Excerpt: ...truction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) Alternatively, a written contract can be pleaded by attaching a copy to the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) Plaintiff alleges that on 1‐ 26‐18, it submitted a proposal for the project to Centro Medico. (FAC ¶8.) Thereafter, Centro Medico provided an “Intent to Award Con...

Excerpt: ...enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The statute was enacted to provide a summary procedure for specific performance of a settlement contract without the need for a new lawsuit. (Weddington Productions v. Flick (1998) 60 Cal. App. 4th 793, 809.) The court may not ...

Excerpt: ...tion to dismiss set for 9‐25‐20. Procedural background includes but is not limited to that Plaintiff filed this action on 6‐29‐16. When the Third Amended Complaint was the operative pleading, on 7‐8‐20, the court sustained City's demurrer to the 9th, 13th, 14th, 18th and 19th causes of action, while the Plaintiff had already dismissed the 15th, 16th and 17th causes of action. These were the only causes of action asserted against the C...

Excerpt: ... denied. A motion under CCP § 2033.280 shall be granted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response . . . in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).) Defendant provided substantive responses on 8‐4‐20, such that CCP § 2033.280 does not apply. The responses are timely because they were served 35 days aft...

Excerpt: ...t to the form of the protective order, and, in particular, whether there should be a sharing provision, allowing plaintiff's counsel to share the information with other counsel in similar cases. (Von der Lancken decl., ¶ 5, Exhibits A to D.) Based upon both the Van der Lancken declaration and Exhibits A to D attached to his declaration show compliance. There is no dispute that defendants are entitled to a protective order for their trade secrets...

Excerpt: ...anagement Conference for 9‐17‐20 is continued to 11‐19‐20 at 8:30 a.m., Department 5. To support a claim for punitive damages under Civil Code (CC) §3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (CC §3294(c).) Ordinary negligence (mere carelessness or simple failure to exercise due care for plaintiff's safety) does not amount to malice, oppression or fraud and thus does not support a punitive dama...

Excerpt: ...se, or excusable neglect.” There are Page 4 of 4 two forms of relief: mandatory or discretionary. (CCP §473(b).) Relief is mandatory if the attorney is willing to take the blame and pay the costs; the court must set aside the entry of default, default judgment or dismissal. (Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Without an attorney affidavit of fault, relief is discretionary and must be based on a showing of mi...

Excerpt: ...Angeline Campos, submitted the proposed initiative measure (which would eventually be known as Measure L), which would create exemptions to allow some cannabis businesses. (AR 0013‐ 0077.) On 4/9/18, the Registrar of Voters verified the signatures and declared the petition sufficient. (AR 0183.) The City Council submitted a rebuttal argument against Measure L. (AR 0099, 0194‐0197, 0492, 0506, 0520.) On 11/6/18, the voters approved Measure L b...

Excerpt: ...srepresentation; and (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, ...

Excerpt: ... the issues of liability and punitive damages. If punitive damages are sought in a case, the judge must order a separate trial on this issue after the defendants' liability for actual damages is established. (Civil Code Sections 3294, 3295(d).) The dispute that exists here, concerns bifurcating compensatory damages from the liability phase of trial. Defendants contend that the introduction of damages would be highly prejudicial to defendants, tha...

Excerpt: ...to the Derosa Decl. • CMO § E(2)(b) – Counsel does not state whether the parties utilized the services of any neutral party to mediate this dispute. • CMO § E(2)(c) – Counsel does not provide proof that a copy of the Settlement was submitted to the LWDA. • CMO § E(3)(a) – Counsel discusses the nature of the alleged PAGA violations. (Derosa Decl., ¶ 2.) • CMO § E(3)(b) – Counsel discusses the number of alleged violations, incl...

Excerpt: ...as continued to allow Plaintiff to meet and confer regarding the second supplemental responses as required by CCP §§2016.040, 2030.300(b) and the court's General Order 2020.15. Plaintiff was ordered to file a meet and confer declaration ten days before this hearing. The declaration filed on 8‐18‐20 described that the issues remaining following the meet and confer were Special Interrogatories (SI) Nos. 4 and 7, and Request for Production of ...

Excerpt: ...e Case Management Conference currently set for 10‐1‐20 is continued to 11‐30‐20 at 8:30 a.m., Department 5. The court has the court has discretion to consider an untimely‐ served opposition. (See CRC 3.1300(d); Slayton v. Superior Court 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More importantly, in filing a substantive reply, Defendants waived any defect or irregularity in service. (Carlton...

Excerpt: ...osition. (See CRC 3.1300(d); Slayton v. Superior Court 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More importantly, in filing a substantive reply, Defendants waived any defect or irregularity in service. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (M...

Excerpt: ...eferred to as “moving parties” or “Majestic” and The Colony at California Oaks Homeowners Association is referred to as the “HOA”. Request for Judicial Notice: Moving parties: Granted as to nos. 1 and 4 pursuant to Evidence Code sections 452 and 453. Court declines to take judicial notice of nos. 2 and 3. HOA: Court declines to take judicial notice of exhibits. A, B, and C, the objections made to declarations submitted at prior procee...

Excerpt: ...nd supplement declarations/briefs in opposition 9 court days before the next hearing and supplemental reply, if any, at least 5 court days before the next hearing. Weighing of the Tech‐Bilt factors requires consider of the settlor's proportionate liability. (TechBilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499; City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262 [“The ultimate determinant of good faith is whether the se...

Excerpt: ...ehicle for repair; and (3) the manufacturer or his authorized representative did not repair the nonconformity after a reasonable number of repair attempts. (Civil Code § 1793.2; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) The only information provided in counsel's declaration relevant to good cause is a single paragraph in which counsel explains the RFPs seek information “regarding similar warranty repairs and repu...

Excerpt: ... Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499 (Tech‐Bilt). Even though Orozco may have a non‐delegable duty to maintain his vehicle, there is no evidence his vehicle was inoperable prior to the allegedly negligent repairs made by defendant certified tire. (Maloney v. Rath (1968) 69 Cal.2d 442, 447‐448 [non‐delegable duty imposed under Vehicle Code sections 26453 (conditions of brakes) and 26454 (control and stopping requirements) t...

Excerpt: ... is required to protect the interests of the party entitled to but denied discovery.” (Young v. Rosenthal (1989) 212 Cal. App. 3d 96, 118.) A decision to order a terminating sanction should not be made lightly unless the violation is willful, preceded by a history of abuse and evidence shows that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) If te...

Excerpt: ...bits B and C. Defendant Objections: Exhibit B is not authenticated by sworn declaration and the verification fails to identify the relationship of the affiant to the County, therefore a lack of foundation. Defendant notes that the verification signed by Erik Collier does not state Mr. Collier's title or position with the County. CCP §2031.250(b) requires that discovery responses for a government agency shall be signed by one of the agency's offi...

Excerpt: ... and the Cross‐Complaint of Century 21 Masters, Karen Myatt, and Todd Myatt filed on 7‐12‐19. Moving parties' (referred to herein as moving parties or Secured Income parties) Request for Judicial Notice is granted pursuant to Evidence Code § 452 (c). Objections of Realty Services to paragraph 24 of the McDermott Declaration are sustained. Court declines to rule on remaining objections. In order to obtain a summary judgment, “all that the...

Excerpt: ...er party to the contract jointly interested with such party. (Cal Civ Code § 1689(b)(1).) “A prerequisite to any claim for rescission is a contract between the parties. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 542, p. 668.) This is because rescission requires each party to the contract to restore to the other everything of value received under the contract.” (Viterbi v. Wasserman (2011) 191 Cal. App. 4th 927, 935.) One who is no...

Excerpt: ...oduction (“RFP”) on Max, who was then three years old. At the time, no guardian ad litem had been appointed by the Court. On 5‐19‐20, Max served responses objecting that he could not comprehend the discovery requests. The parties exchanged emails and met and conferred telephonically, but could not resolve the issues. On 6‐ 1‐20, Oscar Magana (Oscar) was appointed Max's guardian ad litem (GAL). The requisite meet and confer occurred. T...

Excerpt: ...AC) is not a sham pleading. The allegations in the Complaint, Notice of Errata and FAC are essentially the same. The FAC using the same transactional facts alleged new theories. The recharacterization of Kyle's claims against Defendant and the omittance of Irina's claims does not result in a sham pleading. The FAC states sufficient facts sufficient to constitute causes of action for breach of fiduciary duty; breach of partnership/joint venture ag...

Excerpt: ...to the Lease. As a matter of background, trial on this matter was completed on 11‐30‐18. On 5‐31‐19, the court issued an interlocutory judgment ordering partition. A Partition Referee was appointed. The lease which is the subject of this motion was not presented during the trial. On or about 12‐ 20‐19, Defendant disclosed a commercial lease (the “Lease”) to the referee. The Lease, executed by Defendant in 2014 as both Lessor and L...

Excerpt: ...arty shows the date of 8‐7‐20. Moving party filed a Reply addressing the timing of the document and addressing the arguments stated in the Opposition. The court exercises its discretion to consider the Opposition. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202; Kapitanski v. Von's Grocery Store (1983) 146 Cal. App. 3d 29, 32.) Defendant's Request for Judicial Notice of Declaration of Al Northrup and its exhibits: Denied...

Excerpt: ...324 provides that a motion to amend a pleading before trial must include a separate declaration that specifies the following: “(1) The effect of the amendment, (2) Why it is necessary and proper, (3) When the facts giving rise to the amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). “[It] is an abuse of discretion to deny leave to amend where the opposing party wa...

Excerpt: ... he/she/it 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 known by the party seeking reconsideration when the original ruling was made are not considered “new or different.” In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. Plaintiffs do not meet the requirements under C.C.P...

Excerpt: ...t allegations in the complaint in the Moore Action by evidence that either does not contradict the allegations or that is not subject to judicial notice. The central arguments by the St. James parties is that admissions by the Moore parties establish that the ByLaws of the church have not been followed and the Moore parties are not members of the church or the board, thus having no power over control of the church. The admissions by the Moore par...

Excerpt: ...ad discretion to issue discovery sanctions where: (1) there was a failure to comply with a valid discovery order; and (2) the failure was willful. (Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4th 1470, 1474.) Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Young v. Rosenthal (1989) 212 Cal. App. 3...

Excerpt: ...establish that the “health and safety of residents or the public is endangered” by the alleged substandard conditions on the property. The evidence merely showed an unfinished construction site exists at the property. After hearing oral argument, the court continued the hearing to 1‐17‐20 and ordered the County to arrange for an inspection of the property with reasonable notice to Wayne, and with Wayne to give access for an inspection. Th...

Excerpt: ...nified School Dist. (1986) 177 Cal. App. 3d 792, 802.) The SAC is uncertain. Plaintiff combines the District and City together when describing their duties and roles. (SAC ¶35‐38.) Education Code § 44808 concerns liability when pupils are not on school property. The SAC acknowledges that the incident occurred after school was out and across the street from the school. Plaintiff provides no facts that District knew that the food trucks were da...

Excerpt: ...ts of malice, oppression or fraud to support the demand for punitive damages under the negligence causes of action. There are only conclusory allegations of malice, which are insufficient. (SAC, ¶¶ 27‐30, 35, 39; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [conclusory allegation that conduct is intentional cannot elevate claim for medical malpractice to support demand for punitive damages]; Smith, supra, 10 Cal.App.4th at 1041‐42 [co...

Excerpt: ...very matter pertaining thereto.” (CCP § 128(a)(5); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee); Oaks Management Corp. v. Sup. Ct. (2006) 145 Cal.App.4th 453, 462.) “The power is frequently exercised on a showing that disqualification is required under professional standards governing … potential adverse use of confidential information.” (Responsible Citizens v. Sup. Ct. ...

Excerpt: ...ppropriate way or had any concern after watching the dogs interact with non‐family members. (UMF 6‐12 and Plaintiffs' response thereto.) The burden shifted to Plaintiffs, but Plaintiffs failed provide any evidence that Defendants had actual knowledge of any dangerous propensity of the dogs. Further, Defendants are not vicariously liable for the alleged negligent acts of the tenants in allowing the dogs to be unleashed in the front yard. Court...

Excerpt: ...disposed. Denied as to summary adjudication. Moving party has not met its burden of producing evidence to show there is no triable issue of material fact on the causes of action, affirmative defense, claim for dames or issue of duty. As to summary judgment: Defendants argue that Plaintiffs cannot succeed on a breach of contract claim because the underlying contract violates Bus. & Prof. Code §16600 and is therefore void. Defendant relies heavily...

Excerpt: ...ation of whether an employee's actions are within the scope of employment is a trial issue of fact when conflicting evidence has been presented. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1004‐1005; Perez v. Van Groningen & Sons (1986) 41 Cal. 3d 962, 968.) On one hand, it is startling event that might be beyond scope of employment, for an employee to assault a customer, but on the other hand, the risk may not complete...

Excerpt: ...y stage of investigating the claim of Plaintiff who previously suffered from osteoporosis and degenerative disc disease. It is undisputed that Plaintiff's RFA was propounded early in the case. It does not appear that further attempt was made by Plaintiff to gain further information as the case progressed (i.e. propound further discovery on the issue) nor did he move to compel further response if he believed the response was evasive or incomplete....

Excerpt: ...ntiffs are stockholders in Green America, Inc. Determination of Plaintiffs' shareholder status is a dispositive issue that reasonably could lead to settlement of the remaining issues, and could save trial time, be a convenience to witnesses, facilitate economy and efficiency in handling the litigation and serve the ends of justice. Under CCP §§ 598, and 1048(b) such are primary considerations for the court in ruling on this type of motion. Finl...

Excerpt: ...s reasonable. The court reduces the requested fees of $66,162.00 by the $1,472.00 charges for the ex parte to set aside dismissal and $2,500.00 related to the charges for the present motion. The opposition does not challenge the costs and expenses in the amount of $9,828.66 and those cost and expenses are awarded. Request for Judicial Notice: Although the court is not bound by rulings of other superior courts, the decisions are admissible to demo...

Excerpt: ...suant to Evid. Code § 452(c). These documents are also judicially noticeable under Evid. Code § 452(h) as containing facts and propositions not reasonably subject to dispute. Defendants Affidavit for Request for Judicial Notice: Judicial notice is taken as to the filing of the Affidavit itself, as it is signed under penalty of perjury, but judicial notice is not taken as to the truth of the matters stated therein. The request includes pictures ...

Excerpt: ...�An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” However, courts have found that section 244 does not require exhaustion with the Labor Commissioner. (Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556‐557.) Nothing Page...

Excerpt: ...possible. If some documents cannot be produced electronically, the parties, to this motion, are directed to meet and confer and agree upon a safe method of production. In addition to the items they have agreed to provide, which are included here, granted as to Nos. 85, 90, and 92 and denied as to the remainder. Mark Wynne (Mark) and Kim Wynne (Kim) are each ordered to provide further verified responses within 20 days of the date of this order. Th...

Excerpt: ... gave directions. A proposed judgment was submitted on 7‐8‐20 but has not yet been delivered to chambers for review. Thus, no judgment has been entered. A cost bill must be filed within 15 days of the judgment. (Rules of Court, rule 3.1700.) The present cost bill is premature. However, courts considering the issue have held that a court may consider a premature cost bill and that it is timely. (Haley v. Casa Del Rey Homeowners Assn. (2007) 15...

Excerpt: ...urt may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 n.1.) As to the Resolution, pursuant to Evidence Code §452(b) judicial notice may be taken of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (emphasis added.) A court may take judi...

Excerpt: ...e entity. (Gov. C. §§905, 905.2, 945.4.) Failure to plead compliance with the claim statute subjects the complaint to a demurrer. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) Plaintiff still fails to plead this the filing of a claim. To state a cause of action against a government entity, every fact essential to the existence of statutory liability must be pled with particularity. (See Searcy v. Hemet Unified School Dis...

Excerpt: ...o the 1st and 2nd causes of action only; 2) add Sonia Angell in her official capacity as Director of the California State Department of Health; 3) to fix any clerical errors. State Defendants' request for judicial notice. Granted pursuant to Evidence Code Section 452(d). Procedural history regarding this motion is noted that on 1‐23‐20, the court sustained State Defendants' demurrer to the First Amended Complaint (FAC) with leave to amend as ...

Excerpt: ...agent for service of process in California, alone, does not create an independent basis for jurisdiction and is not a submission to personal jurisdiction. Although service of summons may be made on the designated agent, the action cannot be maintained against a foreign corporation absent “minimum contacts” with California either by establishing general or specific jurisdiction. (Gray Line Tours of Southern Nevada v. Reynolds Electrical & Engi...

Excerpt: ...ate him, denying Plaintiff's requests for meetings, refusing to provide feedback, and refusal to engage in any interactive process. (FAC ¶ 21‐29 and 43‐57.) However, these allegations do not rise to the level of fraud, malice or oppression necessary to plead a claim for punitive damages. Generally, claims for punitive damages must be pleaded with particularity as to the facts constituting the alleged egregious conduct. (G.D. Searle & Co. v. ...

Excerpt: ...iety of specified unfair or deceptive acts “in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” The purpose of the CLRA is to protect consumers against these acts and “to provide efficient and economical procedures to secure such protection.” (Civil Code § 1760; Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal. App. 4th 1351; Wang v. Massey Chevrolet (2002) 97 Cal....

Excerpt: ...ss‐Complainants Padilla and MJP are entirely or partially liable for Plaintiff's injuries in this action. As written, however, the requests are overbroad and are modified as stated here. Based on the declaration provides by counsel for Quilo, the Court finds good cause under CCP § 473(b) to relieve Quilo of the error in late filing. The records and results of blood tests taken from a person clearly constitute privacy‐protected medical record...

Excerpt: ...ehicle while intoxicated may, in appropriate circumstances, evidence a conscious disregard of probable injury to others and be sufficient to warrant an award of punitive damages. Id. at 891. The Supreme Court recognized the pervasive risk in operating a motor vehicle while intoxicated because it combines “sharply impaired physical and mental faculties with a vehicle capable of great force and speed, [which] reasonably may be held to exhibit a c...

Excerpt: ...ntal units on the subject property. The settlement terms were stated on the record by plaintiff's counsel. Defendants' counsel was asked if there were any terms that needed to be added to what had been recited by plaintiff's counsel. The record indicates that he responded in the affirmative, and he described certain items. Following the statement of terms by counsel for both sides, Judge Tranbarger informed Defendants that if they agreed to the t...

Excerpt: ...e income for golf course operations. The Receiver's Opening Inventory and Takeover Report was filed on 5‐7‐20. At paragraph 8, page 2, lines 24 to 26 he states: “Receiver was able to obtain the balance of the operating account related to the Golf Course Property and is currently assessing the ability to operate the Golf Course Property in the coming months. As required by Riverside County, the golf course is currently closed.” The Receive...

Excerpt: ...n indispensable party. (Code Civ. Proc. § 389(a).) The demurrer to the wrongful foreclosure action is sustained as Plaintiffs did not provide tender. The demurrer on judicial estoppel grounds is denied. Request for Judicial Notice is granted as to no. 1 pursuant to Evidence Code, § 452 (c), (h). Granted as to No. 2 to 9 pursuant to Evidence Code § 452(d), and as to nos. 3, 5, 7, and 9 notice is only as to the filing of the documents. As to the...

Excerpt: ...rved for ruling pending the hearing as to nos. 25, 26, 27, 28, there is no tentative as below are questions for SPM to answer at the hearing. Granted as all other numbers. The names, addresses, and social security numbers belonging to third parties are to be redacted to the items produced as to nos. 29, 31, 32, Self Performance Mechanical, Inc. (SPM) is ordered to provide further responses and produce the documents within 60 days of the date of t...

Excerpt: ...reement to arbitrate, a nonsignatory may compel arbitration only when the claims against the nonsignatory are founded in and inextricably bound up with the obligations imposed by the agreement containing the arbitration clause. In other words, allegations of substantially interdependent and concerted misconduct by signatories and nonsignatories, standing alone, are not enough: the allegations of interdependent misconduct must be founded in or int...

Excerpt: ...e filed and served no later than April 10, 2020. The demurrers of all defendants are overruled as to the fourth, fifth, sixth, and seventh causes of action. If the plaintiffs amend and the defendants demur to that first amended complaint, any such demur shall omit: (1) any reference to the applications for a temporary restraining order or a preliminary injunction; (2) any reference to any document filed in support of or in opposition to either of...

Excerpt: ...ntiff's Additional Material Fact number 20. Angel Catering contends that they are not liable for negligence because Plaintiffs cannot establish it is more likely than not that their driver was responsible for the spill. They contend Inland Grace's trash is brought in and out of the same door where the food is delivered and the spill could have come from the trash. (PSS 6.) The parties agree Inland Grace's trash is brought out of the same door whe...

Excerpt: ...uments are not limited just to investments or transactions related to the $100K Note but seek the entirety of Empire's financial records over several years. Plaintiff has provided no particularized need for needing the entirety of Defendant's financial records. Further, as to the requests for production of documents, Plaintiff has not shown that he has utilized or even considered less intrusive means to obtain the information. Finally, the specia...

Excerpt: ...act that Cross‐Defendants Tatum come to court with unclean hands and are therefore barred from asserting a lien on the subject property. “[W]here the plaintiff has moved for summary judgment, or, as in this case, summary adjudication – that party has the burden of showing there is no defense to a cause of action. That burden can be met if the plaintiff ‘has proved each element of the cause of action entitling the party to judgment on that...

Excerpt: ... Plaintiff agrees terminating sanctions are no longer appropriate given that Atta served responses to Plaintiff's Form Interrogatories. Plaintiff withdraws their request for terminating sanctions. (Plaintiff's Reply.) Monetary Sanctions: If a party fails to obey prior court orders, the court may order monetary sanctions against the disobeying party. (CCP §§ 2023.030(a); 2030.300(e).) The court has broad discretion in imposing discovery sanction...

Excerpt: ... records of a consumer requires the subpoenaing party to provide the required notice to consumer. CCP § 1985.3(a)(2) defines consumer as an individual, partnership of 5 or fewer persons, association or trust. The subpoena at issue seeks business records of various LLC's which are not included in the definition of “consumer.” Financial Privacy Rights of Defendants: A right of privacy exists as to a party's confidential financial affairs, even...

Excerpt: ...e privilege. (See CCP §2025.460(a).) It is otherwise improper for counsel to instruct a witness to not answer on any other ground. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) The proper course would be to suspend the deposition to seek a protective order if counsel insists on inquiring into irrelevant matters that reaches the point of harassment or oppression. (Id. at 1014.) “[I]rrelevance alone is an insuf...

Excerpt: ...at RCA has refused to follow the procedures under the MSHCP and its refusal to communicate with Plaintiff appears sufficient for pleading purposes to demonstrate futility regarding RCA. (SAC ¶ 65.) RCA it does not identify any available administrative remedies regarding County. It does point to a conflict resolution process set forth in the MSHCP Plan. However, it is unclear if this process constitutes an administrative remedy. The purposes of t...

Excerpt: ...s opine as to what caused Plaintiff's cataracts, they never opine as to whether Defendants' conduct breached their required standard of care. Plaintiff has provided no other expert witness declarations to address standard of care. “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care, except in cases where the negligence is ob...

Excerpt: ...icial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” (Dunzweil...

Excerpt: ...n—not a factual assertion. “ ‘For the bar on inconsistent fact pleading to apply, the facts must be “antagonistic,” ' and the bar ‘applies to facts, not legal conclusions to be drawn from the facts (such as whether the parties had an agency relationship or instead that of buyer and seller).' ” (Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 242 (quoting Weil & Brown, California Practice Guide: Civil Procedur...

Excerpt: ...hat the Estate adequately met and conferred prior to filing the motions. Regarding each of the motions, the Estate sent a lengthy meet and confer letter outlining the deficiencies in the responses and Kim Wynne (Kim) failed to substantively respond. No. 1: The Estate is correct that since Mark has alleged a number of oral agreements with Marsh regarding the purchase, the Estate is entitled to know those communications. According to the Estate, Ma...

Excerpt: ... burden that Horton was not Plaintiff's supervisor within the meaning of FEHA. 4th cause of action: Defendant's own evidence shows triable issues of fact as to whether it had prior knowledge of Horton's propensity to engage in sexual misconduct and/or whether the alleged misconduct was foreseeable. 5th cause of action: Defendant failed to meet its burden showing it is not directly liable for its own negligence. Rather, Defendant only argues it is...

Excerpt: ...ies caused by public employees within scope of employment) and 820 (liability for public employees). (FAC ¶149.) Plaintiff, however, did not include this in the 8th cause of action, other than a general incorporation paragraph. (FAC ¶151.) A plaintiff must file a claim against a local public entity before a plaintiff may file an action for money or damages against the entity. (Gov. C. §§905, 905.2, 945.4.) Failure to plead compliance with the...

Excerpt: ...392. ““In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recover punitive damages.” Monge v...

Excerpt: ...eficiencies in the responses and Mark Wynne (Mark) failed to substantively respond. (See Exh. 1 to decl. of Richard Lucal and Exh. 1 to decl. of Mark Wynne filed in opposition.) No. 16: The information sought is within Mark's knowledge since it requests information only he knows, so the response is evasive. The Estate also argues that in other pleadings Mark has stated that he and his wife never asked for reimbursement for expenses until after Ma...

Excerpt: ...tiffs to make a prima facie showing of the existence of a triable issue of material. Plaintiffs did not meet their burden. It is noted that on 12‐16‐19, the court had posted its tentative ruling to grant this motion and was convinced to continue hearing on the motion to allow Plaintiffs to take the deposition of George Tsarouhas, who (based on hearsay statements by investigator Linda Arce) stated on 11‐2‐18 that he “informed the City of...

Excerpt: ...d is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “[D]iscretion should be exerci...

Excerpt: ...SC 1904774, Roberts v. Coachella Valley Water District, RIC 1904943, and Roberts v. Coachella Valley Water District, RIC 1905897 should be deemed related matters and for determination of whether the foregoing matters, along with the consolidated cases RIC 1825310 (PSC 1905977) should be designated as complex. Hearing is set for 3‐18‐20 at 8:30 a.m., Department 6. The OSC is set because the court is aware that Petitioner has filed three other ...

Excerpt: ...er. Plaintiff cites to no authority, which supports imposing a fiduciary duty under such circumstances. Additionally, although plaintiff argues there is a statutory duty imposed under Corporations Code section 17704.09, the first amended complaint fails to state facts imposing such statutory liability. The allegations stated in the second, third and fourth causes of action are sufficient. Request for judicial notice: Granted as Exhibit 1, pursuan...

Excerpt: ... support a claim for punitive damages under Civil Code section 3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (Civ. Code, § 3294, subd. (c).) In cases involving conduct performed without intent to harm, a finding of “malice” for punitive damages purposes requires proof by clear and convincing evidence that defendant's tortious wrong amounts to “despicable conduct” and that such despicable conduct wa...

Excerpt: ... the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “No matter how unlikely or improbable, a plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Kerivan v. Title Insurance Co. (1983) 147 Cal. App. 2d 225, 229.) In short, the ruling on a demurrer determines a legal issue on the basis of assu...

Excerpt: ...cumstances of the case, including factors such as complexity of the case, procedural demands, skill exhibited and results achieved, and the court may reduce the amount if it is determined to be unreasonable. (Goglin v. BMW of North America (2016) 4 Cal. App. 5th 463, 470.) The prevailing buyer has the burden of showing the fees incurred were allowable and reasonably necessary to the conduct of the litigation. (Ibid.) The hourly rate of $525 is hi...

Excerpt: ... not clearly appear on the face of the Cross‐Complaint. (See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Staniforth v. Judges' Retirement System (2016) 245 Cal.App.4th 1442, 1449.) Further, nothing in the alleged oral agreement suggests that by its terms it could not be performed within one year. (See Civ. Code § 1624(a)(1).) Moreover, because the Parks fully performed under the alleged agre...

Excerpt: ...tanding. Sustained as to the Third Cause of Action without leave to amend. The Legislature acted within its authority when it enacted the End of Life Option Act. State Defendants request judicial notice is granted pursuant Evidence Code §452(d) to as to Exs. 1, 3 – 6 and denied as to Ex. 2. Judicial notice of legislative history is proper under Evidence Code § 452(c). (See In re Ge M. (1991) 226 Cal.App.3d 1519, 1523, n. 2.) Plaintiffs' relev...

Excerpt: ...present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts t...

Excerpt: ...In reviewing the First Amended Complaint (FAC), the second cause of action is duplicative of the first cause of action and should be combined into the first cause of action as agreed. As to the third cause of action: Negligent infliction of emotional distress is divided into two claims, direct victim claims or bystander claims. (Smith v. Pust (1993) 19 Cal.App.4th 263, 273.) Under the bystander theory. “[A] plaintiff may recover damages for emo...

Excerpt: ...e showing a triable issue of fact. Defendants' evidentiary objections are sustained as to nos. 4, 10, 11, 17‐19, 21‐23 and overruled as to nos. 1‐3, 5‐9, 12‐16, 20, 24‐26. The court declines to rule on nos. 27‐34 because the evidence to which Defendants object was not material to the court's analysis. Plaintiff's objection to additional evidence are sustained. For summary judgment purposes, “[i]n an employment discrimination case,...

Excerpt: ...itigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The purpose of the section is to per...

Excerpt: ...To have standing a party must be beneficially interested in the controversy; that is, he or she must have some special interest to be served or some particular right to be preserved and protected over and above the interest held in common with the public at large. The party must be able to demonstrate that he or she has some beneficial interest that is concrete and actual, and not conjectural or hypothetical. (Id. at p. 496.) Plaintiff does not h...

Excerpt: ...s. In making a finding of contempt, it is essential that the court have received evidence on the ability to comply with the order. Hassell v. Bird (2018) 5 Cal. 5th 522, In re Grayson (1997) 15 Cal. 4th 72; In re Young (1995) 9 Cal. 4th 1052, 1053. In Koehler v. Superior Court (2010) 181 Cal. App. 4th 1153, 1169‐1170 the Court made clear that the ability to pay is an element of the contempt, not an affirmative defense to be proven by the party ...

Excerpt: ...ndment privilege against selfincrimination. Certainly, Elks Lodge is not subject to a criminal proceeding, and the privilege against self‐ incrimination is personal to an individual criminal defendant and does not apply to codefendants in a civil action. (See Avant! Corp., supra. at 886‐87 [employees' assertion of 5th Amendment privilege did not require a stay of proceedings against corporate defendant that was not entitled to 5th Amendment p...

Excerpt: ...tion Deadlines and Notice of Entry of Order Granting Stipulation pursuant to Evidence Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 C...

Excerpt: ...d the court lacks jurisdiction over them. This action is stayed pending the outcome of the arbitration. This matter was originally held on December 12, 2019. Prior to the hearing, the court issued its tentative ruling to grant the motion as to moving defendant. The court continued the hearing to allow the parties to file supplemental briefing. The supplemental briefs did not cause the court to change its prior tentative. Request for Judicial Noti...

Excerpt: ... “defendants.” A global use of “defendants” with nothing more do not state a cause of action. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) Accordingly, it is not clear why Defendant is named other than he was an employee or agent of City. Immunities: While Defendant is demurring to the entire SAC—it is only to the causes of action asserted against him. As such, the question is not whether each immunity individually applies to ea...

Excerpt: ....c.i.; H.9.c.ii.; H.9.c.iii.; Page 2 of 8 H.9.c.iv.; H.9.c.v.; and H.9.c.vi. It also the order of the court that he parties to fix the first paragraph of page 1 of the notice, “on‐ exempt” should be changed to “non‐exempt” or hourly (which might be easier for the class members to understand); paragraph 7 on page 4 of the notice is confusing and should be clarified; the notice should identify who the released parties are; and there is ...

Excerpt: ... ¶¶1 and 2 that each of them are a 25% “owner and shareholder of Defendant, GREEN AMERICA, INC., …, as is the owner of 25% of all outstanding shares of Green America.” They further allege at ¶13 that they are “shareholders and directors of GREEN AMERICA at the time of the transaction.” This is a sufficient allegation that plaintiffs are shareholders of the corporation; whether the corporate records show this or not is a question of e...

Excerpt: ...gues that all of the causes of action fall within the anti‐SLAPP statute because they pertain to statements made by parents to the District during board proceedings or pertain to statements made during the course of an official investigation. The anti‐SLAPP statute attacks causes of action asserted against a defendant from any acts done by the defendant “in furtherance of the [defendant's] right of petition or free speech.” C.C.P. § 425....

Excerpt: ...l to the disposition. As requested by petitioner, granted as to the fictitious business statement of Real Journey Academies along with the various Education Code sections. As to standing of the petitioner: RCOE argues petitioner does not have standing because it does not operate the school; it is only the non‐profit corporation. However, petitioner has requested judicial notice of a Fictitious Business Statement which states that The Journey Sc...

Excerpt: ... by the buyer in connection with the commencement and prosecution of such action. (CCP §17994(d).) The additional term “expenses” was included in this section to cover items that would not otherwise be included in the detailed statutory definition of “costs” under CCP § 1033.5. (Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137‐138.) “If the items on a verified cost bill appear proper charges, they are prima facie eviden...

Excerpt: ...proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”) Although the language of the statute indicates that the order deeming matters admitted is mandatory, “the nonresponding party can avoid the deemed admitted order by serving a verified response before the hearing on the motion.” (Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 978, 987.) The Court should review the responses as a whole to...

Excerpt: ...efendant's Memorandum of Costs.” Defendant correctly points out that the motion to strike or tax costs is untimely. Pursuant to CRC Rule 3.1700(b)(1), a notice of motion to strike or tax costs must be filed and served 15 days after service of the memorandum of costs. If the cost memorandum was served by mail, the period is extended by five (5) days. (CRC Rule 3.1700(b)(1); CCP § 1013(a).) Delay in challenging a costs bill waives any objection ...

Excerpt: ...aim forms, photos, and accident reports, [b]illing records, and X‐ray films … concerning: Luis Antonia Cuellar.” (See Declaration of Alina Dermendjian (“Dermendjian Decl.”) in support, Exhibit A.) On 7‐18‐19, Plaintiff's counsel sent correspondence requesting that the subpoena be limited to the body parts impacted in the incident (Plaintiffs' left leg). Thus, moving party made reasonable good faith efforts to meet and confer. Defens...