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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...f has named as defendants, Shadow Hills and Indio head soccer coaches and athletic directors as well as the athletic trainer for Indio, Pete Lozano. The central allegations are: “PLAINTIFF sustained the traumatic brain injury resulting in a severe concussion when an opposing player struck PLAINTIFF on his head Page 2 of 3 during the Game, and no action was taken by any of the coaches, trainers, or referees present at the Game following the Inju...

Excerpt: ...ctive fraud and fraudulent concealment are not pleaded with the requisite specificity. The second cause of action for violation of the UCL fails because Plaintiff has not set forth a viable claim for violation of Civ. Code § 2923.5 and has not otherwise pleaded Defendants' alleged unfair/fraudulent business practices with any degree of particularity. The third cause of action for violation of HBOR does not sufficiently set forth a claim for a pr...

Excerpt: ... of 3 elevator to get to the ground floor.” Plaintiff also asserts that the failure to warn that the ground floor was under construction, that there was no exist, and that a key card was required, created an unreasonable risk of pedestrian accidents and injuries. (PSS, UMF No. 32.) She asserts that these dangerous conditions contributed to/caused the subject incident. (PSS, UMF Nos. 33, 40.) Plaintiff asserts that under the circumstances, she a...

Excerpt: ...s. It further concedes that the Purchase and Sale Agreements for those 11 homes require binding arbitration. Instead of denying the existence of those agreements, it argues that the owners of those 11 homes waived arbitration by filing this action. That argument, which is supported by no argument or citation to authority whatsoever, fails. The complaint filed by the plaintiffs specifically sought a declaration that the agreement between the plain...

Excerpt: ...a and Hayday Farms, Inc., which alleges that HayDx and Hayday entered into a written Asset Purchase Agreement that provided for the sale to HayDx by Hayday of most of Hayday's assets, including all of the equipment and other tangible assets used by Hayday in conducting its hay processing and sales business. Some of the equipment subject to the purchase agreement was taken by Hayday for its own use and pledged as collateral by Hayday for loans to ...

Excerpt: ... applies where (1) the plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member; (2) the action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and (3) private enforcement is necessary and places ...

Excerpt: ...pport his punitive damages claims. Plaintiff may seek punitive damages for “oppression, fraud or malice” by the defendant. (Civ. Code § 3294(a).) “Malice” means conduct intended by the defendant to cause 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,...

Excerpt: ...representative action. Accordingly, the motion describes the PAGA claims brought on behalf of other aggrieved employees. (Pg. 3, ll. 17‐26.) Nevertheless, the motion states in the very next paragraph, at page 4, line 1: “There are no representative claims in this action.” The same language is repeated in ¶ 4 of the Portner declaration. This contradiction must be resolved. 2. There is nothing in the agreement that allocates $15,000 of the s...

Excerpt: ... Lax's conversations and communications with Lunak were protected by the attorney‐client privilege. The following day, February 15, 2014, Lax contacted Lunak's employer Attorney Renell Burch to obtain Lunak's legal advice and representation with regard to a CPS investigation and a marital separation and dissolution matter in Lax v. Adler, IND1400036. February 17, 2014 and thereafter (through approximately March 1, 2014 per the dates in the FAC)...

Excerpt: ...(2018) 4 Cal.5th 241 and (2) describe their progress in serving the defendants named 5‐9‐18. At the TSC, all parties shall be prepared to discuss their compliance with the CMO timeline filed 8‐10‐17. Analysis: The plaintiffs seek to have a referee appointed to decide “all claims related to all causes of action in this litigation, including, but not limited to, all matters related to discovery, law and motion, pre‐trial hearings, and t...

Excerpt: ...h a judgment debtor's exam, judgment creditor served Requests for Production of Documents. Request for Production No. 15 requested “A copy of [Okhrimovskaya's] driver's license and passport, including all pages within.” At the judgment debtor exam, according to the reporter's transcript, Okhrimovskaya did not bring her passport to the examination, but stated she could provide it to her attorney. Okhrimovskaya's counsel then stipulated to prov...

Excerpt: ...with. Plaintiff Thomas Tedesco seeks an order (1) perpetuating testimony pursuant to Code of Civil Procedure sections 2036.010 et seq., 2035.010 and (2) designating depositions as “Former Testimony” Pursuant to Evidence Code sections 1290, 1291 and 1292. For the following reasons, the motion is denied: Neither section 2036.010 nor section 2035.010 applies. These sections allow for discovery where it would otherwise be prohibited. Section 2036...

Excerpt: ...isrepresentation that the square footage would be recalculated and the Lease Agreement would be amended. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation that may constitute actionable fraud. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “An action for promissory fraud may lie where a defendant fraudulently induces the pl...

Excerpt: ...ecla Lunak (“Lunak”). As a prospective client, Lax's conversations and communications with Lunak were protected by the attorney‐client privilege. The following day, February 15, 2014, Lax contacted Lunak's employer Attorney Renell Burch to obtain Lunak's legal advice and representation with regard to a CPS investigation and a marital separation and dissolution matter in Lax v. Adler, IND1400036. February 17, 2014, and thereafter (through ap...

Excerpt: ...fy a good faith settlement. Furthermore, she does not provide a copy of the Mikhail settlement to confirm that Mikhail actually settled the claims as asserted against her. The stipulation between McShane, Mikhail and Plaintiff regarding the Mikhail's assumption of liability has no bearing on the Pharmacy Defendants' cross‐complaint as it is not binding as to them. ...

Excerpt: ...reasons stated, be presented. A party opposing a motion for summary judgment or adjudication is entitled to a continuance where it shows “that facts essential to justify opposition may exist but cannot, for reasons stated be presented…” (Code Civ. Proc. § 437c(h).) This First Amended Complaint (“FAC”) is for: (1) breach of contract and (2) declaratory relief raises. Romano has filed a motion for summary adjudication of the 2nd cause of...

Excerpt: ... in the notice. (366‐386 Geary St., L.P. v. Superior Court (1990) 219 Cal. App. 3d 1186, 1199.) This Motion was initially brought under Fed. Rule Civ. Pro. §60(b), which provides for relief from a final judgment, order or proceeding on motion and just terms. However, Defendant has provided no authority that allows a party to move for relief from a state court judgment under the rule governing challenges to federal court judgments. After Plaint...

Excerpt: ...ohnson, Magnesia Falls Plaza, LLC, and Michelle Davidson are to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This complaint for breach of contract, fraud and breach of fiduciary duty is based upon Defendant's alleged misrepresentations regarding capital contributions to the subject partnership and falsification of partnership books and records. The motion is based upon the grounds that complaint does not contain a re...

Excerpt: ...ation (2nd, 4th, 6th), and a cause of action for breach of fiduciary duty and another for negligence. Chang alleges all 8 causes of action against Peter Zarenejad and the 7th and 8th causes of action against Hilgenberg Realty Inc. Defendants Peter Zarenejad and Hilgenberg Realty Inc. demur to each cause of action (1st – 8 th causes of action) in Plaintiff Sophia Chang's First Amended Complaint on the grounds that they fail to state facts on whi...

Excerpt: ...me, particularly where the receiver would be engaging in the same action – to evict the tenant. There is nothing for a receiver to do at this point. There is no reason to incur the significant expense of a receiver. ...

Excerpt: ...ration assigned their judgment and lien to LA Lease Holding, LLC on 10/14/14. Also, filed on 12/28/17 was an assignment of the judgment and judgment lien from LA Lease Holding, LLC to Butler Capital, Inc. dated 1/20/17. On 3/22/18, a notarized assignment, dated 12/16/14, was filed with the court reflecting that Butler Capital Corporation assigned its judgment to LA Lease Holding, LLC. Filed on 5/21/18 is the acknowledgment of assignment of judgme...

Excerpt: ...ng portions of the First Amended Complaint (“FAC): Page 6 of 7 1. ¶ 20 requesting punitive damages in the 1st cause of action, 2. ¶ 39 requesting punitive damages in the 3rd cause of action, 3. ¶ 57 requesting punitive damages in the 5th cause of action, 4. ¶ 69 requesting punitive damages in the 7th cause of action, 5. ¶ 70 requesting attorney's fees in the 7th cause of action, 6. ¶ 76 requesting attorney's fees in the 8th cause of actio...

Excerpt: ... costs and the allowance of 15% surcharge. Facts supported by the evidence. Upon appointment the Receiver removed Weedmart from the property. The property was inspected and there was substandard conditions at the property including but not limited to structural modification, electrical issues and inadequate bathroom facilities. The marijuana dispensary existing at the filing of this case, was operated by the former property owners Can Nguyen and ...

Excerpt: ...nt by the defendant would be less than $750,000? 3. The declaration of Bello states at ¶ 30 that he “generally” obtains estimates from several potential administrators, but does not say whether he did so in this instance. Nor does it describe the results of those competitive bids. 4. ¶ 42 of the settlement concerns objections, but the last sentence refers to requests for exclusion. 5. The first sentence of ¶ 44 of the settlement is incompl...

Excerpt: .... (Defendant was served with the Summons, Complaint, etc., on August 20, 2017 and filed an Answer, with the assistance of his former counsel, on October 24, 2017.) Defendant's Responses were not served on Plaintiff by Defendant's current counsel until March 27, 2018. Defendant did not submit any evidence to the Court that the parties agreed to an extension of time to serve the Responses with objections. Moreover, Defendant's Responses were not ve...

Excerpt: ...court earlier that a cross‐complaint had been filed. Hence, reconsideration is appropriate. However, upon reconsideration the Motion to Quash is GRANTED. When one weighs the privacy rights of the Tatums against James' need to conduct discovery into claims presented in a cross‐complaint that had been filed by his co‐defendant and that he does not have any interest in, the privacy rights of the Tatums prevail. Without being a party to the cro...

Excerpt: ... Since that estimate was given in June of 2016, the terms of the settlement have changed to eliminate the requirement of any claims being submitted. That eliminates the need for “reminder postcard,” “postage reminder postcard,” “claims processing,” and possibly other expenses, and may reduce other categories of services. In addition, the size of the class has risen from 833 to 946. The Court will require an updated quotation based on ...

Excerpt: ...seeking treatment by Dr. Torian, his behavior was inappropriate by exposing Donnelly's breasts and staring at them. Each visit Dr. Torian's exposure of Donnelly's breasts became longer. On one visit Dr. Torian asked Donnelly if her pain went to her groin and although she responded no Dr. Torian touched Donnelly in the crease of her upper inner thigh near her vaginal region. When Donnelly pulled back from the improper touching Dr. Torian said he w...

Excerpt: ... court to compel Plaintiff Donnelly to arbitrate her claims and to stay these proceedings. DISCUSSION: Dr. Torian asserts that the dispute in this action is subject to a valid and enforceable arbitration agreement and that Donnelly has refused to arbitrate her claims. However, the claims made by Donnelly for sexual assault do not arise “out of or in any way” relate to her physician‐patient relationship with Dr. Torian. (Victoria v. Superior...

Excerpt: ...e issues of fact with respect to both the alleged breach of the standard of care and causation. Plaintiff's expert, Jack Sills, M.D. is properly qualified and opines that the standard of care required that the twins be subject to parallel evaluations and antibiotic treatment and that if Joshua had been started on the same antibiotic regimen as his twin sister, he would have, to a reasonable degree of medical probability, survived the infection th...

Excerpt: ...promissory note in its Cross‐Complaint against Healing Nature, LLC. 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 established or th...

Excerpt: ...ion. DENY the motion for summary adjudication as to James Nichols the general contractor, on procedural and substantive grounds. Plaintiffs failed to comply with the requirements of Rules of Court, rule 3.1350 which requires that: “The specific cause of action or issues of duty must be stated specifically in the notice of motion and be repeated verbatim, in the separate statement of undisputed facts.” Additionally, there is a triable issue of...

Excerpt: ...g to the police report attached to the claim, the Izuzu was towed and it appears that the other named items were located in the vehicle. The citation states that the vehicle is “stored” pursuant to the driver being cited with a violation of Vehicle Code section 22651(p). Vehicle Code Section 22651 is a statutory provision sets for circumstances that permit a peace officer to remove a vehicle. Subsection (p) provides that one of those circumst...

Excerpt: ...ermination in his (plaintiff's) favor; (2) was brought without probable cause; and (3) was initiated with malice (Zamos vs. Stroud (2004) 32 Cal. 4th 958). Malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause (Id.). A claim for malicious prosecution need not be addressed to an entire lawsuit: it may be based upon only some of the causes of action alleged in the underlying lawsuit (Franklin Mint Co. vs...

Excerpt: ...e a proper cause of action for negligent hiring. The 2nd cause of action in the Cross‐Complainants Pug and Meza's First Amended Complaint (“FAC”) alleges that Field Asset Services owed Cross‐Complainants a duty to ensure that inspections they were ordering were appropriate for the work to be complete don the project such that their funds would not prematurely be dispersed to Plaintiff/Cross‐Defendant F.I.R. Affiliates, Inc. (“F.I.R.�...

Excerpt: ...presented that she was Dr. Bass's personal assistant. That misrepresentation caused Cross‐Complainant embarrassment and humiliation destroying his reputation in having to explain to his wife Page 8 of 9 and Servpro who his “assistant” Audrey was and the fact that he did not have an assistant and was not having an affair. In addition, when the Servpro documents could not be acquired by the phone ruse, Jurak served an Subpoena Ducts Tecum (�...

Excerpt: ... to determine whether this is the case. Furthermore, Defendant has not produced any evidence that it has workers' compensation insurance that will cover Plaintiff's claim. Additionally, there is no evidence establishing that other exceptions to the exclusivity rule do not apply. Page 3 of 3 The scope of discovery is generally broad and permits any party to obtain discovery regarding any matter not privileged that is relevant to the subject matter...

Excerpt: ...ommercial lease agreement with Christopher and David Hoffman, which they breached. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v...

Excerpt: ...ers for relief contained in Plaintiff's First Amended Complaint (“FAC”) in paragraphs 35 (3rd cause of action), 45 (4th cause of action) and 55 (5th cause of action) and prayer for relief related to the 3rd , 4 th and 5th causes of action. A motion to strike lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central...

Excerpt: ...LC is entitled to inspect the cart. Defendant Club Car, LLC (“Defendant”) seeks an order permitting visual inspection and non‐ destructive testing of the subject golf cart. Plaintiffs claim that Defendant has already conducted an inspection. This argument has no merit. Plaintiffs did allow Defendant access to the cart before this action was filed. However, the fact that Plaintiffs allowed Defendant access Page 2 of 2 to the cart before this...

Excerpt: ...iscovery Act specifically permits contention interrogatories with no time restriction. The motion is MOOT as to Special Interrogatories 2, 5 and 28 and numbers 4 and 30. Supplemental responses were provided very late, which identify the portion of the CC&Rs that provide the duty. The motion is GRANTED as to Special Interrogatories 7, 8, 9, 16, 17, and 18, 20, 21, 22. If Plaintiffs are not aware of any personal facts, and can only rely on expert o...

Excerpt: ...aintiff has filed a First Amended Complaint.” The Court granted leave to amend (4‐12‐ 18), but no such pleading has been filed. 2. The agreement provides for the entry of judgment that would purport to bind all aggrieved employees. The parties rely on the Supreme Court's statement that “the judgment in [a PAGA action brought by an aggrieved employee] is binding not only on the named employee plaintiff but also on government agencies and a...

Excerpt: ...ers requiring her to respond. The court's orders directing Plaintiff to answer discovery were entered March 6, 2018. The court directed Plaintiff to serve verified responses without objection within 15 days and granted monetary sanctions. The notice of the court's ruling was mailed on March 8, 2018, for effective service on March 13, 2018. Therefore, Plaintiff was ordered to serve her responses on or before March 28, 2018. As of April 5, 2018, th...

Excerpt: ...es customarily charged by each attorney for that attorney's time during the period in which those services were performed, and (ii) the attorney's experience and expertise that justify such a rate. The declaration shall state whether the attorney has clients that pay that rate, and if so, the percentage of the attorney's clients that do so. If the attorney works exclusively on a contingency basis, the declaration shall explain the basis for the h...

Excerpt: ... 1,981. No explanation is offered for that drop of 24%. 2. The administrator's fee is limited to a maximum of $24,500, which was the estimated cost when the class was expected to number 2,600. Although the class was actually only 1,981, the administrator estimates its total costs as being $24,562.27. How is it that a 24% decrease in the size of the class results in an increase in the administrator's costs? 3. The declaration of Crawford is unclea...

Excerpt: ...n, a party to those escrow instructions, or a third party beneficiary to the refinance transaction. There are no allegations that the escrow instructions required that CHICAGO TITLE make any inquiry or a payoff to BARCLAY, or that BARCLAY was considered in any aspect in the Escrow 3 instructions or writings. As a result, pursuant to Summit Financial Holdings, Ltd. vs. Continental Lawyers Title Co. (2002) 27 Cal. 4th 705, the SAC fails to state an...

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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ... 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: ...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: ...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: ... (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: ...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 ...

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: ...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: ...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: ...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: ...egligence, (2) assault and battery, (3) false arrest, (4) false imprisonment and (5) emotional distress arises out of Plaintiff Tamara Pytel's arrest by Defendant RCSO Nelson while Plaintiff was at home. Plaintiff alleges that she was falsely arrested for being under the influence of an illegal stimulant while she was experiencing withdrawal symptoms caused by not taking her prescription medication for depression and anxiety; that she was transpo...

Excerpt: ...d to amend and control its process and orders so as to make them conform to law and justice. Landis vs. North American Co. 299 U.S. 248, 254 (1936) provides the power to stay proceedings in incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants). In Johnson vs. American Airlines, Inc. (1984) 157 Cal. App. 3d 427, the court de...

Excerpt: ...hould be excused from his failure to ask for oral argument in compliance with local rule. Specifically, he indicates that if he could have argued, he had additional information for the court to consider. He did not explain why he did not provide the additional information in his Reply. ...

Excerpt: ...h PPSM‐70. Petitioner's argument that he is not challenging the termination of his employment but is only challenging the Title IX investigation is unavailing. The Title IX investigation and Final Report do not constitute a final administrative decision upon which a writ of administrative mandate may be issued. See CCP § 1094.5(a); Security Nat. Guar., Inc. v. California Coastal Com'n (2008) 159 Cal.App.4th 402, 415 (CCP § 1094.5 “permits c...