Excerpt: ... resolved during the Court‐ordered meet and confer. A moving party must establish good cause justifying discovery. (Cal. Code Civ. Proc. §2031.310(b)(1).) To establish good cause, the moving party must demonstrate relevance and facts justifying discovery. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause for production “is met simply by a fact‐ specific showing of relevance.” (TBG Insurance Services...

Excerpt: ...r future based on the two‐year discretionary dismissal of a mechanics lien action, pursuant to Civil Code sections 8462 and 8554. Code of Civil Procedure section 1048(b) provides that the court may “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy” order a separate trial of any issue. Plaintiff Orr Builders designed and completed the improvement to property, which is at...

Excerpt: ...t time, she was put on inquiry notice that the Settlement Agreement was unenforceable and should have conducted a reasonable investigation as to the cause of her injury. Furthermore, Plaintiff had no reasonable expectation that Defendant would continue to represent her after she discovered that her appeal was denied. Representation in an unrelated matter, an isolated invoice in February 2016 for costs and expenses, and communications regarding th...

Excerpt: ...an tube and that, instead, defendants' removed her right fallopian tube, causing her to have a second surgery to remove the left fallopian tube. Prevailing party to give notice. ...

Excerpt: ...nd confer in person or by telephone with the plaintiff who filed the 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 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 shall provide legal s...

Excerpt: ...n, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice. CCP §2025.230 authorizes the deposition of a person most knowledgeable (PMK). Plaintiff served Notice of Deposition (with Requests for Production of Documents) of Defendants' PMK on November 27, 2017. Despite requests from Plaintiff on November 27 and December 21, 2017 asking Defendants to provide alternative dates for the de...

Excerpt: ...ll experts allowed to be present. The court continued the hearing to March 15, 2018 as to whether Defendant is obligated to produce data and information obtained at the inspection, and set a briefing schedule. The vehicle inspection took place on March 8, 2018, as ordered by the court. Trial is currently set for March 29, 2018. Page 2 of 5 A party seeking a protective order must show good cause for issuance of the order by a preponderance of the ...

Excerpt: ...it, or to produce for inspection any document or tangible thing described in the deposition notice. Plaintiff properly noticed the deposition are provided under the statute for dealership personnel (Custodian of Records, the PMQ, the Technicians and Service Advisors at the Perris Valley Chrysler Dealership – a total of 9 individuals). The Notice of Deposition(s) was served November 29, 2017 after an November 15, 2017 meet & confer letter. Defen...

Excerpt: ...urately described the terms of the judgment and escrow instructions proposed by or otherwise agreeable to the defendant. When the defendant failed to appear on March 6, 2018, the Court ordered an OSC to be issued as to why sanctions should not be imposed for the failure to appear. However, the clerk mistakenly failed to issue that order. Accordingly, that hearing is vacated. However, the defense shall be prepared to explain why no appearance was ...

Excerpt: ...s GRANTED. Defendant has established that the acts that form the basis of Plaintiff's complaint were taken in furtherance of Conkwright's right to petition. Therefore, the burden shifts to Plaintiff to establish a probability of prevailing on the merits. Malicious Prosecution: First, Bosco appears to argue that the malicious prosecution applies to Conkwright's claims against Camarena by arguing that Conkwright shot at Camarena knowing that he was...

Excerpt: ...horized method of discovery or disobeying court orders to provide discovery. (Cal. Code Civ. Proc. §2023.010.) If a party fails to obey an order compelling answers to interrogatories, the court may impose a terminating sanction. (Cal. Code Civ. Proc. §2030.290(c).) The same is true for failure to obey a court order compelling the production of documents. (Cal. Code Civ. Proc. §2031.300(c).) Only two facts are absolutely prerequisite to imposit...

Excerpt: ...ry adjudication as to the 4th and 5th causes of action. Defendants move the court for summary judgment, or in the alternative for summary adjudication, as to Plaintiff Rosario Robledo as to all causes of action. The undisputed material facts are as follows: Plaintiff Rosario Robledo (“Robledo”) was hired by Defendant DNS2 Management LLC (“DNS2”) on December 1, 2011 when DNS2 purchased La Quinta McDonald's #13695. (Decl. Stacey Shalhoub ¶...

Excerpt: ...gligence per se provides that the negligence of a person is presumed if he violated a statute or regulation of a public entity, if the plaintiff's injury resulted from an occurrence that the regulation was designed to prevent, and if the person injured was within the class for whose protection the regulation was adopted. See Evid. Code § 669; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 544‐45. Plaintiffs adequately plead that Defend...

Excerpt: ... 3 day notice to terminate the lease. On 8/13/17, while Peraza was still in possession of the premises Kogut changed the locks to the premises and prevented Peraza from accessing the premises. Kogut failed to provide an itemized statement and return of Peraza's deposit of $500. In addition, Kogut has failed and refused to return Peraza's personal property worth in excess of $8,000 located inside the premises. Defendant Connie Kogut moves the cour...

Excerpt: ...the new client. California Rules of Professional Conduct, rule 3‐310(E). Plaintiff fails to indicate what this prior lawsuit was about and does not provide evidence that Mr. Larkin obtained any confidential information. Since there is no evidence to support a showing of conflict, this argument is not persuasive. Further, Plaintiff has failed to provide evidence that Mr. Larkin has intimidated or harassed witnesses. His declaration contains conc...

Excerpt: ...gatory to which Plaintiff actually provided an answer in whole or part, the answer was preceded by the phrase, “to the extent it can be answered,” which renders the response ambiguous, if not entirely meaningless. Plaintiff's responses must consist of answers or objections. (CCP § 2030.210(a).) A response stating an inability to respond is insufficient and legally invalid. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultant...

Excerpt: ...The pleadings do not make clear what an “endorsement sheet” is. Without defining this term, this court could mistakenly order either more or less than requested. There is no way to know for certain. RFP 2 (“24 hour report”): DENIED. The court cannot order that which is not clearly and unambiguously defined. The pleadings do not make clear what a “24 hour report” is. Without defining this term, this court could mistakenly order either ...

Excerpt: ... actually provided an answer in whole or part, the answer was preceded by the phrase, “to the extent it can be answered,” which renders the response ambiguous, if not entirely meaningless. Responses must consist of answers or objections. (CCP § 2030.210(a).) A response stating an inability to respond is insufficient and legally invalid. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) F...

Excerpt: ...s a home. Feltz claims that the hole was covered and obscured by grass. Feltz has named both Ironwood HOA (HOA) and landscapers A.K. Landscaping Maintenance, Inc. (AK) as defendants. The HOA's motion is based upon the grounds that there is no triable issue of fact as to the 4th cause of action for declaratory relief on its cross complaint that A.K. owes the HOA a duty to defend and indemnify the HOA from Feltz' claim. There is a triable issue of ...

Excerpt: ...eflect that Defendant did not owe a duty to Plaintiff and that Plaintiff's cause of action for negligence lacks merit. 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 o...

Excerpt: ...t to Code of Civil Procedure section 1019.5, forthwith. At issue are production of records of transactions from a specific Well Fargo account over the past three years. Ramy claims that all responsive docs have been identified. However, it appears (1) that records from June 2015 through April 2017 were not produced and (2) that the persons to whom payments were made have not been identified. Kohan is not entitled to sanctions. (See Argaman v. Rat...

Excerpt: ...charges his clients, and instead, he claims this rate is supported by the Laffey Matrix. The trial court can determine rate calculation based on an adjusted Laffey Matrix (the official source of rates based on Washington D.C. area, adjusted to local area based on the Consumer Price Index) (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695‐696) Defendant failed to show the proper adjustment of the Laffey rate ($717/hr. for a 1...

Excerpt: ...s contacted by a Daniel Krastel stating that he received the posted notices and that he lived at the property before the fire, and due to the owner's death the property was in probate. Krastel claimed that he would become the owner of the property once probate was completed. City made no effort to verify that fact, or otherwise determine who owned or controlled the property. Notices mailed to the decedent Carol Adamson and/or the occupant of the ...

Excerpt: ...overy and to appear at her deposition despite court orders compelling her to respond and to attend her deposition. Plaintiff has also been sanctioned. (See, e.g., 09/14/2017 minute order.) Plaintiff has not complied with the Court's orders or paid the sanctions imposed. The Court may make Page 6 of 10 any of the following orders against the party disobeying the discovery order: striking that party's pleadings or parts thereof; staying further...

Excerpt: ... to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This cross action arises out of a failed business partnership. Plaintiff/Cross‐Defendant (“P/XD”) Nejat Kohan alleges he entered into a joint venture agreement with defendants Page 3 of 10 in 2002 for the restoration of the Spanish Inn hotel in Palm Springs. Kohan paid $225,000 in cash to enter into a Joint Venture Agreement (JVA) with Defendant/CrossComplainant ...

Excerpt: .... §473(b) is not available. If this motion also sought to set aside default as to Fua and SAI, it is untimely too. This motion was filed approximately 10 months, nearly 300 days, after default was entered against Fua and SAI. ...

Excerpt: ...plaintiffs do not dispute the existence or enforceability of the arbitration provision. Instead, they ask the Court to exercise its discretion to “refuse to enforce the arbitration agreement” when “a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party,” that other action arises out of the same transaction or series of related transactions as does the arbitration, and th...

Excerpt: ... Motions to Strike as to the Fourth Amended Complaint: The standing issue is not moot because Eric Guinan has also been named as a plaintiff. Naming Guinan as the executor of Playan's Estate and Personal Representative alternatively as the proper party to pursue these claims is not sufficient to establish his standing to do so precisely because Cervantes argues that she, as successor trustee, is the proper party. It cannot be both. These claims b...

Excerpt: ...the end of defendant AMG Property Investment (causing it to be named as AMG Property Investments). Simply put, the service upon defendant AMG Property Investment was in substantial compliance with CCP §412.30. It gave actual notice to defendant AMG Property Investment that it was being sued and needed to defend the action. (Doctrine of “idem sonans”.) ...

Excerpt: ...ile a “Fourth Amended Complaint Following Motion to Strike,” that deletes the stricken provisions without changing any paragraph numbering or adding or deleting anything else. The defendants shall prepare a formal order consistent with this ruling. Analysis: All Class Action Allegations The Court is not persuaded that all of the class claims are insufficient as a matter of law to qualify for prosecution on behalf of a class. For instance, the...

Excerpt: ...ting sanctions nor issue/evidentiary sanctions under CCP § 2023.030(b)‐(c) are warranted. While there is no question that Defendants have been remiss in timely complying with the court's discovery orders, Defendants have taken steps toward full compliance by agreeing to a third‐ party vendor to extract the ESI, although the actual data extraction must still take place. Moreover, while Plaintiff may have been inconvenienced by Defendants' tar...

Excerpt: ...2.6. Sanctions are denied. Page 4 of 4 Although the meet and confer efforts were insufficient, it does not appear that further efforts will be successful. The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections. (Cal. Code Civ. Pro. §2030.250(a).) Unsworn responses are tantamount to no responses at all. (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636.) Howeve...

Excerpt: ....23; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) As to the second and third causes of action, plaintiff fails to allege the manner in which his claims are ordinary negligence claims, as opposed to professional negligence claims. The motion to strike is MOOT. Prevailing party to give notice. ...

Excerpt: ...ects: 1. It violates ¶ H(6), because the release is not limited to claims based solely on the facts alleged in the first amended complaint. It purports to release “any and all claims for recordkeeping or pay stub violations,” not just those at termination, and “all claims for failure to get consent for a payroll debit card or self‐issued check payment,” not just those claims involving final wages. In addition, the release includes a wa...

Excerpt: ...laintiffs $15,000 in satisfaction of their individual claims, and an additional $5,304 to McAfee regarding an unemployment claims, but the complaint alleges no such individual claims. 3. The motion contends that the “financial viability” factored into the amount of the settlement, but no evidence of the financial condition of the defendant is offered. 4. The plaintiffs' counsel claims time billed at up to $700 per hour. Does plaintiffs' couns...

Excerpt: ... combined $1,400,000 to Defendant City of Palm Springs to be deposited in an escrow account. The purpose of the agreement was to facilitate development of the Pedregal Property, which was at the center of the dispute in the underlying case. After hearing about criminal investigation and subsequent charges against City's former Mayor Steve Pougnet, Richard Meaney and John Wessman, Plaintiffs now seek to rescind the settlement agreement with City a...

Excerpt: ...rms, Inc. (9th Cir. 1987) 836 F.2d 1156, 1160 (interpreting FRCP 11). ...

Excerpt: ...st answer the excess interrogatories regardless of the 35‐limit.” Weil & Brown, California Practice Group: Civil Procedure Before Trial § 8:941 (Rutter Group 2017). As discussed above, Mario Masellis' response to special interrogatories was late. Due to this, he waived his right to object to this issue. Even if Mario Masellis' response was not late, he failed to object on this basis. ...

Excerpt: ...ailed to show how the financial records of the corporation have any relevance to this case given Plaintiff has only made a claim for personal lost earnings. The individual's information can be found elsewhere in this ruling. RFP 38, 39, 40, 42 and 45 is GRANTED. This information deals with the individual and is relevant. For example, any other monetary reimbursement from the corporation may be relevant to her claim of lost earnings, as she has ad...

Excerpt: ... mail). C.C.P. §2016.050. The parties agreed in writing that Simon had until 11/27/18 to file her motions to compel further responses. These motions were filed on 11/27/18. As such, the motion is timely. Motions to compel further responses to request for production of documents, form interrogatories, special interrogatories and requests for admission require separate statements. California Rules Page 2 of 4 of Court, rule 3.1345(a)(1), (2) and (...

Excerpt: ...with Plaintiff/Cross Defendant, Linda Kelley, his mother, in which he agreed to would rent the house to her “for a period not to exceed 2 years or until Cross‐Complainant sold the Subject Property, whichever came first…” (Cross‐complaint ¶ 5.) Casale also alleges that on March 12,2007 Kelley entered into a secret agreement with Patricia Reinhart, the executor of his grandmother's estate, that resulted in Kelley creating an recording a ...

Excerpt: ... to Stay or Continue the motion until a date sometime after the Court lifts the stay in place with respect to Defendant Richard Meaney. The Court deemed the Ex Parte papers as City's moving papers and set a briefing schedule as to City's motion. As to the Motion to Expunge Lis Pendens the Court continued the hearing to 3/22/18, and set City's motion for hearing prior to that date. City's motion seeks to stay or continue the hearing on the motion ...

Excerpt: ...ree speech or petition rights as defined in Code of Civil Procedure section 425.16(e). (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330; see also Weil & Brown, ¶ 7:244.) A lawsuit qualifies for a special motion to strike under section 425.16 if it arises from an act “in furtherance of the person's right of petition or free speech under the United States or California Constitution.” (Code Civ. Proc. § 425.16(b)(1)...

Excerpt: ... to the FDCPA is when a person collects a debt due to another if the debt was not in default when it was obtained. (15 USC §1692a(6)(F)(iii).) Plaintiffs do not plead when they were in default. According to the recorded documents, Defendant obtained the assignment on 3/29/16. Thus, there Page 3 of 3 are no allegations that Plaintiffs were in default at the time Defendant obtained the interest (assuming it was transferred to another). 2 nd Cause ...

Excerpt: ...lead a viable theory as to why the sale is void. As such, Plaintiffs have not alleged any facts to get around the presumption of Civil Code §2924(c) ...

Excerpt: ... to eject Plaintiff from the property without first resolving whether Plaintiff is entitled to specific performance of the agreement between the parties, which would moot the unlawful detainer issues. Defendant contends that Plaintiff cannot prevail as her case is barred by the statute of limitations. However, Plaintiff has presented evidence that she continues to pay Defendant $780 a month. Further, Defendant admits there is no time for performa...

Excerpt: ...ge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360.) Here, Plaintiff alleges that the Hendersons allowed their daughter to have a party while Allison was out of town and there was no adult supervision; knew and consented to S...

Excerpt: ...endants. While NJP performed services for the benefit of defendant James Bradley, its written contract was with Kenner & Greenfield. To the extent that Bradley agreed to pay the costs of NJP's services, his agreement was with Kenner & Greenfield. With respect to PPI, it cannot be determined from the allegations of the FAC whether the alleged contract was oral or in writing, nor can it be determined whether the alleged contract was between PPI and...

Excerpt: ...ds the law and the other party is aware of this misunderstanding at the time of contracting and fails to rectify the mistake. Civil Code §1578. A mistake of fact can also occur if a party is unilaterally mistaken as to the fact and the other party knows of the mistake or has reason to know of the mistake. M.F. Kemper Constr. Co. v. Los Angeles (1951) 37 Cal.2d 696, 701. There are no factual allegations supporting the conclusion that Defendants w...

Excerpt: ...d to meet and confer with the plaintiffs who filed the 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 defendants shall identify all of the specific causes of action that they believe are subject to demurrer and identify with legal support the basis of the deficiencies. The plaintiffs shall provide legal support for t...

Excerpt: ...e application was pending. (SAC, ¶¶ 29, 30, 33) Defendant submitted evidence that it notified Plaintiff of its denial of Plaintiff's loan modification application by letter dated December 31, 2015, and that the appeal period had expired, prior to re‐initiating foreclosure. (Defendant's Statement of Undisputed Material Facts (“UMF”) 8, 9.) By way of deemed admissions, Plaintiff admitted that she received the December 31, 2015 letter of den...

Excerpt: ...y to give notice. ...

Excerpt: ...e CRST defendants. The accident occurred at an intersection controlled by a STOP sign in Landers direction of travel and with no traffic control in Decedent's cross‐direction of travel when Landers made a left turn across Decedent's path at approximately 3:50 a.m. Plaintiffs contend that Landers caused the accident by making an unsafe left turn. Defendants claim that Decedent cause the accident by speeding and making an unsafe lane change acros...

Excerpt: ...rior alleged incident was dismissed. ...

Excerpt: ...ling: The motion is denied. Defendants are to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiffs seek sanctions based upon Defendants' alleged willful suppression and spoliation of evidence, that is, the removal from the truck of a Garmin Nuvi GPS unit. /// Page 2 of 5 The motion is denied for the following reasons: There is no evidence that Defendants willfully suppressed evidence. Essentially, Plaintiffs argue...

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: ... 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: ...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: ...wer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.” Ba...

Excerpt: ...onsideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, (2009) 29 Cal.4th 82, 89.) Whether the anti‐SLAPP statute applies is determined by the “principal thrust or gravamen” of plaintiff's claim; it cannot be invoked where the allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metaboli...

Excerpt: ...§ 2020.010.) The deposition subpoena may command only the production of business records. (Cal Code Civ Proc § 2020.020(b).) If a subpoena requires the production of documents or other things, the court upon motion by a party Page 2 of 3 or consumer whose personal records are sought, or on the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena, modifying it, or directing compli...

Excerpt: ...s prior to the date of the deposition. Monetary sanctions are authorized even against nonparty deponents if they “unsuccessfully oppose” a motion to compel. (CCP § 2025.480(j); Person v. Farmers Ins. Group of Cos. (1997) 52 Cal.App.4th 813, 818.) However, the claim for $9,160 for a straightforward motion is excessive in both time spent and rate charged ($700.) Arnke is to pay Plaintiff monetary sanctions in the amount of $700 (2 hours @ $350...

Excerpt: ...uct defect actions and provides that where a purchaser's expectations are frustrated because the product purchased does not function properly, the party's remedy is under the contract alone. (Robinson Helicopter (2004) 34 Cal.4th 979, 988.) ...

Excerpt: ...USTAINED WITH LEAVE TO AMEND. The Demurrer to the seventh cause of action (undue duress) is SUSTAINED WITHOUT LEAVE TO AMEND because there is no recognized cause of action for undue duress. The Court rejects the arguments by defendant that: the litigation privilege bars the action; collateral estoppel bars the action; and, Bank of America is an indispensable party. ...

Excerpt: ...red case being the lead case. Plaintiffs are to prepare a proposed order and give notice pursuant to Cod Page 5 of 7 arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (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 transac...

Excerpt: ...e court of appeal did not authorize the procedure of ordering a plaintiff to execute releases; the propriety of that order was not before the court. The court's commentary on that procedure is limited to the following footnote: The record does not reflect the reason the medical facilities requested plaintiff's authorization. Perhaps defendant did not comply with the procedures to obtain “personal records” of a “consumer” as required by se...

Excerpt: ...uous acts. The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” In re Gould (1961) 195 Cal.App.2d 172, 175. An order to show cause is issued by the court, after the initiating of an affidavit stating the facts constituting the contempt is presented to the court and then a hearing must be held. Arthur v. Superior Court (1965) 62 Cal.2d 404, 407‐408. The...

Excerpt: ... court order was willful. However, the request for monetary sanctions is GRANTED in the amount of $150.00. The objections to Mr. Torres' declaration as to paragraphs 4, 5, 6, 7 and 12‐18 are OVERRULED. The objections are SUSTAINED as to the exhibits referenced in Page 2 of 4 paragraphs 9 and 10, but not to the actual testimony portions of these paragraphs. The objection is SUSTAINED as to paragraph 11. All objections to Carol C. Ignacio's decla...

Excerpt: ... of the action yet fails to appear, unless he or she was prevented from participating in the action. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.) Moreover, the motion does not set forth the essential elements to obtain relief for extrinsic fraud/mistake. It does not Page 2 of 2 indicate: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the demurrer; and (3) diligence in seeking to set aside the order once it ...

Excerpt: ...that Schramm's complaints are directed to Plaintiff's description of the documents being produced, which could have been easily clarified by a simple telephone call. A further response is not warranted. Further, to the extent that the verification accompanying Plaintiff's responses was defective, the motion is moot, as Plaintiff has served an amended verification. Additionally, while it appears that Plaintiff only produced some of the referenced ...

Excerpt: ..., as well as the reasons that further responses are necessary. The purpose of the separate statement is to allow the Court and opposing parties to review all the necessary information without resorting to the deposition transcript. Supplemental Opposition, if any, to be filed by February 15, 2018. ...

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: ...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: ...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: ...ss assumption of the risk doctrine applies. Defendant also fails to meet its initial burden that the implied assumption of the risk doctrine applies. The failure by Defendant to maintain the track and safety barriers in reasonably safe condition, including affixing the safety barriers to the floor, exposed go‐kart drivers like Plaintiff to an increased risk of harm. Defendant's reply ignores the arguments raised in the Opposition regarding Defe...

Excerpt: ... objective standard. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1318 (rejecting the requirement for also a subjective standard of bad faith as required in earlier statute).) The CLRA provides: “The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a findi...

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

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

Excerpt: ...re 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 counsel and the co...

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

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: ...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...

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...