Excerpt: ...y is held at a private place, plaintiff must also establish probable cause to believe that the property is in fact located at the private place. CCP §512.010(b)(4). A claim for possession has probable validity where it is “more likely than not” that the plaintiff will obtain a judgment against the defendant on the possession claim. See Code of Civil Procedure §511.090; People v. Superior Court (2002) 27 Cal.4 th 888, 919. To meet this stand...

Excerpt: ...the material allegations of the complaint, including all essential elements of the claims. Advantac Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4 th 621, 627. Although the defendant should aver “carefully and with as much detail” as possible, allegations should be liberally construed. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. Since a general denial puts in issue the material allegations of the complai...

Excerpt: ...e Court encourages a review of the theories of fraud in CACI Nos. 1900-1903. Plaintiff should label the claim by the appropriate theory. It appears to be alleging false promise. In order to plead a claim for false promise, the plaintiff must allege some facts which give rise to a reasonable inference that the defendant lacked intent to perform. The mere breach of a promise is not enough to establish promissory fraud (aka false promise). (Riverisl...

Excerpt: ...rty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Plaintiff to give notice. ...

Excerpt: ...r third person not yet a party to the action only if the cause of action asserted: (1) arises out of the same transaction, occurrence, or series of transactions or occurrences set forth in the complaint, or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the COA brought against him. (Id. At §6:525, citing CCP § 428.10(b).) Here, the proposed XC seeks to name a third party that is allegedly responsi...

Excerpt: ...” the proposed second amended complaint when it was first presented. The filing was without legal authority, and thus the second amended complaint purportedly “filed” January 31, 2018, is STRICKEN. The plaintiff shall file the second amended complaint within 10 days. Motion to Compel Depositions The unopposed motion of plaintiff to compel the depositions of two non-party witnesses, Diem Vu and Ky Vu, are DENIED. The first problem is that th...

Excerpt: ...laintiffs shall file and serve by 03/08/2018 the First Amended Complaint, which was attached to Plaintiffs' Motion. Plaintiffs shall attend a second deposition, as properly noticed by Defendant. Plaintiffs and or Plaintiffs' counsel shall pay the reasonable costs of the second deposition. The Jury Trial is continued to 8/6/18 at 9:00 a.m. in Department C24. All statutory discovery deadlines calculated from the trial date shall also be continued a...

Excerpt: ...ntiff's motion. For the following reasons, Plaintiff's motion is denied. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his or her claim and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct...

Excerpt: ...ently demonstrated the October 26, 2017 emergency meeting was an “emergency meeting” held pursuant to Civil Code section 4923. Such a meeting does not require notice (Civil Code section 4920(b)(1)) and can be called by the president of the association or any two directors other than the president. Civil Code section 4923. That statute was specifically cited by the court in making its ruling—and that the emergency meeting and the actions tak...

Excerpt: ...t adjudication turns on factual questions, the trial court assesses the evidence in light of the parties' respective burdens. The moving party's affidavits are strictly construed while those of the opposing party are liberally construed. Once the defendant's initial burden is met, the burden shifts to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense. CCP §437c; Aguilar v. Atlan...

Excerpt: ... the medical diagnosis and prognosis of any party.” may be submitted to support a motion for preference. CCP §36.5 Attorney Kohan's Declaration is not sufficient under this section. He does not state a diagnosis or prognosis learned from the family or medical records. He says only that he has been informed Nada has a “debilitating hip injury,” providing details of the procedure and time spent in a nursing home. He says she doesn't leave th...

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Excerpt: ...service under the Hague Convention at considerable expense. Plaintiffs ask that the court stay the action upon ordering the claims to binding arbitration as opposed to a dismissal. Plaintiffs object to the demand of costs. The Plaintiffs have never refused submit to arbitration, they simply did not agree to dismiss this action before the arbitration award was issued. Because this is action not a petition to compel arbitration, but a civil lawsuit...

Excerpt: ... (2000) 22 Cal.4th 245, 255. Plaintiff's medical records are confidential information protected by her right of privacy. Britt v. Superior Court (1978) 20 Cal.3d 844, 864-865. Plaintiff has a right to privacy as to medical conditions she has not placed at issue in this litigation. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198. The information sought must be directly relevant to a claim or defense. Harris v. Superior Court (1992) 3 Cal.Ap...

Excerpt: ...et One, are denied as untimely. (CCP 2030.300(c), 2033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion ...

Excerpt: ...w a matter for a meet and confer and a motion to compel further responses if the parties cannot informally resolve plaintiff's claimed defects. Plaintiff Iyad, Inc. is awarded sanctions of $1,200.00, pursuant to C.C.P. § 2030.290(c), payable by defendant Mohammed Hossein within 30 days. The court notes that while plaintiff Iyad, Inc.'s initial notice failed to include a request for sanctions, plaintiff Iyad, Inc.'s amended notice of motion filed...

Excerpt: ...owing: Physical examination at 26732 Crown Valley Parkway, Suite 561, Mission Viejo, CA 92691 on April 5, 2018 at 9:00 a.m. Physical examination at 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660 on April 2, 2018 at 1:30 p.m. Civil Procedure Code section 2032.220(a) provides that any defendant may demand one physical examination of a plaintiff seeking damages for personal injuries. A defendant desiring a second physical exam must file a ...

Excerpt: ...e § 2031.300(b). By failing to serve timely responses, Plaintiff waived “any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” Id. § 2031.300(a). Defendant served Requests for Production on Plaintiff in May 2017. Kraemer Decl. ¶ 2 & Ex. A. After receiving no responses, Defendant provided Plaintiff with an unsolicited additional ten days to re...

Excerpt: ...ission of a separate statement is “so that no person is required to review any other document in order to determine the full request and the full response.” The court is aware that much of the information required by the separate statement is included within the motion, the declarations of counsel, and various documents attached to counsel's declaration. That said, the failure to submit a separate statement is a violation of the Rules of Cour...

Excerpt: ...y enforce such a mandatory provision, unless it concludes that enforcing the mandatory forum selection clause would be unreasonable or unfair under the circumstances. The first question is whether there is a suitable alternative forum? The forum selection clause here sets venue of litigation in the courts of New York. But the defendant suggests the New York state courts will not take this matter because it does not rise to the $1 million threshol...

Excerpt: ...bjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” It is not sufficient to show that the defendant's conduct was negligent, grossly negligent or even...

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Excerpt: ...aintiff Channry's employment law claims are within the scope of this agreement. Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4 th 394, 413. The burden thus shifted to plaintiff Victoria Channry to establish some ground such that arbitration should not be compelled. Correctional Peace Officers Ass'n v. State of Calif. (2006) 142 Cal.App.4 th 198, 205. Plaintiff Channry has not filed any opposition and/or presented evidence to es...

Excerpt: ...r the nature of any right to payment from Durst; specifically, whether Judgment Debtor is an employee of Durst, or if her payments are earnings, in which case the proper collections method is an earnings withholding order. (Ahart, et al., Rutter Group, Enforcing Judgments and Debts, Chapter 6D-3, Sections 6:396 and 6:573; Chapter 6G-5, Sections 6:1422.5 et seq. and 6:1430 et seq.; Chapter 6F- 2, Sections 6:1076, 6:1103 et seq.; CCP 706.020.) The ...

Excerpt: .... The court's discretion will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. Defendants satisfied California Rules of Court, Rule 3.1324. Defendants shall file and serve her first amended verified answer to Plaintiff's Verified Complaint, a copy of which was attached as Exhibit A to the moving papers, on all parties who have appeared in this action within 10 days. Motio...