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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: .... 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: ...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: ...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: ...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: ....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...