Excerpt: ...ate Claim for Coram Nobis The defendant cites People v. Kim (2009) 45 Cal.4th 1078 for the proposition that a party moving for a writ of error coram nobis must demonstrate factual innocence. The Supreme Court said no such thing anywhere in that opinion. To the contrary, it said: “The writ of [error] coram nobis is granted only when three requirements are met. (1) Page 3 of 4 Petitioner must ‘show that some fact existed which, without any faul...

Excerpt: ....A. (McCain) wherein Plaintiffs would contribute capital to be used to secure a bank Guarantee used in connection with the purchase of gold. McCain moves (1) to quash service of summons based upon lack of personal jurisdiction and (2) to dismiss based the parties' choice of Florida as the forum for any action. MOTION TO QUASH Plaintiffs have failed to meet their burden to demonstrate that minimum contacts exist between defendant and the forum sta...

Excerpt: ...W. Pyle, Jr. for alleged problems with the maintenance and operation of the Park. Pyle moved the court for an order compelling arbitration of the plaintiff's claims on the grounds that at least 16 of the plaintiffs had leases that included agreements to mediate and arbitrate. Pyle also moved the court to stay all proceedings in this case pending arbitration. On January 23, 2018, this court heard and denied Defendant's motion. Defendant then filed...

Excerpt: ...ed in the Notice of Motion. The five page Separate Statement does not satisfy requirement that each cause of action be separately identified and supported by material facts that are relevant to that cause of action. The purpose of the Separate Statement and opposing Separate Statement is to permit the Court to determine quickly whether the Motion is supported by sufficient undisputed facts. (St. Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co. (20...

Excerpt: ...n Plaintiffs' First Amended Complaint (“FAC”). Plaintiffs' SAC alleges 7 causes of action against Defendant as follows: 1) breach of covenant of good faith and fair dealing, 2) breach of contract, 3) negligence, 4) accounting, 5) Unfair Business Practices, 6) Intentional misrepresentation, and 7) negligent misrepresentation. The 4th cause of action for accounting was not alleged in the FAC. In their opposition, Plaintiffs state that the chang...

Excerpt: ... unconscionable. There is no dispute that Serantes agreed to arbitrate employment related claims as part of JFK's Fair Treatment Process. FTP. The FTP provides for a pre‐arbitration resolution procedure and only after that is completed binding arbitration. “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may...

Excerpt: ...ainst Defendant in “the Butler Lawsuit,” which caused a judgment to be recorded against property located at 2392 Achilles Drive. The judgment lien would not have attached if Defendant had “complied with the law, requiring the deed to be signed over to Plaintiff.” As a result of the Butler judgment the property was lost. Defendant falsely represented to Plaintiff that she would defend the Butler Lawsuit and concealed and failed to disclose...

Excerpt: ...22,254.03. On 12/28/17, an assignment of the judgment and judgment lien was filed with the court reflecting that Butler Capital Corporation assigned their judgment and lien to LA Lease Holding, LLC on 10/14/14. Also filed on 12/28/17 was an assignment of the judgment and judgment lien from LA Lease Holding, LLC to Butler Capital, Inc. dated 1/20/17. On 3/22/18 a notarized assignment, dated 12/16/14, was filed with the court reflecting that Butler...

Excerpt: ...3.1382, regarding the identification of the pleadings proposed to be dismissed. Any further effort to obtain a determination that a settlement is in good faith shall do so by notice (Code Civ. Proc., §.877.6, subd. (a)(2)) rather than by noticed motion (id., subd. (a)(1)) unless either (1) the party expects the effort to be opposed or (2) the party will be requesting an order shortening time for the hearing on the motion. If a noticed motion is ...

Excerpt: ...6.) Here, the plaintiff's attorney signed it, but it is unclear whether it is also signed by Iris Landing Homeowners Association, the only plaintiff in the action. (Complaint.) There are two signature pages attached to the agreement. (Harrington decl., Ex. A.) On one of them, a signature line is prepared for “Iris Landing Homeowners Association, Plaintiff.” That signature line is blank. On a second signature page, there is signature line labe...

Excerpt: ...f the hearing on this motion. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This is one of three motions which all arise out of Defendant/Cross Complainant 14080 Palm, LLC's failure to timely serve verifications with its discovery responses. To be sure, the failure to do so for extended period of time, as happened here, is improper. However, equally objectionable are certain positions advocated by the ...

Excerpt: ...y for the relief sought. That reliance is misplaced. To the extent relevant, that section says that a motion to compel appearance and testimony may be brought if “a person designated by an organization that is a party under Section 2025.230” fails to appear at the deposition or to proceed with it. (§ 2025.450, subd. (a).) Here, the person designated by the city appears and testified. Therefore, the section has no application. The Court could...

Excerpt: ...ion. (UMF No. 8, Soberon Dec, Ex. J.) On July 6 and September 6, 2016, Plaintiff was notified that she was approved for a Streamline Home Affordable Trial Modification. (Soberon Dec, Ex. K and M.) Select has also produced evidence that it conducted a review of later applications before determining that she was ineligible for modification. Select notified Plaintiff that she was denied on March 2, 2018. (Soberon Dec, Ex. N.) It also appears that Se...

Excerpt: ...action are notably brought on several distinct grounds/counts. CHA simply does not address each of the disputes and alleged breaches of the CC&Rs in its motion. Further, even if CHA was correct that long‐term funding obligations were effectively transferred to KH and/or that its obligations have not accrued under the CC&Rs, questions concerning CHA's alleged failure to maintain water quality basins and features within the community, its alleged...

Excerpt: ...is motion, SCE seeks summary adjudication of the inverse condemnation cause of action. In order to establish inverse condemnation Plaintiff must prove that the facilities at issue were serving a public use. The motion is a based upon the grounds that there is no triable issue of fact that the facilities at and near the bank were serving a public use because they were not serving the public at large. SCE has failed to show that there are no triabl...

Excerpt: ...ns are privileged and that there are only three narrow exceptions to overcome that privilege, which are: 1) intentional waiver, 2) the gravamen of the case is so intertwined with the return that waiver has occurred, or 3) public policy outweighs the privilege. Plaintiff asserts that none of these exceptions apply in this case. In addition, Plaintiff asserts that as the S Corporations sole shareholder he has a personal financial privacy right. As ...

Excerpt: ...subdivision (c), defines “aggrieved employee” to mean “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Subdivision (i) says that, of the civil penalties recovered by aggrieved employees, 25 percent shall be distributed “to the aggrieved employees.” Allocation of the entire 25% share of the penalties to a single aggrieved employee, rather than to all the aggriev...

Excerpt: ...ce by the witnesses in March. Depositions of those experts to be taken within 15 days unless other dates mutually selected by all parties. FACTS: Defendant's motion states the following: Expert exchange occurred on January 24, 2018. Plaintiffs designated Dr. Kaee and Dr. Darvish as retained experts. On January 29, 2018, Defendant noticed the depositions of Plaintiffs' retained experts for February 13, 2018. At the time the deposition was noticed,...

Excerpt: ... On April 17, 2018, this court sustained with 20 days' leave to amend demurrers to the 1 st and 7th causes of action asserted against Cross‐Defendant Joseph Tortoris alleged in Cross‐Complainant James Kollins' Third Amended Cross‐Complaint. The court's ruling was an adoption of its tentative ruling posted April 16, 2018 and the fact that no party requested oral argument and no party appeared at the scheduled hearing. Kollins failed to timel...

Excerpt: ...Defendant's opposition asserts that the following acts contained in the FACC constitute extreme and outrageous acts: Dr. Vuthoori entered Dr. Holt's medical practice and yelled at him and his staff about the purported outstanding rent causing distress to Dr. Holt's sick patients, knocked on windows and doors of and demanded meetings and threated to “take care” of Dr. Holt. Plaintiffs Surender Vuthoori, M.D. and Surender Vuthoori, M.D., Inc. m...

Excerpt: ...otocopies of Exhibits (Item 12). Defendant argues that most of the exhibits were not used at trial (other than 30 pages worth $6), and the enlargements were unnecessary because the courtroom has an Elmo available to enlarge the exhibits for the jury, which Plaintiff used. Plaintiff argues that the costs were reasonably necessary to the litigation, that the models were used during the opening statement, and that she had no way of knowing an Elmo w...

Excerpt: ...s “Individual Defendants”, contend Plaintiff failed to exhaust his administrative remedies as to them. They allege that under Government Code §8547, a plaintiff must first exhaust his or her administrative remedies with the SPB (State Personnel Board) before filing a lawsuit. The Individual Defendants also contend that Plaintiff's claim is time barred. Individual Defendants fail to meet their burden on the ground of failure to exhaust admini...

Excerpt: ...nce on Representations of Partnership, 2) Common Count for Work Labor and Services Rendered, 3) Breach of Contract, and 4) Common Count for Reasonable Value of Services (Quantum Meruit). /// /// Page 2 of 7 The Third Amended Complaint alleges as follows: Defendants Barry Werner and Simon Werner and KGA, Inc. were the owners of Defendant KMR Tours. Defendant Baruch Erblich was doing business as Afikoman Tours. Defendant Premier Passover was a part...

Excerpt: ...Further, this matter is properly before the court as there are no allegations that this asset was ever part of a trust. 2COA (Elder Financial Abuse): There are sufficient facts to show undue influence. The only issue is standing. An elder abuse cause of action is based on injury/damages to the elder, not to the elder's heirs. See Welfare & Institutions Code §§ 15657.3 and 15657.6. If the elder dies, the right to commence an action “shall pass...

Excerpt: ...ker Corporation were Plaintiff's agent for the sale. The gravamen of this action is that Downs made certain misrepresentations to Plaintiff about the value of his property in order to get Plaintiff to sell it far below market value to investors with whom Downs was working. The motion based upon the grounds that the complaint does not state a claim for punitive damages against Defendants. Plaintiff has failed to plead fact showing corporate liabil...

Excerpt: ...eeking the identity of potential witnesses. Though technically speaking, Plaintiff could have done a better job phrasing the interrogatories (e.g., it is not clear whether no. 1 is asking Defendant to identify lawsuits containing any of the causes of action or all of the causes of action identified in the interrogatory), it is obvious what information Plaintiff seeks. As to the objection regarding format per CCP § 2030.060(f): CCP § 2030.060(f)...

Excerpt: ...balance, as explained more fully below. Lockhart's request for sanctions is granted in the sum of $1,290. Analysis: The objection/motion to strike. The defendant objects to and moves to strike the plaintiff's motion on the ground that the memorandum in support of the plaintiff's motion violates California Rules of Court 2.108 and violates this Court's admonition against excessive use of footnotes. Both the objection and the motion to strike are m...

Excerpt: ...ravamen of this litigation includes failure to provide meal and rest breaks along with negligent hiring and retention. The defendant is seeking cell phone records relating to the date of March 9, 2016, which are relevant to a date plaintiff left work without clocking out. Plaintiff was terminated on March 11, 2016. Defendant is also seeking cell phone records from the date of May 12, 2013 to March 8, 2016. These records are relevant to issues of ...

Excerpt: ...o have an attorney represent it in a lawsuit, which he later learned from the court. He thereafter sought and retained counsel to represent and defend EJD. (Kancilia Dec., ¶¶ 3‐6.) These facts are sufficient, and appear sincere. Kancilia initially responded to the complaint on behalf of himself and EJD by filing a demurrer and petition to compel arbitration. He sought counsel on behalf of EJD after default was taken, and after attempts to mee...

Excerpt: ...n, that Burrell “was physically and emotionally … Hudson … and was also physically and emotionally abusing his other son Kaiden… from a relationship with Lyndsay Hunter. The actual words were that the Plaintiff punched Hudson and threw him into a swimming pool, pinching his body and forcing him to sit naked outside then throwing a telephone at him and there he forced the two boys to fist fight one another”; that Cebreros later repeated ...

Excerpt: ...n administrative hearing regarding alleged violations of the statutes and regulations governing the operation of traffic schools. Petitioners then moved to set aside that default on the grounds that they did not receive notice of the administrative action. That motion was denied because the hearing officer found that Petitioners did Page 3 of 3 receive notice. The order revoking Petitioner's license has now become final. This petition challenges ...

Excerpt: .... All she points to is the fact that the probate case (RIP 1400189 ) has been resolved and that Plaintiff refuses to appear for deposition. As to the former, the probate court entered judgment on 11/1/17, which is on appeal. Res judicata (claim preclusion) “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.” (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398.) “Res judicata precludes t...

Excerpt: ...arcia owns certain real Page 2 of 6 property in Coachella. City of Coachella filed criminal charges against him alleging municipal code violations related to the property. Garcia pled guilty to 9 counts based on a stipulated sentence including a $9,000 fine ($8,100 stayed pending cure of the defects at the property within 90 days). Garcia cured the defects within 90 days and paid his $900 fine. City attorney did not tell him that in addition to t...

Excerpt: ...s pltfs' signed a waiver of release of all liability. In the 6th (fraud for non‐ disclosure of facts) and 7th (fraud for negligent representation) causes of action the second amended complaint has failed to properly plead any specific facts about the source or time of any misrepresentations or non‐disclosures. In addition, the pltf has failed to plead what authority any person who made such representations has to bind the deft corporation. Th...

Excerpt: ... needed given the allegations against the dental assistant are already present the FAC and Plaintiff is simply seeking to amend the request for damages. ...

Excerpt: ...nce will be vacated. Any renewed motion shall comply with CMO#2, to be issued forthwith. Analysis: 1. The motion fails to comply with the Court's initial CMO in at least the following respects: a. No declaration from plaintiff's counsel re other class or representative actions. (CMO ¶E.1.d.) b. The proposed release (Settlement, p. 16, ¶31) exceeds the limitations on the scope of the released parties. (CMO ¶E.5.a.) c. There is no declaration fr...

Excerpt: ... defendant timely preserved his objections, the result would not differ since the court finds that the objections were not well‐taken and seek documentary support for defendant's contentions, which are a proper subject for discovery. Sanctions are awarded against defendant Orellana and his counsel in the amount of $1,035.00. 4. RIC1709019 BRUYN VS ORELLANA MOTION TO/FOR COMPEL FURTHER RESP OF RICHARD ORELLANA TO SPECIAL INTERROGATORIES SET ONE ...

Excerpt: ...(1).) Defendants claim that no statement of damages was served on them. In the opposition, Plaintiffs do not dispute this contention. Because the default is being vacated due to Plaintiffs' failure to serve the statement of damages rather than based on fault of Defendants' attorneys. Plaintiffs request for attorney fees is denied. The Order to Show Cause set for November 6, 2018 is ordered vacated. The Case Management Conference is restored to ca...

Excerpt: ...complaint for breach of contract in the U.S. District Court, Central District of California, Case No. 17‐cv‐00433 against Hayday, Lyndon Ichida and the Ichida Family Trust. In that case, Hayday successfully compelled arbitration and the federal action was dismissed. Hayday now has claims against FeeDx Holding, Inc., HayDx, Inc. Thomas Tsai, and FFNT pending in AAA Case No. 01‐17‐002‐8035. The claims and cross‐ claims in the arbitratio...

Excerpt: ...2:125, pp. 2‐53 to 2‐54, citing Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578‐579.) The Demurrer as to Osceolo is SUSTAINED only as to the 6COA for failure to state facts sufficient to the COA but WITH LEAVE to AMEND of 20 Days. As to all other COA pertaining to Osceolo, the Demurrer is OVERRULED. 6COA (Fiduciary Duty): “Fiduciary duties are imposed by law in certain technical, legal relation...

Excerpt: ...Both parties agree that the applicable standard of review is the independent judgment test. In applying the independent judgment test, the court determines whether the weight of the evidence presented supports the findings of the administrative law judge (“ALJ”). C.C.P. §1094.5(c). There is a strong presumption that the ALJ's findings are correct. Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817. The Petitioner has the burden to show that...

Excerpt: ...set aside default must be filed within a reasonable time, not to exceed six months, from the date of default. Further, the application must be accompanied by a copy of the proposed responsive pleading, otherwise the application shall not be granted. ...

Excerpt: ...dants are business entities, noticing the depositions of the PMKs is appropriate. Pursuant to CCP §2025.450(a), where a party fails to appear, without a valid objection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be accompanied by a meet and confer declaration under CCP §2016.040. (CCP §2025.450(a).) Plaintiff asserts th...

Excerpt: ...h Nudleman, M.D. Dr. Ritter opines that based on Ramsey's symptoms, a detailed neurological exam should have been done. (Ritter Dec. ¶ 9‐10.) He states that Defendant failed to perform visual field testing and the remainder of the exam was below the standard of care. (Id. ¶ 10‐ 12.) Based upon the competing expert opinions, both of which find support in Ramsey's medical records, there are disputed material facts as to whether Defendant's ac...

Excerpt: ...tion 474. Under section 474, for statute of limitations purposes the claims against a defendant added as a Doe defendant relate back to the filing of the original complaint when the identity of the defendant is unknown. The relation‐back provision of section 474 has not been interpreted literally to only apply when the plaintiff is ignorant of the identity of the defendant. Courts have more broadly interpreted the “ignorance” requirement to...

Excerpt: ...ded to purchase the property. The demurrer is sustained with leave to amend on the 2nd cause of action (fraud) because of lack of specificity. The demurrer to the 4th and 5th causes of action is sustained without leave to amend. Notice of a lis pendens published in the course of judicial proceedings is privileged pursuant to CC 47. Lack of service does not render the recordation unprivileged. Consequences of violating service requirements are del...

Excerpt: ...e deft's supervised retirement home. The decedent apparently fell and broke his hip on 11/25/16 and passed away on 12/29/16. The 1st cause of action does require specificity as to the statutory violation of elder abuse to establish gross negligence or reckless disregard. The alleged incident occurred on a single occasion, not sufficiently connected to the decedent's death, and does not demonstrate a significant pattern of withholding care. The se...

Excerpt: ...iding need for the County to possess the property prior to the issuance of final judgment, and that County will suffer a substantial hardship if the application is denied or limited; and it has shown that the hardship County will suffer if possession is denied or limited outweighs any hardship on the Defendant that would be caused by the granting of the order of possession. Further, the costs of the property renovations and changes argued in the ...

Excerpt: ...my client was unable to timely file any response (including an Answer and Demurrer) to the Cross‐ Complaint as a result of the lack of due process and proper notice as to the filing of the CrossComplaint in this matter prior to December 28, 2018, as a result of inadvertence, surprise, or excusable neglect” and that “my client has been suffering under a continuing physical disability which interfered with his ability to readily communicate [...

Excerpt: ...acts are plead to support the claim. Plaintiff's allegations that Dr. Phan recklessly disregarded her instructions and proceeded to grind away more than 50% of three of Plaintiff's front teeth (among other teeth) in order to bill Plaintiff's insurance sufficiently sets forth “extreme and outrageous” conduct. Further, Plaintiff sufficiently pleads “severe emotional distress” through her allegation that she suffered extreme anxiety that req...