Excerpt: ...s a home. Feltz claims that the hole was covered and obscured by grass. Feltz has named both Ironwood HOA (HOA) and landscapers A.K. Landscaping Maintenance, Inc. (AK) as defendants. The HOA's motion is based upon the grounds that there is no triable issue of fact as to the 4th cause of action for declaratory relief on its cross complaint that A.K. owes the HOA a duty to defend and indemnify the HOA from Feltz' claim. There is a triable issue of ...

Excerpt: ...s contacted by a Daniel Krastel stating that he received the posted notices and that he lived at the property before the fire, and due to the owner's death the property was in probate. Krastel claimed that he would become the owner of the property once probate was completed. City made no effort to verify that fact, or otherwise determine who owned or controlled the property. Notices mailed to the decedent Carol Adamson and/or the occupant of the ...

Excerpt: ...charges his clients, and instead, he claims this rate is supported by the Laffey Matrix. The trial court can determine rate calculation based on an adjusted Laffey Matrix (the official source of rates based on Washington D.C. area, adjusted to local area based on the Consumer Price Index) (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695‐696) Defendant failed to show the proper adjustment of the Laffey rate ($717/hr. for a 1...

Excerpt: ... combined $1,400,000 to Defendant City of Palm Springs to be deposited in an escrow account. The purpose of the agreement was to facilitate development of the Pedregal Property, which was at the center of the dispute in the underlying case. After hearing about criminal investigation and subsequent charges against City's former Mayor Steve Pougnet, Richard Meaney and John Wessman, Plaintiffs now seek to rescind the settlement agreement with City a...

Excerpt: ...with Plaintiff/Cross Defendant, Linda Kelley, his mother, in which he agreed to would rent the house to her “for a period not to exceed 2 years or until Cross‐Complainant sold the Subject Property, whichever came first…” (Cross‐complaint ¶ 5.) Casale also alleges that on March 12,2007 Kelley entered into a secret agreement with Patricia Reinhart, the executor of his grandmother's estate, that resulted in Kelley creating an recording a ...

Excerpt: ... to the FDCPA is when a person collects a debt due to another if the debt was not in default when it was obtained. (15 USC §1692a(6)(F)(iii).) Plaintiffs do not plead when they were in default. According to the recorded documents, Defendant obtained the assignment on 3/29/16. Thus, there Page 3 of 3 are no allegations that Plaintiffs were in default at the time Defendant obtained the interest (assuming it was transferred to another). 2 nd Cause ...

Excerpt: ...lead a viable theory as to why the sale is void. As such, Plaintiffs have not alleged any facts to get around the presumption of Civil Code §2924(c) ...

Excerpt: ...ects: 1. It violates ¶ H(6), because the release is not limited to claims based solely on the facts alleged in the first amended complaint. It purports to release “any and all claims for recordkeeping or pay stub violations,” not just those at termination, and “all claims for failure to get consent for a payroll debit card or self‐issued check payment,” not just those claims involving final wages. In addition, the release includes a wa...

Excerpt: ...laintiffs $15,000 in satisfaction of their individual claims, and an additional $5,304 to McAfee regarding an unemployment claims, but the complaint alleges no such individual claims. 3. The motion contends that the “financial viability” factored into the amount of the settlement, but no evidence of the financial condition of the defendant is offered. 4. The plaintiffs' counsel claims time billed at up to $700 per hour. Does plaintiffs' couns...

Excerpt: ....23; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) As to the second and third causes of action, plaintiff fails to allege the manner in which his claims are ordinary negligence claims, as opposed to professional negligence claims. The motion to strike is MOOT. Prevailing party to give notice. ...

Excerpt: ...rms, Inc. (9th Cir. 1987) 836 F.2d 1156, 1160 (interpreting FRCP 11). ...

Excerpt: ...ailed to show how the financial records of the corporation have any relevance to this case given Plaintiff has only made a claim for personal lost earnings. The individual's information can be found elsewhere in this ruling. RFP 38, 39, 40, 42 and 45 is GRANTED. This information deals with the individual and is relevant. For example, any other monetary reimbursement from the corporation may be relevant to her claim of lost earnings, as she has ad...

Excerpt: ...ree speech or petition rights as defined in Code of Civil Procedure section 425.16(e). (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330; see also Weil & Brown, ¶ 7:244.) A lawsuit qualifies for a special motion to strike under section 425.16 if it arises from an act “in furtherance of the person's right of petition or free speech under the United States or California Constitution.” (Code Civ. Proc. § 425.16(b)(1)...

Excerpt: ... mail). C.C.P. §2016.050. The parties agreed in writing that Simon had until 11/27/18 to file her motions to compel further responses. These motions were filed on 11/27/18. As such, the motion is timely. Motions to compel further responses to request for production of documents, form interrogatories, special interrogatories and requests for admission require separate statements. California Rules Page 2 of 4 of Court, rule 3.1345(a)(1), (2) and (...

Excerpt: ...st answer the excess interrogatories regardless of the 35‐limit.” Weil & Brown, California Practice Group: Civil Procedure Before Trial § 8:941 (Rutter Group 2017). As discussed above, Mario Masellis' response to special interrogatories was late. Due to this, he waived his right to object to this issue. Even if Mario Masellis' response was not late, he failed to object on this basis. ...

Excerpt: ... to Stay or Continue the motion until a date sometime after the Court lifts the stay in place with respect to Defendant Richard Meaney. The Court deemed the Ex Parte papers as City's moving papers and set a briefing schedule as to City's motion. As to the Motion to Expunge Lis Pendens the Court continued the hearing to 3/22/18, and set City's motion for hearing prior to that date. City's motion seeks to stay or continue the hearing on the motion ...

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: ...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: ...endants. While NJP performed services for the benefit of defendant James Bradley, its written contract was with Kenner & Greenfield. To the extent that Bradley agreed to pay the costs of NJP's services, his agreement was with Kenner & Greenfield. With respect to PPI, it cannot be determined from the allegations of the FAC whether the alleged contract was oral or in writing, nor can it be determined whether the alleged contract was between PPI and...

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: ...rior alleged incident was dismissed. ...

Excerpt: ...y to give notice. ...

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: ...e CRST defendants. The accident occurred at an intersection controlled by a STOP sign in Landers direction of travel and with no traffic control in Decedent's cross‐direction of travel when Landers made a left turn across Decedent's path at approximately 3:50 a.m. Plaintiffs contend that Landers caused the accident by making an unsafe left turn. Defendants claim that Decedent cause the accident by speeding and making an unsafe lane change acros...

Excerpt: ...ling: The motion is denied. Defendants are to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiffs seek sanctions based upon Defendants' alleged willful suppression and spoliation of evidence, that is, the removal from the truck of a Garmin Nuvi GPS unit. /// Page 2 of 5 The motion is denied for the following reasons: There is no evidence that Defendants willfully suppressed evidence. Essentially, Plaintiffs argue...

Excerpt: ...uct defect actions and provides that where a purchaser's expectations are frustrated because the product purchased does not function properly, the party's remedy is under the contract alone. (Robinson Helicopter (2004) 34 Cal.4th 979, 988.) ...

Excerpt: ...USTAINED WITH LEAVE TO AMEND. The Demurrer to the seventh cause of action (undue duress) is SUSTAINED WITHOUT LEAVE TO AMEND because there is no recognized cause of action for undue duress. The Court rejects the arguments by defendant that: the litigation privilege bars the action; collateral estoppel bars the action; and, Bank of America is an indispensable party. ...

Excerpt: ...wer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.” Ba...

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: ...onsideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, (2009) 29 Cal.4th 82, 89.) Whether the anti‐SLAPP statute applies is determined by the “principal thrust or gravamen” of plaintiff's claim; it cannot be invoked where the allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metaboli...

Excerpt: ...odified. Plaintiff's counsel shall be prepared to describe the nature of the anticipated amendment. At the Case Management Conference:  Plaintiff's counsel shall be prepared to explain why no defaults have been requested as to the defendants served 11‐30‐17, 12‐3‐17 and 12‐6‐ 17 who have not appeared.  Counsel for all appearing parties shall be prepared to discuss whether this case should be designated “complex” pursuant to ...

Excerpt: ...tiff Dawn J. Foote is to prepare a proposed order and give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. The Second Amended Complaint (“SAC”) for: (1) breach of express contract, (2) declaratory relief, (3) fraud, (4) intentional infliction of emotional distress (“iied”), (5) negligent infliction of emotional distress (“nied”), (6) partition, and (7) oral implied contract arises out of an alleged cohabitation a...

Excerpt: ...efendant (“D”) Bank of America, N.A. (“B of A”) to convey any interest in Lot 42 and to brief whether after the conveyance any cause of action remains against B of A re Lot 42. There is no dispute that B of A has disclaimed any interest in Lot 42. The HOA claims, nevertheless, that it may still pursue its slander of title cause of action and that the demurrer to the 3rd cause of action (“c/a”) for slander of title as to Lot 42 should ...

Excerpt: ...on because Plaintiff fails to plead an actual, present controversy. ...

Excerpt: ...provided accommodation, and was fired because of the disability. ...

Excerpt: ...tinued to sexually coerce her through text messages, phone calls and in person. (FAC, ¶61). She states that incidents occurred in February 2014 (FAC, ¶67 and 68), March 2014 (FAC, ¶72‐73) and May 2014 (FAC, ¶ 75). These acts of sexual battery are time‐barred. However, the final act of sexual battery alleged by Plaintiff occurred on either July 20 (FAC, §92) or July 27, 2014. (TAC, ¶78‐ 79), when Defendant sexually assaulted Plaintiff ...

Excerpt: ...ly eligible for attorney fees.” (Id. at 566.) In order to obtain fees, the “plaintiff must establish that: (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense…; and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. (Ti...

Excerpt: ... objective standard. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1318 (rejecting the requirement for also a subjective standard of bad faith as required in earlier statute).) The CLRA provides: “The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a findi...

Excerpt: ...ss assumption of the risk doctrine applies. Defendant also fails to meet its initial burden that the implied assumption of the risk doctrine applies. The failure by Defendant to maintain the track and safety barriers in reasonably safe condition, including affixing the safety barriers to the floor, exposed go‐kart drivers like Plaintiff to an increased risk of harm. Defendant's reply ignores the arguments raised in the Opposition regarding Defe...

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: ...red case being the lead case. Plaintiffs are to prepare a proposed order and give notice pursuant to Cod Page 5 of 7 arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (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 transac...

Excerpt: ...re is no provision in the Code of Civil Procedure or Rules of Court which provides that a motion is deemed to be meritorious because no opposition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal theories without notice to opposing counsel and the co...

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: ...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: ... of the action yet fails to appear, unless he or she was prevented from participating in the action. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.) Moreover, the motion does not set forth the essential elements to obtain relief for extrinsic fraud/mistake. It does not Page 2 of 2 indicate: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the demurrer; and (3) diligence in seeking to set aside the order once it ...

Excerpt: ... court order was willful. However, the request for monetary sanctions is GRANTED in the amount of $150.00. The objections to Mr. Torres' declaration as to paragraphs 4, 5, 6, 7 and 12‐18 are OVERRULED. The objections are SUSTAINED as to the exhibits referenced in Page 2 of 4 paragraphs 9 and 10, but not to the actual testimony portions of these paragraphs. The objection is SUSTAINED as to paragraph 11. All objections to Carol C. Ignacio's decla...

Excerpt: ...uous acts. The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” In re Gould (1961) 195 Cal.App.2d 172, 175. An order to show cause is issued by the court, after the initiating of an affidavit stating the facts constituting the contempt is presented to the court and then a hearing must be held. Arthur v. Superior Court (1965) 62 Cal.2d 404, 407‐408. The...

Excerpt: ...ant D & N Pizza, LLC. Defendant provided responses to only RFPs Nos. 1‐ 8, dated August 25, 2017. Defendant supplemented those responses on November 3, 2017, but once again provided no response to Nos. 9 – 12. Plaintiff filed a motion to compel responses to Nos. 9 – 12. Plaintiff's motion to compel responses to Nos. 9 – 12 was served on Defendant via mail on December 26, 2017 and deemed served on 12/31/17. Defendant mailed a second supple...

Excerpt: ...ntiff Jasmine Labuen's Complaint alleges that on October 28, 2014, Defendant David Sonneborn struck her with his car while she was a pedestrian, while at the time he was making deliveries for one of his Round Table pizza restaurants or otherwise acting in the course and scope of his ownership or membership of D & N Pizza. Plaintiff Labuen served Requests for Production of Documents, Set One on Defendant David Sonneborn. Plaintiff moves the court ...