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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...cation, the court shall issue a right to attac h order if it finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attac hment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) The amount to be secured by th...

Excerpt: ... amount of $120,832.44 against Defendant, OTA Franchise Corporation (“OTAF”), as follows. Upon filing of the Complaint, or at any time thereafter, the plaintiff may apply for a Right to Attach Order (“RTAO”) and writ of attachment by filing an application for the order & writ with the court in which the action is brought. Code Civ. Proc. § 484.010. If a debtor is a corporation, all of its assets are subject to attach ment. Code Civ. Pr...

Excerpt: ... all of the following: 1. The claim upon which the attachment is based is one upon which an attachment may be issued; 2. The plaintiff has established the probable validity of the claim upon which the attachment is based; 3. The attachment is not sought for a purpose other than the recovery on the claim u pon which the attachment is based; and 4. The amount to be secured by the attachment is greater than zero. Code Civ. Proc., § 484.090(a). A cl...

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...

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: ...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: ...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: ...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: ...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: ...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: ...10 causes of action for: 1. Failure to Pay Overtime; 2. Failure to P ay Minimum Wages; 3. Failure to Provide Compliant Meal Breaks; 4. Failure to Provide Compliant Rest Breaks; 5. Failure to Provide Itemized Wage Statements; 6. Failure to Maintain Accurate Employment Records; 7. Failure to Pay Wages Timely During Employment ; 8. Waiting Time Penalties; 9. Failure to Indemnify All Necessary Business Expenses; and 10. Unfair Business Practices. On ...

Excerpt: ...rivate Attorneys General act (“Plaintiff”), filed a Complaint against Defendant Belshire Environmental Services, Inc. (“Defendant”). (ROA 2). The Complaint alleges the following 11 causes of action: 1. Violation of Labor Code §§ 510 and 1198 (Unpaid Overtime); 2. Violation of Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premium s); 3. Violation of Labor Code § 226.7 (Unpaid Rest Period Premiums); 4. Violation of Labor Code §�...

Excerpt: ... Failure to Provide Meal Periods; 2. Violation of PAGA for Failure to Provide Rest Periods; 3. Violation of PAGA for Failure to Pay Minimum Wages; 4. Violation of PAGA for Failure to Pay Overtime Wages; 5. Violation of PAGA for Failure to Provide Accurate Itemized Wage Statements; and 6. Violation of PAGA for Fai lure to Timely Pay Wages at Separation Plaintiff alleges she was employed as a non -exempt worker for Defendant, a nonprofit organizat...

Excerpt: ...ckich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) To the extent Plaintiff is requesting that the court take judicial notice of the fact that these cases exist, the request is denied as irrelevant to the issue presented in the demurrer. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [noting that the court may take judicial notice of a recorded deed, but declining to do so where deed was not relevant].) Special Demurrer Sp...

Excerpt: ... action is viable because it relies upon allegations of a breach of a duty owed to the minor Plaintiff. As noted in the authority Defendant cit es in support of the demurrer, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other leg al duty and the emotional distress is proximate...

Excerpt: ...led a statement that would file an amended answer by the hearing date. As of the day before the hearing, the Court has no record of the amended answer having been filed. The Court takes Defendant's failure to oppose the demurrer as a concession, and on that basis sustains the demurrer. Defendant shall file an amended answer by April 2, 2024. For a complete record, Defendant shall also file by April 2 its original answer as no such filing can be f...

Excerpt: ...r Competition Law. Defendant challenges the pleading on the ground that plaintiff has failed to allege a defect in materials or workmanship, as required under 13 C.C.R. §2037(b)(2). Plaintiff relies on 13 C.C.R. §2037(b)(1), which discusses design issues, but the extended warranty is found only in 13 C.C.R. §2037( b)(2) and requires a defect in materials or workmanship. Plaintiff's Second Amended Complaint adds legal arguments as to why the Em...

Excerpt: ...est for judicial notice filed in reply (ROA 24) is DENIED as immaterial to the Court's decision. Statute of Limitations Defendants contend Plaintiff's complaint for legal malpractice and “(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of prof essional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence sh...

Excerpt: ...020, Plaintiff Luciano Jimenez, as an individual and on behalf of all ot hers similarly situated (“Plaintiff”), filed a Complaint against Defendant Arcadia Chair Company, Inc. (“Defendant”). (ROA 2.) The Complaint alleged the following seven causes of action: 1. Failure to Pay All Overtime Wages; 2. Failure to Pay All Minimum W ages Owed; 3. Meal Period Violations; 4. Rest Period Violations; 5. Failure to Provide Accurate, Itemized Wage ...

Excerpt: ...tice is submitted, a redline showing all changes, deletions an d 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 copies of Plaintiffs' pre -filing letters to the LWDA. 2. Please provide proof of service o f the original settlement papers on the LWDA. Paragraph V of the agreement requires Plaintiffs to serve the LWDA, but the proof of s...

Excerpt: ...Pay Overtime Wages; 3. Failure to Provide Meal Periods; 4. Failure to Permit Rest Breaks; 5. Failure to Reimburse Business Expenses; 6. Failure to Provide Accurate Itemized Wage Statements; 7. Failure to Pay All Wages Due Upon Separation of Employment; and 8. Violation of Business & Professions Code §§ 17200, et seq. On Oct ober 23, 2019, Plaintiffs filed the First Amended Complaint adding two causes of action for Unlawful Deduction from Wages...

Excerpt: ...020, Plaintiff Luciano Jimenez, as an individual and on behalf of all ot hers similarly situated (“Plaintiff”), filed a Complaint against Defendant Arcadia Chair Company, Inc. (“Defendant”). (ROA 2.) The Complaint alleged the following seven causes of action: 1. Failure to Pay All Overtime Wages; 2. Failure to Pay All Minimum W ages Owed; 3. Meal Period Violations; 4. Rest Period Violations; 5. Failure to Provide Accurate, Itemized Wage ...

Excerpt: ...for a properly noticed deposition. In a minute order dated January 27, 2023, the Court granted Defendant's motion to compel and ordered her to sit for deposition by February 17, 2023. (ROA 164.) Defendants renoticed Doe's deposition for February 15, 2023. This notice was electronically served on her counsel of record. (Lakhman Decl. Ex. 4.) On February 10, defense counsel followed up with a Zoom link for the deposition (which was to be conducted ...

Excerpt: ...not avoid an anti -SLAPP motion directed at a cause of action in a pending complaint (e.g., the second cause of action for intentional infliction of emotional distress) by filing an amended complaint that effectively drops the claim without prejudice. (See Salma v. Capon, at p. 1294 [legislative poli cy of early evaluation and expeditious resolution of claims arising from protected activity]; see also JKC3H8 v. Colton, at p. 478 [same].) Since ...

Excerpt: ... is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may “simply call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 9:53.1a.) Merits Defendant moves to set aside the default and default judgment, pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), Code of Civil Proce...

Excerpt: ...”.) (Judgment at p. 9, lines 4- 5.) In the instant motion, D efendants state their argument was that “the verdict should be reduced pursuant to section 877.6 of the Code of Civil Procedure in the amount stipulated by the release between Plaintiff and former defendants Managed Facilities Solutions, Inc. and Adam Kida n….” (Mov. Pts. & Auth. at 5, lines 11 -13.) The court notes that Defendants' previously filed Trial Brief on the issue sta...

Excerpt: ...dants (as opposed to entity defendants), a good faith effo rt at personal service must first be attempted before utilizing substitute service – i.e., there must be a showing that the summons “cannot with reasonable diligence be personally delivered” to the individual defendant. (Code Civ. Proc., § 415.20(b).) After a good faith attempt at personal service, an individual defendant may be sub -served by: (1) leaving a copy of the summons an...

Excerpt: ...al). The complaint stated that Chiavetta was on medical leave of absence in Septemb er 2022, when she accompanied her pregnant cousin to Hoag to provide care of the patient as labor began. The Charge Nurse told Chiavetta that she was on a leave of absence and was unable to provide care and treatment to her cousin as a nurse, but could be the patient's doula. Chiavetta adjusted the patient's pitocin and ignored the bedside labor and delive...

Excerpt: ...t if it granted TPG's motion to amend and/or motion to bring defendant into case (scheduled to be heard on February 22, 2024), the court may reconsider another trial continuance. (9/18/2023 Minute Order.) At that time, however, the court did not vacate the February 29, 2024 hearing on the motion to continue trial. And, TPG did not wit hdraw its motion to continue the trial date, even though it appeared to be somewhat outdated. On December 8, ...

Excerpt: ...commission reports and commission summaries for all put ative class members, within 20 days. Plaintiffs served a request for production of documents seeking documents relevant to seeking class certification, including documents concerning the “salaries, wage levels, hourly rates, commissions, and/or bonuses of each and every COVERED EMPLOYEE” (Request for Production No. 72). Defendants provided unverified responses with various objections t...

Excerpt: ...nts Compass California, Inc. and Art Heckman's motions to compel plaintiffs Mary Nathan and Reuben Nathan to provide further responses to Request for Production of Documents, Set One, are GRANTED in part and WITHDRAWN in part by moving parties. (Code Civ. Proc., § 2031.310 [authorizing motion to compel]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 [court's discretion where responses serv...

Excerpt: ...2004) 122 Cal.App.4th 1229, 12461247.) A self -represented litigant is not en titled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self -represented litigants are entitled to same treatment as represented parties]; see Cal. Rules of Court, Rule 1.6(15) [de fines “parties” as including both self -represented persons and persons represented by an attorney of record ...

Excerpt: ...this portion of his claim. For the reasons set forth below, the motion is GRANTED. PRELIMINARY MATTERS Because the evidence objected to is immaterial to the Court's ruling, the Court declines to rule on the parties' evidentiary objections. However, the Court must comment on Disney's “Objections to Purported Evidence Submi tted by Plaintiff in Support of His Separate Statement of Undisputed Material Facts,” which are included in Disney's reply...

Excerpt: ...operty. ISSUE NO. 2: Summary Adjudication is proper as to Plaintiff's Second Cause of Action for Premises Liability because Defendant had no actual or constructive notice of a dangerous condition on Defendant's property. Initially, the Court notes that the instant motion and moving papers were filed and served on February 8, 2024, which is only 42 days before the noticed hearing date of March 21, 2024. 75 -days' notice is required on a motion fo...

Excerpt: ...n their opposition, cross -defendants have withdrawn the following aff irmative defenses: 14, 25, 26, 27, 28, 29, 30, 55 and 56 (i.e., 55(2)). Becerra's demurrer to affirmative defenses 14, 25, 26, 27, 28, 29, 30, 55 and 56 (i.e., 55(2)) is thus overruled as moot. For the following reasons, Becerra's demurrer to affirmativ e defenses 2, 5, 6, 8, 9, 11, 12, 15, 16, 17, 21, 22, 24, 32, 33, 34, 35, 36, 37, 41, 42, 44, 46, 47, 48 and 50 is sustained ...

Excerpt: ... Fourteenth Amendment, and Third Cause of Action for Civil Harassment. D efendant contends that although the caption of Plaintiff's Complaint appears to allege violations of the 4th and 14th Amendments, the body of the Complaint states no facts regarding any such violations, and that actions were taken in accordance with the OC Municipal Code. Defendants also contend that Code of Civil Procedure section 527.6 concerns harassment, and that Plainti...

Excerpt: ...s Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other i tems subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.Ap p.4th 1746, 1749.) “In our examination of the complaint we are guided by the well settled principles governing the testing o...

Excerpt: ... set for this day and Plaintiff has not sought ex parte relie f to continue Defendants' Demurrer and/or Motion to Strike portions of FAC. The court declines to continue the hearing on the Demurrer and Motion to Strike set for this day. The unopposed Request for Judicial Notice is granted. “The court may take judicia l notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 22...

Excerpt: ...6 Cal.4th 969, 986. PAGA settlements are subject to trial court review “to determin e whether [they are] fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. The cou rt has reviewed and considered the papers filed in support of plaintiff's motion for approval of a $45...

Excerpt: ..., 986. PAGA settlements are subject to trial court review “to determine whether [they are] fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. The cour t has reviewed and considered the papers filed in support of plaintiff's motion for approval of a $600,000 PAGA set...

Excerpt: ...award of reasonable attorneys' fees and costs pursuant to Civil Code section 1717, as they are authorized by the Promissory Note at issue in this case. Plaintiff asserts that the motion is timely; that the lodestar applies; that 172.6 hours of attorney time was expended for this action which commenced in October 2020 through August 2023 by Sean Cooney, principal of Cooney Law PC, and is reasonable as this case was aggressively defended until coun...

Excerpt: ...berts dba Image Auto Group; 2. that all parties to this acti on are hereby restrained from instituting or further prosecuting any other proceeding in any other court in the State of California, or any other jurisdiction, affecting the rights and obligations between the parties to this interpleader; 3. that Hudson b e dismissed with prejudice from the instant action, and any legal actions pending against the bond proceeds; 4. that Hudson be awarde...

Excerpt: ...ed in subdivision (b), actions brought under the provisions of thi s chapter shall be set for trial at the earliest possible date and shall take precedence over all other cases, except older matters of the same character and maters to which special precedence may be given by law. “(b) Any action brought under the provisio ns of this chapter in which the plaintiff seeks any relief, in addition to a declaration of rights and duties, shall take su...

Excerpt: ...y judgment is to provide courts with a mecha nism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgm ent in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code ...

Excerpt: ...ings is based on the claim that there is no statutory ba sis for the claim and therefore no cause of action can be stated against the City under Government Code section 815. A motion for judgment on the pleadings serves the same basic purpose as a demurrer. It asks the court to determine whether as a matter of law a cause of action has been stated. (See Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 743- 744.) However, it may not be used as...

Excerpt: ...[same].) Specifically, defendants failed to meet 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 defendants had met their initial burden as to each noticed issue, plaintiffs met their shifted burden to show triable issues of material fact. (See C...

Excerpt: ...omplaint was filed May 26, 2020. (ROA 2. ) The motion for summary judgment is supported by the declaration of John Battista, a licensed Certified Access Specialist (CASp). He visited the shopping center on May 20, 2022, and found various violations of the Americans with Disabilities Act and the Uniform Building Code, which he detailed in his report. In opposition to the motion, defendant filed a declaration from Jong Park, also a licensed CASp...

Excerpt: ... of Civil Procedure section 425.16(g) provides: “All discovery proceedings in the action sh all be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that s pecified discovery be conducted notwithstanding this subdivision.” “If the plaintiff makes a ...

Excerpt: ...lves a high - end residential lease. Plaintiffs filed a 12-count complaint against the property owner, Yuan Mu, real estate agent Nancy Milne, and Ascendant International, Inc., dba Re/Max Luxury Properties. It includes causes of action for breach of contract, common counts, fraud, and dec laratory relief. Plaintiffs complain that the house they rented had numerous issues and Yuan Mu refused to fix them. Yuan Mu filed a 13 -count cross -compla...

Excerpt: ...��If a deponent fails to answer any question or to produce 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 production.” Co de of Civil Procedure section 2025.480(b) states, in relevant part: “[t]his motion [motion to compel answers or pro...

Excerpt: ... for deposition. (Id. at ¶¶ 3 -4.) On Apri l 26, 2023, Defendant served objections to the Notice of Deposition. (Id. at ¶ 7.) Plaintiff sent a meet and confer letter on May 11, 2023 discussing Defendant's objections and the particular categories of examination and document requests. (Id.) Defen dant provides no evidence that it responded to the May 11, 2023 letter. (See Major Dec.) GM has evidently agreed to produce a witness for deposition on...

Excerpt: ...ion).” But the reply attempts to mislead the court and ob tain discovery plaintiff's counsel knows this court has denied in prior cases. Indeed, and contrary to its initial assertion, this motion is all about the request to produce all the documents in the General Motors universe about the Silverado vehicle. Th e final sentence of the reply gives the game away: “Based on the foregoing, GM must be ordered to produce its PMQ for deposition on ...

Excerpt: ...5, 162, 164, and 238 -239). The court GRANTS the motions pursuant to CCP §§ 2031.280, 2031.300, a nd 2031.320. The court first notes that none of the documents that were produced in response to the RFP were produced to the court for its review. Based upon the arguments however, it appears that some redacted documents were produced in the responses. Defendants state that many of the redacted documents were not responsive to the requests, nor to...

Excerpt: ...§ 2031.310, subd. (b)(1).) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved of, on other grounds, by Williams v. Superior Court (20...

Excerpt: ...ve of court. Sections 2032.310 and 2032.3 20 provide for additional physical examination with leave of court if good cause is shown. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249 -1256.) Defendant has demonstrated there is good cause to allow additional examinations. Plaintiff listed 72 injuries in response to Form Interrogatory 6.2 and stated he consulted with 15 different providers in response to Form Interrogatory 6.4, including a ...

Excerpt: ... Company, Ford Motor Credit Company, LLC and Safeco Insurance Co mpany of America join the petition. The petition is granted in part and denied in part as discussed in detail below. The petition is granted as to Defendant Autonation Ford Tustin but denied as to the 5th cause of action for violation of the CLRA to the extent this claim seeks public injunctive relief. The joinder is granted as to Defendants Ford Motor Company, Ford Motor Credit Com...

Excerpt: ...f the petition. Code Civ. Proc. § 1290.6. Respondent Shrier has not filed a r esponse to the petition. Nor was any opposition filed despite the prior motion for continuance, and continuance granted, for purposes of filing an opposition. A petition to confirm an arbitration award must: (1) set forth the substance of or attach a cop y of the arbitration agreement; (2) set forth the name of the arbitrators; and (3) set forth or attach a copy of...

Excerpt: ...nswer. (ROA Nos. 3233; see ROA No. 23.) Code of C ivil Procedure section 472 provides: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, ….” In Barton v. Khan (2007) 157 Cal.App.4th 1216, a shareholder who was a former emplo...

Excerpt: ...intiff. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [Biakanja factors], 406 [auditor's liability “is confined to the client”]; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 580- 586 [accountant to partnership owed no professional duties to individual partners ].) Plaintiff asserts Welch is liable for aiding and abetting the other defendants' breaches of fiduciary duty, not for breaching any fiduciary duty of ...

Excerpt: ...tions in the pleading o r the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404 -05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demu rrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from ...

Excerpt: ...is divests the opinion of the Court of Appeal of binding or precedential effect, it may still be cited for “potentially persuasive value.” (See Cal. Rules of Ct. rule 8.1115(e)(1).) Based on the existing persuasive authority, including the Court of Appeal's decision in Dhital, the court concludes Plaintiff's fr audulent concealment claim is not barred by the economic loss rule as a matter of law. If the California Supreme Court reaches th...

Excerpt: ...ore affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty...

Excerpt: ...ting sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subds. (a) -I.) Misuse of the discovery process includes, but is not limited to, using a discovery method in a manner that does not comply with its specified procedures, employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden, failing to submi...

Excerpt: ...nly objections. (Jenkins Decl. ¶ 4, Ex. B.) Defendant initiated the meet and confer process on 11/01/2023 and demanded further responses and responsive documents no later than Monday 11/13/2023. (Jenkins Decl. ¶ 5, Ex. C.) On Thursday 11/09/2023, Plaintiff asked for a 30- day extension to respond. (Jenkins Decl. ¶ 6, Ex. D.) Defendant compromised by offering a three -day extension to Thursday 11/16/2023. (Jenkins Decl. ¶ 7, Ex. E.) Plaintiff ...

Excerpt: ...accept service if the process server identifies himself, tells the person they are being served, and leaves the papers as close as possible to the person. (Trujillo v. Trujillo (1945) 71 CA2d 257, 260.) Here, Tuttle announced that he was serving Defendant and left the papers on Defendant's front doorstep. Thus, Tuttle's service complied with the statutory requirements. The Court CONTINUES the Motion to allow Defendant an opportunity to submit ev...

Excerpt: ...business in California, nor ever had any offices in California, it has no employees in California, it has no customers outside of Florida, and it does not advertise outside of Florida. Defendant's request for judicial notice as to Exhibit B (Plaintiff's Complaint) is GRANTED. (Evid. Code, § 452(d).) The request as to Exhibit C i s DENIED, as the material is not relevant to a resolution of the issues raised in this Motion. (State Compensation Ins...

Excerpt: ...an be raised at any time (even for the first time on appeal). It can be raised: — by demurrer to the complain t where the defect appears on the face of the complaint or from matters judicially noticeable (CCP § 430.10(a)); — by motion to strike (CCP §§ 435, 437); — by motion for judgment on the pleadings (CCP § 438); — by motion for summary judgment (CCP § 437c); or — as an affirmative defense in the answer. [Greener v. Workers...

Excerpt: ...urt if good cause is shown. (See Shapira v. Superior Court (1990) 224 Cal.App .3d 12491256.) Plaintiff objects to the examination because Plaintiff has already agreed to an examination by Defendant's orthopedic expert on 3/27/24 and a remote mental examination on 3/18/24. Plaintiff also contends the examination must be conducted within 75 miles of Plaintiff's residence, which is in North Carolina. Defendant has shown good cause for its scar revis...

Excerpt: ...#39;s breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of Calif ornia v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) As to the First Cause of Action, Plaintiff has demonstrated (1) the existence of the Loan Agreement with Media Graphix, (2) Plaintiff's performance, (3) Media Graphix breach of the L oan Agreement, and (4) resulting damages in the amount of $364,874.72. (Undisputed Facts 1, 5, 6, 10...

Excerpt: ... be awarded reasonable attorney's fees and costs.” “This language has been interpret ed to allow recovery of not only litigation costs, but also reasonable attorney fees and costs expended in prelitigation alternative dispute resolution (ADR) pursuant to the Davis -Stirling Act. [Citation.]” (Rancho Mirage Country Club Homeowners Assn. v. H azelbaker (2016) 2 Cal.App.5th 252, 258.) A homeowner association's complaint seeking relief in the f...

Excerpt: ...cts sufficient to constitute a cause of action and uncertainty. Initially, the op posing points and authorities is over the 15- page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21 -23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discriminati on in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show that...

Excerpt: ...ly noticed. ( Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796 [117 Cal.Rptr. 305, 527 P.2d 1153]; Code Civ. Proc., §§ 430.30, 430.70.) “Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” ( Iram Enterprises v. Veditz (1981) 12 6 Cal.App.3d 603, 608 [179 Cal.Rptr. 1].) Taking judicial notice of a document is not the same as accepting the truth of its co...

Excerpt: ...et seq., (6) quiet title, and (7) injunctive relief. I. All filings were untimely. As an initial matter, the Demurrer, Opposition, and Reply were all untimely. First, the First Amended Complaint was served by email on November 8, 2022. Thus, the declaration for the automatic 30 -day extension was due December 8, 2022. Defendant did not file its declaration for an extension until a month later on January 8, 2023. This was untimely. Since the dea...

Excerpt: ...nses to Defendant ClearChoice Management Services, LLC's Form Interrogatories —Employment, Set One, without objections and within 30 days of service of the notice of ruling. Plaintiff Susanne Feusi is ORDERED to serve full, complete, and verified responses to Defendant ClearChoice Management Services, LLC's Special Interrogatories, Set One, without objections and within 30 days of service of the notice of ruling. Plaintiff Susanne Feusi is ORD...

Excerpt: ...istake, inadvertence, surprise, or excusable neglect. Application for this r elief…shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's swor...