Excerpt: ...Notice (filed in support of DMARC Advisor's 4‐19‐22 Demurrer to Plaintiff's Complaint). CRC 2.550 states that “a court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prej...

Excerpt: ... Sect. 452(d)); GRANTED as to Exhibits C, D, E, and F (Evid. Code Sect. 452(f) and (h)); and DENIED as to Exhibits G and H. Plaintiff's 11‐29‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). DMARC Advisor B.V.'s 12‐5‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(f) and (h). The Demurrer to the Fourth Cause of Action (fraud by concealment) is OVERRULED. Code Civ. Proc. Sect. 430.10(e). DMARC Advisor cor...

Excerpt: ...rther Responses to Requests for Production of Document is DENIED AS MOOT and the Request for Sanctions GRANTED. By this Motion, Plaintiff Banc of America Leasing & Capital, LLC (“BALC”) sought to compel the further responses of Defendant and Cross‐ Complainant St Giab Inc. (“SG”) to a set of requests for production propounded by BALC on December 8, 2021. After the Motion was filed, SG served verified amended responses along with a privi...

Excerpt: ... not party to an arbitration agreement between purchaser and Dealer, when the Dealer brings a motion to compel arbitration. The Felisilda case does not, however, address the primary issue, which is whether the nonparty automobile manufacturer itself (rather than the Dealer) may bring a motion to compel arbitration. Ford cannot bring this motion. In Felisilda, the auto Dealer moved to compel arbitration. The court granted the motion, including the...

Excerpt: ...(b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504. The moving parties seek a court order bifurcating and ordering separate trials of the Second Amended Complaint (SAC) and the Second Amended Cross‐Complaint (SACC). Having reviewed the parties' briefing and exercising its discretion, the Court declines to do so, for the reasons stated below. First, this is not a case in which, if bifurcation were ordered, the first trial wou...

Excerpt: ...hments referenced therein. The Court, on its own Motion, takes judicial notice of the pleadings filed in this action, including the attachments to Plaintiff's verified Complaint, the Dutra Decl. filed October 6, 2022 in support of Plaintiff's prior Motion to Compel, including its attachments, and this Court's November 10, 2022 Order, pursuant to Cal. Evidence Code § 452(d). Plaintiff's Complaint alleges three causes of action (COA), all for fail...

Excerpt: ...S CONSTRUCTION; and DOES 1 through 25, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 20‐CIV‐04521 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF GANGFENG LAI Plaintiffs Justin Tao's and Linda Lu's unopposed Motion for Terminating Sanctions Against Defendants Atlas Construction and Development, Inc. (Atlas) and America Home Builders, Inc. (AHB) (Motion) came for heari...

Excerpt: ...he Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or ...

Excerpt: ...ble to dispose of only causes of action, affirmative defenses, claims for damages, and issues of duty. (Code of Civ. Proc. sect. 437c, subd. (f)(1).) Plaintiff's motion does not fall within the scope of section 437c. Even if the Court were to consider the motion on the merits, the motion would fail. Issues for motions for summary adjudication are framed by the pleadings. Summary adjudication cannot be granted or denied on grounds not raised in th...

Excerpt: ...iff wishes to prosecute a claim for punitive damages, Plaintiff must comply with Code of Civil Procedure Section 425.13, pursuant to Central Pathology Service Medical Clinic Inc. v. Superior Court (1992) 3 Cal.4th 181, by bringing a separate motion for leave to amend to add a claim for punitive damages. The one year statute of limitations (“SOL”) applies to Plaintiff's claims for professional negligence pursuant to Code of Civil Procedure Sec...

Excerpt: ...rt rules on Defendant John Cowan's Demurrer to Plaintiff Barbie Barrett M.D.'s 8‐31‐ 22 Complaint as follows: Defendant demurrers to the First, Second and Fifth causes of action alleging that they do not state facts upon which relief can be granted because they are not pled with sufficient specificity and/or particularity. Code Civ. Proc. § 430.10(e). The rules for a demurrer are well known: In reviewing the demurrer, the Court construes the...

Excerpt: ...017. The Court notes that the proof of service to the reply is not signed. The Court rules on Defendant John Cowan's Motion to Strike portions of Plaintiff Barbie Barrett M.D.'s 8‐31‐22 Complaint as follows. Emotional distress damages While generally, a lawyer does not assume or “create a duty to protect the client's emotional state,” Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472‐473, when “a plaintiff sufficiently alleges i...

Excerpt: ...sented by counsel. Defendant correctly pointed out that an entity must be represented in litigation by an attorney. Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101–1103. However, the rule does not deprive a corporation the right to be a party t...

Excerpt: ...uest for Production of Documents, categories 1 through 4 and 6 through 16 is GRANTED as to all categories. Defendant's responses on March 1 and April 5, 2021, were blatantly insufficient. Defendant's May 20, 2022, response states that he conducted a diligent search and reasonable inquiry, but is “unable to comply” because the requested documents either never existed, had been destroyed/lost/stolen/misplaced, or has never been or no longer is ...

Excerpt: ...med consent—arising out of a shoulder surgery and bicipital tenodesis procedure performed by Bolanos on Plaintiff in 2019. (February 8, 2021 Complaint, p. 4.) By this Motion, Bolanos moves for summary judgment with respect to the action—and, in the alternative, summary adjudication with respect to these causes—on the grounds that Plaintiff cannot establish the elements of either claim and that the claims are time‐barred. A. Legal Standard...

Excerpt: ...rent.” MPA, p.4‐5. Defendant contends that “As such, the ThreeDay Notice to Quit upon which Plaintiffs' complaint is deemed waived, unenforceable, and cannot support a later judgment.” MPA, p.5. The Court agrees. Plaintiff's Complaint alleges that, on September 29, 2022, Plaintiff issued a Three‐ Day Notice to Quit for Breach of Covenant resulting from Defendant's failure to comply with prior notices to cure breaches of the parties' lea...

Excerpt: ...(FAC), filed 8‐29‐22, is DENIED. Code Civ. Proc. Sect. 435; 436. Cirrus' failure to meet and confer. Code Civ. Proc. Sect. 435.5 required that Cirrus, prior to filing this Motion, discuss the substance of the Motion with Plaintiffs, either in‐person or by telephone, in an effort to resolve the dispute without the need for court intervention. The 8‐ 29‐22 declaration of Cirrus' counsel Patrick Bradley does not state how the parties met a...

Excerpt: ...ims raised in the Complaint. This action is STAYED pending resolution of the arbitration proceedings. In this Private Attorneys General Act (“PAGA”) action, Plaintiff asserts a single cause of action seeking civil penalties against Defendants for alleged violations of the Labor Code with respect to himself and to other workers. Defendants seek to compel a portion of this action to arbitration, pursuant to an arbitration agreement contained in...

Excerpt: ... and found Defendant to be the prevailing party. (Defendant's Request for Judicial Notice, Exh. 4.) In any action on a contract where the contract provides for an award of attorney's fees and costs, the prevailing party shall be entitled to reasonable attorney's fees. (Civil Code § 1717(a).) Defendant establishes that it is entitled to recover reasonable attorney's fees as the prevailing party in this action pursuant to Civil Code section 1717. ...

Excerpt: ...made in good faith. In support, PMI submits declarations from Rangi Perera, its counsel, and attaches the Settlement and Release Agreement (Settlement Agreement) to one of those declarations. The Settlement Agreement defines the scope of work performed by PMI on the construction project that resulted in the lawsuit and is covered by the release (PMI's Scope of Work). Specifically, the Agreement defines PMI's Scope of Work as “providing and inst...

Excerpt: ...est Seller Ltd. (“Best Seller”) shall provide further responses to Request for Production Nos. 63–71 within thirty (30) days of entry of the Court's formal order. Best Seller and Mayer shall also meet and confer, and they shall file, by December 5, 2022, a stipulated request for entry of an appropriate protective order for the Court's signature as discussed below. By this Motion, Plaintiff Alexander Mayer seeks to compel the further respons...

Excerpt: ...ion must be based on “new or different facts.” (Code of Civ. Proc. § 1008, subd. (a).) The moving party must “show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Plaintiff's motion presents facts that were not before the Court when the Court heard the underlying motion. (See Decl. ...

Excerpt: ... on the grounds that these causes of action are barred by the three‐year statute of limitations set forth in CCP § 338(b), pertaining to injuries to real property. According to Defendants, “The facts underlying the cause of action for nuisance and trespass are the construction of the concrete retaining wall and fence thereon. As alleged in this Memorandum of Points and Authorities, the facts underlying the Cause of Action for Trespass and, u...

Excerpt: ...al Interrogatories, Set Three, and Request for Production of Documents, Set Four, and Request for Sanctions (Motion) is GRANTED IN PART and DENIED IN PART. As a threshold matter, the Court finds that the meet and confer and informal discovery conference requirements were met. In reaching this finding, however, the Court notes that the deadline imposed by Cross‐Defendant in its 11‐page letter resulted in a meet and confer that was not producti...

Excerpt: ... Plaintiff's request for terminating sanctions is DENIED. Plaintiff's request for monetary sanctions in the amount of $810.00 is GRANTED. Plaintiff seeks terminating sanctions because Defendant Ching Lin Wang failed to comply with the Court's May 18, 2022 Order (1) compelling Defendant to serve responses to Plaintiff's form interrogatories and requests for production, (2) deeming requests for admissions as admitted, and (3) and imposing monetary ...