Excerpt: ... or restitution considerations which are outweighed by the need to protect and limit a public entity's contractual obligations” Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 109‐ 10. The circumstances in Russell City Energy Company, LLC v. City of Hayward (2017) 14 Cal.App.5th 54 are truly “unique” and the case does not apply to the circumstances in this case. This case would essentially allow a cost overrun to be recove...

Excerpt: ...re material and relevant to the case. There appears to be no dispute that Plaintiff has an extensive medical history, some of which may be relevant to her claims of injury. While Plaintiff may not have been required to meet and confer before bringing the present motion, Plaintiff notably provided no guidance to the Defendants or to the court with regard to the injuries for which Plaintiff actually seeks to recover. On or about 2‐19‐18, Plaint...

Excerpt: ...urance committees and by counsel. Evidence Code section 1157, 1157.6 and attorney client/work product privileges protect from discovery. ...

Excerpt: ...served on 11/18/17. Defendants served their responses on 12/28/17, more than 30 days after the responses were due. Thus, all objections to the Demands for Production were waived by Defendants. (CCP § 2031.300(a).) Plaintiff's Separate Statements indicate that Demand Numbers 2 ‐ 15 and 18 ‐ 21 contained objections. As such, Defendants are Ordered to provide further responses without objections to these Demands within 20 days. Defendants' resp...

Excerpt: ... adjudication denied as to punitive damages. Plaintiffs Tracy Randall, Jamie Macknicki, Andrea Mills and Denise Pierce filed a complaint on 9/30/16 alleging 6 causes of action against Defendants Cambria Company, LLC and Karen Alciatore for: 1) Retaliation in Violation of Government Code section 12940(h), 2) Hostile Work Environment Harassment in Violation of Government Code section 12940(j), 3) Associational Harassment in Violation of Government ...

Excerpt: ...chael's admissions against other parties. While it is possible that there is insufficient evidence for seeking damages in excess of an owner's liability, the issue is not decided since this is a MSJ and not a MSAI. Motion for Summary Judgment denied. ...

Excerpt: ...as discussed at the hearing, that the Court's concern was the necessity of a receivership and whether there is need for determination of the motion for reconsideration in light of the Stipulation and Order filed on 1‐16‐18, paragraph 4: “A City inspection of the Respondent's property on August 15, 2017 revealed that Respondent had sufficiently abated all of the violations identified in the City's Petition and Motion for Appointment of the R...

Excerpt: ...R.S. v. Superior Court, supra, 172 Cal. App. 4th at 1056.) The Juvenile Court previously determined that Defendants could use the subject juvenile case files to defend this litigation. ...

Excerpt: ...approve the requested amount. Similarly, without a detailed explanation of precisely what the investigation entailed, the Court is not inclined to approve that amount. Additionally, the Court is inclined to reduce any service award to plaintiffs to $5,000.00 ...

Excerpt: ... large part, upon the distinction between a pharmacy, which primarily provides a service, and a retailer, which sells goods. Thus, any theory of strict liability that seeks to treat a pharmacy as a retailer contravenes the reasoning upon which the decision in Murphy is based. For this same reason, a breach of warranty claim does not lie against a pharmacy. (Hector v. Cedars–Sinai Med. Ctr. (1986) 180 Cal.App.3d 493, 508 n. 3; Shepard v. Alexian...

Excerpt: ...correct, how does that affect the estimated value of the claims to be released by the plaintiff? 2. The order continuing this hearing to April 27 stated: “The declaration of counsel states that the defendant produced pay records for other relief sales representatives. How many did the defendant produce? What percentage is that of the total number of such representatives? Do any of those records indicate that there are any other such representat...

Excerpt: ...ummary adjudication. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) Page 10 of 12 A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to t...

Excerpt: ... to the 2nd cause of action as to these moving defendants. The 4th cause of action is Page 2 of 12 Defendants Cox, Castle & Nicholson LLP, Paul J. Titcher and Adam Englander moved the court to strike all allegations against them as follows: 2 nd Cause of Action: Aiding and Abetting Breach of Fiduciary Duties. 4 th Cause of Action: Aiding and Abetting Constructive Fraud (Fraud by a Fiduciary) 5 th Cause of Action: Intentional Misrepresentations 6 ...

Excerpt: ...rounds that her counsel formerly represented him in his individual capacity and as attorney‐in‐fact for his grandfather as Trustee of the Franklin Trust and is now representing Plaintiff in this substantially related case. “Before an attorney may be disqualified from representing a party in litigation because his representation of that party is adverse to the interest of a current or former client, it must first be established that the part...

Excerpt: ...tice pursuant to Code of Civil Procedure section 1019.5, forthwith. There 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 intro...

Excerpt: ...plain: a. Why Mr. & Mrs. Oliver are named as plaintiffs in both cases. They were amended into the Wilder complaint on 1‐5‐18 but then filed their own action 19 days later on 1‐24‐18. Page 3 of 4 b. Why the consolidated complaint has not been served on the defendant. c. The plaintiffs' reference to “likely up to thirty or more subcontractors” (mtn., p. 2, l. 7), given that the developer has answered without filing any cross‐complaint...

Excerpt: ...007) 154 Cal.App.4th 498, 507‐508. It is irrelevant that more than one person could be the successor in interest and defendants offer no authority to the contrary. The court does not deal here with Defendants' Motion to Strike or Tax set next month. ...

Excerpt: ...he action as to that defendant. That same ruling applies in Randall v. William Lyon Homes, Inc. RIC1709214 and Escott v. William Lyon Homes, Inc. RIC1515142. Analysis: The plaintiff represents that a global settlement has been reached in this case and in four other related cases. The defendant agrees. However, the defendant asks the Court to proceed with a ruling on the motion to compel arbitration because the parties had previously stipulated th...

Excerpt: ...efore filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the subject pleading, for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As part of that meet and confer process, both parties are required to provide legal support for their positions, or amend/answer (§430.41(a)(1)). The cross‐defendants who filed...

Excerpt: ...to this court that would tend to indicate he can plead around the failed allegations of statutory liability or that governmental immunity does not apply here. 1 st Cause of Action for General Negligence and 2nd Cause of Action for Violation of Statute The Complaint alleges that the Riverside County Coroners' Office has a mandatory duty under Govt. Code §27491 “to fully inquire into the circumstances, manner, and cause of all violent, sudden, o...

Excerpt: ...s demurrer was originally filed 7/19/17. At the 1/31/18 hearing the court continued the hearing to 4/26/18 to be heard after the motion Re: Guardian ad Litem issue. On 3/22/18 the Court heard the motion for removal of Guardian ad Litem and Dismissal of Complaint by Lydia Brown. The Court vacated the order appointing the Guardian ad Litem and encouraged the parties to attempt to resolve the issue concerning a guardian Page 3 of 3 and/or dismissal ...

Excerpt: ...compliance with CRC 3.1306(c). Even if judicial notice were taken that a contract existed, the court cannot make factual or legal determinations based upon the contents of those documents. Further, the truth of statements made therein and their proper interpretation are not subject to judicial notice if the matters are reasonably disputable: Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a...

Excerpt: ...e the judgment. As to the remainder of the motion, regarding bank records of defendants from 2014 to the present, plaintiff has not met its burden to demonstrate that the subpoena is directly relevant to the causes of action and the subpoena is overbroad. Additionally, plaintiff has failed to demonstrate that the information is not available using less intrusive methods of discovery. ...

Excerpt: ...the opposition, the Property was listed on October 4, 2017. With the exception of a short period in February 2018 during which the Property was delisted, it was relisted with a higher price. There is currently nothing for the court to enforce. Further, there is nothing in the current record to indicate that Plaintiff has acted in bad faith or that the price currently listed for the Property is unreasonable. ...

Excerpt: ...Ruiz DeLeon v. Estate of Vides (BC660530); and other cases as yet not received from Los Angeles County Superior Court. Into that same master file, the State seeks to consolidate three additional cases:  Hernandez v. Guilford (RIC1714082);  Car v. Guilford (RIC1714086); and  Alvarez v. USA Holiday (PSC1801449). Page 3 of 3 The State has failed to comply with the rules governing motions for consolidation in at least two respects. First, th...

Excerpt: ... separate statement until long after the time limit had expired. Filing and serving a notice of the motion only within the 45‐ day time limit is insufficient to meet the requirements for filing a motion. (See Rules of Court, rule 3.1112 and rule 3.1345; CCP, §§ 2030.300(a) and 2031.310(a) [both providing that a party dissatisfied with responses may “move for an order” compelling further responses].) A motion is not sufficient unless the s...

Excerpt: ... the interrogatory, and failed to substantiate its objections. RFP Nos. 3‐6, 10, 36. GRANTED. Defendant failed to provide a privilege log and failed to produce sufficient evidence that the dominant purpose of the incident report was for attorney review. Defense Counsel's declaration lacks foundation. Request for Sanctions: DENIED based on the court's mixed ruling. ...

Excerpt: ...romptly serving written objections. (Cal. Code Civ. Pro. §2025.410.) Plaintiff argues that Defendant's objections were not timely served. Pursuant to Cal. Code Civ. Pro. §2025.410(b), if an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection. Defendant served its objections to the January 8 deposition on January 4. Therefore, the objection was not made three calenda...

Excerpt: ...) 212 Cal.App.4th 674, 676. Further, Defendants' argument that application of CCP § 1281.2 is barred by FAA is without merit. Nothing in the Arbitration Agreement indicates that it is governed by the FAA, much less subject to the FAA's procedural rules. See Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840 (“The procedural aspects of the FAA do not apply in state court absent an express provision in the arbitrati...

Excerpt: ...atement until long after the time limit had expired. Filing and serving a notice of the motion only within the 45‐ day time limit is insufficient to meet the requirements for filing a motion. (See Rules of Court, rule 3.1112 and rule 3.1345; CCP, §§ 2030.300(a) and 2031.310(a) [both providing that a party dissatisfied with responses may “move for an order” compelling further responses].) A motion is not sufficient unless the supporting me...

Excerpt: ...fendant Red Mule Ranch, Inc. (“Ranch”). According to Defendants the accident occurred while Schriner was making a left hand turn and Waters attempted to pass him while he made the turn. Waters contends that Schriner made an improper left turn causing the collision. Defendants dispute that contention. The CHP officer investigating the accident determined that Waters made an unsafe attempt to pass the tractor and collided with the left front wh...

Excerpt: ...submission of new evidence (William Chu's declaration ¶¶ 28‐31). Second cause of action: The law of the case doctrine does not apply and Defendants failed to establish restitution is not applicable. Fourth cause of action: Defendants did not provide evidence that completely disposes of the entire cause of action. Fifth cause of action: Defendants failed to meet their initial burden. Sixth and seventh causes of action: There are triable issues...

Excerpt: ...37. However, the plaintiff has now submitted a “second corrected proposed” order, which re‐inserts language to the effect that the participating class members are bound by sections 5.01, 5.02, and 5.05 of the agreement. Unless the Agreement has been modified since the version attached to the declaration of Benowitz filed 3‐7‐18, section 5.02 requires the class members to covenant not to sue the defendants. (Pg. 22, ll. 3‐4.) As pointe...

Excerpt: ...nts. Plaintiff's attorney Andrew J. Knez failed to respond to a letter inviting the required telephone meet and confer, and failed to provide any legal support for plot's position regarding her Complaint. The defendant who filed the demurrer and motion to strike is ordered to meet and confer in person or by telephone with the plaintiff who filed the complaint for the purpose of determining whether an agreement can be reached that would resolve th...

Excerpt: ...alid in California as the vehicle was purchased outside the State of California. Summary adjudication is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) A party moving for summary judgment/adjudication bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action can...

Excerpt: ...on, the vast majority of the documents that would be produced under these subpoenas are not relevant to this matter and protected by privilege. Personnel files from an individual's employer fall within a zone of privacy. Board of Trustees of Leland Stanford J. Univ. v. Sup. Ct. (1981) 119 Cal.App.3d 516, 528‐530. The accident in question occurred on 11/25/14. It is unclear why Defendants would need financial records that date back to 2004, when...

Excerpt: ... and Darryl Clare. Defendants failed to show that the filing of the cross‐complaint against such parties would be in the interest of justice. (CCP § 428.50(c).) ...

Excerpt: ...4th 453, 458.) Plaintiff is essentially asking the court to not enjoin any wrong actions by the Defendant to preserve the status quo, but rather, make a determination on the merits and award her full control of Defendant without a trial. This is not a proper preliminary injunction. Damages will not support an injunction, since an injunction is an equitable remedy which will not be granted if there is a remedy at law. (Department of Fish & Game v....

Excerpt: ...Motion could have been denied at this time. Moving party to give notice. Much information is currently missing, it is difficult to determine whether the Settlement is fair and reasonable. Counsel does not explain the strength of the case and there are few factual allegations contained in the Complaint. Counsel does not provide estimates as to the maximum amount of damages and other relief the class could be awarded if they prevail at trial. Furth...

Excerpt: ...aintiff did not plead facts or circumstances that indicate exhaustion would be futile or that an administrative process under IDEA could not provide at least some of the remedies she is seeking. As to the seventh and eight causes of action, the Demurrers are SUSTAINED WITH LEAVE TO AMEND. Government Code section 910 et. seq., identifies several requirements for the contents of a government claim and procedures for filing the claim with a governme...

Excerpt: ... Cal. App. 2d 910, 915.) “The allegation that a corporation is the alter ego of the individual stockholders is insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.” (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 414.) The allegation must “include facts showing a unity of interest and a resultant injustice, prerequisit...

Excerpt: ...f $10,000.00 to be posted forthwith. Plaintiff to prepare the order and give notice. Defendant Mark Holt, M.D., Inc. signed two different promissory notes in favor of Plaintiffs Surender Vuthoori, M.D. and Surender Vuthoori, M.D., Inc. To secure payment of the Note Defendant executed Security Agreements. The Security Agreements executed to secure both notes covered all assets, including furniture, fixtures and equipment used in the business of De...

Excerpt: ... $2,452.15 for a total request of $36,412.15. A verified fee bill is prima facie evidence the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Furthermore, a declaration attesting to the accuracy of the fee bill is presumed credible. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Civil Code section 1794(d) provides that “[i]f the b...

Excerpt: ... Impac Funding's evidentiary objections are OVERRULED as immaterial. The Motion for Summary Judgment is GRANTED. Impac Funding meets its initial burden to demonstrate that Plaintiff's Loan was not table funded, and Plaintiff fails to raise a triable issue of fact as to whether the sale of his Loan was anything but a bona fide transaction. More importantly, even assuming that the Loan was part of a table‐funded transaction, there is no authority...

Excerpt: ...nder the circumstances of the case. “To be valid, a section 998 offer must be made in good faith, which requires that the offer of settlement be ‘realistically reasonable under the circumstances of the particular. . .'” A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test. Page 2 of 2 “[W]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to h...

Excerpt: ...rty to the first cause of action for cancellation of instruments. BANA has never had an interest in the Note and DOT and is not a successor to any instrument that Plaintiff seeks to cancel. See Miller & Starr, Cal. Real Estate (4th Ed. 2016), § 40:113; Lord v. Luse (1931) 214 Cal. 10, 11; Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 444‐45. Moreover, the entire basis for Plaintiff's cancellation claim – that Plaintiff's ...

Excerpt: ... do not expect to be ready by that date, when would plaintiffs estimate that plaintiffs would be ready for trial? 4. Regarding the defendant's desire to move for a judgment on the pleadings based on the judgment in the Herpel case: a. Are the plaintiffs in this case in privity with the plaintiffs in Herpel, even though no class was every certified in Herpel? b. Do all of the plaintiffs in this action hold leasehold interests in the trust lands of...

Excerpt: ...r § 2923.5(e)(1), but also that Plaintiff responded to Lewis's correspondence. Further, the factual basis for Plaintiff's contract‐based claims (second and third causes of action) is entirely inaccurate and ignores the salient provisions of the Note. Contrary to Plaintiff's argument, Lewis did not accelerate Plaintiff's loan; rather, as evidenced by the Notice, the loan fully matured and the final balloon payment had come due. Plaintiff's four...

Excerpt: ... 10, 2018 regarding receipt of proper verifications. FedEx does not dispute receiving the supplemental responses, in Reply it asserts the verifications of Josephine and Raymond Ramirez are improper. CCP § 446 requires a party to state that the information is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true. The verificat...

Excerpt: ... v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Where a party contends that a judgment is valid on its face but void for lack of proper service, it is similar to C.C.P. §473.5 relief, and must be sought within 2 years. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) Based on the Declaration of defendant Veit, the presumption of valid service on defendant ORZ Corp., was rebutted. The Statement of Information which Plaintiff...

Excerpt: ... inability to locate Beltz for service. Plaintiff states he has now been able to locate Beltz. Procedurally, this motion is improper per CCP 1005(b) since Beltz was not given notice. Plaintiff has acknowledged that defect and attempted to remedy it with a late service of FedEx mail and a request to continued. Substantively the motion is lacking in stating any legal authority, statutory or case law have would support a granting of the relief he se...

Excerpt: ...ined former defendant City of Moreno Valley's Demurrer to Plaintiff's Second Amended Complaint without leave to amend. The Court ruled that Plaintiffs did not sufficiently allege facts that could permit the finder of fact to conclude that the City's crosswalk was a dangerous condition of public property. The allegations of Plaintiffs' Third Amended Complaint do not add material or substantial facts which under which the finder of fact could now c...

Excerpt: ... claim for recovery of medical expenses because he waived the claim by bringing the present action as the guardian ad litem for his son. Moving Defendant's request for judicial notice is granted pursuant to Evidence Code Section 452(c). Liability for medical care is not limited to medical doctors and that paragraph 5 of the complaint adequately alleges that those engaged in the practice of medicine and those providing healthcare failed to use the...

Excerpt: ... (“CPRA”), this code section provides that “state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the ...

Excerpt: ...tatus. Once the complaint is amended to reflect Burnett's true capacity, the additional generic references to “defendants” on pages 5, 6, and 7 of the complaint will be properly alleged. ...

Excerpt: ..., even assuming that Autry could revoke or be entitled to a refund of her charitable donation (i.e., the $5,000), Plaintiffs offer no explanation as to how the banking records would demonstrate that her particular donation was misdirected or why Plaintiffs should be entitled to discover the personal banking information for Louise and Gentile. Lastly, Plaintiffs offer no explanation as to how the banking records will demonstrate the extent of dama...

Excerpt: ...l Procedure section 1019.5, forthwith. The motion to expunge lis pendens was filed 1/12/18 and was set to be heard on 2/6/18. On 1/31/18 Plaintiff filed a notice of withdrawal of lis pendens and on 2/1/18 dismissed his complaint. Accordingly, the motion to expunge lis pendens is moot in light of the withdrawal of lis pendens. As to the request for attorney's fees and costs, Code of Civil Procedure section 405.38 provides that “the court shall d...

Excerpt: .... There are triable issues of fact as to all causes of action and issues. See Plaintiff's Separate Statement. Defendant has not met his burden to show he owed no duty to the decedent under all the circumstances presented which may include recommending the number and type of lifeguards for a possibly district student function. . (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747.) Further, there are material questions of fact reg...

Excerpt: ...mmary judgment as a matter of law. For the following reasons, the motion is denied: Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be est...

Excerpt: ... crossdefendant in the ULMAN's cross‐complaint for Indemnity and Declaratory Relief, and thus has a stake in the outcome of this motion: if MAGNON would obtain judgment against plaintiff's claims, then POLYMER would have more exposure to liability in the ULMAN's Cross‐Complaint. Just because plaintiff chose not to oppose the motion does not mean that POLYMER must sit silently and allow MAGNON to obtain a judgment that will prevent POLYMER fro...

Excerpt: ...otion to include a copy of the proposed complaint in intervention. (§ 387, subd. (c).) Although the moving (and opposing) papers are voluminous, it does not appear that they include a copy of the proposed complaint in intervention. ...

Excerpt: ... was corrected and clarified. (Dec.Dossey, ¶21, Exs. Page 3 of 3 “12”, “13”.) The parties have engaged in extensive meet and confer efforts, which led to Plaintiff correcting its responses. No discovery abuse has been established. As to the sanctions for Plaintiff's erroneous responses to RFAs. The statute contemplates having to prove the truth at trial, or in a dispositive motion for summary judgment. Neither situation has occurred here...

Excerpt: ... in the amount of $61,615 on 8/28/17. Thereafter, on 9/29/17 Jerome quitclaimed over real property located in Palm Desert in favor of himself as Trustee of the Dolores Adelman Separate Property Trust. Jerome has been named individually as a defendant as well as trustee. The transfer was allegedly made to defraud Ronald as judgment creditor; therefore the transfer should be void. Ronald asserts that these allegations are sufficient to support puni...

Excerpt: ...or Admissions (“RFAs”) and form interrogatories that addressed the identity of the party Oliver contracted with. Oliver responded specifically to several interrogatories that Oliver contracted with Jack's Body Works', Inc. and admitted in RFAs that Jack Jackson is not a party to the contract. Oliver now seeks to withdraw his admissions to RFAs Nos. 2, 3 and 4 and amend his interrogatory responses. For the following reasons, the motion is gran...

Excerpt: ...l amount of reduction is $4,607.15. Mr. Camarena's memorandum of costs was filed one day late. However, the Court exercises is broad discretion to allow relief from the late filed memorandum of costs because there is no showing of prejudice to Mr. Conkwright. (Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485.) Filing Fees: The motion is denied as to these costs. Service of Process Costs: The motion is granted as to these costs o...

Excerpt: ...of fact. Dr. Auerbach has submitted substantial evidence that he performed no dental work on plaintiff personally and never supervised or reviewed any such work and never met the plaintiff. The moving parties have submitted evidence that all work was performed by independent contractors who were licensed dentists. No evidence has been submitted that would make the corporation liable for the work of the independent contractors. Plaintiff has not s...

Excerpt: ...e entitled to attorney's fees, but argue that the amount requested is unreasonable. Daniel Kessler indicates that 2,757.14 hours were spent on this litigation by his firm of Burkhalter Kessler Clement and George (BKCG) for a total of $1,081,788.60, with an average hourly billing rate of $392.36. (Decl. of Kessler, ¶28, p. 19.) He states that his hourly billing rate throughout the year of litigation ranged from $495 to $545, while the hourly rate...

Excerpt: ...here is no genuine dispute regarding the document's authenticity.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (overturned on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 n. 130). 1st & 2nd Causes of Action – Violation of 15 USC §1692f(6) & 15 USC 1692 et seq: California has determined that engaging in activities leading to a foreclosure do not constitute debt collection. (Fonte...

Excerpt: ...applies to all of the causes of action in this case. They concede that the LLC was the prevailing party and are entitled to reasonable attorney fees. There is no dispute that under Code of Civil Procedure Section 1032 and Civil Code Section1717 that the prevailing party on a contract shall be entitled to attorney fees. The Van Loons contend that the amount of attorney's fees requested is unreasonable because the majority of the work was performed...

Excerpt: ...llege a demand or other facts showing futility. To reiterate, derivative actions are equitable. From an equitable standpoint it must be asked whether there is some reason that, if the allegations are true, Tortoris should be allowed to avoid liability for allegedly stealing $1,600 from Carpet Depot? The answer is maybe because the State has an interest in collecting its Franchise taxes. What the court must balance is the State's interest in colle...

Excerpt: ...fore considering the matter on the merits. It is noted that on February 20, 2018, this court granted Mission and Chin's motion to compel arbitration pursuant to an arbitration provision in the Employment Agreement. “The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fac...

Excerpt: ...ailed to challenge the detailed time records and invoices, the declarations submitted, and the hourly rates based on experience. Civil Code §1717 contains both an entitlement clause (prevailing party) and a discretionary clause (the court can determine there is no prevailing party). (De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1292.) “A simple unqualified win (on a contract, of course) takes a case out of the discretion clause and puts...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐ 12‐18. ...

Excerpt: ..., Dean and Simone Walsh, owned the vacation home where Riley and Jack were staying as guests of the Walshes with co‐defendants Kehly and Lance Sloan. (¶¶ 7‐11.) (Although the SAC also names Chad and Jeanie McQueen as codefendants, they have now been dismissed.) As to the Walshes, Plaintiff alleges that: (1) they negligently stored and secured a modified golf cart that they owned, despite knowledge that children would be staying at their hom...

Excerpt: ... in the OBGYN department. Finally, Plaintiff alleges that Parkview attempted to discourage her from making the complaint and once she made it, Dr. Nurick (Vice Chief of all Medical Staff) trivialized her complaint suggesting Plaintiff was just not used to the interactions. These allegations are sufficient at the pleading stage. Plaintiff alleges facts supporting a claim for punitive damages based on the allegation of sexual harassment by Salazar....

Excerpt: ...s former resident Patricia Jenkins.” Answer, p. 2, ln. 10‐12. Defendant concedes that the failure to obtain an admission agreement is a violation and states that “t]his factual admission alone forms the basis for Defendant's violation of section 1430(b).” Answer, p. 2, ln. 17‐18. Beyond that, defendant does not admit and denies all other allegations of the complaint. The violation that Ramona has admitted to—not obtaining an admission...

Excerpt: ...unities, Inc. Brookdale Senior Living, Inc. and Brookdale Rancho Mirage during which time he was defined as an “elder” under the Welfare and Institutions Code sections 15610.23 and 15610.27. During the time he resided at their facility they failed to ensure there were the necessary number of adequately trained staff on duty at all times and failed to care for him in a non‐reckless manner. That the actions committed by Defendants were ratifi...

Excerpt: ...leging 4 causes of action for: 1) Fraud, 2) Negligent Misrepresentation, 3) UCL Violation, and 4) Breach of Contract. Defendants demurred to all four causes of action. This court on 1/8/18 sustained with leave to amend as to all four causes of action. On 2/7/18, Roseian filed its First Amended Complaint (“FAC”) alleging the same four causes of action. Defendants once again demur to all causes of action. 1 st Cause of Action for Fraud (Intenti...

Excerpt: ...n particular, Defendant produced evidence it was contractually limited in providing HAMP relief to Plaintiffs. The burden shifted to Plaintiffs, but Plaintiffs failed to produce sufficient evidence showing a triable issue of fact. 3rd cause of action (Issue No. 4): DENIED. Defendant met its initial burden that it did not breach any duty of care; however, Plaintiffs produced sufficient evidence showing a triable issue of fact as to whether Defenda...

Excerpt: ...eviewing a disqualification motion, the court balances competing interests to ensure the parties are not denied substantial justice. (People ex rel. Dept. of Corps. v. Page 7 of 8 SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144‐1145.) “Depending on the circumstances, ‘a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial b...

Excerpt: ...of Parke, ¶3.) The POS clearly shows that Parke was not personally served. Dayn Holstrom indicates that he is the designated agent for service of process for Holstrom, which is a professional law corporation. (Decl. of Holstrom, ¶1 and 2.) He states that Ms. Leon is not the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller ...

Excerpt: ...111, 131. If an item is not expressly allowed under the statute, the burden is on the party seeking said expense to provide evidence that the fees are reasonable or necessary. Id. at 132. Filing Fees: Defendant seeks first appearance fees incurred by it and J. Velarde, Inc. However, everyone agrees that J. Velarde, Inc. waived its right to costs. Defendant argues that it should still is entitled to these costs because it paid for these fees on J....

Excerpt: ... is that the parties entered into a commercial lease for Cross‐Complainant's medical practice for the operation of a sleep center to assist patients with sleeping disorders. That Defendant Dr. Vuthoori breached Dr. Holt's quiet use and enjoyment of Page 2 of 3 the premises by continuously entering without an appointment or notice, constantly knocked on windows and doors, demanded frequent meets, threatened to “take care” of Dr. Holt, chased...

Excerpt: ...inez), O'Reilly Auto Parts, and O'Reilly Auto Enterprises, LLC. Moving party Cross‐ defendants have no authority to represent the interests of O'Reilly or Martinez. ...

Excerpt: ...orney's failure to file a claim constitutes excusable neglect under Government Code section 946.6 excusing the claim presentation requirement under sections 905 and 945.4. Defendant Mount San Jacinto Winter Park Authority demurs to Plaintiff Paula Nuno's Amended First Amended Complaint on the grounds that the complaint fails to allege compliance with the government claims presentation requirement of Government Code sections 905 et seq. Government...

Excerpt: ...discrimination, harassment and retaliation with the DFEH on March 1, 2017. The Complaint alleges that the adverse employment actions occurred on or around February 14, 2017. The judicially noticeable documents show that Plaintiff filed his amended DFEH Complaint naming defendant Taft on February 28, 2018. Therefore, the amended complaint was untimely pursuant to Govt. Code §12960. Because the requirement that the DFEH complaint must state the na...

Excerpt: ...the requisite specificity. Among other things, the Complaint fails to set forth any misrepresentations of material fact that were specifically made by Pool Route (and on what authority to bind the corporation) upon which Plaintiff relied when he entered into the Agreement. Further, Pool Route is not a party to the Agreement and is not a proper party to the third cause of action for breach of contract or the fourth cause of action for rescission. ...

Excerpt: ...b's (“Moreb”) First Amended Complaint. This Court sustained with leave to amend as to the 1st, 2nd, 4th, 5th , 6th, 9th and 10th causes of action for 1) Negligent Misrepresentation, 2) Promissory Estoppel, 4) Breach of Contract, 5) Violation of Civil Code §2923.55, 6) Violation of HBOR, 9) Cancellation of Instrument, and 10) Demand for Accounting. This Court sustained without leave to amend as to the 8th cause of action for Wrongful Foreclos...

Excerpt: ...in the amount of $31,662.83 following a hearing before hearing Officer Rodell Frick. Petitioner then filed this writ under both CCP section 1085 and 1094.5 seeking “a Peremptory Writ of Administrative Mandamus or Mandate ordering Respondents to set aside Respondent Hearing Officer Fick's decision, or purported decision, allowing Respondent City of Coachella to seek $31,662.83 from Petitioner and issue a new order granting Petitioner's r...

Excerpt: ...efendant. Analysis: The plaintiffs do not dispute the existence or enforceability of the arbitration provision. Instead, they ask the Court to exercise its discretion to “refuse to enforce the arbitration agreement” when “a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party,” that other action arises out of the same transaction or series of related transactions as does...

Excerpt: .... California courts have no inherent power to expand the methods of discovery beyond those authorized by the Discovery Act (San Diego Unified Port District vs. Douglas E. Barnhart, Inc. (2002) 95 Cal. App. 4th 1400, 1405). There is no authority within the Discovery Act for ordering a party to sign a release authorization for medical records, and none of the authorities relied on by defendant show otherwise:  CCP §128 lays out the Discovery Ac...

Excerpt: ...ard Meaning were criminally charged by the Riverside District Attorney on or about February 16, 2017 with several acts of bribery of Pougnet by Meaney in violation of Government Code §§1090 and 1092, including the sale of the Prairie Schooner Parcel by the City. The Complaint alleges that Defendant Meaney was at all relevant times “an agent, employee, officer, director, member, owner and/or shareholder of Defendants O&M, NEXUS and NDC.” Com...

Excerpt: ...iff does not dispute or explain Defendant Steele's declaration stating that it was Plaintiff who unilaterally cancelled the contract. Thus, the Motion is DENIED. ...

Excerpt: ...il 24, 2018 at 8:30am in Department 6. The defendants who filed the demurrer and motion to strike are ordered 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 and motion to strike. As part of the meet and confer process, the defendants shall identify all of the specific causes of action that they believe are su...

Excerpt: ...icious prosecution arising out a lawsuit filed against Plaintiff in the case of Sun Salt Sand Inc. v. Tony Cueves, PSC1503692. The prior lawsuit was terminated in Plaintiff's favor on the granting of his motion for summary judgment as to all six causes of action brought by Defendant Sun Salt Sand, Inc. against him. The owners of Sun Salt Sand, Inc. are Defendants Faruk and Salima Nurani. Defendant moves the court to strike Plaintiff's complaint o...

Excerpt: ...ty to meet and confer with the opposing party before filing a motion for judgment on the pleadings. Page 2 of 2 This Court's CMO entered on February 28, 2018 requires the moving party to “strictly comply” with CCP § 439. (CMO, § B, ¶ 6.a.) The CMO further requires that declaration by the moving party describe the meet and confer efforts, including the date of the meeting, whether it was in person or by telephone, the persons involved, and ...

Excerpt: ...e to timely file case management conference statements. Defendant David Mount is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Page 2 of 2 Relief is mandatory. “(W)henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall) ...

Excerpt: ...demnity. The moving papers were untimely served on Defendants Mission Linen and Adam Hudson as they were required to be served on or before January 14, 2018, but were served via mail outside of California (adds 10 calendar days pursuant to Code of Civil Procedure section1005(b)) on January 9, 2018. Accordingly, service was deemed complete on January 19, 2018, which is less than 75 calendar days prior to the scheduled hearing date of April 2, 2018...

Excerpt: ...¶ 5.b. of counsel's declaration does not explain the number of weeks during which the plaintiff was allegedly deprived of breaks. ¶ 5.c. does not explain the number of months in which she used her car. ¶ 5.d. does not explain the calculation of the value of that claim at all. 2. The declaration of counsel does not address E.5.a.(ii). 3. The declaration of counsel states that the defendant produced pay records for other relief sales representat...

Excerpt: ...ect to a criminal proceeding; the privilege against self‐incrimination is personal to an individual criminal defendant and does not apply to co‐defendants in a civil action. See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886‐87. Further, an evaluation of the factors set forth in Avant! Corp. does not favor a stay: (1) Plaintiffs have a strong interest in proceeding expeditiously; (2) any threatened infringement on the privile...