Excerpt: ... v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Where a party contends that a judgment is valid on its face but void for lack of proper service, it is similar to C.C.P. §473.5 relief, and must be sought within 2 years. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) Based on the Declaration of defendant Veit, the presumption of valid service on defendant ORZ Corp., was rebutted. The Statement of Information which Plaintiff...

Excerpt: ...r § 2923.5(e)(1), but also that Plaintiff responded to Lewis's correspondence. Further, the factual basis for Plaintiff's contract‐based claims (second and third causes of action) is entirely inaccurate and ignores the salient provisions of the Note. Contrary to Plaintiff's argument, Lewis did not accelerate Plaintiff's loan; rather, as evidenced by the Notice, the loan fully matured and the final balloon payment had come due. Plaintiff's four...

Excerpt: ... do not expect to be ready by that date, when would plaintiffs estimate that plaintiffs would be ready for trial? 4. Regarding the defendant's desire to move for a judgment on the pleadings based on the judgment in the Herpel case: a. Are the plaintiffs in this case in privity with the plaintiffs in Herpel, even though no class was every certified in Herpel? b. Do all of the plaintiffs in this action hold leasehold interests in the trust lands of...

Excerpt: ... 10, 2018 regarding receipt of proper verifications. FedEx does not dispute receiving the supplemental responses, in Reply it asserts the verifications of Josephine and Raymond Ramirez are improper. CCP § 446 requires a party to state that the information is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true. The verificat...

Excerpt: ... (“CPRA”), this code section provides that “state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the ...

Excerpt: ... claim for recovery of medical expenses because he waived the claim by bringing the present action as the guardian ad litem for his son. Moving Defendant's request for judicial notice is granted pursuant to Evidence Code Section 452(c). Liability for medical care is not limited to medical doctors and that paragraph 5 of the complaint adequately alleges that those engaged in the practice of medicine and those providing healthcare failed to use the...

Excerpt: ...ined former defendant City of Moreno Valley's Demurrer to Plaintiff's Second Amended Complaint without leave to amend. The Court ruled that Plaintiffs did not sufficiently allege facts that could permit the finder of fact to conclude that the City's crosswalk was a dangerous condition of public property. The allegations of Plaintiffs' Third Amended Complaint do not add material or substantial facts which under which the finder of fact could now c...

Excerpt: ...tatus. Once the complaint is amended to reflect Burnett's true capacity, the additional generic references to “defendants” on pages 5, 6, and 7 of the complaint will be properly alleged. ...

Excerpt: ... was corrected and clarified. (Dec.Dossey, ¶21, Exs. Page 3 of 3 “12”, “13”.) The parties have engaged in extensive meet and confer efforts, which led to Plaintiff correcting its responses. No discovery abuse has been established. As to the sanctions for Plaintiff's erroneous responses to RFAs. The statute contemplates having to prove the truth at trial, or in a dispositive motion for summary judgment. Neither situation has occurred here...

Excerpt: ...or Admissions (“RFAs”) and form interrogatories that addressed the identity of the party Oliver contracted with. Oliver responded specifically to several interrogatories that Oliver contracted with Jack's Body Works', Inc. and admitted in RFAs that Jack Jackson is not a party to the contract. Oliver now seeks to withdraw his admissions to RFAs Nos. 2, 3 and 4 and amend his interrogatory responses. For the following reasons, the motion is gran...

Excerpt: ... in the amount of $61,615 on 8/28/17. Thereafter, on 9/29/17 Jerome quitclaimed over real property located in Palm Desert in favor of himself as Trustee of the Dolores Adelman Separate Property Trust. Jerome has been named individually as a defendant as well as trustee. The transfer was allegedly made to defraud Ronald as judgment creditor; therefore the transfer should be void. Ronald asserts that these allegations are sufficient to support puni...

Excerpt: ..., even assuming that Autry could revoke or be entitled to a refund of her charitable donation (i.e., the $5,000), Plaintiffs offer no explanation as to how the banking records would demonstrate that her particular donation was misdirected or why Plaintiffs should be entitled to discover the personal banking information for Louise and Gentile. Lastly, Plaintiffs offer no explanation as to how the banking records will demonstrate the extent of dama...

Excerpt: ...l Procedure section 1019.5, forthwith. The motion to expunge lis pendens was filed 1/12/18 and was set to be heard on 2/6/18. On 1/31/18 Plaintiff filed a notice of withdrawal of lis pendens and on 2/1/18 dismissed his complaint. Accordingly, the motion to expunge lis pendens is moot in light of the withdrawal of lis pendens. As to the request for attorney's fees and costs, Code of Civil Procedure section 405.38 provides that “the court shall d...

Excerpt: .... There are triable issues of fact as to all causes of action and issues. See Plaintiff's Separate Statement. Defendant has not met his burden to show he owed no duty to the decedent under all the circumstances presented which may include recommending the number and type of lifeguards for a possibly district student function. . (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747.) Further, there are material questions of fact reg...

Excerpt: ...mmary judgment as a matter of law. For the following reasons, the motion is denied: Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be est...

Excerpt: ... crossdefendant in the ULMAN's cross‐complaint for Indemnity and Declaratory Relief, and thus has a stake in the outcome of this motion: if MAGNON would obtain judgment against plaintiff's claims, then POLYMER would have more exposure to liability in the ULMAN's Cross‐Complaint. Just because plaintiff chose not to oppose the motion does not mean that POLYMER must sit silently and allow MAGNON to obtain a judgment that will prevent POLYMER fro...

Excerpt: ...otion to include a copy of the proposed complaint in intervention. (§ 387, subd. (c).) Although the moving (and opposing) papers are voluminous, it does not appear that they include a copy of the proposed complaint in intervention. ...

Excerpt: ...of fact. Dr. Auerbach has submitted substantial evidence that he performed no dental work on plaintiff personally and never supervised or reviewed any such work and never met the plaintiff. The moving parties have submitted evidence that all work was performed by independent contractors who were licensed dentists. No evidence has been submitted that would make the corporation liable for the work of the independent contractors. Plaintiff has not s...

Excerpt: ...here is no genuine dispute regarding the document's authenticity.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (overturned on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 n. 130). 1st & 2nd Causes of Action – Violation of 15 USC §1692f(6) & 15 USC 1692 et seq: California has determined that engaging in activities leading to a foreclosure do not constitute debt collection. (Fonte...

Excerpt: ...applies to all of the causes of action in this case. They concede that the LLC was the prevailing party and are entitled to reasonable attorney fees. There is no dispute that under Code of Civil Procedure Section 1032 and Civil Code Section1717 that the prevailing party on a contract shall be entitled to attorney fees. The Van Loons contend that the amount of attorney's fees requested is unreasonable because the majority of the work was performed...

Excerpt: ...llege a demand or other facts showing futility. To reiterate, derivative actions are equitable. From an equitable standpoint it must be asked whether there is some reason that, if the allegations are true, Tortoris should be allowed to avoid liability for allegedly stealing $1,600 from Carpet Depot? The answer is maybe because the State has an interest in collecting its Franchise taxes. What the court must balance is the State's interest in colle...

Excerpt: ...e entitled to attorney's fees, but argue that the amount requested is unreasonable. Daniel Kessler indicates that 2,757.14 hours were spent on this litigation by his firm of Burkhalter Kessler Clement and George (BKCG) for a total of $1,081,788.60, with an average hourly billing rate of $392.36. (Decl. of Kessler, ¶28, p. 19.) He states that his hourly billing rate throughout the year of litigation ranged from $495 to $545, while the hourly rate...

Excerpt: ...l amount of reduction is $4,607.15. Mr. Camarena's memorandum of costs was filed one day late. However, the Court exercises is broad discretion to allow relief from the late filed memorandum of costs because there is no showing of prejudice to Mr. Conkwright. (Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485.) Filing Fees: The motion is denied as to these costs. Service of Process Costs: The motion is granted as to these costs o...

Excerpt: ..., Dean and Simone Walsh, owned the vacation home where Riley and Jack were staying as guests of the Walshes with co‐defendants Kehly and Lance Sloan. (¶¶ 7‐11.) (Although the SAC also names Chad and Jeanie McQueen as codefendants, they have now been dismissed.) As to the Walshes, Plaintiff alleges that: (1) they negligently stored and secured a modified golf cart that they owned, despite knowledge that children would be staying at their hom...

Excerpt: ...fore considering the matter on the merits. It is noted that on February 20, 2018, this court granted Mission and Chin's motion to compel arbitration pursuant to an arbitration provision in the Employment Agreement. “The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fac...

Excerpt: ...s former resident Patricia Jenkins.” Answer, p. 2, ln. 10‐12. Defendant concedes that the failure to obtain an admission agreement is a violation and states that “t]his factual admission alone forms the basis for Defendant's violation of section 1430(b).” Answer, p. 2, ln. 17‐18. Beyond that, defendant does not admit and denies all other allegations of the complaint. The violation that Ramona has admitted to—not obtaining an admission...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐ 12‐18. ...

Excerpt: ...ailed to challenge the detailed time records and invoices, the declarations submitted, and the hourly rates based on experience. Civil Code §1717 contains both an entitlement clause (prevailing party) and a discretionary clause (the court can determine there is no prevailing party). (De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1292.) “A simple unqualified win (on a contract, of course) takes a case out of the discretion clause and puts...

Excerpt: ... in the OBGYN department. Finally, Plaintiff alleges that Parkview attempted to discourage her from making the complaint and once she made it, Dr. Nurick (Vice Chief of all Medical Staff) trivialized her complaint suggesting Plaintiff was just not used to the interactions. These allegations are sufficient at the pleading stage. Plaintiff alleges facts supporting a claim for punitive damages based on the allegation of sexual harassment by Salazar....

Excerpt: ...unities, Inc. Brookdale Senior Living, Inc. and Brookdale Rancho Mirage during which time he was defined as an “elder” under the Welfare and Institutions Code sections 15610.23 and 15610.27. During the time he resided at their facility they failed to ensure there were the necessary number of adequately trained staff on duty at all times and failed to care for him in a non‐reckless manner. That the actions committed by Defendants were ratifi...

Excerpt: ...leging 4 causes of action for: 1) Fraud, 2) Negligent Misrepresentation, 3) UCL Violation, and 4) Breach of Contract. Defendants demurred to all four causes of action. This court on 1/8/18 sustained with leave to amend as to all four causes of action. On 2/7/18, Roseian filed its First Amended Complaint (“FAC”) alleging the same four causes of action. Defendants once again demur to all causes of action. 1 st Cause of Action for Fraud (Intenti...

Excerpt: ...n particular, Defendant produced evidence it was contractually limited in providing HAMP relief to Plaintiffs. The burden shifted to Plaintiffs, but Plaintiffs failed to produce sufficient evidence showing a triable issue of fact. 3rd cause of action (Issue No. 4): DENIED. Defendant met its initial burden that it did not breach any duty of care; however, Plaintiffs produced sufficient evidence showing a triable issue of fact as to whether Defenda...

Excerpt: ...of Parke, ¶3.) The POS clearly shows that Parke was not personally served. Dayn Holstrom indicates that he is the designated agent for service of process for Holstrom, which is a professional law corporation. (Decl. of Holstrom, ¶1 and 2.) He states that Ms. Leon is not the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller ...

Excerpt: ...eviewing a disqualification motion, the court balances competing interests to ensure the parties are not denied substantial justice. (People ex rel. Dept. of Corps. v. Page 7 of 8 SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144‐1145.) “Depending on the circumstances, ‘a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial b...

Excerpt: ...111, 131. If an item is not expressly allowed under the statute, the burden is on the party seeking said expense to provide evidence that the fees are reasonable or necessary. Id. at 132. Filing Fees: Defendant seeks first appearance fees incurred by it and J. Velarde, Inc. However, everyone agrees that J. Velarde, Inc. waived its right to costs. Defendant argues that it should still is entitled to these costs because it paid for these fees on J....

Excerpt: ... is that the parties entered into a commercial lease for Cross‐Complainant's medical practice for the operation of a sleep center to assist patients with sleeping disorders. That Defendant Dr. Vuthoori breached Dr. Holt's quiet use and enjoyment of Page 2 of 3 the premises by continuously entering without an appointment or notice, constantly knocked on windows and doors, demanded frequent meets, threatened to “take care” of Dr. Holt, chased...

Excerpt: ...inez), O'Reilly Auto Parts, and O'Reilly Auto Enterprises, LLC. Moving party Cross‐ defendants have no authority to represent the interests of O'Reilly or Martinez. ...

Excerpt: ...s that it is not a party to the CC&Rs it is alleged to have breached. For the following reasons the motion is granted without leave to amend. US Bank is not a party to the CC&Rs. The First Amended Complaint (“FAC”) is based upon the following allegations: “After obtaining the Subject Property through an assessment lien foreclosure sale, Plaintiff made substantial repairs and improvements so as to be able to rent out the Subject Property or ...

Excerpt: ...urther, neither Code of Civil Procedure section 428.60 nor California Rules of Court, rule 3.110(c) provide a basis for a motion to quash resulting from a delay in serving the cross‐complaint. (See Rules of Court, rule 3.110(f) [order to show cause for sanctions as only remedy for a violation of rule 3.110(c)].) ...

Excerpt: ...nt's position that Mr. Garcia's deposition should not go forward until he is properly served with an appropriate subpoena is reasonable. In the absence of a subpoena, Mr. Garcia has no obligation to respond to Defendant's document demands, and in the absence of a voluntary production, Defendant would be forced to serve a subpoena and potentially move to compel a response to its demands (and possibly a further deposition). Moreover, the proposed d...

Excerpt: ...able claim to ownership of stock in the corporation. She provides no corporate governing documents, no stock certificates, no corporate minutes. As defendant notes, the plaintiff in a shareholder derivative action must own stock throughout all relevant time periods. Corp. Code §800(b); Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1119. Furthermore it is unclear that this is appropriately brought as a shareholder derivative action. To the extent tha...

Excerpt: ...ses, there has been no change in the law. The request of Defendants Grewall to continue hearing on this matter 60 to 90 days to after the Planning Commission and Board of Supervisors meet is denied. It is speculative to say that definitive action will take place and the next meeting of those entities. The authority of local jurisdictions to regulate or completely ban commercial cannabis activity is well established. Local zoning laws such as the ...

Excerpt: ... to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. On 04/03/2105, Plaintiff filed her original complaint for: (1) assault, (2) battery, (3)intentional infliction of emotional distress (“iied”) and (4) breach of lease based upon allegations that from April 10, 2014, through February 2015, Plaintiff, who leased residential property from Defendant, was by threat of use of a gun, assaulted by Defendant, that on a numbe...

Excerpt: ...alleged personal loans were part of the prior litigation and regardless of whether some portion of Vega's claims may be barred, a general demurrer does not lie to only a part of a cause of action. See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167. Further, the doctrine of judicial estoppel is inapplicable, as Vega was not successful in asserting his allegedly inconsistent position in the prior action. See Aguilar v...

Excerpt: ... rights have been vested under the statute, a repeal of the statute without a saving's clause will terminate all pending actions based on the statute. Rakin v. Long Drug Stores California, Inc. (2009) 169 Cal.App.4th 1246, 1256. However, this cause of action may survive if the facts comply with CC2924.11(a). 2COA: Sufficient facts are alleged to contend that the single point of contact was not provided. 3COA: The facts here appear quite similar t...

Excerpt: ...ect to a criminal proceeding; the privilege against self‐incrimination is personal to an individual criminal defendant and does not apply to co‐defendants in a civil action. See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886‐87. Further, an evaluation of the factors set forth in Avant! Corp. does not favor a stay: (1) Plaintiffs have a strong interest in proceeding expeditiously; (2) any threatened infringement on the privile...

Excerpt: ...ty to meet and confer with the opposing party before filing a motion for judgment on the pleadings. Page 2 of 2 This Court's CMO entered on February 28, 2018 requires the moving party to “strictly comply” with CCP § 439. (CMO, § B, ¶ 6.a.) The CMO further requires that declaration by the moving party describe the meet and confer efforts, including the date of the meeting, whether it was in person or by telephone, the persons involved, and ...

Excerpt: ...¶ 5.b. of counsel's declaration does not explain the number of weeks during which the plaintiff was allegedly deprived of breaks. ¶ 5.c. does not explain the number of months in which she used her car. ¶ 5.d. does not explain the calculation of the value of that claim at all. 2. The declaration of counsel does not address E.5.a.(ii). 3. The declaration of counsel states that the defendant produced pay records for other relief sales representat...

Excerpt: ...demnity. The moving papers were untimely served on Defendants Mission Linen and Adam Hudson as they were required to be served on or before January 14, 2018, but were served via mail outside of California (adds 10 calendar days pursuant to Code of Civil Procedure section1005(b)) on January 9, 2018. Accordingly, service was deemed complete on January 19, 2018, which is less than 75 calendar days prior to the scheduled hearing date of April 2, 2018...

Excerpt: ...e to timely file case management conference statements. Defendant David Mount is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Page 2 of 2 Relief is mandatory. “(W)henever 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 sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall) ...