Excerpt: ...lutely essential and because no other remedy will serve its purpose. (City & County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744.) A receiver may only be appointed pursuant to the statutes that permit a receivership. (Marsch v. Williams (1994) 23 Cal.App.4th 238, 246‐ 248.) City requests a receiver under CCP §564(b)(3) and (b)(9). Section 564(b)(3) applies to enforcing judgments; this does not apply as there is no judgment in this ...

Excerpt: ...m waiver of objection, although a motion has not yet been filed.) Defendant failed to serve timely responses and there is no legitimate dispute that Defendant's requests for an extension to respond do not qualify as “written confirmation” under CCP § 2031.270(b). Further, Defendant's responses made without objection to RFPs 127‐131 do not comply with CCP § 2031.230. Lastly, while Defendant argues that certain requests intrude upon the pri...

Excerpt: ...tion the court for preference, “which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc. § 36(a)(1)‐(2).); Code Civ. Proc. § 36(f).) Pursuant to Code of Civil Procedure section 36.5 “An affidavit submitt...

Excerpt: ...ot catch?” A further shortcoming in this area is that when the plaintiff is asked to make markings which attempted to clarify the situation, Plaintiff's counsel interposed a modification to the question, which made the marking unclear. Next, the photographs are not so demonstrative that one can say that there is a gradual lip. Differing minds can have different opinions of these photos. The court could have benefited from a model or cast of the...

Excerpt: ...in the proposed amended pleading. (Rule 3.1324(a)(3).) Plaintiff failed to do so. A motion for leave to amend must be supported by a declaration that specifies “[w]hen the facts giving rise to the amended allegations were discovered.” (Rule 3.1324(b)(3).) The declaration of Milstein fails to do so. Regarding the willfulness claim, he says that the fact did not arise until “after we filed the original Complaint in this matter.” The complai...

Excerpt: ...s Kolesar and Casini filed their Answer. Three weeks later on 5/11/18, Defendants filed this motion for leave to file a Cross‐Complaint. GROUNDS FOR MOTION: Defendants Louisa Kolesar and Oscar Casini move the court for leave to file a Cross‐Complaint. DISCUSSION: Code of Civil Procedure section 426.30(a) provides: “Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cro...

Excerpt: ... stopped tractor‐trailer. Plaintiffs allege the accident was caused because CHP and CalTrans negligently implemented traffic controls to accommodate a SCE utility project and thereby created a dangerous condition of public property pursuant to Government Code section 835. Plaintiffs allege that CHP and CalTrans altered the normal flow of traffic, failed to provide proper signage, improperly controlled the roadway, and failed to warn motorists o...

Excerpt: ... pay plaintiff BARCLAY funds due under the Assignment from the refinancing. Similarly, §33 and §34 merely allege that EBR owed a fiduciary duty to provide escrow services in connection with the loan and refinance transactions, and that EBR breached that duty by failing to pay BARCLAY funds due under the Assignment. Nowhere in either the 4th or 5th causes of action is it alleged that EBR failed to follow the escrow instructions, or that the escr...

Excerpt: ...pltf notes, the Ex. 3 Endorsement establishes that BARCLAY was insured under the Policy, and except for stated conditions, is subject to all of the terms and provisions of the Policy. At Second Amended Complaint (SAC) §61, plaintiff alleges various reasons why it is entitled to coverage under the Policy and Endorsement. Plaintiff has adequately stated sufficient facts to alleged a cause of action for breach of contract. Those allegations must be...

Excerpt: ...indicated that Plaintiff could file a regularly noticed motion within 10 days to address the issues raised by the Court pertaining to the motion's untimeliness. This motion was filed 5/15/18. Page 2 of 4 A trial setting conference is set for 8/7/18, so there is no current trial date set in this case. Plaintiff Sean Oliver moves the court to reopen discovery to allow the court the ability to hear his motion to withdraw admissions. On motion of any...

Excerpt: ...rought this action (Deutsche Bank National Trust Company as Trustee for WAMU Mortgage Pass‐Through Certificates Series 2005‐AR2), and the name of the entity assigned the beneficial interests under BLYTHE's Note (Deutsche Bank, N.A. as trustee for WAMU 2005‐AR2). Plaintiff has failed to meet its burden that it (as it named itself when it filed this action) is entitled to the requested judgment of foreclosure, because it is not the entity tha...

Excerpt: ...is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This action for: (1) intentional interference with prospective economic advantage, (2) negligent interference with prospective economic advantage, and (3) violation of Business and Professions Code section 17200 is based upon allegations that Defendant Environmental Water Management, Inc. Plaintiff Juan Cortez, dba Environmental Rebuild's competitor, sought to dispar...

Excerpt: ...is request. The costs of those motions were addressed at the time of those motions and could result in a windfall. Third, it is not abundantly clear why two attorneys were needed for this court trial. Finally, although the case on first review looks straight‐forward, much delay was caused by the defense which increased the overall expense of the litigation. Therefore, the court determines that a more reasonable amount of attorney's fees is $110...

Excerpt: ...lief sought is a declaration regarding the rights, duties and obligations of the banks, AFVW, and the Department regarding AFVW's real property. That is the same issue raised in the banks' complaint, AFVW's answer to that complaint, and the Department's answer in intervention to that complaint. The complaint in intervention is thus duplicative and unnecessary to protect the Department's interests. (2) The caption fails to identify the defendants ...

Excerpt: ...MO#2, which the Court will issue forthwith. Analysis: 1. The estimated numbers of class members are very round: 600 and 300. (Williams decl., ¶ 5.) What is the basis for those estimates? Given that the defendant produced “detailed information . . . identifying members of the Cell Phone Class and Truck Class by employee identification number” (Williams decl., ¶ 7), why is it necessary to estimate? 2. The compliance with section E.1.a of the ...

Excerpt: ...t the none responding party of the possibilities of obtaining paralegal help as well as other avenues. Attorney Rasmussen further offered that if time was needed that he would agree to such. Instead, no responses were given. ...

Excerpt: ...allegedly making deliveries on behalf of a Round Table Pizza franchise, D & N Pizza, that he coowned and operated with his wife, Defendant Nancy Sonneborn. The motion is based upon the grounds that there is no triable issue of fact that the Round Table Defendants are not liable. For the following reasons, the motion should be denied. D & N Pizza has failed to show that there is no triable issue of fact that it is not liable. The moving party bear...

Excerpt: ... in the Court's view, that dismissal is not due to any settlement. If there is no settlement, then there is no need for Court approval. In that event, plaintiffs' counsel is free to voluntarily dismiss the claims of those two plaintiffs if counsel believes that he has their authorization to do so. The Court will not order such a dismissal. b. In that event that some consideration has been given to those plaintiffs for the dismissal of their claim...

Excerpt: ...in which he indicates that he decided that the loss of consortium cause of action on behalf of Mary Hoover lacked merit and that he did not realize that he failed to delete it before filing. He states that he did not discover this error or the labeling errors until the meet and confer on May 7, 2018. Counsel states that he added the new facts concerning Plaintiff's injuries in response to Defense Counsel's concern regarding the sufficiency of the...

Excerpt: ...amount of $1,400.00 per month. The payments are due on the first of each month. The final payment is a balloon payment due on January 21, 2021 in the amount of $395,000.00. No interest will be charged. Plaintiff will provide Defendants' counsel with three nationally recognized title companies' standard deeds of trust to choose from and that deed of trust will be the one recorded. There will be a 25‐day grace period for any breach. The agreement...

Excerpt: ...es for “oppression, fraud or malice” by the defendant. (Civ. Code § 3294(a)). “Malice” means conduct intended by the defendant to cause Page 4 of 4 injury to the plaintiff or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. (Civ. Code § 3294(c)(1).) While the underlying claims may be generally alleged, specific factual allegations are required to support a ...

Excerpt: ...eraza, by serving a three‐day notice without any basis for doing so and then locked Peraza out of the premises after Peraza requested payment for remodeling work he had performed. The motion is based upon the ground that the SAC fails to allege facts that would support a punitive damages claim. Peraza has alleged malice. Plaintiff may seek punitive damages for “oppression, fraud or malice” by the defendant. (Civ. Code § 3294(a).) “Malice...

Excerpt: ... is awarded its costs and reasonable attorneys' fees incurred for filing the response to the notice of errata and for the time and work involved in connection with this motion. The amount of costs and fees to be awarded are to be determined after a hearing pursuant to a motion to be filed by Defendant Ross. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. On 2/8/18, Plaintiffs filed a “Notice of Errata�...

Excerpt: ...e attached to the first offer went beyond the scope of claims in the litigation. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 88‐89.) The general release provision in the second offer is vague in light of the first offer and thus, is construed against Defendant. (Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) Unlike Toste v. Calportland Construction (2016) 245 Cal. App. 4th 362, cited by Defendants, Defendants' s...

Excerpt: ...outstanding issues under the Stipulation are Plaintiff's failure to serve a written declaration responding to the seven deposition questions and the failure to provide deposition dates for expert witnesses. With respect to the authorization for the release of records, Plaintiff's counsel did not stipulate that Plaintiff would execute authorizations and only indicated on the record that he would withdraw his objections, which he did. Contrary to D...

Excerpt: ...ssal as expressly stated in the statute. (Huh v. Wang (2007) 158 Cal. App. 4th 1406, 1415; English v. IKON Business Solutions (2001) 94 Cal. App. 4th 130, 143.) Because the present motion does not involve a default, default judgment or dismissal, the mandatory relief provision does not apply. Therefore, the plaintiffs must establish that Libertino's stipulation was entered into by mistake, and that her mistake was excusable. Libertino's assertion...

Excerpt: ...t Plaintiff is seeking compensation for her portion of equity in the property rather than title. However, Plaintiff asserts a Quiet Title cause of action alleging that title should be quieted in her name, although the basis for this cause of action is unclear and not supported by the terms of the alleged implied contract. She also asserts that a constructive trust and/or resulting trust should be imposed upon the subject property. She does not, h...

Excerpt: ...l Procedure section 1019.5, forthwith. The gravamen of this complaint for: (1) quiet title, (2) violations of Business and Professions Code section 17200, (3) fraud, (4) breach of contract–renovation contract, (5) breach of contract‐quitclaim of property, (6) specific performance, (7) negligence, and (8) declaratory relief is that Defendants took advantage of Plaintiff's mental disability—bi‐polar disorder—by demanding full payment unde...

Excerpt: ...is directed at written discovery requests. It appears, that those requests have been provided. In his reply, Plaintiff shifts to a different topic, a recent PMK deposition in which Plaintiff complains that Defendant's PMK may not be the PMK for certain issues and that the PMK failed to produce certain categories of documents that were requested to be produced at the deposition. The PMK deposition is not, however, the subject of this motion ...

Excerpt: ...l Code. The City determined petitioner was not entitled to an exemption, in part, because he operated a business, sought a profit, and did not own the horses at his ranch, even though the applicable code section provides for no such exclusions from the right to an exemption and implies, on its face, that the applicant operates a business because the exemption, once granted, allows the agriculture enterprise to operate without a business license. ...

Excerpt: ...on that the defendant waived statutory notice. Were that the only issue, the hearing would have been continued. The primary reason for the denial of the motion is the plaintiff's failure to fully comply with the court's CMO#2. For instance:  ¶ H.1.b. requires counsel to estimate the recovery that could be awarded if the action were successful on all claims. Nowhere is that figure stated. Kim appears to estimate the potential recovery on discr...

Excerpt: ... E.1.b to provide an attorney's estimate of the amount the class “could reasonably be expected to be awarded at trial, taking into account the likelihood of prevailing and other attendant risks.” There is also no estimate of the “recovery by the average class member” if the settlement is approved, as required by Section E.1.c, or the estimated high and low range, in the event that recovery varies. There is also no statement in compliance ...

Excerpt: ...intiff fails to do so, the Court may deem any facts as to which the plaintiff fails to comply as being undisputed. If the defendant feels that the revised separate statement requires a further response, the defendant may file an amended reply no later than June 1, 2018. Analysis: In an opposing separate statement, the opposing party must “describe the evidence that supports the position that the fact is controverted. Citation to the evidence in...

Excerpt: ... the plaintiff leave to file a First Amended Complaint that would delete two “background check” claims (under the Investigative Consumer Reporting Agencies Act [Civ. Code, § 1786, et seq.] and the Consumer Credit Reporting Agencies Act [Civ. Code, § 1785, et seq.]) and to add a claim for penalties under PAGA. The Court denied that request on 1‐24‐18, because (1) no proposed amended complaint had been submitted, and (2) no court approval...

Excerpt: ...sanctions are awarded. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This is an employment harassment suit by Plaintiff Melissa Guzman against her prior employer Renaissance Hotel Management Company, LLC (“Marriott”). As part of Guzman's discovery process she served Requests for Production of Documents. She moves the court to compel further responses to RFPs No. 78 and 79 seeking access to certain ...

Excerpt: ...e deposition went forward on May 1, 2018, but asserts that the Person Most Knowledgeable (“PMK”) failed to produce records requested by Plaintiffs which were identified by Mr. Cho and that Mr. Cho admitted that he had not searched for certain categories of documents. However, the reply states that the deposition of the PMK remains open subject to the production of additional documents and subject to the identification of some other individual...

Excerpt: ... Action . . . .” Relying on that language, the plaintiff contends that she is not a member of that class because she filed the instant action in February of 2017, and thus she had a pending civil complaint at the time that the final judgment was entered in Watson on June 7, 2017. The Court is not persuaded. The exact same language is recited in the order granting preliminary approval. That order conditionally certified the class as thus defined...

Excerpt: ... of DSS for leave to intervene. If the motion of DSS is granted, any renewed motion by Ikezawa shall explain why it is still necessary to grant her leave to intervene as well. Analysis: Ikezawa's interests in the defendant and in the defendant's property may be sufficient to justify intervention into this action. Even assuming that intervention is appropriate in the abstract, however, the Court is not persuaded that leave should be granted to her...

Excerpt: ...party or a complaint by a new party. It is not merely a request to participate in another lawsuit in some undefined way. Because this motion is not denied on the merits, the denial is without prejudice. ...

Excerpt: ... the issues in this case (i.e., regarding privileged Medical Executive Committee meetings, and with respect to several physicians that never cared for decedent; about Mr. Uffer's knowledge of other lawsuits from physicians (who were not involved in this action); and regarding the sexual relations of members of Corona Regional administration and medical staff). The information obtained is confidential and has the potential to cause Corona Regional...

Excerpt: ...ay or needless increase in the cost of litigation or that Wesco's claims and other legal contentions are not warranted by existing law or by a nonfrivolous argument for the extension or change in existing law. An attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied “certification” as to its legal and factual merit; and is subject to sanctions for violation of this certification. (Code ...

Excerpt: ...ants Michael Labita and Kent Plank were aware of such practices and either approved, condoned, or ratified such conduct by failing to correct the practices after notification in 2011. There is also a triable issue of material fact as to whether sales distributors are independent contractors or employees. (See Undisputed Material Facts Nos. 5, 10, 12, 20, 20, 28, 24, 73, 75, 80, 90, and plaintiff's Additional Undisputed Material Facts Nos. 141‐1...

Excerpt: ...longer resides. Section 410.50, subdivision (a) provides in part, “A general appearance by a party is equivalent to personal service of summons on such party.” “The Courts of Appeal have described the scope of actions in the litigation process which constitute a general appearance as follows: A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority...

Excerpt: ...ns of Plaintiffs' counsel and the targeted solicitation allegedly sent to Plaintiffs may potentially violate obligations, particularly the Rules of Professional Conduct, the documents/information sought by the subpoena and the origin of the relationship between Plaintiffs and their attorney of record are not relevant to any claim or defense in the present action and are not reasonably calculated to lead to the discovery of admissible information....

Excerpt: ... (1962) 207 Cal.App.2d 61, 67. A provision in a contract prohibiting an assignment does not preclude the assignment of money due or to become due under the contract, unless the contract explicitly prohibit such an assignment. Id. at 67‐69. Courts strictly construe assignments and place certain limitations on them because of the strong public policy in favor of the free transferability of property. Id. at 68. Prudential argues that the language ...

Excerpt: ...e of court. (Code Civ. Proc. § 2030.310(a).) The motion to withdraw admissions is denied for being untimely. A motion for relief from admissions is a discovery motion which must be filed at least 15 days prior to the initial trial date, unless the party has first filed a motion to have his discovery motion heard after the discovery motion cutoff, which Plaintiff has not done. The Court notes that the evidentiary objections and request for discov...

Excerpt: ...ond offer is vague in light of the first offer and thus, is construed against Defendant. (Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) Plaintiff was the prevailing party. Under CCP § 998, if an offer made by defendant is not accepted and plaintiff fails to obtain a more favorable judgment or award, the plaintiff may not recover his or her post‐offer costs and must pay the defendant's costs from the time of the of...

Excerpt: ...d herein. No Sanctions are awarded. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Defendant O & M asserts as an affirmative defense, the defense of unclean hands on the grounds that Plaintiff City of Palm Springs selectively chose only to initiate a Government Code section1090 action involving the Prairie Schooner property at issue in this case and not any of the other potential projects/contracts that...

Excerpt: ...aint alleges that Defendant Tribbett attacked Santighian, kicking, punching and knocking him unconscious resulting in injury. Santighian asserts that his health supports a granting of this motion. In support of his motion, Santighian filed the declaration of his attorney that states that he has reviewed Santighian's medical records related to two surgeries, since 2011, to remove colon cancer and has been assessed as a high fall risk due to both h...

Excerpt: ...ccessfully challenged the City's failure to consider and act on Page 4 of 7 its Application for Class 1 Historic Site Designation of the Schwartz Residence. Foundation asserts that its suit against City was the catalyst for City acting on the Application that was ultimately approved unanimously by the Palm Springs City Council. Foundation further alleges that as a result, Foundation conferred a significant benefit on the public generally and the ...