Excerpt: ...rs were never provided to Plaintiff in Spanish, even though the terms of the purchases were negotiated primarily in Spanish. Plaintiff seeks to add allegations that, because the Debt Cancellation Agreements are part of the Retail Installment Sales Contracts (“RISC”) for both the Honda and the Nissan, Defendant was required to provide a Spanish translation off the Debt Cancellation Agreements – and that it failed to do so. Plaintiff argues h...

Excerpt: ...rst Cause of Action for Breach of Contract The FAC does not adequately allege the existence of a contract. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) The Complaint alleges that Plaintiff's counsel spoke with Defendant (FAC ¶ 11), and that conversation appears to be basis of the agreement—but there is no allegation counsel had authority to enter into the agreement on Plaintiff's behalf. Even if counsel had authority to enter int...

Excerpt: ...ANTED. Moving Party is to reserve a hearing date for the Demurrer, and file and serve on counsel of record and any new parties with the Proposed Demurrer to the Complaint, by March 2, 2018. The Mandatory Settlement Conference currently scheduled for 4/27/18, and the Jury Trial currently scheduled for 6/4/18, are VACATED. All discovery and motion deadlines are CONTINUED pursuant to Code. A Trial Setting Conference is set for April 10, 2018 at 8:45...

Excerpt: ...; Advance Transformer Co. v. Super.Ct. (1974) 44 Cal.App.3d 127, 144, and Security Pac. Nat. Bank v. Matek (1985) 175 Cal.App.3d 1071, 1077.) But here, the claim is based on an employment contract, and concerns money paid to Ms. Barrie as a bonus, which was to be treated as income and reported on her W-2. (McCarthy Decl., ¶¶ 2-14, Exs. A-E.) The claim at issue is thus effectively one to recover wages paid to a former employee - which is not a c...

Excerpt: ...a Defendants are ordered to meet and confer with Plaintiff and to submit a detaileddeclaration outlining the parties' meet and confer efforts as to each of the issues raised by the demurrer. (Code Civ. Proc., § 430.41.) The Ibarra Defendants shall file the declaration at least 9 court days before the continued hearing date. No further briefing is permitted. Pursuant to Code of Civil Procedure section 430.41(a), effective 01/01/16, before filing ...

Excerpt: ... an ordinary or heightened duty, plaintiff has a single primary right to be free from the harm suffered when defendant allegedly caused plaintiff to fall from the tow truck. That invasion of a single primary right supports one cause of action for negligence. Plaintiff may amend the complaint to allege alternate legal theories and alternate duties of care within that one cause of action for negligence. Defendant shall give notice. ...

Excerpt: ...clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Plaintiffs' FAC is not organized in the traditional manner. The FAC alleges 16 causes of action, labeled as “Counts.” Each “Count” is asserted twice, once by each Plaintiff. Defendants demur to both sets of Counts 1 through 16 of the FAC on the ground that the FAC is ambiguous and unintelligible because half of the 32 cou...

Excerpt: ... Action: Previously, Defendants did not demurrer to the Second and Tenth Causes of Action of the First Amended Complaint. The Tenth Cause of Action has not been re-labeled the Sixth Cause of Action. Code Civ. Proc., § 430.41(b) provides that “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answ...

Excerpt: ...ith 15 days leave to amend. The motion to strike is therefore moot. Defendant's request for judicial notice of the documents labeled A through M is granted pursuant Evidence Code §§ 452(c), (d), and (h). 1st cause of action for violation of the HBOR Civil Code Section 2923.6, part of the Homeowners Bill of Rights (HBOR), helps restrict a practice commonly known as “dual tracking,” whereby financial institutions pursue foreclosure while eval...

Excerpt: ... amount here is $87,970.10 and that no multiplier is necessary or appropriate. In arriving at these determinations, the Court has considered the facts and information before it on this motion, evaluated and considered the history of the litigation, and factored in the following: This litigation was not particularly complex and did not involve novel, difficult or complex issues. Nothing about this case suggests it required extraordinary skill – ...

Excerpt: ...equest for monetary sanctions is not broken down by hourly rate or number of hours spent, resulting in plaintiff's failure to establish a reasonable amount. The court has awarded an amount it considers reasonable. Plaintiff's Motion to Compel Further Responses to Form Interrogatories is granted. Defendant Christina LeBlanc must serve full and complete responses, without objections, to Form Interrogatory #15.1 and 17.1 within 20 days. Plaintiff's ...

Excerpt: ...ope of the receivership orders by the Nevada court and such a receiver cannot be individually liable for attorney's fees and costs. See, Sealite, Inc. v. Finster (1957) 149 Cal.App.2d 617, 618. Relatedly, counsel for the receiver cannot be liable for attorney's fees and costs in association with a motion to expunge lis pendens. See, Doyle v. Superior Court (1991) 226 Cal.App.3d 1355, 1359. Hence any claim for attorney's fees and costs is limited ...

Excerpt: ...es are authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subds. (a)(10)(A), (B), & (C); Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Here, the court has already determined that fees are authorized by contract. There any question that Peloquin is the prevailing party on appeal. The court has broad authority to determine the amount of reasonable fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may make...

Excerpt: ... granted as to RFA nos. 13-14, but Bellavia's request for $50,000 in fees is denied. Instead, the Court awards $1,500 as reasonable expenses. If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under CCP § 2033.010, et seq., and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move ...

Excerpt: ...oth the Class Action Settlement Agreement (Settlement Agreement) and the proposed orders omit the provision in the Notice of Pendency of Class Action Settlement and Hearing Date for Court Approval (Notice to Class) that everyone receiving money will be paid in four installments, after defendant makes each payment to the Administrator. The $45,000.00 estimated Administrator fee appears high for a class and settlement of this size. An explanation i...

Excerpt: ... which states, it has filed for bankruptcy protection in the Central District of California, in case no. 8:17-bk-14545-TA. (See Docket #363, Notice of Stay f. 12/28/17, and attachments thereto, in 2012-594022.) Among the creditors or the participants who were listed in the bankruptcy notice there, included the moving attorneys here (Cornman & Swartz) as well as the plaintiff here (Mission Recruiting LLC). (See id.) This Motion is denied without p...

Excerpt: ... on reply.) Plaintiff contends she gave her password to Brittany Rodriguez, and that Rodriguez may have filled out the agreement online on plaintiff's behalf. However, Rodriguez expressly denies doing so, and more importantly, Roth has shown that on the same day the arbitration agreement was signed using plaintiff's name, someone also electronically filled out a direct deposit form with plaintiff's bank information as well as a W-4 tax form for p...

Excerpt: ...dgment, and finds this amount is not exempt from garnishment. The court further finds that claimant's remaining earnings are exempt. Regarding claimant's claimed expenses [Page 7 of Claim of Exemption], her claimed expenses for rent, food, Verizon, Spectrum, Edison, gas company, car payment, AAA [which appears to be car insurance], dental, and allergy medications, appear to be reasonable. Contrary to responding party's contentions, the amounts cl...

Excerpt: ... meet and confer letter to Plaintiff on December 8, 2017. After receiving no response, Defendant again reached out on January 8, 2018, and again received no response. On January 8, 2018, the court signed and filed the stipulated protective order. Only after Defendant filed the instant Motion, did Plaintiff served verified supplemental responses on February 9, 2018. Plaintiff asserts that the Motion is moot because Plaintiff served further respons...

Excerpt: ...fendant sufficient notice of this ruling in time to file an answer or responsive pleading. While Plaintiff has failed to submit sufficient evidence of “actual delivery” under CCP 417.20, nevertheless Defendant waived the service requirement and consented to the jurisdiction of this court by making multiple general appearances at CMC conferences and by requesting continuances of the haerings and other relief. These apearnces were made by Defen...

Excerpt: ...ost recent known address for the Defendant Vo. The Stipulation indicates that the Defendant received the summons and complaint, however, the Court requests that, any proof of service of the summons and the complaint be filed in the court records, by the Plaintiff's counsel. In addition, counsel shall report if any additional payments were received or are to be credited towards the total amount owed. Otherwise, pursuant to CCP §664.6, Plaintiff's...

Excerpt: ...ition does not constitute a general appearance unless and untll the court has ruled on defendant's motion to quash. [Hopefully, the defective service will be moot if the petitioner voluntarily agrees to dismiss moving party as discussed at the hearing on the petition.] Moving party to give notice. ...

Excerpt: ...ll 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 2014) ¶ 9.53.1a, p. 9(l)-33.) Code of Civil Procedure section 426.30 clearly states that the compulsory counterclaims are waived only if: “a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of servin...

Excerpt: .... The Court finds that there are common questions of fact or law. All actions assert causes of action based upon failure to pay all wages owed and failure to provide meal and rest periods, as well as derivative claims. The proposed class definitions in the Olvera and Perez actions overlap. The Olvera class is limited to cooks, and the Perez class of all nonexempt employees necessarily includes cooks. The class periods for the Olvera and Perez cla...

Excerpt: ..., 694; Aguilar v. Lerner (2004) 32 Cal.4th 974, 989.) Petitioner has also demonstrated compliance with the MFAA and that the respondents have waived their right to arbitrate thereunder. (Mudge Decl. at ¶ 18, 19, Exh. 1; Bus. & Prof. Code, § 6201, subd. (a).) Also, the fact that respondents may assert claims against a third party does not vitiate their obligation to resolve their existing professional disputes with petitioner through binding arb...

Excerpt: ...ctions under Code. Civ. Proc. § 128.5 is also denied. The Notice of Motion failed to identify the parties against whom the sanctions were sought, and the specific type of sanctions requested. Respondent's evidence failed to establish the type of egregious litigation conduct by Petitioner which would support an award of monetary or other sanctions. On its own motion, the court orders Petitioner to show cause why this action should not be dismisse...

Excerpt: ...Agreement is illusory. However, the Court has located no authority that addresses facts the same as or similar to the facts presented here. Given the public policy that arbitration agreements should be enforced wherever possible, the Court concludes that a valid arbitration agreement has been shown here. There is no showing that the 2016 Agreement is void due to fraud in the inception or is procedurally unconscionable. Plaintiff has forthrightly ...

Excerpt: ...ral testimony on a contested issue of fact in a motion hearing. Mutual Mortgage Co. v. Avis (1986) 176 CA3d 799, 805. The court also has discretion to refuse to allow oral testimony. Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1121. A party seeking to introduce live testimony at a law and motion hearing is required, in advance of the hearing, to obtain a court order upon a showing of good cause. The request for the order for live testimony must be...

Excerpt: ...and thus it would have to be denied pursuant to Code of Civil Procedure section 2025.410. (The court further notes that in ruling on the motion for a stay it is notruling on whether the attorney-client privilege applies under these facts. That is a bridge too far under these circumstances. (Finally, and most puzzling, the question the plaintiff corporation seems to pose by this legal malpractice litigation is this: Who owns it? This discovery dis...

Excerpt: ...shall not be thus issued or delivered to any person in this state unless it contains all the following provisions: (1) A provision that the insolvency or bankruptcy of the insured will not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of such policy. (2) A provision that whenever judgment is secured against the insured or the executor or administrator of a deceased insured in an action bas...

Excerpt: ... of contract and second cause of action for breach of covenant of good faith and fair dealing – plaintiff Tina Mancuso Storch (plaintiff) has failed to allege the existence of an enforceable contract, a necessary element to each of these causes of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173-1174 (Daniels); Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1034.) The...

Excerpt: ... case is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Defendant/Cross-Defendant Parra has satisfied this minimal burden. Together, his moving papers and supporting declaration adequately set forth the nature of the case and all pertinent facts, the settling parties' relative litigation positions, and the barebones terms of the settlement. (See Motion P&As at pp. 2-5; Leenerts Decl., ¶¶ 3-12.) Moving pa...

Excerpt: ...y fees in its complaint. In support of his argument, the defendant cites a case out of the Fourth District Court of Appeal, Division Three: Manier v. Anaheim Business Center Co. (1984) 161 Cal.App.3d 503. Whatever may have been the reach of Manier when it was first decided, more recent California Supreme Court precedent has effectively overruled it. (See, e.g., Sessions Payroll Management, Inc. v. Noble Constr. Co., Inc. (2000) 84 Cal.App.4th 671...

Excerpt: ...claratory relief reveal that an actual controversy exists between the parties.'” D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489. “[A] home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legiti...

Excerpt: ...tions for summary judgment and summary adjudication are denied. Nationstar first argues that the court should grant summary judgment as to Plaintiff's entire case because all of Plaintiff's claims fail for lack of recoverable damages. Nationstar met its initial burden by setting forth evidence that Plaintiff agreed to a limitation on its available damages in the Short Sale Agreement. The Short Sale Agreement states: 14.B. SELLER DEFAULT. BUYER AN...

Excerpt: ...n an assessment of improvements when the improvements did not exist on the lien date; (6) paid on an assessment in excess of the equalized value of the property as determined by the county board of equalization; or (7) paid on an assessment in excess of the value determined by the assessor in a mandatory audit. (Rev. & Tax Code, § 5096.) Plaintiff bases her claim on the grounds that the “AAB further proceeded in an arbitrary and capricious man...

Excerpt: ...hat is in issue is the duty to defend, based on those alleged claims, rather than the ultimate duty to indemnify. Majic/ADA argue a defense is not owed unless it is first shown Majic/ADA caused or contributed to Plaintiff's alleged injuries. In support of their contentions, Majic/ADA point to the language in the policy that they will indemnify, protect, defend (etc.) “provided that any such claim, damage, loss or expense is caused in whole or i...

Excerpt: ...6. “In short, the testator's intent to benefit the plaintiff is a prerequisite to the imposition of a duty on the attorney to the plaintiff. This makes sense, as the rationale for allowing testamentary instrument beneficiaries to recover in the event of a breach by the attorney is that ‘the main purpose of the testator in making his agreement with the attorney is to benefit' those beneficiaries ‘and this intent can be effectuated ... only b...

Excerpt: ...o. 1: There Is No Triable Issue of Fact as to Plaintiff's First Cause of Action for Breach of Contract, as a Matter of Law. Plaintiff fails to meet its initial burden to prove all elements of the claim for breach of contract—specifically, damages. (See Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal. App. 4th 226, 241.) Plaintiff contends the unpaid balance as of 01/01/2017 was $30,639.36, but provides no competent evidence as to how tha...

Excerpt: ...plaint ceases to have any effect either as a pleading or as a basis for judgment.” (Ibid.) 2. Cross-defendant Yorba Linda Water District's motion for summary judgment/adjudication directed at cross-complainant Wailea Property Partners, LLC's cross-complaint is DENIED. The court has treated this motion as one for summary judgment only, as cross-defendant Yorba Linda Water District (District or YLWD) has failed to comply with California Rules of ...

Excerpt: ...hin 30 days. Code Civ. Proc. §§2023.010(d) and (g), 2023.030, 2030.290(c). Plaintiff Ashad Hamideh is ordered to serve verified supplemental responses without objections to the form interrogatories within 15 days. The Motions by Defendant Imran Khan (1) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees against Plaintiff Mohammad Hamideh and (2) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees...

Excerpt: ...court GRANTS the Petition for the reasons set forth below. This litigation is stayed pending resolution of the arbitration. A. Basic Procedure In Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414, the California Supreme Court explained the procedure a trial court must follow when a party files a petition to compel arbitration. The only question is whether the trial court should specifically enforce the arbitrati...

Excerpt: ...inari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud or unconscionability). (Villacreses v. Molinari, supra, 132 Cal.App.4th at 1230.) Here, it is undisputed that the parties entered into a written agreement to arbitrate, the claims at issue are covered by that agreement, and Plaintiff has refused to arbitr...

Excerpt: ...f to comply with Plaintiff's responses to Pacific Transformer's Requests for Production Nos. 8, 18 and 19. Defendants also seek sanctions. Plaintiff does not oppose these motions, but opposes Defendants' request for sanctions. Based on Plaintiff's non-opposition, Defendants' motions are granted. Plaintiff shall produce any responsive documents not yet produced by March 15, 2018. Defendants' request for sanctions is granted. See Cal. Civ. Proc. Co...

Excerpt: ... is GRANTED. (Code Civ. Proc., section 2033.290.) However, in the event that Plaintiff Kenneth Mayer serves a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure section 2033.220 before the time of the hearing, the Court will deny the motion. (Code Civ. Proc., § 2033.280, subd. (c) [the court shall deem the matters admitted "unless it finds that the party to whom the requests for admissi...

Excerpt: ...2014 to the present. Defendant presented evidence that Plaintiff is engaged in other business activities while out on disability that impacts Plaintiff's claim of lost earnings. Hence a compelling need is shown as to such records. Also, less intrusive means to ascertain what earnings Plaintiff has had since 2014 outside her admitted disability benefits is not shown. Plaintiff's motion to quash is GRANTED as to the balance of the records sought by...

Excerpt: ...dants' demurrer to plaintiff Mankaruse's unverified, first amended complaint: Exhibit 1, Complaint in Mankaruse v. Raytheon Company, et al., O.C.S.C. Case No. 30- 2014-00732670 filed on 7-7-14, Exhibit 2, the Order of 11-9-16 dismissing plaintiff Mankaruse's cause of action for fraud and deceit in plaintiff's 2014 civil action for failure to timely amend, Exhibit 3, the Notice of Entry of Order Regarding Defendants' Demurrer to First Amended Comp...

Excerpt: ...er conducting an evidentiary hearing, and pursuant to University rules and regulations, made recommendations to the Chancellor of the University about a grievance filed by the plaintiff. Those proceedings are subject to the deliberative process privilege. (See Labor and Workforce Development Agency v. Superior Court (2018) 19 Cal.App.5th 12.) The court finds that defendants have met their burden to show that the nondisclosure of the deliberations...

Excerpt: ...usiness practices was now one for declaratory relief based on the lots yet to have flooring ordered and installed. At the very least there are 352 “remaining lots” which plaintiff claims entitlement to commissions (even though defendant has not necessarily even determined any profit margin). ...

Excerpt: ...laintiff was unaware of defendant's intention not to perform the promise; (4) plaintiff justifiably relied upon the promise; and (5) plaintiff sustained damage. (CACI 1902.) Furthermore, fraud claims must be pled with particularity, including facts showing “how, when, where, to whom and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Responding Party's fraud C/A in the Second Amended Com...