Excerpt: ...e complaint or cross complaint for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer. As part of the meet and confer process, the defendant or cross‐defendant shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The plaintiff or cross‐plaintiff shall provide legal support ...

Excerpt: ...ntended to properly notice the IME for February 2018, well in advance of the discovery cut‐off date. However, in January 2018, Plaintiff served supplemental interrogatory responses that indicated she had moved to Texas. DRMC determined that the costs to either fly their expert to Texas or to retain a Texas‐based physician to do the exam and thereafter travel to California for trial were both cost prohibitive and burdensome on DRMC. As a resul...

Excerpt: ...rry declaration); 1,714 (Bello declaration at ¶ 4 (422 + 1,292); and 1,764 (Bello's declaration at ¶ ¶ 21 & 27). This inconsistency must be resolved. 2. The Bello declaration refers to a sample of the time records of the class members, but does not describe the size of the sample, i.e., the number or percentage of employees whose records were included in the sample. (¶ 22.) 3. The Bello declaration (at ¶ 25) justifies the claim requirement f...

Excerpt: ...onally serve Defendant. (CCP § 415.20.) Prevailing party to give notice. ...

Excerpt: ...he moving parties. However, the Court finds that the Order for Judgment filed on December 18, 2013, and the Corrected Order for Judgment filed on January 9, 2014, should be clarified. The Court finds that pursuant to Code of Civil Procedure section 762.050 and as the real parties in interest, the moving parties and opposing party is properly before this court and the court has considered the moving papers, the opposition, and the reply. After exa...

Excerpt: ...pear at the Jury Trial. Plaintiffs do not contest that, but argue that certain items are excessive and/or not allowed. Each challenged item is addressed in turn as follows: ITEMS 4 (i) through (q) – DEPOSITION COSTS: Plaintiffs argue that $1,171.69 in deposition costs sought under Items 4 (i) through (q) should be taxed because they were not reasonably necessary to the litigation, or because it is unclear what the costs were for. Opposing defen...

Excerpt: ...case, and this motion, the Court tentatively finds that Moving Party Carol Pulliam is a vexatious litigant pursuant to CCP 391(b)(3) and sets the following Order to Show Cause: Carol Pulliam is Ordered to Appear and Show Cause as to why she should not be declared a vexatious litigant pursuant to CCP 391(b)(3) and why the Court should not require her to obtaining a prefiling order, per CCP 391.7(a), before she may be allowed to file any further li...

Excerpt: ... plaintiffs and the defendant, the petition would have to be denied. (Iskanian v. CLS, 59 Cal.4th 348, 384‐390.) ...

Excerpt: ...l's Remittitur states that Plaintiff is entitled to recover costs on appeal. That is incorrect. The Remittitur states “The parties shall bear their own costs on appeal.” That is also in the Opinion's Disposition at p. 10 (“The parties shall bear their own costs on appeal”). Although Plaintiff does not expressly seek recovery of anything but attorney's fees, the motion includes (Exhibit 2) documentation regarding $485.26 in “disbursement...

Excerpt: ...tepped into Cross‐Defendant's shoes and alleged that Cross Complainants were the cause of the accident and the damage to Cross‐Defendant's vehicle. Since State Farm has substituted in for Cross‐Defendant as the party plaintiff, Cross‐Complainants may assert any affirmative defense they might have had against Cross‐Defendant Magana including the defense of comparative negligence and apportionment of fault. Cross Complainants are also see...

Excerpt: ... provides for payment to the named plaintiff of a “service award. The Court will require citation of authority for such an award in a PAGA case. The motion shall explain why such an award is fair under the circumstances of this case. The motion shall be supported by a declaration from the named plaintiff in which the declarant: a. Describes the services performed by the declarant to further the prosecution of the action; b. Estimates the time i...

Excerpt: ...mely made. /// Even if the motion was timely made, it is still improper. A motion for reconsideration must be based on new or different facts or circumstances of law. C.C.P. §1008(a). When a party seeks reconsideration he or she must show a “satisfactory explanation for failing to provide the evidence earlier, which can only be describes as a strict requirement of diligence.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Facts know by th...

Excerpt: ....52. Unlike the costs memorandum, a motion to tax costs based on factual matters must be supported by declarations. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113‐1114.) For instance, where “reasonableness” is challenged, conclusory allegations t Page 3 of 9 Shalikar) because they were not parties to the litigation nor involved in the promissory notes at issue. However, Plaintiffs assert these deponents were trial witnesses who te...

Excerpt: ...d.” Penal Code § 11165.12(b). Child abuse and neglect is defined to include “physical injury or death inflicted by other than accidental means upon a child by another person,” which includes “the willful harming or injuring of a child or the endangering of the person or health of a child.” Penal Code § 11165.6. The willful harming of a child “means a situation in which any person willfully causes or permits any child to suffer, or i...

Excerpt: ...strues the privilege as between Forgy, as the client, and Defendant's attorney. The privilege belongs to Defendant as the client and applies to Forgy as a representative of the insurance carrier required to defend against Plaintiff's claim. The privilege is between Defendant and Forgy/Garrison rather than between Garrison and Defendant's counsel, Daniels, Fine, Israel, Schonbuch & Lebovits. Plaintiff next argues that Defendant waived attorney cli...

Excerpt: ...oses of expediency, the following abbreviations are used in this ruling: “Deft” or “Millard” refers to Defendant moving party and “Pltf” refers to Plaintiff. Deft MILLARD's motion rests entirely upon its contention that it had no actual or constructive knowledge of the alleged floor condition which caused pltf to fall. (NOTE: to the extent the motion includes arguments disputing the reason pltf fell, and whether there was actually any...

Excerpt: ...e of the continued hearing was provided by the Court Clerk to Plaintiff, but not as to Kreizenbeck & Seim Partnership as it had not entered an appearance. A proof of service (“POS”) was filed January 9, 2018, reflecting personal service on January 4, 2018. The POS does not indicate that notice of the continued hearing was served. On January 18, 2018, Plaintiff filed a proof of service reflecting it had mailed a copy of the minute order contin...

Excerpt: ... to quash must be filed at the same time as a motion to set aside default to avoid the argument that by making a motion to set aside default, the improper service has been waived. (Civ. Proc., § 418.10(d). Service was improper because under Code of Civil Procedure section 416.10(a)(b) service on a corporation must be on either the designated agent for service or a specified corporate officers, a general manager, or a person authorized by the cor...

Excerpt: ...tiff/Cross‐Defendant moves the Court to strike claims for punitive damages in the second cause of action for conversion and prayer for relief. Cross‐Defendant asserts that as the case arises out of a landlord‐tenant contract that punitive damages are not available. Cross‐Defendant further asserts that the allegations are not specifically pled and are inadequate to support punitive damages under Civil Code section 3294. Cross‐Complainant...

Excerpt: ...l Procedure section 1019.5, forthwith. On 8/7/17, this Court ordered Plaintiff to provide verified responses to form interrogatories, special interrogatories, and demand for production of documents within 30 days plus pay sanctions in the amount of $460 within thirty days. As a result of Plaintiff's failure to comply with that order, Defendant filed a Motion to Dismiss on 10/16/17, which this Court denied, but imposed monetary sanctions. The Cour...

Excerpt: ...s. Exchange (1991) 231 Cal.App.3d 481, 487.) Despite initial noncompliance with the court order, Plaintiff has since produced verified responses and paid monetary sanctions. ...

Excerpt: ...Motion for summary adjudication of the 8, 9, 10 and 11th causes of action denied. Defendants move the court for summary judgment, or in the alternative for summary adjudication, as to Plaintiff Patricia Olmedo. Procedural Issues: The court notes that Plaintiff's separate statement in opposition did not comply with CRC, rule 3.1350(f)(2). In response to UMFs Nos. 4, 46, 48, 49 and 51, Plaintiff disputed the facts, but failed to cite any evidence i...

Excerpt: .... No other fees and costs are awarded. The bond is exonerated. The Receiver is to prepare a proposed order and give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This matter was previously heard on 11/9/17, at which time the court asked Page 2 of 8 2) Receiver advised the court in seeking authorization for the sale to Ms. Cota that it is his general practice, where after review he cannot find a lender willing to fund the n...

Excerpt: ... considered and made adjustments based on the following: (1) There was no showing that Inland Empire Counsel could not have been used. Accordingly, the use of comparable attorney's fees for San Francisco, Los Angeles, San Diego and Orange County are not persuasive. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615‐619 (2) Based on the court's experience a reasonable rate in this practice area would be a...

Excerpt: ...gnment before the foreclosure sale are insufficient to demonstrate that the assignment was void (as opposed to voidable) and are insufficient to support the first cause of action for wrongful foreclosure. The same is true with respect to the assignment from BANA to Nationstar. With regard to the second cause of action for violation of HBOR, Plaintiff fails to allege facts to demonstrate that the alleged violations of Civ. Code §§ 2923.55 and 29...

Excerpt: ...ecifically, Plaintiff has failed to allege facts which show that she is entitled to the protections afforded by HBOR in that Plaintiff alleges that she submitted two completed loan modification applications, one in August 2015 and then, for some unexplained reason, another in February 2016, but that Wells Fargo recorded a Notice of Default in November 2015 and Notice of Sale in February 2016. Because Plaintiff has not alleged specific dates for h...

Excerpt: ... section 1019.5, forthwith. The gravamen of the First Amended Cross‐Complaint (“FACC”) is as follows: The parties entered into a commercial lease for property equipped for vehicle sales, repair, and service. The lease also contained a purchase agreement for cross‐defendant's purchase of the Suzuki dealership equipment, furniture, and parts inventory in the amount of $100,000. The lease contained a bill of sale, which is allegedly attached...

Excerpt: ...ake judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879). Defendants request for judicial notice of the DOT, Substitution of Trustee, Notice of Default and Notice of Trustee's Sale is GRANTED. The Demurrer is SUSTAINED with 20 days leave to amend. 1 st Cause of Action: Although Plaintiff alleges violations of HB...

Excerpt: ...ct, enough is alleged in the general recitals. 2COA: The complaint adequately asserts facts to support the cause of action. 3COA: This is adequately plead based on the contract alleged in the recitals and ¶27. 4COA: ¶¶32 and 10 provide sufficient description of the converted property. 5COA: The threat to report without more does not amount to IIED. 6COA: Unless stated otherwise, enforcement of the Penal Code is reserved to the Executive Branch...

Excerpt: ...ure section 1019.5, forthwith. Plaintiff seeks to have the Court strike out language that he asserts is surplusage and irrelevant or a sham based on an OSHA report of which the Plaintiff requests that the Court take judicial notice. However, the contents of the report are hearsay and inadmissible to establish that portions of Defendant's answers are a sham. For the following reasons, the motion is denied in part and granted in part. Code of Civil...

Excerpt: ...p of the information sought to the issues framed in the pleadings; (2) the likelihood that disclosure will be of practical benefit to the party seeking discovery; and (3) the burden or expense likely to be encountered by the responding party in furnishing the information sought. (Columbia Broadcasting System, Inc. v. Sup. Ct. (Rolfe) (1968) 263 Cal.App.2d 12, 19.) As to Nos. 14, 15, 19, 20: These interrogatories request information regarding cont...

Excerpt: ...ying the original files for 17 LazyB. On August 24, 2017 this Court heard an ex parte application filed by Plaintiff seeking an OSC RE: Contempt. The parties stipulated that Plaintiff was to inspect the case file at defendants' counsel's office the next day at 1:00 pm.The Court denied the ex parte application and advised Plaintiff, a pro per litigant, that an ex parte application should be filed for emergencies only in the future, non‐emergenci...

Excerpt: ...xists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; (b) Grounds exist for the revocation of the agreement; or, (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. Califor...

Excerpt: ...tinued to sexually coerce her through text messages, phone calls and in person. (FAC, ¶61). She states that incidents occurred in February 2014 (FAC, ¶67 and 68), March 2014 (FAC, ¶72‐73) and May 2014 (FAC, ¶ 75). These acts of sexual battery are time‐barred. However, the final act of sexual battery alleged by Plaintiff occurred on either July 20 (FAC, §92) or July 27, 2014. (TAC, ¶78‐ 79), when Defendant sexually assaulted Plaintiff ...

Excerpt: ...odified. Plaintiff's counsel shall be prepared to describe the nature of the anticipated amendment. At the Case Management Conference:  Plaintiff's counsel shall be prepared to explain why no defaults have been requested as to the defendants served 11‐30‐17, 12‐3‐17 and 12‐6‐ 17 who have not appeared.  Counsel for all appearing parties shall be prepared to discuss whether this case should be designated “complex” pursuant to ...

Excerpt: ...provided accommodation, and was fired because of the disability. ...

Excerpt: ...on because Plaintiff fails to plead an actual, present controversy. ...

Excerpt: ...efendant (“D”) Bank of America, N.A. (“B of A”) to convey any interest in Lot 42 and to brief whether after the conveyance any cause of action remains against B of A re Lot 42. There is no dispute that B of A has disclaimed any interest in Lot 42. The HOA claims, nevertheless, that it may still pursue its slander of title cause of action and that the demurrer to the 3rd cause of action (“c/a”) for slander of title as to Lot 42 should ...

Excerpt: ...tiff Dawn J. Foote is to prepare a proposed order and give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. The Second Amended Complaint (“SAC”) for: (1) breach of express contract, (2) declaratory relief, (3) fraud, (4) intentional infliction of emotional distress (“iied”), (5) negligent infliction of emotional distress (“nied”), (6) partition, and (7) oral implied contract arises out of an alleged cohabitation a...

Excerpt: ...ly eligible for attorney fees.” (Id. at 566.) In order to obtain fees, the “plaintiff must establish that: (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense…; and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. (Ti...

Excerpt: .... (Cal. Code Civ. Pro. § 2031.310(b)(2)). Plaintiff's counsel's meet and confer efforts were minimal and Defendant's counsel appears to be willing to attempt to resolve the discovery dispute informally. Several of the responses indicate that Defendant may be willing to provide further responses once some of the issues have been resolved. ...

Excerpt: ...s never had a contract with Defendants and agrees that the sixth cause of action for breach of contract should be dismissed as against the demurring Defendants. As to the Seventh Cause of Action for foreclosure of mechanic's lien: Under CCP § 392(a)(2), the proper court for an action to foreclose a mechanic's lien is the superior court in the county in which the real property that is the subject of the action is situated. However, the requiremen...

Excerpt: ...ntiff Jasmine Labuen's Complaint alleges that on October 28, 2014, Defendant David Sonneborn struck her with his car while she was a pedestrian, while at the time he was making deliveries for one of his Round Table pizza restaurants or otherwise acting in the course and scope of his ownership or membership of D & N Pizza. Plaintiff Labuen served Requests for Production of Documents, Set One on Defendant David Sonneborn. Plaintiff moves the court ...

Excerpt: ...ant D & N Pizza, LLC. Defendant provided responses to only RFPs Nos. 1‐ 8, dated August 25, 2017. Defendant supplemented those responses on November 3, 2017, but once again provided no response to Nos. 9 – 12. Plaintiff filed a motion to compel responses to Nos. 9 – 12. Plaintiff's motion to compel responses to Nos. 9 – 12 was served on Defendant via mail on December 26, 2017 and deemed served on 12/31/17. Defendant mailed a second supple...

Excerpt: ...gs. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2017) §10:52, p. 10‐25.) The rules applicable to demurrers and motions for judgement on the pleadings apply. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118). Where the motion for summary judgment functions as a judgment on the pleadings to challenge the sufficiency of the allegations and the facts indicate that plaintiff may have a goo...

Excerpt: ...by Anthony Chavez of Best, Best & Krieger. The Proof of Service on the Notice of Entry of Order states a mailing date of December 19, 2017. The motion for reconsideration was filed on January 11, 2018. C.C.P. §1008(a) provides that a party affected by a court's prior order may request that the court “reconsider the matter and modify, amend or revoke the prior order.” A motion for reconsideration is to be made within ten (10) days after servi...

Excerpt: ...12/6/17 the County sought and received an entry of default as to Mr. Aiken. Thereafter, on 12/22/17 County filed its motion for preliminary injunction and mailed notice to Mr. Aiken although Mr. Aiken has not entered an appearance in this case. The motion date on the noticed motion was 1/23/18. On 12/26/17 the court on its own motion continued the motion for preliminary injunction to 2/6/18, but only County was provided notice. Accordingly, the C...

Excerpt: ...f's counsel did here. Further, the “redline” version submitted suffices for purposes of Rule 3.1324. ...

Excerpt: ... forthwith. There is no provision in the Code of Civil Procedure or Rules of Court which provides that a motion is deemed to be meritorious because no opposition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal theories without notice to opposing cou...

Excerpt: ...been recorded in the official records of each county in which the common interest development is located.” Civ. Code, § 6531. It appears that EAA is a commercial common interest development as defined under § 6531. As such, the provisions of the Davis‐Sterling Act applicable to common interest developments, including the ADR provisions, may not apply to EAA. See Civ. Code § 4202 (provisions of part 5, Common Interest Developments, do not a...