticed motion for leave to amend to introduce alternative theories in the future. In essence, Plaintiffs allege they were not properly considered for HAMP loan modification, to which they were entitled, and thus have lost the benefit of the loan modification which has caused them damages in the form of losing the reduced monthly payments on the loan, and saving money that they could have applied towards the principal...

Excerpt: ... for Breach of Insurance Contract Defendant argues that Plaintiff's breach of contract claim fails because Plaintiff has “failed to plead the essential terms of a binding agreement providing coverage for disputes sued upon.” To establish a cause of action for breach of contract, a plaintiff must plead and prove: (1) a contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages ...

Excerpt: ...8; Davenport v. Stratton (1944) 24 Cal. 2d 232. Additionally, the language “including but not limited to,” is also too vague to comply with the requirements of C.C.P. § 458. The Demurrer is GRANTED with leave to file a Second Amended Answer within 7 calendar days. ...

Excerpt: ...ith the other parts of the case. The Court recognizes that other defendants on the interpleader complaint either do not claim a right to the funds per their answers, or that the Plaintiff and the Le cross-defendants are in default for the interpleader portion of the case. However, the Court will defer a final ruling on the bifurcation issues until the trial and to ascertain how events unfold ahead. (See Civ. Trials and Evidence ¶ 4:396, 4:399, 4...

Excerpt: ...ons to the Navarro Declaration (ROA 152) are all OVERRULED. In the First Amended Complaint, Plaintiff alleges, among other things, various Labor Code violations, including that Defendant R.J. Noble Company failed to pay Plaintiff for all hours worked, including time spent loading materials, fueling the trucks, preparing tools and equipment, traveling to and from the job sites, waiting time, and driving for over 8 hours straight if such time was s...

Excerpt: ...w evidence), finding that Plaintiff failed to establish the elements of commonality, superiority and ascertainability. Specifically, the Minute Order states: “Whether a putative class member may allege a violation of CC § 1940.1 or CC § 52.1 against Defendant is a threshold question that will require individualized scrutiny – i.e., on the day a putative class member was forced to check out, was the facility the primary residence for at leas...

Excerpt: ...ith insufficient evidence as to Digitech's ability to experience emotional distress and/or its ability to receive an award on behalf of a non-party, and 3) were awarded due to an error of the law regarding Digitech's ability to experience emotional distress and/or its ability to receive an award on behalf of a non-party. C.C.P § 657(5)-(7). Digitech cannot obtain an award for emotional distress as a business is incapable of feeling emotions. Hun...

Excerpt: ...ce presented supports the granting of the motion as to some, but not all, of the issues involved in the action, specifically, plaintiff's cause of action for wrongful termination. There is no substantial evidence to support the jury's verdict in plaintiff's favor as to plaintiff's cause of action for wrongful termination. In the verdict form the jury answered “yes” (9-3) to the following question: “Was Rogelio Arellano's refusal to engage i...

Excerpt: ...§ 685.040. Also, a contractual basis for recovery of attorney's fees against judgment debtor Tung Minh Nguyen as guarantor was established. Finally, plaintiff/ judgment creditor Mintaka Financial, Inc.'s post-judgment enforcement attorney's fees and costs are reasonable. See, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4 th 1084, 1094. Moving party to give notice. ...

Excerpt: ...s allegations, Plaintiff's motion to quash is GRANTED to the extent it the subpoena seeks production of Plaintiff's payroll records, and DENIED as to the remainder. Plaintiff's Motion for Protective Order is DENIED. The Complaint alleges that Plaintiff has suffered and continues to suffer financial losses. Her verified discovery responses, however, clarify that her “economic losses ceased accruing” when she began working for O'Reilly in Novem...

Excerpt: ...ge is the moving party. The motion also fails to comply with the requirements of CCP § 403 and CRC, Rule 3.500. Both § 403 and Rule 3.500 require that a motion for coordination be supported by a declaration stating certain facts. The motion before the Court is not supported by any declaration. Further, § 403 requires that the motion be served on each court in which an action is pending. The proof of service which accompanies the motion does no...

Excerpt: ...ine requires an appeal and the reviewing court stating in its opinion a principle or rule of law necessary to the decision. See Clemente v. State(1985) 40 Cal.3d 202, 211. These facts do not appear on the face of the FAC, and are not established by judicial notice. The doctrines of collateral estoppel and/or res judicata are each inapplicable because these doctrines both require the existence of a final judgment. The final judgment element for re...

Excerpt: ...Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order”].) For the sake of efficiency, however, the court will exercise its discretion to allow the amendment. (Weingarten v. Block (1980) 102 Cal.App.3d 129, 134 [trial court has broad discretion to allow...

Excerpt: ...le of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”). The Second Amended Complaint alleges the following: that Defendant drove her vehicle to the Dana Point Harbor and then spent several hours willfully consuming alcohol at bars to the point of serious alcohol intoxicating, knowing that she would thereafter operate her vehicle at the Dana Point Harbor (SAC, ¶ 11); Dana Point is a well-...

Excerpt: ...own v. Williams (2000) 78 Cal.App.4th 182, 186 fn. 4; Ramos v. Homeward Residential Inc. (2014) 223 Cal.App.4th 1434, 1444.) Plaintiff's proof of service filed on 6/01/17, purports to show substituted service on Tavaris on 5/24/17 at 3:50 p.m. by leaving the papers with his father Albert Williams at 1726 Dees Dr., Ellenwood GA 30294 (the “Ellenwood Address”). The process server made two unsuccessful attempts at personal service before leaving...

Excerpt: ...tion is granted. Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Ellard v. Conway (2001) 94 Cal.App.4 th 540, 544. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Id.; see also OC Interior Servs., LLC v. Nationstar Mortg. (2017) 7 Cal.App.5 th 1318, 1330-31. Under section 473(d), the court may set as...

Excerpt: ......

Excerpt: ...Plaintiffs move for entry of judgment based on the settlement agreement, which Plaintiffs allege Defendants have breached. Defendants did not file an opposition to Plaintiffs' motion. For the following reasons, Plaintiffs' motion is granted. In a September 6, 2016 order, the court (Judge Andrew P. Banks) granted issue sanctions against Defendants, establishing liability against Defendant Ocampo on Plaintiffs' first cause of action for financial e...

Excerpt: ...re additional items identified in Attachment 1g that bring the total to $1,770.00. The items in 1.g do bring the total to $1,770.00. The items are filing fees for an ex parte hearing, the MSJ/MSA and two $10 entries for the electronic filing fees related to oppositions. Item 4 – deposition costs Defendant has explained he was the only defendant present at the deposition of plaintiff. Further, despite plaintiff's protestations to the contrary, d...

Excerpt: ...ns are moot. If the motions are not moot, then they are GRANTED, except that No. 20 is limited to the year 2015. The request for monetary sanctions against the defendants is GRANTED in the total amount of $1,260, payable within 30 days. The plaintiffs shall give notice. ...

Excerpt: ...ates that she is 1) 72-years old; 2) Plaintiff has a substantial interest in the action as the sole plaintiff; and 3) Plaintiff's health such that a preference is necessary to prevent prejudicing the party's interest in the litigation as noted in the Declaration of Shahab Attarchi, M.D. Defendants' evidentiary objections to the Declaration of Mark A. Schadrack are SUSTAINED. Defendants' evidentiary objections to the Declaration of Shahab Attarchi...

Excerpt: ...prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” Rule 3.1332(b) provides that the court may order a trial continuance upon an affirmative showing of good cause. See also, Rutter, Civil Procedure Before Trial, Section 12:453. Rule 3.1332(c) sets forth several specified grounds constituting good cause for a continuance. “Circumstances that may...

Excerpt: ...dian ad litem, Randy Pearcy is DENIED. The motion for summary adjudication of the Third Cause of Action, Count Three is DENIED. There is a triable issue of material fact as to whether there was a vertical elevation in the sidewalk on Camino Mira Costa that caused plaintiff's fall. In addition, plaintiff's expert, Peter Zande, opines that this condition must have existed since the time the concrete was poured. (Zande Decl., ¶10(A).) As a result, ...

Excerpt: ...ns do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right. (Internal citations omitted.)” SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 756. “Because the corporate privacy right is not constitutionally protected, the issue presented in determining whether [the Party's] requests for productio...

Excerpt: ...case law, only the association, or an owner of a separate interest in a common interest subdivision, has standing to enforce a declaration of covenants, conditions and restrictions. (Civil Code 5975(a); Martin v. Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024, 1033.) There are no facts alleged to show that defendant Stonekastle Property Management, Inc. is a party to the CC&Rs, nor is any other contract alleged which this defendant...

Excerpt: ...n for open book account, fourth cause of action for unjust enrichment/constructive trust and fifth cause of action for accounting. Courts do not grant summary judgment on two causes of action with a plaintiff agreeing to dismiss other causes of action if “summary judgment” as to two other causes of action is granted. Second, as to summary adjudication, plaintiff Eco's motion for summary adjudication as to plaintiffs' first cause of action for...

Excerpt: ... of limitations here is probably CCP §340.5. This statute applies to all claims – regardless of labels – which relate in any way to the delivery of patient health care. Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4 th 75, 88-89; Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 287. Plaintiffs contend that defendant hospital had an “extra duty” to watch over decedent given his weakened condition, which...

Excerpt: ... Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. If p...

Excerpt: ...m in the Complaint and, in response to representations by Plaintiff' counsel that it could allege additional facts to cure the defect, the Court granted leave to amend. Plaintiff has added only conclusory language that the retention of the $1,070 commercial security deposit was “intentional” and “unlawful” etc. First, damages for failure to return a commercial security deposit are governed by CC § 1950.7. For the “bad faith” retentio...

Excerpt: ...pany suffered no prejudice due to the one day delay of Plaintiff's filing and serving its Opposition to the Motion; 4) The Demurrer and Motion to Strike attached to Sprint United Management Company's Motion shall be separately filed as its responsive pleadings to plaintiff's Complaint within 3 days. The hearing on these pleadings will be at the Case Management Conference on 05-14-18, along with the hearing on the Demurrers from co-defendants Sams...

Excerpt: ...erriding interest in enforcing the confidentiality clause at paragraph 5 in the settlement agreement. (NBC Subsidiary Inc. v. Superior Court (20 Cal.4 th 1178, 1222, fn. 46, dictum citing Publicker Industries Inc.v. Cohen (3 rd Cir. 1984) 733 F.2d 1059, 1073 [“where there is a binding contractual obligation not to disclose certain information . . . unbridled disclosure of the nature of the controversy would deprive the litigant of his right to ...

Excerpt: ...geable about (1) where and how the responsive electronic documents are stored; (2) how much time, effort, and cost would be required to produce the documents in their native format; (3) whether or not a third-party vendor is required to comply with Defendants' demand. Similarly, Defendants are ordered to appear with a computer expert who can speak authoritatively on the issues set forth above. Defendants shall make best efforts to have a represen...

Excerpt: ...s order. On November 15, 2017, plaintiff propounded the subject discovery discovery requests on Defendants Dual Diagnosis. Defendant obtained an extension of time until January 10, 2018. The Defendant requested another extension but the plaintiff denied the request. On January 17, 2018, Plaintiffs received Defendant's response to Plaintiff's discovery requests which indicated they were served on January 10, 2018. In response to every single disco...

Excerpt: ...itne to produce all records in his possession or control regarding plaintiff Jesse Castillo Ruiz at the same time and place as his deposition.” But the Subpoena, attached as Exhibit A to the Declaration of Kevin R. Jolly, Esq., is not a business records subpoena. It requests no documents; it is for appearance only. There are no categories of documents identified in the Subpoena. In addition, there are no categories of documents identified in th...

Excerpt: ...llegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was n...

Excerpt: ... a letter to the CA State Bar with a copy of the $50 application fee made out to the State Bar of California. 2) Attorney Carolyn R. Raines' application for admission pro hac vice is CONDITIONALLY GRANTED if attorney Raines files evidence of proof of service of the Application upon both Broker Solutions, Inc. dba New American Funding and the State Bar of California in compliance with Rule 9.40(c)(1) and Code of Civil Procedure 1013(a), either bef...

Excerpt: ...Yessenia's”) and Jaime Silva. Responding Party Plaintiff David Arrighi dba Black Diamond Concrete. Ruling Motion 1: Defendant Wesco's Motion to Determine Good Faith Settlement is CONTINUED to 5/14/18 at 10:30 a.m. in Department C26for the parties to address the effect of the First Amended Complaint on the negotiated settlement. Moving party to give notice. Ruling Motion 2: Defendant Wesco's Motion for Summary Judgment is denied. Defendant Wesco...

Excerpt: ... monetary sanctions at hearing on the Defendant's Motion for Protective Order is also GRANTED. The defendants are ordered to pay the plaintiffs $1,732.00 in monetary sanctions within 15 days of this order. Plaintiffs' Motion to Compel/Contempt: As indicated in the 3/5/18 Minute Order, Plaintiffs' Deposition Notices included the intent to videotape the depositions but the defendants did not timely object to the videotaping of their depositions. Th...

Excerpt: ...e record reflects -- and it is not disputed -- that both Defendant and Plaintiff have their principal place of business in Los Angeles, they are both headquartered in Los Angeles, and the contract that is the subject of this action was executed in Los Angeles. Additionally, that contract contains a dispute resolution provision stating that “if the mediation is unsuccessful, the matter will be resolved in the appropriate California State Court i...

Excerpt: ... causes of action, with 30 days' leave to amend. First-Third Causes of Action (Breach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant). The Court previously overruled Defendant's demurrer to these causes of action. The new allegations in the TAC do not affect the court's prior ruling or analysis. Fourth Cause of Action (Intentional Interference with Contractual Relations). This claim is not preempted by CUTSA to the extent it pl...

Excerpt: ...e plaintiff or excuse for nonperformance, breach by the defendant and damages.” First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745. Plaintiff alleged sufficient facts to state a cause of action in the first amended complaint. FAC, page 5. The FAC does not show that a breach could not occur in 2017. The agreements attached as Exhibit A to the FAC include automatic renewal provisions. FAC, Exhibit A, page 2, section 10, page 3,...

Excerpt: ...a proper subject for judicial notice. California Public Policy In California, an employee's covenant not to compete with his or her employer is unenforceable. B&P Code § 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”); Edwards v. Arthur Andersen (2008) 44 Cal.4 th 937, 945. “California has a strong interest in protecting its employees from no...

Excerpt: .../Newport Care Medical Group; Medical records of Newport Beach Surgery Center; Medical records of Menaka DeSilva, M.D.; Medical records of Ryan S. Labovitch, M.D.; and Medical records of David A. Gehret, M.D. relating to Plaintiff Liana Lytal and opined that Defendant Newport Care Medical Group, Inc. complied with the applicable standard of care at all times and no act or omission on the part of Defendant Newport Care Medical Group, Inc. caused or...