Excerpt: ... or to produc e any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or pro duction.” A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. (Weil & Brown, Cal. Practice ...

Excerpt: ...nes, and to maximize enforcement of state labor laws.” (Moniz v. Ade cco USA, Inc. (2021) 72 Cal.App.5th 56, 72.) Because it appears Defendant provided Pick Up Stix releases to employees in both English and Spanish, the Court will require that notice of this settlement be given in both English and Spanish. The Court approve s the following distributions: 1. Attorneys' fees and litigation costs in the amount of $108,750. The grounds for this awa...

Excerpt: ...glish is n ot his native language. (Pedraza Decl., ¶¶ 10 -12.) The DRP states in relevant part: Arbitration shall be the sole and exclusive remedy for any dispute, grievance, claim, or controversy of any kind or nature (a "claim") arising out of, related to, or con nected with your employment application with the Company, your employment relationship with the Company, your engagement with the Company, and the termination of your employm...

Excerpt: ...1) the existen ce of the contract, (2) [the party's] performance or excuse for nonperformance, (3) the [other party's] breach, and (4) resulting damages to the [party].” (Maxwell v. Dolezal (2014) 231 Cal. App. 4th 93, 97- 98.) A complaint need only plead the legal effect or substance of the contract's material terms, even for oral contracts. (See, e.g., Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“An oral contrac...

Excerpt: ...ustained without leave to amend. Aiding and Abetting Fraud or Breach of Fiduciary Duties (Seventh Cause of Action) The seventh cause of action is against the Starboard Defendants for "aiding and abetting fraud and/or breach of fiduciary duties". (TAC, at pp. 54 -57.) TPG alleg es Starboard had actual knowledge of Defendant Honarkar's planned fraud and breach of fiduciary duties, and that Starboard “actively concealed” that it was �...

Excerpt: ... Busine ss and Professions Code section 17200 (UCL) are both based on the same common nucleus of facts as the cause of action for misappropriation of trade secrets and are therefore superseded by the California Uniform Trade Secrets Act (CUTSA). (See K.C. Multimed ia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 958959, 962 (K.C. Multimedia) [CUTSA preemption]; Angelica Textile Servs., Inc. v. Park (2013) 220 ...

Excerpt: ...aking or damaging by a public entity of a valuable property right; (2) that the taking or damaging was for a public use; and (3) that the invasion or appropriation directly and specifically affected the property owner to his or her injury. (City of Los Angeles (201 1) 194 Cal. App. 4th 210, 221.) Plaintiff alleges that the following constitute a taking: (1) Defendant's refusal to issue Plaintiff a business license for a four month period startin...

Excerpt: ...eet their initial burden of establishing a written agreement exists between the parties that includes a prevailing party contract, as required under Civil Code section 1717. Civil Code section 1717(a) states, “In any action on a contract, where the contract specific ally provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the pa...

Excerpt: ...s will be sp lit between the two law firms representing plaintiff and the class, so that the court can approve separate attorneys' fees awards. The initial preliminary approval papers stated there was no fee splitting, without any supporting citation. The Class Notic e said that Class Counsel is Kingsley and Kingsley, but Abramson Labor Group is on the caption and plaintiff declares in ¶6 of his declaration that he consented to a fee -splitting...

Excerpt: ...fer obligation pr ior to filing the motion, and further attempts to meet -and -confer would have been futile under the circumstances. The court notes the following: Defendant proffers evidence that her attorney, Mark S. Ashworth, sent Plaintiff a detailed initial meet- and-c onfer letter on at least three separate occasions – on September 27, October 5, and October 17, 2023. (Ashworth Decl., ¶ 2; Exh. A.) “At some point Plaintiff called [Mr...

Excerpt: ...of the defendant's allegations as being true.'” (People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499.) Here, as in Becerra, defendant has “denied all of [plaintiff's] allegations . . . . This alone should have precluded judgment on the pleadings.” (B ecerra, supra, 29 Cal.App.5th at p. 499; accord 8/14/23 answer at p. 2. [defendant “denies generally and specifically each and every cause of action and allegation”...

Excerpt: ...s should be prepared to discuss the deadline for answering or otherwise responding to the 3AC. EVIDENTIARY MATTERS Defendant Orange County Health Authority dba CalOptima (“CalOptima”) has filed unnumbered evidentiary objections to the Prime Hospitals' evidence. The Court numbers them sequentially for the purposes of ruling on them. 1. Overruled. 2. Overruled. 3. Sustained on hearsay grounds as to the sentence “The judgment was entered afte...

Excerpt: ...Complaint (the o perative pleading) filed by Plaintiff NANCY L. ROJO (“Rojo”). Rocha's alternative motion for summary adjudication of issues is therefore MOOT. Only the 5th and 6th causes of action of the Third Amended Complaint remain. 5th C/A (financial elder abuse) Th e fifth cause of action for financial elder abuse alleges, inter alia: Rocha used an expired Memorandum of Understanding (MOU) to take, deprive, misappropriate, and retai...

Excerpt: ...tion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 8 26, 843.) BREACH OF ORAL CONTRACT – 1ST cause of action In this action, Plaintiff asserts that approximately 60 years ago, it entered into an oral contract with W...

Excerpt: ...day, December 13, 2023, on December 18, 2023, plaintiff and cross -defendant filed a declaration for an automatic extension. The extension expired on January 17, 2024, but the demurrer and motion to strike were not filed until March 1, 2024. And then, cross -defendant s et the matters for hearing on May 16, 2024, in violation of Rules 3.1320(d) and 3.1322(b) of the California Rules of Court [demurrer must be set for a hearing within 35 days of ...

Excerpt: ...iminary Appr oval (ROA 255) served on the LWDA? Plaintiff must file a proof of service with the court reflecting service of the August 26, 2020 order on the LWDA. 2. Has defendant paid all sums owed under the settlement? See Hernandez Decl. (ROA 265) ¶ 15. If not, w hen will defendant pay the outstanding sums owed? 3. Was the escalator clause triggered? 4. The settlement administrator should state whether any disputes were received. 5. The set...

Excerpt: ...lation of Class and PAGA Action Settlement, ¶ 4(A)). The release must be fairly tailored to the claims that were or reasonably could have been asserted in the lawsuit based on the facts alleged in the operative complaint. E.g., the word “reasonably” should be i nserted before “could have been pled”; “[t]he Complaints” should be replaced with “[t]he Second Amended Complaint”; and the phrase “(including the contemplated Second Am...

Excerpt: ...operly serve an amen ded Complaint by April 3, 2023, or thereafter; that at the May 4, 2023, Case Management Conference, Plaintiff had still not filed the First Amended Complaint and represented to the Court that one would be filed but that one had still not been filed and tha t Plaintiff never requested additional time to file and serve an amended complaint, and no extension was granted. Defendant asserts that the entry of default appears to...

Excerpt: ...nst him. Plaintiff asserts these causes of action against Defendant CITY only. The Court DENIES Defendants' request for judicial notice of Exhibits D and E. These documents are not the proper subject of judicial notice. As to Defendant's special demurrer, the Court OVERRULE S same. These causes of action are not so unintelligible that Defendants cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial ...

Excerpt: ...initial matter, the court not es Officer Clay was dismissed from Plaintiffs' Complaint on 03/21/24 and Officer Clay dismissed his Cross -Complaint on the same date. (ROA 117, 119.) Thus, Officer Clay is no longer a party to this action. Accordingly, Defendants' request for judgment in f avor of Officer Clay is DENIED AS MOOT. The City raises several arguments in support of its contention that it is entitled to summary judgment in its favor as to ...

Excerpt: ...ion. For the followi ng reasons, defendants' motion is granted in part and denied in part. The sixth cause of action (failure to provide accurate wage statements) and the seventh cause of action (failure to reimburse for expenses) in plaintiff's complaint are ordered to arbitr ation. The remaining claims are stayed pending completion of the arbitration. Civ. Proc. Code § 1281.4. Defendants' motion to strike the class allegations is denied. The a...

Excerpt: ...urt Orde r Plaintiff's motion to compel compliance with this court's order of September 28, 2023, is DENIED. Further responses were served on October 4, 2023, but plaintiff complains the responses are “nearly identical” to the prior responses. The motion is not accompanied by a separate statement as required by Rule 3.1324 of the California Rules of Court, and the motion fails to establish how the responses were not compliant with the court's...

Excerpt: ...1, 2023 be deemed admi tted and conclusively established for all purposes in this action. Defendants additionally move for an order awarding monetary sanctions against Plaintiff in the sum of $690 each for three filed motions for a total of $2,070 for all motions. Defendants contend that Plaintiff has not served responses to the discovery at issue and that Plaintiff has asserted that she has already responded to the discovery via her complaint a...

Excerpt: ... must consider the objections to the interrogatories, the interrogatories themselves, the pleadings, and the contentions of the interrogating party as to the purpose and validity of the interrogatories. (Columbia Broadcasting System, Inc. v. Superior Court for Los Angeles C ounty (1968) 263 Cal.App.3d 12, 18- 19.) “If the interrogatories stray too far and seek information which cannot reasonably serve the acknowledge purposes of pretrial discov...

Excerpt: ...o effectua te personal service. Instead, Plaintiff served all Defendants by emailing the summons and complaint to Defendant Chavez. Defendants argue that Chavez did not agree to accept service of the summons and complaint by email and further did not agree to accep t service on behalf of the other Defendants. Defendants also argue that Plaintiff did not establish that she made diligent attempts to personally serve Defendants prior to serving them...

Excerpt: ... A. Ju dgment Creditor can correct its name. A court of general jurisdiction has the power, after final judgment and regardless of lapse of time, to correct clerical errors or misprisions in its records, whether made by the clerk, counsel, or the court itself, so that the records will conform to and speak the truth. (Estate of Goldberg (1938) 10 Cal.2d 709, 713.) This inherent power is confirmed by statute. “The court may, upon motion of the ...

Excerpt: ... an ov erlong brief due to Defendant's improperly single -spacing and use of less than 12 point font for numerous footnotes. The court is inclined to continue the hearing, and trial as necessary, to order Defendant to file a compliant memorandum and permit Plaintiff to respond pursuant to Code Civ. Proc. §437c. The court will hear from counsel on this point. Issues with Defendants' Moving Papers The Memorandum For its memorandum in support of i...

Excerpt: ...court notes it is unclear whether the papers were properly served on Defendants. The proofs of service filed on March 1, 2024 (ROA 31, 33) are internally inconsistent. The proof of service on the judicial council form states the documents identified in the attachme nt were personally served on Nino Riazati on March 1, 2024, at 10:05 a.m., at 4343 Von Karmen Ave, Ste. 250, Newport Beach, CA 92660, which is the office of Plaintiff's counsel. This...

Excerpt: ...in Departme nt N15. Plaintiff Tesser, LLC is ORDERED to serve by mail all application papers and notice of this ruling on Defendant Bridget Simpson, Defendant Lee B. Simpson, and their counsel of record. Plaintiff Tesser, LLC applies for a right to attach order and order for issuance of a writ of attachment against Defendant Bridget Simpson aka Bridget Scordo (Defendant Bridget) and Defendant Lee B. Simpson (Defendant Lee) in the amount of $358,5...

Excerpt: ...limited to t he “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfu lly drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is c...

Excerpt: ...Cal.App.5th 356, 384.) Plaintiffs are granted limited leave to amend, however, to plead this remedy within the underlying cause of action they believe supports this relief. The demurrer to the second cause of action for conversion and the third cause of action for tr espass to chattel, is sustained, on the basis Plaintiffs have not alleged interference with Plaintiff's possession of the identified property. (PCO, Inc. v. Christensen, Miller, Fin...

Excerpt: ...Inc., M S Int ernational, Inc., Lotte Chemical California, Inc., and NGY Group (Orange County) Inc. demur to the fourth cause of action for fraudulent concealment. For the following reasons, the demurrers are overruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the...

Excerpt: ...oval of the class action and PAGA settlement. UPCOMING EVENTS: None FACTS/OVERVIEW: This is a putative wage -and -hour class action and PAGA matter. The operative First Amended Complaint (“FAC”) was filed March 24, 2021 (ROA 55), and alleges the following eight causes of action: 1. Failure to Pay Minimum Wages; 2. Failure to Pay Overtime; 3. Failure to Provide Rest Breaks; 4. Failure to Provide Meal Periods; 5. Failure to Provide Accurate Wa...

Excerpt: ...ff requests be stricken. (Id., 3:20 -22.) The memorandum also seeks an order striking the separate statement and references in Defendants' brief to the facts contained in the separate statement. (Id., 8:14 -16.) The Court considers this a motion to strike the entire separate statement only. (Cal. Rules of Ct., Rule 3.1322(a).) “The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an...

Excerpt: ...nt bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A...

Excerpt: ...ing. Plain tiff Meadows Bank LP is ORDERED to pay to Defendant Kimberly Ann Gavin sanctions in the amount of $1,600 (4 hours x $400 per hour) within 30 days of service of the notice of ruling. If the sanctions are not paid in a timely manner, they shall accrue intere st at the legal rate of 10% per annum. Defendant Kimberly Ann Gavin (Defendant Gavin) moves to compel Plaintiff Meadows Bank to provide further responses to Requests for Production o...

Excerpt: ...802 for Defendant's fa ilure to reimburse necessary business expenses. (ROA 2.) On July 16, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) adding a PAGA claim. (ROA 17.) The class consisted of those employees who sought mileage/travel reimbursement. An Unlaw ful Business Practices claim is alleged on the same basis. The PAGA claim is based on violations of Labor Code sections 2802 and 204 (timely payment of wages). The L...

Excerpt: ... On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those d ocum en ts i s i n ad eq uate. [ ¶] ( 3 ) A n ob j ect...

Excerpt: ...electronic service RELIEF SOUGHT: Moving Plaintiffs move for an order to compel Defendants to provide responses to Requests for Production of Documents, and to impose monetary sanctions on Defendants. UPCOMING EVENTS: 1. Motion for Summary Judgment/Summary Adjudication – May 24, 2024 2. Status Conference – October 2, 2024 FACTS/OVERVIEW: This is an individual wage -and -hour action and representative PAGA action. This is not a class action. O...

Excerpt: ...hard moves to dismiss the 1st, 2nd, and 3rd Causes of Action of the Complaint for Property Damages, Breach of Contract, Fraud and Punitive Damages filed by Plaintiff Daniel Escamilla. 1st Cause of Action (Willful Misconduct Resulting in Property Damage) The crux of Plaintiff's claim is that Defendant rented a 2018 Ford F- 150 Lariat vehicle and caused damage to it when he had a duty not to do to so. Defendant argues that Plaintiff lacks standing...

Excerpt: ...and First A mended Complaint (FAC) for lack of personal jurisdiction due to defective service. Standard to Quash Service of Process A court lacks jurisdiction over a defendant if there has not been proper service of process upon that defendant.  (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) Therefore, “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good c...

Excerpt: ...ent Reques ts 1-5. Non -Party Avalon Laboratory Services, LLC is ORDERED to serve full, complete, and verified responses and responsive documents to Document Requests 6 and 7 of the Deposition Subpoena for Production of Business Records Served on Nonparty Avalon Labo ratory Services, LLC, within 30 days of service of the notice of ruling. Defendant Integritox Laboratories, LLC (Defendant Integritox) and Defendant Laboratory Services, MSO, LLC (D...

Excerpt: ...rt ORDERS that the version of the Declaration of Jemma E. Dunn in Support of Plaintiff Jane Doe 7030's Opposition to NewportMesa Unified School District's Motion for Summary Judgment that does not redact Plaintiff's true name, (ROA #144), shall not be made available to the public without court order. The court ORDERS that the version of the Declaration of Jemma E. Dunn in Support of Plaintiff Jane Doe 7030's Opposition to NewportMesa Unified Sc...

Excerpt: ...he Estate o f Jeffrey Russell, Case No. 213400266 (the “Utah Probate Case”). Plaintiffs contend that the issues in the Utah Probate Case are substantively identical to these proceedings as it involves many of the same claims at issue and the same parties here. The C ourt disagrees. Plaintiffs' claims in the Utah action are as follows: (1) determining invalidity of purported trust; or in the alternative (1) enforcing decedent's contract to lea...

Excerpt: ...ive dam ages, Plaintiff must establish Defendants are guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) Moreover, Civil Code section 3294(b) provides, “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an em ployee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others...

Excerpt: ...Plaintiff has failed to adequately allege a cause of action for intentional interference with expected inheritance (IIEI). An IIEI claim requires: 1) an expectancy of inheritance; (2) proof amounting to a reasonable degree of certainty that the bequest would have been in effect at the time of the testator's death; (3) that the defendant(s) had knowledge of the expectation of inheritance; (4) that interference was conducted by independently to...

Excerpt: ...n is overruled. The demurrer is sustained as to the third cause of action is sustained without leave to amend. Dependent Adult Abuse/Neglect (First Cause of Action) The first cause of action is for dependent adult abuse/neglect. “The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal...

Excerpt: ...n will receive.' [Citations.]” (People ex rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 538 (Weitzman).) The term “qui tam” comes from the Latin expression “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means, “'who pursues this action on our Lord the King's behalf as well as his own'.” (Ibid.) The Insurance Frauds Prevention Act (IFPA) was enacted in 1993 to combat workers' ...

Excerpt: ...ble result in light of the quality of the result obtained, the work performed by class counsel, a review of the billing records provided, and the estimated lodestar. In approving this amount and examining the billing records provided, the Court is not approving any particular hourly billing rates proposed by class counsel. 2. Litigation costs in the amount of $40,571.39, the full amount sought. 3. An enhancement of $2,500 to Plaintiff. In making ...

Excerpt: ...h 1422. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action…it is not only error but abuse of discretion”.  Morgan v. Superior Court  (1959) 172 Cal.App.2d 527.        Plaintiff argues that Defendant' s proposed A...

Excerpt: ...ed, a redline showing all changes, deletions and additions must be submitted as well. In addition, please provide proof of service of any revised agreement on the LWDA. As to the Settlement: 1. Please provide a copy of Plaintiff's pre - filing letter to the LWDA . 2. Are there any other actions, whether individua l, class, or PAGA (including in the pre -filing LWDA stage) that may be affected by this settlement? 3. Please provide 60 days, rathe...

Excerpt: ...ed “Grievance of Disputes”) that states the following, in relevant part: [A]ll employee claims or disputes concerning violations of, or arising under Wage Order 16 (except as noted in the immediately preceding paragraph), the California Labor Code Sections identified in California Labor Code section 2699.5 as amended, all derivative claims under California Business and Professions Code section 17200, et seq., all associated penalties, and fe...

Excerpt: ...erbroad word “REFER”. Defendants also must serve all d ocuments responsive to Request for Production Nos. 14, 19, 20- 22, 45, 50, 56, 58- 60, 70-72 and 75 within 20 days, except that Request Nos. 14, 19, 56 and 72 will be deemed to exclude the overbroad word “REFER”. Such documents should include the pay summaries, time records, commission reports and commission summaries for all putative class members. Defendants also must serve a veri�...

Excerpt: ...lectively “Goe Forsythe”) and Attorney MICHAEL LEBOFF and the Law firm KLEIN & WILSON (collectively “ LeBoff”). The Parks move pursuant to Code of Civil Procedure section 2031.285, which provides in pertinent part: (a) If electronically stored information produced in discovery is subject to a clai m of privilege or of protection as attorney work product, the party making the claim may notify any party that received the information of the...

Excerpt: ...t argues that it only agreed to “perform” and not t o “complete” the work. Such appears to be a tortured reading of the parties' agreement and not consistent with the apparent intent of the parties. For example, Defendant's interpretation of the word “performed” would allow Defendant to merely begin the r epair/replace work without ever having to complete the work. The agreement entered into on or about May 9, 2023, called for work to...

Excerpt: ...ing party is required to set forth specific facts showing good cause justifying the discovery sought by the inspection demand, pursuant to Code of Civil Pro cedure section 2031.310, subdivision (b)(1). To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifyi...

Excerpt: ...same].) Specifically, defendants failed to m eet their initial burden as to Noticed Issue No. 1 because the issue fails to completely dispose of any cause of action. (See Code Civ. Proc. § 437c, subd. (f)(1).) Defendants met their initial evidentiary burden as to Noticed Issues No. 3. & 5, Even if d efendants had met their initial burden as to each noticed issue, plaintiffs met their shifted burden to show triable issues of material fact. (See ...

Excerpt: ...ealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, internal quotation marks omitted.) In this medical negligence case, Plaintiff alle ges in the FAC that prior to Dr. Hennessy treating him, the defendants “made written affirmative representations ass...

Excerpt: ... from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to j...

Excerpt: ...d, and (3) it has filed a separate motion for a stay that has not yet been heard. The four discovery motions (ROAs 60, 64, 68, and 72) are GRANTED. Defendant is ORDERED to serve verified responses within 15 days. Sanctions are ORDERED against defendant and its counsel, joint and several, in the amounts requested in th e motions, payable to the plaintiff within 15 days. The defendant's request for sanctions is DENIED. Procedural Background The c...

Excerpt: ...ditions that the defendants caused, (c) she is concerned t hat she will be blackballed in the industry for suing her prior employer, and (d) defendants are trying to obtain a litigation advantage by making her disclose her real name, and they are seeking to shame and embarrass her. Code of Civil Procedure section 367 provides that an action “must be prosecuted in the name of the real party in interest, except as provided by statute.” Plaintif...

Excerpt: ...e profession commonly possess and exercise; (2) a brea ch of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care against which the acts of a physician are to b e measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be p...

Excerpt: ...ertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420- 1421; see Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1489 [a motion to withdraw or amend an admission “would have been granted as long as the trial court determined that [defendant's] mistake in ad mitting the matter was not clearly inexcusable and withdrawal would not substantially prejudice [plaintiff]”].) “Section 2033.300 eliminates undeserved windfalls obtaine...

Excerpt: ... if a statement of compliance with the demand is incomplete, a rep resentation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must set forth specific facts showing good cause to justify the discovery sought. (Code Civ. Proc., § 2031.310(b).) A party may move for an order compelling further responses to interrogatories if the party deems an answer to be evasive...

Excerpt: ...b)(2).) “‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “an informal resolution of each issue.” [Citations.] This rule is designed “to encourage the parties to work out their differences informally so as to avoi d the necessity for a formal order....” [Citation.] This, in turn, will lessen the burden on the court and reduce t...

Excerpt: ...nd what procedure s Defendant followed to respond to Plaintiff's request, if any; and (2) any repairs and service reflected in the Global Warranty History Report applicable to the Subject Vehicle. The deposition shall occur at a mutually- agreeable time and place on or before April 15, 2024. Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action. (See Code Civ. Proc., § 2025.0...

Excerpt: ...ng party has 30 days after service of a demand for inspection to ser ve a response, Page 4 of 16 unless the parties agree to extend the date for a response and the agreement is “confirmed in a writing that specifies the extended date . . . for the service of a response.” (Code Civ. Proc. §§ 2031.260(a), 2031.270(a) -(b).) If a party to whom requests for production of documents were directed fails to serve a timely response, the propoundin...

Excerpt: ...(Law Offices of David S. Karton v. Segreto (2009) 176 CA4th 1, 9— § 1286 is mandatory in this respect.) A court has the power to vacate or correct an arbitrator's award on specific grounds. (CCP § 1286.) Unless a petition to correct or vacate the award has b een timely filed, the court must render a judgment confirming the arbitrator's award. [See CCP § 1286 —“the court shall confirm the award as made …”; see also Valsan ...

Excerpt: ... on appeal and thus it is entitled to its costs so l ong as those costs were timely requested and are allowable. In its opposition, filed the same day, defendant states that, “Hussein has indicated he does not challenge Defendants appellate cost bill.” But, in Hussein's reply, he iterates that he does chal lenge defendant's right to costs on appeal. He iterates that defendant “forfeited” its right to those costs because it failed to fil...

Excerpt: ... that no signed order to show cause was issued for the present OSC hearing. Wh ile the Court previously issued a signed OSC for the OSC hearing on 01/25/24, that OSC was taken off calendar and the OSC was then continued to 03/28/24. (See ROA 2222.) The Court only issued a minute order continuing the OSC to the current date of 03/28/2 4. No signed order was issued. Because the OSC must formally notify respondent of the time and place of the contem...

Excerpt: ...intiff Michael Kinney (“Plaintiff”). The Motion is GRANTED as to COAs 5 and 6 but DENIED as to COAs 3 and 4. As a preliminary matter, Plaintiff claims that this Motion is untimely under C.C.P. § 425.16(f). However, although it is based on allegations that were also made in a prior pleading, the statutory deadline is reopened for a new COA in an amended pleading, even if based on protected activity alleged in the original complaint. (Starview...

Excerpt: ...ers, directors, managing agents, employees, or agents o f entity deponents who are most qualified to testify on its behalf].) If the party being deposed objects to the deposition notice, it must object to same at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc. , § 2025.410, subds. (a) & (b).) “If, after service of a deposition notice, a party to the action or an officer, director, managing a...

Excerpt: ...een filed may object, by demurrer or answer as provided in S ection 430.30 , to the plead ing on any on e or more of the followin g grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous a nd unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f); see Code Civ. Proc., § 430.50, subd. (a) [demurrer may be...

Excerpt: ... offer to compromise on February 20, 2023. (Exhibit F to the declaratio n of attorney Bryan Reynolds submitted with the opposition.) The terms of the statutory offer to compromise provides in ¶ 10 that defendant Jaguar Land Rover of North America “will pay Plaintiff's attorney's fees, expenses and costs in an amount to be det ermined by the Court to have been reasonably incurred pursuant to Civil Code Section 1794(d).” Subdivision (d) of sec...

Excerpt: ... untimely. A demurrer must be filed “within 30 days after service of the complaint.” (Code Civ. Proc., § 430.40, subd. (a).) The “demurring party shall be granted an automatic 30 -day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining...

Excerpt: ...se of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “[T]he complaint must indicate on it s face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pacific Transportation Co. (1985)...

Excerpt: ...Legislature enacted sec tion 1102.5 in 1984 to provide whistleblowers with protection from employer retaliation. [Citation.]” (People ex rel. Garcia -Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 722.) Section 1102.5(b) “ ‘reflects the broad public policy in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.' [Citations.]” (Id. at p. 723.) “Section 1102.5 provides whistleblower protections to emp...

Excerpt: ...n order compelling further response to the de mand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without m erit or too general. (b) A motion under subdivision (a) shall comply with each of the following: (1) The motion shall set forth specific facts sho...

Excerpt: ... or regula tion per Labor Code section 1102.5(c). Defendants Hancock Jaffe Laboratories, Inc. (“HJL”) and Robert Berman (“Berman” and, collectively, “Defendants”) separately move the Court to interpret material provisions of Plaintiff's Employment Agreement and for t he following findings: A. Section 6(d) of the Agreement Required Plaintiff to Provide Written Notice of Specific Circumstances Constituting “Good Reason”, Allow 30 ...

Excerpt: ...nia 92651 (the “Property”) and (2) awarding Defendants their reasonable attorney's fees in the amount of $5,692.50 incurred in preparation, filing, attendance and argument on this Motion. In this instance, there is no dispute that the case involves a real property claim . In this transaction for the purchase of real property in Laguna Beach, several offers and counteroffers went back and forth. However, the gist of the agreement was that the...

Excerpt: ... authority which support that incorrect information in a caption to a Memorandum of Costs warrants striking the entire Memorandum of Costs. When legal argument with citation to authority is not furnished on a particular point, the court may treat the point as forfeited and move on without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1.) Tentative Ruling: The Court DENIES the motion to the extent it seeks to ...

Excerpt: ...Plaintiff's objection is sustained and the evidence is exc luded. (The video is described in the police report, which Plaintiff submitted as evidence.) Merits The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) Premises liability “is grounded in the possession of the premises and...

Excerpt: ...e sections 2030.290, a party who fails to serve t imely responses to interrogatories waives any objection to the requested discovery. Code Civ. Proc., § 2030.290(a). The party propounding the interrogatories or requests for production may move for an order compelling responses to the discovery. Code Civ. Proc., § 2030.290(b). “Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45 – day time limit, ...

Excerpt: ...ns in Redlands, California.” (¶1 of SAC.) The Complaint asserts Plaintiff has standing to sue as an unincorporated association pursuant to Code of Civil Procedure section 369.5. (¶1 of SAC.) Pursuant to this provision, “[a] partnership or other unincorporated association, whether organized for profit or not, may sue and be sued in the name it has assumed or by which it is known.” Code Civ. Proc., §369.5, subd. (a). As discussed in Tenan...

Excerpt: ...otional distress. Code of Civil Procedure section 425.16 applies to any cause of action arisin g from an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” Code Civ. Proc., § 425.16, subds. (b)(1), (e). Any such cause of action “shall be subject to a special motion to strike, unless the court determines that the plaintiff has established ...

Excerpt: ...is entitled to mandatory attorney fees [and costs].” (Ketc hum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum); Code Civ. Proc, § 425.16, subd. (c)(1).) The “prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.” (LaFayette Mor ehouse, Inc. v. The Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 3...

Excerpt: ...eement signed by Plaintiff Milton Crews Clark (“Plaintiff”) permits a contractu al fee claim here. (ROA 1499, Ex. 2, at ¶ 15.) Although the fees provision therein allows fees to be recovered by the prevailing party only to the extent incurred “to enforce the compensation provisions of this Agreement,” the right to recovery is recipro cal under Civil Code §1717(a). So fees may be recovered on an action either to enforce the compensation ...

Excerpt: ...ne whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information. If not, as will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and 24 first require the plaintiff to obtain the necessary discovery through less intrusive methods.” Liberty Mutual Insurance Company v. Superior Cour...

Excerpt: ...s or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the 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 ...

Excerpt: ...aken on 3/7/24 and the transcript has not yet been prepared . He says the deposition was originally noticed for 1/30/24 but defendants delayed such that the deposition did not go forward until 3/7. Plaintiff summarizes portions of Mr. Ip's deposition at ¶¶3, 5, 6, 7, 15, 16, 18, 19, 21, 28, 30, 31, 32 & 35 of his declaration. However, he requests a continuance pursuant to CCP §437c(h) so that the actual transcript can be submitted with the spe...

Excerpt: ...District met and conferred and timely filed a Jo int Statement pursuant to the Court's February 26, 2024 Minute Order. Per the Joint Statement, the parties agree to a mental examination of Plaintiff, and have resolved one issue, agreeing that Plaintiff may be asked questions about past mental history pe rtaining to issues she claims resulted from or were exacerbated by the subject incident. According to the Joint Statement, three conditions that...

Excerpt: ...hin 30 days of service of the notice of ruling. For purposes of the above - referenced responses and responsive documents, the term “Engine Defect” shall mean: [D]efects which result in symptoms [of] an illuminated check engine light, reduced power mode, fuel pressure se nsor leaking, vehicle leaking clear fluid, fuel leak at the fuel rail, DTC P0087, DTC P0172, DTC P0260, DTC P2DEE, DTC P228A, DTC P228B, DTC P228C, DTC P2490, DTC P2627, DTC...

Excerpt: ...urther responses which identify the documents responsive to each r equest. Thus, Defendant is compelled to provide further 26 responses to each request which identifies the documents responsive to each request. Defendant is also compelled to provide further responses to Requests Nos. 37 -41. These requests seek documents regarding repair codes. To the extent Plaintiff seeks only the two, twopage, pdf documents, Defendant is compelled to produce ...

Excerpt: ...of $86,469.53 within 15 days, as well as an order that D efendant pay Plaintiff for reasonably incurred attorneys' fees in the total amount of $7,164 relating to collecting the payment of attorney's fees, costs, and expenses. No opposition has been filed. Code of Civil Procedure section 664.6 provides, in pert inent part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally...

Excerpt: ...Plaintiffs”) (“Motion 2” below). I. Motion 1 Motion 1 is DEN IED. In determining whether exercise of state -court jurisdiction is consistent with due process, the inquiry must focus on the relationship among the defendant, the forum, and the litigation. (Rush v. Savchuk (1980) 444 U.S. 320, 327.) The presence of pr operty in a state may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the...

Excerpt: ...on the grounds Plaintiffs have not sufficiently alleged facts to support a claim for punitive damages. Civil Code § 3294(a) provides for punitive damages “[i]n an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the 28 defendant has been guilty of oppression, fraud, or malice. . .” Section 3294(c) defines malice, oppression and fraud as follows: “(1) “Malice” means ...

Excerpt: ...n or proceeding until an arbitration is had in accordanc e with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) “The purpose of the statutory stay [required pursuant to section 1281.4] is to protect the jurisdiction of the arbitrator by preserving the st atus quo until arbitration is resolved. [Citations.] [¶] In the absence of a stay, the continuation of the proceedings in the trial ...

Excerpt: ...) Strike out any irrelevant, false, or improper matter inserted in any pleading (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure, § 436. “[T]o establish the insurer's ‘bad faith' liability, the insured must show that the insurer has (1) withheld benefits due under the policy, and (2) that such withholding was �...

Excerpt: ...Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profess ion under similar circumstances.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983- 984.) Here, the undisputed evidence demo...

Excerpt: ...ately met and conferred before the filing of this Demurrer. Defendant argues that Pl aintiff's newly added basis for liability against it, Code of Regulations Title 5 § 5551, fails. Defendant cites to C.A. v. Williams S. Hart Union High School Dist., 53 Cal. 4th 861 (2012), wherein the California Supreme Court held that school principals a nd other supervisory employees “have the responsibility of taking reasonable measures to guard pupils ag...