Excerpt: ...o bring the claim. As plaintiff 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...

Excerpt: ...l date of June 8, 2018, and at the same time discovery was reopened. The Hamodots have had sufficient time to prepare for trial. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068 [defendant named as a Doe defendant approximately one month before trial].) Overruled as to the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth causes of action, as well as defendants' challenge to the sufficiency of the a...

Excerpt: ...s own attorney do not constitute items for which a motion for relief under CCP 473(b) may be granted. “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney…” (Burnete v. La Casa Dana Apartments (2007) 148 Cal. App.4th 1262, 1267.) Mist...

Excerpt: ...000 plus interest from November 1, 2010 to present; on the seventh cause of action for breach of loan in the amount of $150,000 plus interest at 5.6% from November 1, 2010 to present; on the tenth cause of action for $20,000…On the twelfth and thirteenth causes of action for partition of real property it was stipulated that plaintiffs own an undivided 50% of each parcel and defendants own an undivided 50% interest of each parcel. The court find...

Excerpt: ...st for Judicial Notice is granted pursuant to Evidence. Code § 452(c) and of recorded documents under Evidence. Code § 452(d) and (g). The Complaint is uncertain, ambiguous and unintelligible. It is unclear whether res judicata applies because the facts as alleged in the Complaint are too thin, i.e., whether they arise out of the same facts alleged in the prior action filed by Plaintiff cannot clearly be deciphered. The facts are also insuffici...

Excerpt: ...ount of $291,074.00. This motion and number 3 below, are competing motions, and are therefore, analyzed under the heading of the motion for reimbursement. Plaintiffs initially sued numerous Defendants. Plaintiffs settled with Cessna in the amount of $100,000. Other defendants were dismissed because they had no liability (Aviation Group; Aerohoff), and some were determined to be insolvent or lacked sufficient assets (Buckley; Century; Aircraftsman...

Excerpt: ...n shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, mu...

Excerpt: ...ndant's right to appear in in the action, and a defendant has no right to participate in the proceedings until either his or her default is set aside or default judgment is entered. See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385‐86. Thus, the entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default. W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App....

Excerpt: ...re material and relevant to the case. There appears to be no dispute that Plaintiff has an extensive medical history, some of which may be relevant to her claims of injury. While Plaintiff may not have been required to meet and confer before bringing the present motion, Plaintiff notably provided no guidance to the Defendants or to the court with regard to the injuries for which Plaintiff actually seeks to recover. On or about 2‐19‐18, Plaint...

Excerpt: ...as discussed at the hearing, that the Court's concern was the necessity of a receivership and whether there is need for determination of the motion for reconsideration in light of the Stipulation and Order filed on 1‐16‐18, paragraph 4: “A City inspection of the Respondent's property on August 15, 2017 revealed that Respondent had sufficiently abated all of the violations identified in the City's Petition and Motion for Appointment of the R...

Excerpt: ...compliance with CRC 3.1306(c). Even if judicial notice were taken that a contract existed, the court cannot make factual or legal determinations based upon the contents of those documents. Further, the truth of statements made therein and their proper interpretation are not subject to judicial notice if the matters are reasonably disputable: Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a...

Excerpt: ...efore filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the subject pleading, for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As part of that meet and confer process, both parties are required to provide legal support for their positions, or amend/answer (§430.41(a)(1)). The cross‐defendants who filed...

Excerpt: ...e the judgment. As to the remainder of the motion, regarding bank records of defendants from 2014 to the present, plaintiff has not met its burden to demonstrate that the subpoena is directly relevant to the causes of action and the subpoena is overbroad. Additionally, plaintiff has failed to demonstrate that the information is not available using less intrusive methods of discovery. ...

Excerpt: ... separate statement until long after the time limit had expired. Filing and serving a notice of the motion only within the 45‐ day time limit is insufficient to meet the requirements for filing a motion. (See Rules of Court, rule 3.1112 and rule 3.1345; CCP, §§ 2030.300(a) and 2031.310(a) [both providing that a party dissatisfied with responses may “move for an order” compelling further responses].) A motion is not sufficient unless the s...

Excerpt: ...atement until long after the time limit had expired. Filing and serving a notice of the motion only within the 45‐ day time limit is insufficient to meet the requirements for filing a motion. (See Rules of Court, rule 3.1112 and rule 3.1345; CCP, §§ 2030.300(a) and 2031.310(a) [both providing that a party dissatisfied with responses may “move for an order” compelling further responses].) A motion is not sufficient unless the supporting me...

Excerpt: ...nts. Plaintiff's attorney Andrew J. Knez failed to respond to a letter inviting the required telephone meet and confer, and failed to provide any legal support for plot's position regarding her Complaint. The defendant who filed the demurrer and motion to strike is ordered to meet and 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 th...

Excerpt: ... Cal. App. 2d 910, 915.) “The allegation that a corporation is the alter ego of the individual stockholders is insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.” (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 414.) The allegation must “include facts showing a unity of interest and a resultant injustice, prerequisit...

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

Excerpt: ... inability to locate Beltz for service. Plaintiff states he has now been able to locate Beltz. Procedurally, this motion is improper per CCP 1005(b) since Beltz was not given notice. Plaintiff has acknowledged that defect and attempted to remedy it with a late service of FedEx mail and a request to continued. Substantively the motion is lacking in stating any legal authority, statutory or case law have would support a granting of the relief he se...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: .... Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556, to determine the effect of res judicata, defendant must show three things, as follows: 1) the present action and the prior actions raise the same, identical claim; 2) the prior action resulted in a final judgment on the merits; and 3) the party against whom res judicata is asserted was a party, or in privity to a party, to the prior action. Defendant claims Plaintiff was a party to ...

Excerpt: .... Finally, the claim for Dangerous Condition of Public Property fails as neither party disputes that CTAI was not a public entity or public employee. Request for Judicial Notice by CTAI: Granted as pursuant to Evidence Code Sections 451, 452, and 453. Objections stated by CTAI: Granted as to Nos. 14, 16, and 17 to the Declaration of Glenn Asakawa as the statements lack foundation and/or are speculative. Overruled as to objection 22. Court decline...

Excerpt: ...s Reinsurance Company of America v. Borton Petrini LLP (2013) 221 Cal. App. 7th 890, 897. The only exception to the broad rule in where the legal malpractice claim is acquired as an incidental part of the purchase of one insurance company by another. In its opposition, Plaintiff does not opposed the demurrer on this ground in light of the court's prior ruling. Instead, Plaintiff argues that it has other claims to allege against Defendants, specif...

Excerpt: ... of 2 The Supplemental Declaration filed by Plaintiff on April 4, 2018 and by Defendant Jayco, Inc. (Jayco) on April 5, 2018 were not considered on ground of their lack of timeliness. There is no dispute that the warranty included an Indiana State choice of forum provision because manufacturer Jayco, Inc. is located there. The relevant issues here is whether the provision should or should not be enforced because defendants waited too long to enfo...

Excerpt: ...forcement Officer Marcella Villanueva: Overrule Objections to Paragraphs 5, 11, 12, 13, 20, 25, 27, 30, 32 and Exhibits F and K; Sustain Objections to Paragraphs 8, 15, 18, 19, 23, 28, 29, 31 and Exhibits C, G, I, L. As to the Declaration of attorney Nazik Hasan: Overrule Objections to Paragraphs 4, 11, 12, 13, 14, 18, and Exhibit A; Sustain Objections to Paragraph 9; and the Objection to Paragraph 17 is moot. Page 3 of 3 As to the Merits: The au...

Excerpt: ...(CCP. §§2030.210, 2030.220, 2030.230 and 2030.240 for interrogatories and C.C.P. §§2031.210, 2031.220, 2031.230, 2031.240 and 2031.280 for request for production of documents); and (2) the party's failure to serve timely responses was due to mistake, inadvertence or excusable neglect. The discovery at issue in the motions to compel further responses contains objections, responses or a hybrid response with objection. An objection to an interro...

Excerpt: ... distributed by [Defendant].” The issue is “evidence, describe, refer, or relate” which is broad to encompass virtually any document—which Plaintiff never addressed in her separate statement or meet and confer In opposition, Defendant appears to have no issue with producing its Lemon Law policies, and Plaintiff failed to address why that is not sufficient. Nos. 23 (technical service bulletins) and 24 (recalls) for the type of car at issue...

Excerpt: ...is pervasive and seventh cause of action – whether there is extreme and outrageous conduct); denied as to the second, eighth and ninth causes of action on the grounds that Defendant has failed to meet its initial burden. First Cause of Action for Sexual Harassment: Plaintiff has provided sufficient evidence to establish a triable issue of material fact regarding this cause of action. She has provided evidence that over a two‐month period of t...

Excerpt: ...tired faculty member. There are no material facts are in dispute and the parties agree the petition raises a question of law. There is no administrative record. Request for Judicial Notice: The Request for Judicial Notice is granted pursuant to Evidence Code 452(b) and (c). “It is settled principle that administrative agencies have only such powers as have been conferred upon them, expressly or by implication, by constitution or statute.” (Fe...

Excerpt: ...reponderance of the evidence that a defendant is liable for financial abuse of an elder, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to plaintiff reasonable attorney's fees and costs. (Emphasis added.) This is a unilateral fee‐shifting provision under which fees may be awarded to a prevailing plaintiff but not a prevailing defendant in order to encourage the effective enforcement o...

Excerpt: ...ns on the ground of lack of jurisdiction of the court over him or her. When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal. App. 4th 403, 413.) In this case, the Summons and Complaint were served on August 1, 2017. The Page ...

Excerpt: ...limit waives the right to compel a further response to the interrogatories. (CCP §§ 2030.300(c); see Vidal Sassoon, Inc. v. Sup.Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685.) The 45‐day time limit is mandatory and “jurisdictional” (court has no authority to grant a late motion). (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) The 45‐day deadline runs from the date the verified response is served, not from the ...

Excerpt: ...g fee. C.C.P. §425.16 provides a summary procedure by which a defendant can dispose of a lawsuit brought primarily to chill the valid exercise of the constitutional rights of free speech and right to petition, at the pleading stage to avoid the cost and delay of lengthy litigation. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278. Anti‐SLAPP motions to strike have two prongs. First, the moving party must show that the anti‐S...

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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...); Pickwick Stages System v. Superior Court in and for Los Angeles County (1934) 138 Cal.App. 448, 449; 2 Witkin, California Procedure: Jurisdiction §914 (5th Ed. 2008) (“The timely filing of a motion for change in proper form on the ground of wrong court suspends the court's jurisdiction to act. While the motion is pending, the court's power is limited to hearing and determining the motion, and it cannot take other judicial action in ...

Excerpt: ...purposes of probability of prevailing). The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Wilcox v. Superior Court (1994) 17 Cal.App.4th 809, 819.) A defendant is required to make a prima facie showing that plaintiff's suit arises from any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state const...

Excerpt: ...ult, the motion to compel BARAJAS' further responses to the Form Interrogatories cannot be granted, since he is dead and unable to provide any further information. However, there is the issue regarding his having served copies of the responses & verifications instead of the originals. CCP §2030.260(a) requires the responding party to serve the original Page 2 of 8 responses on the propounding party. Attorney Habibi/counsel for opposing party pre...

Excerpt: ...x. Q and R), and the amended bankruptcy schedule (Ex. U). All the remaining documents are irrelevant. Plea in Abatement: For plea in abatement, it may be made when there is another action pending between the same parties on the same cause of action. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) Plea of abatement requires “absolute identity of the parties.” (Id. at 788.) In addition, the causes of action must be th...

Excerpt: ...ore, the problem is that these Defendants were not part of the first suit. “Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.' [Citation.] A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.'” (People ex rel. Garamendi v. A...

Excerpt: ...s to orders, findings of action and judgments. (Ramsden v. Western Union (1977) 71 CA3d 873, 879. 2 nd Cause of Action for Breach of Lease: To state a cause of action for breach of contract, a party must establish: (1) the existence of a contract; (2) the party's performance or excuse of nonperformance; (3) the opposing party's breach; and (4) resulting damages. (Oasis West Realty v. Goldman (2011) 51 Cal. 4th 811, 822.) A contract will be enforc...

Excerpt: .... The motion appears to be plaintiff's opposition to the motion for judgment on the pleadings. Even if consideration could be made of the motion, it does not contain a request for reconsideration of the ruling of December 8, 2017 under CCP 1008 nor does it seek a set a set aside of the ruling under CCP 473. ...

Excerpt: ...te he signed the May 2017 arbitration agreement or that an arbitration agreement exists between the parties. Plaintiff argues that the agreement is unenforceable. Both parties agree that the FAA applies to this case. The Federal Arbitration Act (FAA) (9 U.S.C. §§1 et seq.) generally governs arbitration in written contracts involving interstate commerce and authorizes enforcement of arbitration clauses unless grounds exist in law or equity for t...

Excerpt: ...thority, the court has no discretion to deny the enumerated allowable costs to the prevailing party. (Nelson v. Anderson (1999) 72 Cal. App. 111, 129.) Cal. Code Civ. Proc. § 1033.5 restricts allowable costs to those that are reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Cal Code Civ Proc § 1033.5(c)(2).) The statute does not indicate that only fees for successful motions ...

Excerpt: ... 715.) Duran gave money and gifts to Chane and his brothers when they needed it, i.e., helped one of Chane's brothers through college. (AR 673.) Duran had been employed by the Employment Development Department as a Criminal Investigator. (AR 36.) He applied for emergency service retirement on 9/5/13, and retired on 11/1/13. (AR 36‐43.) He elected the “Option 1 Allowance” and designated Chase Billow (Chane's brother) as the beneficiary. (AR ...

Excerpt: ...n were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” [Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) This test functions on a sliding scale, such that a greater showing on one factor will mean less is required on the other. (Butt v. State of Calif. (1992) 4 Cal.4th 668, 678.) The evidence supports that there is a likelihood of Plaintiff prevailing on t...

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: ...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: ...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: ....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: ...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: ... 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: ...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: ...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: ...sruption of the contractual relationship; and (5) resulting damage. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Plaintiffs fail to state a cause of action in the first instance because they do not sufficiently allege a disruption of their right to make a payment under the note secured by the First Deed of Trust (DOT). Indeed, Plaintiffs were already in breach of their obligations under the First DOT at the time t...

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: ...ion to file the pleading. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612‐613.) However, in Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 874, the Court noted it had discretion to accept untimely amendment without noticed motion by plaintiff. Here, the Court accepted Plaintiff's late filing of the FAC. There is no evidence that the filing of the document, one day late, caused detriment, loss or prejudi...

Excerpt: ...ercised jurisdiction to consider the Declaration of Angela M. Jones regarding meet and confer efforts for the sole purpose of determining compliance with the Court's order of January 16, 2018. Gov. Code § 835 sets out the exclusive conditions under which a public entity may be held directly liable for injuries caused by a “dangerous condition” of public property. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) A public entity ...

Excerpt: ...filed a supplemental declaration on February 7, 2018, which indicates that he received a document from the Sheriff “several months ago.” He indicates that he did not understand the document meant that a lawsuit had been filed, but provides that he was informed that the document related to the sale of his home. He also states that he learned of the existence of the lawsuit through his attorney, who did a case search based on a number found on ...

Excerpt: ...3‐17 hearing, counsel for moving party indicated that there would be the meet and confer regarding the definition of “incident.” The Court has no information on whether counsel have met and conferred. The tentative is that Plaintiff is to define the term “incident”. With a definition of the term, the motion is granted as to requests no. 2‐11, 14‐17, 19 and 20. Defendant is to serve, without objections, its further responses to reque...

Excerpt: ...t as to the request for monetary sanctions. Monetary sanctions are required against any party, person or attorney who unsuccessfully opposes a motion to compel responses to interrogatories “unless it finds that the one subject to the sanction acted without substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2030.290(c).) Here Defendant did not file an Opposition explaining why responses w...

Excerpt: ...two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply with a valid discovery order and (2) the failure must be willful.” (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474.) Terminating sanctions have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful [Citations] or, if not willful, at least preceded by a history of abus...

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: ...§ 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: ...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: ...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: ...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: ...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: ...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: ...ties in the securitization of his loan or upon the allegation that the Assignment was robo‐signed. Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 819‐20; Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43. Lastly, because it is wholly derivative of the first cause of action for cancellation of instruments, the second cause of action for declaratory relief necessarily fails. Stockton Citizens...

Excerpt: ...lleged egregious conduct. G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29. However, the court may read the complaint as a whole so that conclusory allegations may be sufficient when read in context with the facts alleged as to the defendant's wrongful conduct. Perkins v. Superior Court (General Tel. Directory Co.) (1981) 117 Cal.App.3d 1, 6‐7. Regarding a punitive damages claim in driving under the influence cases, in Taylor v. ...

Excerpt: ...he general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. [Citation omitted]. Section 1094.5 contains limited exceptions to this rule.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. C.C.P. §1094.5(e) provides: “[w]here the court finds that there is relevant evidence that, in the exercise of reasonable diligence, cou...