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

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: ...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: ...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: ...ntended to properly notice the IME for February 2018, well in advance of the discovery cut‐off date. However, in January 2018, Plaintiff served supplemental interrogatory responses that indicated she had moved to Texas. DRMC determined that the costs to either fly their expert to Texas or to retain a Texas‐based physician to do the exam and thereafter travel to California for trial were both cost prohibitive and burdensome on DRMC. As a resul...

Excerpt: ...e complaint or cross 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 defendant or cross‐defendant shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The plaintiff or cross‐plaintiff shall provide legal support ...

Excerpt: ...onally serve Defendant. (CCP § 415.20.) Prevailing party to give notice. ...

Excerpt: ...rry declaration); 1,714 (Bello declaration at ¶ 4 (422 + 1,292); and 1,764 (Bello's declaration at ¶ ¶ 21 & 27). This inconsistency must be resolved. 2. The Bello declaration refers to a sample of the time records of the class members, but does not describe the size of the sample, i.e., the number or percentage of employees whose records were included in the sample. (¶ 22.) 3. The Bello declaration (at ¶ 25) justifies the claim requirement f...

Excerpt: ...he moving parties. However, the Court finds that the Order for Judgment filed on December 18, 2013, and the Corrected Order for Judgment filed on January 9, 2014, should be clarified. The Court finds that pursuant to Code of Civil Procedure section 762.050 and as the real parties in interest, the moving parties and opposing party is properly before this court and the court has considered the moving papers, the opposition, and the reply. After exa...

Excerpt: ...pear at the Jury Trial. Plaintiffs do not contest that, but argue that certain items are excessive and/or not allowed. Each challenged item is addressed in turn as follows: ITEMS 4 (i) through (q) – DEPOSITION COSTS: Plaintiffs argue that $1,171.69 in deposition costs sought under Items 4 (i) through (q) should be taxed because they were not reasonably necessary to the litigation, or because it is unclear what the costs were for. Opposing defen...

Excerpt: ...case, and this motion, the Court tentatively finds that Moving Party Carol Pulliam is a vexatious litigant pursuant to CCP 391(b)(3) and sets the following Order to Show Cause: Carol Pulliam is Ordered to Appear and Show Cause as to why she should not be declared a vexatious litigant pursuant to CCP 391(b)(3) and why the Court should not require her to obtaining a prefiling order, per CCP 391.7(a), before she may be allowed to file any further li...

Excerpt: ... plaintiffs and the defendant, the petition would have to be denied. (Iskanian v. CLS, 59 Cal.4th 348, 384‐390.) ...

Excerpt: ...l's Remittitur states that Plaintiff is entitled to recover costs on appeal. That is incorrect. The Remittitur states “The parties shall bear their own costs on appeal.” That is also in the Opinion's Disposition at p. 10 (“The parties shall bear their own costs on appeal”). Although Plaintiff does not expressly seek recovery of anything but attorney's fees, the motion includes (Exhibit 2) documentation regarding $485.26 in “disbursement...

Excerpt: ...mely made. /// Even if the motion was timely made, it is still improper. A motion for reconsideration must be based on new or different facts or circumstances of law. C.C.P. §1008(a). When a party seeks reconsideration he or she must show a “satisfactory explanation for failing to provide the evidence earlier, which can only be describes as a strict requirement of diligence.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Facts know by th...

Excerpt: ... provides for payment to the named plaintiff of a “service award. The Court will require citation of authority for such an award in a PAGA case. The motion shall explain why such an award is fair under the circumstances of this case. The motion shall be supported by a declaration from the named plaintiff in which the declarant: a. Describes the services performed by the declarant to further the prosecution of the action; b. Estimates the time i...

Excerpt: ...tepped into Cross‐Defendant's shoes and alleged that Cross Complainants were the cause of the accident and the damage to Cross‐Defendant's vehicle. Since State Farm has substituted in for Cross‐Defendant as the party plaintiff, Cross‐Complainants may assert any affirmative defense they might have had against Cross‐Defendant Magana including the defense of comparative negligence and apportionment of fault. Cross Complainants are also see...

Excerpt: ...e of the continued hearing was provided by the Court Clerk to Plaintiff, but not as to Kreizenbeck & Seim Partnership as it had not entered an appearance. A proof of service (“POS”) was filed January 9, 2018, reflecting personal service on January 4, 2018. The POS does not indicate that notice of the continued hearing was served. On January 18, 2018, Plaintiff filed a proof of service reflecting it had mailed a copy of the minute order contin...

Excerpt: ... to quash must be filed at the same time as a motion to set aside default to avoid the argument that by making a motion to set aside default, the improper service has been waived. (Civ. Proc., § 418.10(d). Service was improper because under Code of Civil Procedure section 416.10(a)(b) service on a corporation must be on either the designated agent for service or a specified corporate officers, a general manager, or a person authorized by the cor...

Excerpt: ....52. Unlike the costs memorandum, a motion to tax costs based on factual matters must be supported by declarations. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113‐1114.) For instance, where “reasonableness” is challenged, conclusory allegations t Page 3 of 9 Shalikar) because they were not parties to the litigation nor involved in the promissory notes at issue. However, Plaintiffs assert these deponents were trial witnesses who te...

Excerpt: ...strues the privilege as between Forgy, as the client, and Defendant's attorney. The privilege belongs to Defendant as the client and applies to Forgy as a representative of the insurance carrier required to defend against Plaintiff's claim. The privilege is between Defendant and Forgy/Garrison rather than between Garrison and Defendant's counsel, Daniels, Fine, Israel, Schonbuch & Lebovits. Plaintiff next argues that Defendant waived attorney cli...

Excerpt: ...oses of expediency, the following abbreviations are used in this ruling: “Deft” or “Millard” refers to Defendant moving party and “Pltf” refers to Plaintiff. Deft MILLARD's motion rests entirely upon its contention that it had no actual or constructive knowledge of the alleged floor condition which caused pltf to fall. (NOTE: to the extent the motion includes arguments disputing the reason pltf fell, and whether there was actually any...

Excerpt: ...d.” Penal Code § 11165.12(b). Child abuse and neglect is defined to include “physical injury or death inflicted by other than accidental means upon a child by another person,” which includes “the willful harming or injuring of a child or the endangering of the person or health of a child.” Penal Code § 11165.6. The willful harming of a child “means a situation in which any person willfully causes or permits any child to suffer, or i...

Excerpt: ... considered and made adjustments based on the following: (1) There was no showing that Inland Empire Counsel could not have been used. Accordingly, the use of comparable attorney's fees for San Francisco, Los Angeles, San Diego and Orange County are not persuasive. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615‐619 (2) Based on the court's experience a reasonable rate in this practice area would be a...

Excerpt: ...ecifically, Plaintiff has failed to allege facts which show that she is entitled to the protections afforded by HBOR in that Plaintiff alleges that she submitted two completed loan modification applications, one in August 2015 and then, for some unexplained reason, another in February 2016, but that Wells Fargo recorded a Notice of Default in November 2015 and Notice of Sale in February 2016. Because Plaintiff has not alleged specific dates for h...

Excerpt: ... section 1019.5, forthwith. The gravamen of the First Amended Cross‐Complaint (“FACC”) is as follows: The parties entered into a commercial lease for property equipped for vehicle sales, repair, and service. The lease also contained a purchase agreement for cross‐defendant's purchase of the Suzuki dealership equipment, furniture, and parts inventory in the amount of $100,000. The lease contained a bill of sale, which is allegedly attached...

Excerpt: .... No other fees and costs are awarded. The bond is exonerated. The Receiver is to prepare a proposed order and give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This matter was previously heard on 11/9/17, at which time the court asked Page 2 of 8 2) Receiver advised the court in seeking authorization for the sale to Ms. Cota that it is his general practice, where after review he cannot find a lender willing to fund the n...

Excerpt: ...Motion for summary adjudication of the 8, 9, 10 and 11th causes of action denied. Defendants move the court for summary judgment, or in the alternative for summary adjudication, as to Plaintiff Patricia Olmedo. Procedural Issues: The court notes that Plaintiff's separate statement in opposition did not comply with CRC, rule 3.1350(f)(2). In response to UMFs Nos. 4, 46, 48, 49 and 51, Plaintiff disputed the facts, but failed to cite any evidence i...

Excerpt: ...s. Exchange (1991) 231 Cal.App.3d 481, 487.) Despite initial noncompliance with the court order, Plaintiff has since produced verified responses and paid monetary sanctions. ...

Excerpt: ...l Procedure section 1019.5, forthwith. On 8/7/17, this Court ordered Plaintiff to provide verified responses to form interrogatories, special interrogatories, and demand for production of documents within 30 days plus pay sanctions in the amount of $460 within thirty days. As a result of Plaintiff's failure to comply with that order, Defendant filed a Motion to Dismiss on 10/16/17, which this Court denied, but imposed monetary sanctions. The Cour...

Excerpt: ...tiff/Cross‐Defendant moves the Court to strike claims for punitive damages in the second cause of action for conversion and prayer for relief. Cross‐Defendant asserts that as the case arises out of a landlord‐tenant contract that punitive damages are not available. Cross‐Defendant further asserts that the allegations are not specifically pled and are inadequate to support punitive damages under Civil Code section 3294. Cross‐Complainant...

Excerpt: ...ake judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879). Defendants request for judicial notice of the DOT, Substitution of Trustee, Notice of Default and Notice of Trustee's Sale is GRANTED. The Demurrer is SUSTAINED with 20 days leave to amend. 1 st Cause of Action: Although Plaintiff alleges violations of HB...

Excerpt: ...ct, enough is alleged in the general recitals. 2COA: The complaint adequately asserts facts to support the cause of action. 3COA: This is adequately plead based on the contract alleged in the recitals and ¶27. 4COA: ¶¶32 and 10 provide sufficient description of the converted property. 5COA: The threat to report without more does not amount to IIED. 6COA: Unless stated otherwise, enforcement of the Penal Code is reserved to the Executive Branch...

Excerpt: ...gnment before the foreclosure sale are insufficient to demonstrate that the assignment was void (as opposed to voidable) and are insufficient to support the first cause of action for wrongful foreclosure. The same is true with respect to the assignment from BANA to Nationstar. With regard to the second cause of action for violation of HBOR, Plaintiff fails to allege facts to demonstrate that the alleged violations of Civ. Code §§ 2923.55 and 29...

Excerpt: ...d associated forms in detail. However, it violates at least the following portions of section H: ¶ 1.b. & c. As to the first subclass, there is no explanation of how the potential “full value” damage amount per class member ($3,700) is calculated. The compliance as to the 2d and 3d subclasses is vague. ¶ 1.e. The description of discovery is vague. ¶ 2 There is no declaration from defense counsel. ¶ 3.b. The agreed‐upon distribution does...

Excerpt: ...ure section 1019.5, forthwith. Plaintiff seeks to have the Court strike out language that he asserts is surplusage and irrelevant or a sham based on an OSHA report of which the Plaintiff requests that the Court take judicial notice. However, the contents of the report are hearsay and inadmissible to establish that portions of Defendant's answers are a sham. For the following reasons, the motion is denied in part and granted in part. Code of Civil...

Excerpt: ...p of the information sought to the issues framed in the pleadings; (2) the likelihood that disclosure will be of practical benefit to the party seeking discovery; and (3) the burden or expense likely to be encountered by the responding party in furnishing the information sought. (Columbia Broadcasting System, Inc. v. Sup. Ct. (Rolfe) (1968) 263 Cal.App.2d 12, 19.) As to Nos. 14, 15, 19, 20: These interrogatories request information regarding cont...

Excerpt: ...ying the original files for 17 LazyB. On August 24, 2017 this Court heard an ex parte application filed by Plaintiff seeking an OSC RE: Contempt. The parties stipulated that Plaintiff was to inspect the case file at defendants' counsel's office the next day at 1:00 pm.The Court denied the ex parte application and advised Plaintiff, a pro per litigant, that an ex parte application should be filed for emergencies only in the future, non‐emergenci...

Excerpt: ...xists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; (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 transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. Califor...

Excerpt: ...dants concede the items listed on Exhibit C were “personal items left behind in the warehouse” that did not belong to Hageman, they never admitted that all of the items listed on Exhibit C belong to Plaintiff. In fact, Plaintiff concedes in the Complaint that her parents also stored personal items at the warehouse for which they sued the Koll Company. (Complaint, ¶¶ 13, 18.) Plaintiff failed to establish ownership or right to possession of ...

Excerpt: ...sruption of the contractual relationship; and (5) resulting damage. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Plaintiffs fail to state a cause of action in the first instance because they do not sufficiently allege a disruption of their right to make a payment under the note secured by the First Deed of Trust (DOT). Indeed, Plaintiffs were already in breach of their obligations under the First DOT at the time t...

Excerpt: ...ss and any subclasses as clearly as possible given the plaintiff's current understanding of the facts; and  Be confined to allegations of fact. The case management conference is continued from March 27, 2018, to April 26, 2018, at 8:30 A.M. However, any party desiring to preserve its right to a jury trial shall deposit jury fees no later than March 27, 2018. (Code Civ. Proc., § 631.) Analysis: The declaration of Milhaupt purports to be filed ...

Excerpt: ... Mitchell, a contractor, against Lents and the estate of Dunlap to recover for monies allegedly owed for construction work done on a house in Indian Wells and for damages suffered as a result of claims by Lents that Mitchell had stolen Lents' personal property. Thereafter, Lents filed a cross complaint against Mitchell for, among other things, breach of contract conversion, and elder abuse and against Blake Dunlap as the Page 3 of 5 Executor of t...

Excerpt: ...filed a supplemental declaration on February 7, 2018, which indicates that he received a document from the Sheriff “several months ago.” He indicates that he did not understand the document meant that a lawsuit had been filed, but provides that he was informed that the document related to the sale of his home. He also states that he learned of the existence of the lawsuit through his attorney, who did a case search based on a number found on ...

Excerpt: ...ion to file the pleading. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612‐613.) However, in Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 874, the Court noted it had discretion to accept untimely amendment without noticed motion by plaintiff. Here, the Court accepted Plaintiff's late filing of the FAC. There is no evidence that the filing of the document, one day late, caused detriment, loss or prejudi...

Excerpt: ...hich holds that the claims alleged in the first, seventh, eighth, and ninth causes of action are not permitted against a public entity. Plaintiff provides no authority which permits such claims. The City is also correct that no claim for punitive damages may be sought against a public entity. Plaintiff offers no argument or authority to the contrary in his opposition. 1COA (UCL): The City correctly argues that this cause of action does not apply ...

Excerpt: ... of the case. CBCOA has indicated that at least half of the time spent on discovery regarding Michelle Nicoladies pertained to the enforcement claims. Tran only apportioned 5.95 hours to non‐ enforcement claims. This does not seem appropriate. In the Plaintiffs' complaint, there were claims that did not pertain to enforcement of the CC&Rs. Additionally, Tran asserted a cross‐complaint, which was not based on enforcing the CC&Rs. Therefore, it...

Excerpt: ... that Jerry had in the past invested money though a company named Thrive, a nonparty, that Thrive had offered Jerry a subscription agreement to Jerry in an investment in a large Texas apartment complex through one of its subsidiaries LHTL but that LHTL placed the investment in Lents name alone, as instructed by Lents, despite the fact that the check for the investment having been Page 2 of 5 drawn on Jerry's account. Essentially, Blake complains ...

Excerpt: ...ercised jurisdiction to consider the Declaration of Angela M. Jones regarding meet and confer efforts for the sole purpose of determining compliance with the Court's order of January 16, 2018. Gov. Code § 835 sets out the exclusive conditions under which a public entity may be held directly liable for injuries caused by a “dangerous condition” of public property. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) A public entity ...

Excerpt: ...cts sufficient to constitute a cause of action and/or is uncertain. The FAC alleges that moving parties owed Plaintiffs a fiduciary duty to perform their duties in a competent and reasonable manner as real estate professionals in assisting Plaintiffs to investigate and purchase the property. The FAC alleges that moving parties represented Plaintiffs in purchasing the property at issue in this case. In particular, the FAC alleges that moving parti...

Excerpt: ...f's Department that Plaintiff took four automobiles without their consent and issued 9 checks returned as nonsufficient. As a result he was arrested by the Riverside County Sheriff's Department, although the DA's office did not pursue criminal prosecution. Further that Defendants told other unidentified persons that they made a police report and by making the police report the Balls intentionally and maliciously caused him to suffer emotional dis...

Excerpt: ... stated that Respondents Nicasio and Maria Campos were the sole owners of the property, but both were deceased. Death certificates were attached to the Petition, marked as Exhibit C. No probate proceeding could be located concerning the Page 3 of 8 property. Community Restoration Corporation held a legal interest in the property in the form of a deed of trust. According to subsequent filings, two days after the filing of the petition for a receiv...

Excerpt: ...NED with 20 days leave to amend as to District as to the 1st, 2nd, 4th, 5th and 6th causes of action as Plaintiffs fail to state the statutory basis of liability. The general demurrer is SUSTAINED with 20 days leave to amend as to Merlo and Nunez as there are no factual allegations as to them other than their positions and that they were on notice of Plaintiff Azucena's medical history. The general demurrer is OVERRULED as to Phillips. The “dem...

Excerpt: ...ment scam. Demurring Defendant, Sycamore 1, LLC loaned money that was used to purchase one of subject pieces of real property, the Shadow Mountain property, and is named on and demurs to the 10th c/a for false promise, 14th c/a for declaratory relief, 15th c/a to quiet title and 16th c/a for wrongful foreclosure. Essentially, Plaintiff claims that her transfer of title to the Shadow Mountain property is void because Defendant Biyikoglu forged the...

Excerpt: ... the meet and confer Page 2 of 2 process, Defendant shall identify all of the specific causes of action that it believes are subject to Demurrer and identify with legal support the basis of the deficiencies. Plaintiff shall provide legal support for its position that the Third Amended Complaint is legally sufficient or, in the alternative, how it could be amended to cure any legal insufficiency. After meeting and conferring, defendant shall 10 da...

Excerpt: ...ut of (1) alleged oral statements made by Defendant Eva Greenberg about Plaintiff Sanford Greenberg, her then husband, a Page 7 of 8 physician, to Plaintiff's staff, patients and other members of the medical community that Plaintiff suffers from dementia and is unable to adequately perform his professional duties (¶ 7), (2) publication of various documents on social media that Plaintiff was a member of a gay bondage website and was looking for c...

Excerpt: ...305, where the Court denied a C.C.P. §664.6 motion because the statutory prerequisites were not met since all parties on both sides of the agreement had not personally signed it. In Harris, the Court noted that C.C.P. §664.6 did not contemplate enforcement against the “party to be charged” – here Ramos ‐ as Plaintiff suggests in the motion. In addition, according to the language of the statute, any written settlement agreement outside o...

Excerpt: ...er of them are members or shareholders of the petitioner. Under those circumstances, the petitioner has no standing to seek a protective order on behalf of those individuals. As to all of the deposition notices, for the reasons stated above in the discussion of the motion to compel, the petitioner and moving party has failed to demonstrate that Page 8 of 8 the discovery would subject any of the deponents to “unwarranted annoyance, embarrassment...

Excerpt: ...mited to the city or community of residence, as opposed to the full residence address. Except as expressly limited, the PMK shall appear for a deposition and otherwise comply with the deposition notice on a day to be agreed upon by counsel no sooner than 10 days and no later than 20 days from February 14, 2018. The real party's request for sanctions against the petitioner and its counsel, Blum Collins, is granted in the sum of $6,310. Analysis: R...

Excerpt: ...s further ordered to pay Plaintiff monetary sanctions in the amount of $1,985.00 in payment of the reasonable costs and attorney's fees incurred in connection with this motion. The payment of the sanctions is to be made within twenty (20) days of the date of the hearing on this motion. Plaintiff Jasmine Labuen is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiff Jasmine Labuen's Complaint alleges that on Octo...

Excerpt: ...ask the Court to issue a judgment for over 5 months after the ruling on American's motion for summary judgment. Second, the parties are vague as to how the eventual decision on appeal will affect the claims between Scottsdale and Truck. For instance, if the motion for summary judgment in favor of American is affirmed, will the plaintiff's action against Truck be dismissed? Or are there other claims that would nevertheless need to be litigated...

Excerpt: ...leged failure to comply with the terms of a purported settlement agreement. However, this motion does not cite any authority for the showing required to set aside the dismissal, much less make any such showing. In addition, the Court has already found that the parties did not enter into a settlement agreement. See December 1, 2017 Minute Order. ...

Excerpt: ...s and attorney's fees incurred by Cross‐Defendants in connection with this motion. The sanctions are to be paid to Cross‐Defendants Drake Larson and Pamela Larson within twenty (20) days. Cross‐Defendants Drake Larson and Pamela Larson are to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiffs and Cross‐Defendants Drake and Pamela Larson as Trustees move the Court to quash the Subpoena Duces Tecum (“SDT...

Excerpt: ...ubpoena were properly served. Plaintiffs'/judgment creditors' right to enforce the subject Judgment outweighs any privacy rights of defendant/judgment debtor, his spouse Christene Asbra, or CSJ Services, Inc. Additionally, Christene Asbra (defendant/judgment debtor's spouse) is subject to enforcement of the Judgment because community assets are subject to enforcement. ...

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

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

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: ...s never had a contract with Defendants and agrees that the sixth cause of action for breach of contract should be dismissed as against the demurring Defendants. As to the Seventh Cause of Action for foreclosure of mechanic's lien: Under CCP § 392(a)(2), the proper court for an action to foreclose a mechanic's lien is the superior court in the county in which the real property that is the subject of the action is situated. However, the requiremen...

Excerpt: ... 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 introduction of legal theories without notice to opposing cou...

Excerpt: ...f's counsel did here. Further, the “redline” version submitted suffices for purposes of Rule 3.1324. ...

Excerpt: ...12/6/17 the County sought and received an entry of default as to Mr. Aiken. Thereafter, on 12/22/17 County filed its motion for preliminary injunction and mailed notice to Mr. Aiken although Mr. Aiken has not entered an appearance in this case. The motion date on the noticed motion was 1/23/18. On 12/26/17 the court on its own motion continued the motion for preliminary injunction to 2/6/18, but only County was provided notice. Accordingly, the C...

Excerpt: ...gs. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2017) §10:52, p. 10‐25.) The rules applicable to demurrers and motions for judgement on the pleadings apply. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118). Where the motion for summary judgment functions as a judgment on the pleadings to challenge the sufficiency of the allegations and the facts indicate that plaintiff may have a goo...

Excerpt: .... (Cal. Code Civ. Pro. § 2031.310(b)(2)). Plaintiff's counsel's meet and confer efforts were minimal and Defendant's counsel appears to be willing to attempt to resolve the discovery dispute informally. Several of the responses indicate that Defendant may be willing to provide further responses once some of the issues have been resolved. ...

Excerpt: ...been recorded in the official records of each county in which the common interest development is located.” Civ. Code, § 6531. It appears that EAA is a commercial common interest development as defined under § 6531. As such, the provisions of the Davis‐Sterling Act applicable to common interest developments, including the ADR provisions, may not apply to EAA. See Civ. Code § 4202 (provisions of part 5, Common Interest Developments, do not a...

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 ...

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: ...by Anthony Chavez of Best, Best & Krieger. The Proof of Service on the Notice of Entry of Order states a mailing date of December 19, 2017. The motion for reconsideration was filed on January 11, 2018. C.C.P. §1008(a) provides that a party affected by a court's prior order may request that the court “reconsider the matter and modify, amend or revoke the prior order.” A motion for reconsideration is to be made within ten (10) days after servi...

Excerpt: ... under section 998.” (Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791.) However, where there is a unity of interest among the parties, such that there is a single indivisible injury, the offer may be sufficient. (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.) The question is whether the Pinnacle entities have a unity of interest such that there is a single, indivisible injury. Quite frankly, Pinnacle's cross‐complaint fails...

Excerpt: ...150, 1159.) Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (See Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal.App.3d 1045, 1048.) Note that although it is true that s...

Excerpt: ...ties in the securitization of his loan or upon the allegation that the Assignment was robo‐signed. Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 819‐20; Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43. Lastly, because it is wholly derivative of the first cause of action for cancellation of instruments, the second cause of action for declaratory relief necessarily fails. Stockton Citizens...