Excerpt: ... costs. This language does not equate to a promise to pay attorney's fees and costs on all claims as Plaintiff alleges. Rather, the language clarifies that the amount offered was not inclusive of any statutory attorney's fees that Plaintiff might be entitled to if determined to be a prevailing party. The cases cited by Plaintiff do not say otherwise. Prevailing Party CCP §1032(b) provides that “Except as otherwise expressly provided by statute...

Excerpt: ...not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667‐668.) Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Id. at 668, fn 12.) Plaintiffs allege they were present at the scene of the incident when their father/husband fell. They allege they were “simultaneously aware of Defendant's wrongdoing and negligence allowing [Rodriguez] to walk unassisted desp...

Excerpt: ... Memorandum of Points and Authorities is 32 pages long – more than double the allowable 15 pages under CRC 3.1113(d). A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late‐filed paper,” meaning the court in its discretion may refuse to consider it in ruling on the motion. (CRC 3.1113(g); CRC 3.1300(d).) The Court has exercised its discretion, and has read and considered the complete ...

Excerpt: ..., 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. A settlement in any action is a welcome resolution, because it is entered into voluntarily and not imposed on either party. Unfortunately, the present motion cannot be granted because there is no agreement on th...

Excerpt: ...he vehicle, and based on that allegation, contends that she is a purchaser under the Song Beverly Act. No authority has been presented that states that she cannot pursue a claim on this basis. However, if this is the basis of her action against the defendants, she will also be bound by the arbitration provision in the purchase agreement. Generally, the rule is that a nonsignatory to an arbitration agreement cannot be compelled to arbitration. Cro...

Excerpt: ... to arrange the examination by stipulation. (CCP §2016.040.) The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. (Weil & Brown, Civ. Proc. Before Trial (TRG 2020), Ch. 8I, §8:1556.) “Often, the pleadings will put a party's mental or physical condition “in controversy.” For example, a personal injury complaint may allege that plaintiff is sufferi...

Excerpt: ...us franchise owner of the restaurant where Plaintiffs worked. Plaintiffs further argue that even if they executed the Arbitration Agreements, the Agreements are both procedurally and substantively unconscionable and thus unenforceable. As to substantive unconscionability, Plaintiffs specifically argue that the Arbitration Agreements do not provide for adequate discovery. Plaintiffs also filed an objection and motion to strike the evidence offered...

Excerpt: ...s 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. A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v....

Excerpt: ...responding party from that waiver. (Code Civ. Proc., §§2030.290(a), 2033.280(a), 2031,300(a).) As such, in regard to the discovery at issue, Plaintiff's objections are deemed waived. In a motion for further responses to special interrogatories, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220‐221.) Most of Plai...

Excerpt: ...to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Id.) The complaint does contain both references to implied warranty for fitness (Complaint ¶31) and merchantability (Complaint ¶32). The Song‐Beverly Act defines implied warranty of merchantability as: “(1) Pass without objection in the trade under ...

Excerpt: ...the deposition was to take place on 9/11/20, or 9/30/20. Thereafter, at an informal discovery conference on 9/25/20, the court amended its order to allow the deposition take place on 10/14, 10/21, 10/28, or 10/29. Plaintiff moves for terminating sanctions against Defendant as she failed to appear for any of these seven dates. She further requests monetary sanctions of $9,000. Defendant contends that her counsel has not received the motion, and di...

Excerpt: ...opment, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118.) Trinity also seeks judicial notice of the legislative status of AB‐828 as of 11/13/20, which forms the basis of plaintiff's allegation that the foreclosure violated moratoriums on foreclosures. (Exhibit 8.) The request is granted. Trinity also seeks judicial notice of Governor Newsom's Executive Order N‐28‐20, signed March 16, 2020. (Exh. 9.) The Executive...

Excerpt: ...nst multiple defendants, including C.P.I. Properties, LP (erroneously sued as C.P.I. Properties, LLC) (“CPI”), Cerca Trova Restaurant Group Holding, Inc. (“Outback”) and Sunrise Restaurants, LLC dba Denny's Restaurant (erroneously sued as W.K.S. Restaurant Corporation dba Denny's Restaurant) (“Sunrise”). The City seeks to acquire property (Assessor Parcel Nos. 172‐420‐002 and 172‐420‐003) (the “Property”) by eminent domain...

Excerpt: ...l Stamen. Hence, the hearing was continued to 8/21/20. On 8/12/20, plaintiff Matthew Tye filed a Statement of Disqualification under Code of Civil Procedure section 170.3. As a result, the hearing of this motion was repeatedly continued while the Statement of Disqualification was being considered by the San Diego Superior Court. On 10/15/20, the San Diego Superior Court denied the disqualification and its ruling was filed on Page 4 of 6 10/23/20....

Excerpt: ...paragraphs 7 and 9 of the Complaint cause it to be included in the cause of action. The label of the cause of action names only defendant Binnquist. Defendant Laguna Hills' contention is without merit. Defendant Laguna Hills also contends the Complaint fails to identify the individuals who agreed to sign the change orders. It cites no authority in support of this purported requirement. Finally, defendant Laguna Hills contends Plaintiff failed to ...

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ... (2008) 162 Cal. App. 4th 68, 82, fn 8.) Motion for Judgment on the Pleadings: A defendant may move for judgment on the pleadings if the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Code §438(c)(1)(b)(i) and (ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, ...

Excerpt: ...f $313.74 is denied. Plaintiff's Request for Judicial Notice Nos. 1‐15 is granted to the extent these records exist as part of a court record or file. They are not accepted as true matters which are inadmissible hearsay (unless the matters are indisputably true). (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) FCA's Request for Judicial Notice Exs. E, F & H is granted to the extent these records exist as part of a cour...

Excerpt: ...s, which includes injunctive relief, monetary damages, and in certain circumstances, exemplary damages and attorneys' fees. Civil Code §§ 3426.1‐3426.4. The UTSA preempts common law claims for misappropriation, this includes causes of action for conversion and negligence. K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 955. Common law claims that are “based on the same nucleus of facts as t...

Excerpt: ...d Complaint (“SAC”) and the City of Beaumont's Second Amended Cross‐Complaint (“SAXC”) are SUSTAINED WITH 20 DAYS LEAVE TO AMEND. Defendants' Request for Judicial Notice is granted as to the existence of the pleadings, but not as to the truth of the contents. Request for Judicial Notice Defendants' Request for Judicial Notice is granted as to the existence of the pleadings but, not as to the truth of the contents. (Evidence Code §452(d...

Excerpt: ...s and the Court that documents had been filed and served, but did not show on the Court's register of actions as either images or entries. Following the hearing, that situation was resolved. The Court now rules as set forth below. Supplemental Tentative Ruling of December 11, 2020 The documents filed in reply do not change the Court's Tentative Ruling of November 18, 2020. Defendants' evidentiary objections 4, 5, 6, 7, 8, and 9 are sustained (res...

Excerpt: ...ozner's request for sanctions. While the right to discovery is broad, there is a right of privacy. Article 1, section 1 of the California Constitution explicitly recognizes a right to privacy and California courts have recognized the right as supplying a qualified privilege to a discovery demand. “[T]he right to privacy protects the individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. ...

Excerpt: ...ulation between Plaintiff and the K. Hovanian defendants. The TAC did not add the 9th cause of action for elder abuse. The elder abuse claim was pled in the Second Amended Complaint, to which Defendant did not demurrer. “Once filed, an amended pleading making substantive changes supersedes the original.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, §6:688 (Rutter Group 2020).) Defendant does not point to substantive changes made b...

Excerpt: ... Farm Fire contends Plaintiffs (Lazaro heirs) lack standing to challenge any determination made by it concerning the workers' compensation death benefits claimed by Ruiz on behalf of the Marcial heirs. The plaintiff must be the real party in interest as to the claim sued on “except as otherwise provided by statute.” (CCP §367.) The real party in interest is “the person who has the right to sue under the substantive law. It is the person wh...