Excerpt: ...as commenced would be at odds with the right of a plaintiff to dismiss a case voluntarily and without prejudice set forth in [CCP] section 581, subdivision (b)(1) and subdivision (c), both of which provide that a plaintiff may voluntarily dismiss his or her complaint at any time before the ‘actual commencement of trial.'” (Id. at 1549.) The Court's 3/7/19 order does not prohibit Plaintiff from filing a PAGA claim. Instead, it notes that such ...

Excerpt: ...COA are: (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) The conduct must be so extreme “as to exceed all bounds of that usually tolerated in a civil...

Excerpt: ...s statements” by failing “to include the total number of hours worked by Plaintiff and the other class members.” (See ¶90 of FAC). Plaintiff alleges that, as a result of the above, Plaintiff and the class have suffered damage. (See ¶91 and ¶93 of FAC). Additionally, earlier in the Complaint Plaintiff alleges Defendant had a practice of “failing to pay them for all regular and/or overtime wages earned…” (See ¶25 of FAC, incorporate...

Excerpt: ...e foreclosure process. Specifically, this cause of action alleges that the Defendant “authorized and/or initiated foreclosure proceedings without first properly notifying Plaintiffs” as required by Civ. Code § 2923.5 (SAC, ¶ 70), that it did not comply with the publishing and posting requirements and did not contact Plaintiffs to assess their financial situation (SAC, ¶ 71), did not advise Plaintiffs of the right to request a subsequent me...

Excerpt: ...s dispute the applicability of the equitable tolling doctrine. (Reply, at p. 4.) When the plaintiff is relying on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, the plaintiff must specifically plead facts which, if proved, would support that theory. (Lantzy v Centex Homes (2003) 31 Cal.4th 363, 384–385; Mills v Forestex Co. (2003...

Excerpt: ...estate. See 8:14- bk-13999. On 02/22/16, Hon. Lewis sustained Kinum's demurrer to the original fraudulent conveyance complaint, observing that the underlying debt upon which the claim rested (default judgment against Frank) had been vacated. On 08/29/16, Hon. Lewis again sustained Kinum's demurrer to the operative pleading, observing that the underlying bankruptcy court judgment upon which the debt rested had been vacated. On 03/30/17, this Court...

Excerpt: ... plaintiff may plead inconsistent claims. But when there is a cause of action for breach of contract, the plaintiff is precluded from also alleging a separate cause of action for quasi-contract that does not deny the existence of the contract. (See Klein v. Chevron U.S.A., Inc. (2012) 212 Cal.App.4th 1342, 1389-1390.) Fifth Cause of Action—Fraud There are no facts alleged that would support a claim that the defendant had no intention of perform...

Excerpt: ...d States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118. Willful misconduct is not a separate tort from negligence, but rather “‘“‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care' [citations].”'” [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and d...

Excerpt: ...ther allegations from the Complaint is DENIED. The basis of the motion is evidence outside the confines of the Complaint and not otherwise subject to a request for judicial notice. Notice Notice for the three motions above shall be given by the plaintiff. Order to Show Cause re Sanctions No tentative. Defendant Dao, a self-represented attorney, should be prepared to explain why he has, for the second time, filed a motion months out when there wer...

Excerpt: ... not drawn or filed in conformity with the laws of this state or rules of this court because Defendant Jaques has not been sued in this matter in her capacity as trustee of the Trust, but solely in her individual capacity. However, the demurrer was not only filed on behalf of Defendant Jaques in her capacity as trustee, but also on her own individual behalf, as well as on behalf of Defendant O'Leary. As such, the Court cannot strike the entirety ...

Excerpt: ...tiff's Further Responses to Special Interrogatories, Set One, and Request for Monetary Sanctions in the Amount of $1655.00: 4. Motion by Defendant WKS Restaurant Corporation for an Order to Compel Plaintiff's Further Responses to Request for Production of Documents, Set One, and Request for Monetary Sanctions in the Amount of $1510.00: No. 1. Motion for Leave to Amend by Leonard H. Lundin: Cross-Defendant Leonard H. Lundin seeks leave of court to...

Excerpt: ...pon 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 protect the person from unreasonable or oppressive demands..” Id. at subd.(a). Where a deposition is sought, Code of Civil Procedure §2025.420 permits the court, upon a showing of good cause, to issue a protective order protecting the deponent from “unwarranted annoyance...oppression ...

Excerpt: ...actor in Dynamex Operation West v. Sup. Ct. (2018) 4 Cal.5th 903.” Plaintiff's Notice of Motion, Pg. 2. Defendant Vo has filed a Notice of Joinder of Plaintiff's Motion for Summary Adjudication. Rules of Court, Rule 3.1350(b) states, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be sta...

Excerpt: ... are for negligence and vicarious liability and for negligence per se. Both are based on an injury that Plaintiff suffered on March 6, 2017, when he was a 15-year-old freshman at Mission Viejo High School. (Complaint, ¶ 4.) The complaint alleges that, on the day of the incident, Plaintiff was participating in a practice with the school's track and field club when, while in the process of retrieving a shot put he had thrown, he was struck in the ...

Excerpt: ...ifurcate on 5/16/19. At that time, the Court found that Defendants' proof of service was defective on its face and that Defendants had failed to present evidence of proper service. The Court continued the matter to 6/27/19 and gave the parties the option to file supplemental briefs. Plaintiff Secrest Construction of California did not file a supplemental Opposition, but Defendants filed a supplemental Reply on 6/13/19. B. Whether Bifurcation Woul...

Excerpt: ...co, Inc. (2003) 539 U.S. 52, 56-58.) Thus, the FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron ...

Excerpt: ...tion under Section 2025.410, fails to appear for examination” or produce documents requested in the notice. Id. at subd.(a). The motion must state good cause for the production of any documents specified in the notice, and also must be accompanied by a meet and confer declaration or evidence that the moving party has contacted the deponent about any nonappearance. Id. at subd.(b). If a deponent believes a deposition notice is defective, it must...

Excerpt: ...he employee's personnel file is off-limits. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of Cali...

Excerpt: ...nation, “the party shall obtain leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section...

Excerpt: ... the patient to be provided within 10 days; To the extent the patient is the employer, Pltf shall provide the dates of employment, job title, and nature of work for that patient without disclosing any personally identifiable information; Interrog Number 210.6: The Complaint does not seek lost earnings or future earnings; Deny as to this interrog; Deny sanctions to either party. ...

Excerpt: ...f action against Moving Deft – among other requirements, the Complaint must allege a valid cause of action against each Doe Deft; Allegations in each and every cause of action are specifically made against Deft Moucharafieh; Thus, the statute of limitations has run on every claim in the Complaint; No amendment can reasonably cure the running of the statute; §474 allows the substitution of names after the statute of limitations expires, not the...

Excerpt: ...with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. [¶] (3) An objection to the particular deman...

Excerpt: ...set forth in Chapter 5 . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or person is in controversy in the action.” Code of Civil Procedure section 2032.310, states in relevant part, “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or ...

Excerpt: ...et of Requests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or evasive; and his boilerplate objections appear to be ...

Excerpt: ...atories is GRANTED, in part, as follows. Plaintiff Jeff Schwartz: As to Form Interrogatory No. 17.1, the Motion is DENIED. Plaintiff's response to RFA Nos. 40-44 are code compliant. Plaintiff did not refuse to apply the provided definition of the term “SHORT SALE.” (SeeAnalysis below re RFAs.) As to Special Interrogatory No. 46, the Motion is DENIED. This request is overly broad in scope and time frame. As to Special Interrogatory No. 48, the...