Excerpt: ...y motion to be heard after the discovery motion cutoff date, the party must first file a motion under CCP §2024.050 for leave to have the motion heard after the discovery motion cutoff date, and must meet and confer over that issue. However, plaintiff filed its motions on September 25, 2017, 25 days before the last day for motions to be heard based on the November 6, 2017 trial date, which was October 20, 2017. Nonetheless, court congestion caus...

Excerpt: ...ffs' unopposed Motion to Compel Further Responses to Special Interrogatories, Set One, is granted. Defendants Hyder M. Mukadam and Mukadam Medical Center, Inc. must serve full and complete responses, without objections, to Special Interrogatory Nos. 17, 21, 23, 25, 33-34 and 36-37 within 20 days. Defendant's requests for monetary sanctions are granted in the amount of $1,500 against defendants Hyder M. Mukadam and Mukadam Medical Center, Inc. and...

Excerpt: ... condition and repair. Owner argues that Plaintiffs were prior occupants, so under ¶2.5, they were responsible for any corrective work. But even if that were so, the Complaint does not concede prior occupancy. Accordingly, the Demurrer on this ground fails, as it is not self-evident from the terms of the Lease that Plaintiffs were solely responsible for repair of any alleged roof leaks. Owner also argues that under ¶ 8.8 of the Lease, Plaintiff...

Excerpt: ...f the plaintiff against which a determination is sought. (Code Civ. Proc., § 761.020, subd. (c).) If the plaintiff admits the validity of any adverse claim, the complaint must also contain that admission. This enables the action to determine the title against all persons, with specified exceptions, and avoids the need to litigate interests accepted as valid and to which the plaintiff's title is subject. (Code Civ. Proc., § 762.060, subd. (c).) ...

Excerpt: ...ement funds. Before the Court this day a demurrer and motion to strike to the Third Amended Answer. Demurrer Pursuant to CCP §430.20, a party may demur to an answer on only one of three grounds: (1) Failure to state facts sufficient to constitute a defense; (2) Uncertainty; (3) Failure to state whether contract is oral or written. Plaintiff apparently takes issue with all twelve affirmative defenses. Right out of the gate this demurrer is proced...

Excerpt: ...dant is entitled to judgment on the pleadings. However, based on the case of CashCall, Inc. v. Superior Court (2008) 159 Cal. App. 4th 273, 284, the court should allow plaintiff an opportunity to amend the complaint to add a new individual plaintiff. Defendant is ordered to give notice of the ruling. ...

Excerpt: ...g the matter of Service, to ensure that service is proceeding diligently. The Court will also continue the trial date and related dates to a date to be determined during this hearing. Plaintiff and the other parties are expected to proceed diligently with discovery as to the new defendant. All parties shall cooperate in providing new defendants with copies of any discovery pleadings promptly upon request. 2. Motion to Compel Depositions The Court...

Excerpt: ...efusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Plaintiff is not changing the nature of this case, and his new claims are based on the same nucleus of operative facts. All of plaintiff's proposed new causes of action appear to be based on the same overall transaction and course of events. The amendment would not result in any undue prejudice to de...

Excerpt: ... the notice of settlement to the class). The court sees no reason to require Class Members to file claims. Unless counsel can explain to the court why such a provision should be required, it will have to be deleted. The release language in the notice to class (p. 3) covers claims “that were or could have been alleged under California law based on the factual allegations contained in the First Amended complaint”, but the settlement agreement (...

Excerpt: ...ition precedent to coverage under such policy. See Brizuela v. Calfarm Insur. Co. (2004) 116 Cal.App.4 th 578, 590; Hickman v. London Assurance Corp. (1920) 184 Cal. 524, 529-30. As the Cross- Defendants failed to oppose the motion, they failed to meet their evidentiary burden to show the existence of a triable issue of material fact. The Motion is also granted as to the Petition. The court determination that there is no coverage for the Plaintif...

Excerpt: ...cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Emphasis added). Worker's Compensation Exclusive Remedy Rule: “California's Worker...

Excerpt: ...responses are tantamount to no responses at all. See, Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Also, this court ordered claimant Timothy Hughes to serve properly verified responses, without objections, to petitioner's form and special interrogatories on 9-22-17. (See, 9-22-17 Minute Order.) Claimant Timothy Hughes is being given a final opportunity to comply with this court's order of 9-22-17 by serving properly verified answers...

Excerpt: ...essor corporation to BWP. Authorires: Section 187 of the Code of Civil Procedure grants to every court the power to use all means to carry its jurisdiction into effect, even if those means are not set out in the code. Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 120. Under section 187, the court has the authority to amend a judgment to add additional judgment debtors. Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 148. Judgments are...

Excerpt: ...vacy extends to one's confidential financial affairs as well as to the details of one's personal life”].) In doing so, the Court expressly noted “relevant bank customer information should not be wholly privileged and insulated from scrutiny by civil litigants”; rather, the trial court should employ “certain procedural devices” to “fashion[] an appropriate order that will, so far as possible, accommodate considerations of both disclosu...

Excerpt: ...iently persuasive to prevent the discovery at issue. The categories at issue are as to documents material to this litigation, and not otherwise available to MPs through less intrusive means. (Russo Decl. ¶¶ 2-15.) Some financial information as to Mr. Sivongsay may appear therein, but the right to privacy is not absolute, and in appropriate circumstances, must be balanced against other important interests. (John B. v. Superior Court(2006) 38 Cal...

Excerpt: ...quests for Admissions admitted is also GRANTED. However, in the event Defendant serves proposed responses to the requests for admission that are in substantial compliance with CCP § 2033.220 before the time of the hearing, the Court will deny the motions. (CCP § 2033.280, subd. (c) [the court shall deem the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on ...

Excerpt: ...s should be prepared to address available trial dates for October, November, and December 2018. ...

Excerpt: ...l from the Judgment is consistent with the fact that plaintiffs should not be considered prevailing parties in this action. Defendant is ordered to give notice of the ruling unless notice is waived. ...

Excerpt: ...ed in favor of the claimant. (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.) For the bank account, Mr. Wible has now presented adequate support for his claim that his wife's Social Security benefits are directly deposited therein. For the PT Cruiser, Mr. Wible has now presented sufficient information to show the actual value, and that it falls within the exemption available under C.C.P. § 704.010(a). For tools of the trade, Mr. Wible...

Excerpt: ...uty against all Defendants. The court granted Plaintiff leave to amend after sustaining moving Defendants' demurrer to the third cause of action for breach of fiduciary duty in the SAC, reasoning in part that Plaintiff had not alleged that moving Defendants had a fiduciary duty to Plaintiff. (10/27/2017 Minute Order.) In the TAC, Plaintiff deleted moving Defendants from the breach of fiduciary duty cause of action which is now alleged against Def...

Excerpt: ...tion to set aside that judgment as void only if the judgment is void on its face. A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll. When a judgment by default has been entered, the judgment-roll is limited to the summons, proof of service of the summons, complaint, request for entry of default, copy of the judgment, notice of any ruling overruling a demurrer interposed by t...

Excerpt: ...ice of the notice of ruling of the Case Management Conference (which set the court trial date) was filed showing service on defendant's counsel. Counsel's concern that he never received notice of trial does not carry much weight given the presumption of Evidence Code section 664 and the fact it appears he elected not check the court's file for over five months after the answer was filed, but did, serendipitously, check it on December 27, 2017, th...

Excerpt: ...gs. The plaintiff shall give notice. ...

Excerpt: ...burden of demonstrating that the challenged cause of action arises from protected activity.' . . . In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (Cotati ), the California Supreme Court explained: “[T]he statutory phrase ‘cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition...

Excerpt: ...s entitled to the attachment order. Code Civ. Proc., §§ 485.240 & 492.050. Moving parties have not shown that the amount to be secured by the attachment should be reduced, or by what amount the attachment should be reduced. Moving Parties offered no evidence to show their likelihood of prevailing on their cross-claims or the amount of offset pursuant to the cross-claims. Moving parties have not shown that section 3.3 of the distributorship agre...

Excerpt: ...s court. “The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. ‘The order of the appellate court as stated in the remittitur, ‘is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if...

Excerpt: ... motion states it is only being brought by defendant Gladys Ross. Which is it?) The motion is legally ineffective because Code of Civil Procedure section 663 is inapplicable in situations where, as here, the allegation is that the proof of service was not adequate. Section 663 applies where the default judgment exceeds the prayer or is entered without a required statement of damages. (Weil & Brown (TRG 2017) Civil procedure Before Trial, Para. 5-...

Excerpt: ...ordance with California Rule of Court 2.550, the court finds that the nature of the documents Scottsdale seeks to seal, i.e., an insurance application and correspondence between Plaintiffs and Scottsdale related to insurance coverage, supports sealing the documents due to the confidential information set forth in such materials. In addition, the proposed sealing is narrowly tailored and extends only to certain exhibits submitted by Scottsdale in ...

Excerpt: ... (or any other entity) these two subpoenas apply to. In addition, the Calcor Space Facility, Inc. court explained that: “Because of the potential for promiscuous discovery imposing great burdens, even though ultimately the probative value of the discovered material may be questionable, trial judges must carefully weigh the cost, time, expense and disruption of normal business resulting from an order compelling the discovery against the probativ...

Excerpt: ...uch counsel is acting an advocate before a jury. As reflected in the Court's May 9, 2017 Minute Order, both sides waived jury on that date. The “Discussion” of Cal. Rule Prof. Conduct, Rule 5-210 states in part: “This Rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying in front of a judge.” As the potential for attorney Recchia to testify as a witness i...

Excerpt: ...sts for Admission, Set One (the “RFAs”) were propounded to Plaintiff on 10/19/17, and that despite an extension to 12/7/17, no responses were ever provided. (Kruppe Decl. at ¶¶ 2-4 and Ex. A.) The arguments presented in the Opposition do not warrant a continuance: unless responses in substantial compliance with C.C.P. § 2033.220 are provided before the hearing, the matters specified in those RFAs shall be deemed admitted. Sanctions are imp...

Excerpt: ...cause for a continuance. “Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only wher...

Excerpt: ... ordered to serve verified, non-evasive responses to the interrogatories without objections within ten days. Motion No. 3. Plaintiff's Motion Compelling Defendant Mindy Kennedy Alvarez to Serve Verified Responses Without Objections to Plaintiff's Inspection Demand, Set No. 1, is GRANTED. Defendant is ordered to serve verified, non-evasive responses to the inspection demands without objections and all responsive documents and things within ten day...

Excerpt: ... assuming that service was improper. Substituted Service: There is a significant issue whether a proper person was served for substituted service to be effective. Service was made on Joaquin Trujillo, “caretaker.” Defendant contends that he was a neighbor. If service was improper, a reasonably prudent person would assume an Answer was not required. CCP 415.20 (b) provides that “If a copy of the summons and complaint cannot with reasonable d...

Excerpt: ...ndant. The court finds that the objections raised in the response and amended response are without merit. The arguments as to attorney client privilege are also without merit, and have been waived by failing to assert the same in the initial response to the interrogatory. Code Civ. Proc. § 2030.290(a). A party to litigation can obtain contact information for an opposing party even if that party is represented by legal counsel without involving a...

Excerpt: ...filed by Fairway Insurance, and if not, why not. Defense counsel's supplemental brief to be filed 9 court days before the continued hearing date. Any opposition by defendant Tim Roham, D.O., Inc. to be filed 5 court days before the continued hearing date of 3-22-18. The court notes that defense counsel remains counsel of record for defendant Tim Rohan, D.O. Inc. at this time because defense counsel's motion to withdraw as counsel has not been gra...

Excerpt: ...e 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 before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or la...

Excerpt: ...facts material to the case occurring after the former complaint or answer.” A motion to file a supplemental pleading is addressed to the sound legal discretion of the court. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Plaintiff seeks to add five paragraphs to the First Amended Complaint, consisting of allegations that Defendant's enforcement of the governing documents was arbitrarily directed only at Plaintiff. Plaintiff argues that the e...

Excerpt: ... action, and overruled as to the other causes of action. As to Plaintiff Varney, the demurrer is sustained with 15 days leave to amend as to all but the seventh and eighth causes of action; the demurrer is overruled as to the seventh and eighth causes of action. Defendants' request for judicial notice is granted. First Cause of Action for Violation of Homeowners Bill of Rights (“HBOR”) Civil Code section 2923.7 requires mortgage servicers to ...

Excerpt: ...9/28/15 and the Certificate of Dissolution filed 9/28/15. Defendants' request for judicial notice of documents filed with the Secretary of State of California granted. Judicial notice of the existence and filings of these exhibits is appropriate, as well as the clear legal effects thereof, pursuant to Evidence Code section 452, subdivisions (c) and (h), but not the truth of any matters asserted therein. (Fontenot v. Wells Fargo Bank, N.A. (2011) ...

Excerpt: ...complaint, except as to matters which may be judicially noticed")). The Court will take judicial notice of the records of this case, as relevant to the discussion below. (CCP §452(d)). According to Defendants (citing Bennett v. Suncloud), the Court cannot consider the present demurer to the 7 defenses in their Second Amended Answer because it would be an improper reconsideration after the defenses were found to be sufficient in the last round of...

Excerpt: ...DEFENDANT HASSAN SAFARPOUR DBA MPH CONSTRUCTION COMPANY DEMURRER TO SECOND AMENDED COMPLAINT 6.DEFENDANTS M&M ENGINEERING DESIGN AKA M&M DESIGN FIRM AND VALERI KINLOV KARAKANOV DEMURRER TO SECOND AMENDED COMPLAINT 7.DEFENDANT M&M ENGINEERING DESIGN AKA M&M DESIGN FIRM AND VALERI KINLOV KARAKANOV MOTION TO STRIKE PORTIONS OF COMPLAINT Demurrer of Defendant Applied Geotechnical, Inc. Defendant Applied Geotechnical, Inc. (”AGI”) demurs to 9th (i...

Excerpt: ...the exemplary damages is DENIED. As for Defendant Lam, the exemplary damages do not appear to be pleaded against him in the complaint so there is nothing subject to this motion. (See Compl. at ¶¶ EX-1 and -2). Plaintiff may file and serve an Amended Complaint within 10 days. Plaintiff is requested to clarify the matters below in the future pleading. The Demurrer It is not clear if the 2nd cause of action is meant to be alleged against Defendant...

Excerpt: ...Second Cause of Action purports to state a claim against Hospital, among others, for “Ratification of Assault and Abuse.” To attribute intentional misconduct to an entity, at least for purposes of a punitive damages claim, the one who “ratified” the conduct must be an officer, director or managing agent of that entity. (Civ. Code §3294(b); Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) As Hospital notes in its Demurrer, Plaintiff has ...

Excerpt: ...er Felix (collectively, “Plaintiffs”) for determination of prevailing party and for attorney fees (the “Fees Motion”) was continued from 12/15/17 to 02/02/18 to permit Plaintiffs to file supplemental papers in support of their companion motion to seal records. (ROA 2114.) Thereafter, Plaintiffs filed a notice of withdrawal of the motion to seal records. (ROA 2122.) Accordingly, the Court ORDERS the Clerk to place the Fees Motion (ROA 2061...

Excerpt: ...e request for attorney fees and costs, please submit billing records or other detailed evidence to show the reasonableness of work performed. Furthermore, provide an allocation of the fees between the two firms, particularly since there are no hours attributed to the Gareeb firm. 2. Administrator fees of $5,000 for a class of 20 appear to be high and potentially unreasonable. At preliminary approval, the cost was estimated at $3,500, even though ...

Excerpt: ...lth & Safety Code §1297.5 and the 4th cause of action for Declaratory Relief is Denied in its entirety. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer. The ground that the complaint fails to state a cause of action must appear on the face of the complaint or from facts judicially noticeable. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4 th 995, 999 It is apparent t...

Excerpt: ...ress of 3324 W. 6th Street # J-101 in Los Angeles. According to defense counsel, plaintiff never responded. See Link Decl Para 3. On 11/28/17, defendant caused to be mail-served upon plaintiff a motion for discovery sanction. The POS indicates that service occurred at plaintiff's listed address of 3324 W. 6th Street # J-101 in Los Angeles. No opposition was filed, and plaintiff failed to appear. The motion to deem RFAs admitted was granted. Defen...

Excerpt: ...filed or heard. The parties should review the statute and be prepared to address whether that process would be beneficial, and/or whether a discovery referee should be appointed for this case. In any event, due to the court's unavailability the motions presently set for March 16, 2018 are continued to March 23, 2018 at 10:00 a.m. on the court's own motion, and the Status Conference presently set for March 23, 2018 at 1:30 p.m. is advanced to 10:0...

Excerpt: ... (just over $8 million in compensatory damages, and another $35 million in punitive damages). The Judgment is reaching its 10 th anniversary and so far plaintiff has only collected approximately $30,000 of the $43 million owed (not counting interest). This is an application by defendant to attach back accounts under the name of a third- party JCC Enterprises. This entity is NOT a judgment debtor, nor has there even been a finding that it is an al...