Excerpt: ...ealth & Safety Code § 1430(b), is OVERRULED. For purposes of the Demurrer, Defendant has not demonstrated the § 1430(b) claim(s) are time‐barred. The parties dispute whether the applicable statute of limitations is one year under Code Civ. Proc. § 340(a) (applicable to statutory “penalties”) or three years under Code Civ. Proc. § 338(a) (applicable to “all other claims for liability created by statute”). Defendant cites no case appl...

Excerpt: ...(or former attorney), or both. The moving papers indicate Defendant Virginia Gualberto was represented during part of the relevant time period by attorney James Imperiale. The Notice of Motion does not provide proper notice unless it states the specific person or persons against whom sanctions are requested. Second, the 6‐10‐19 Proof of Service does not demonstrate proper service of the moving papers. It states the papers were mailed to defen...

Excerpt: ...CTION 2000 at: i:6‐7, 16‐28; ii:1‐5; 1:2‐3, 5‐6, 15‐17, 23‐ 28; 2; 3:1‐3, 20‐28; 4:1‐23, 27‐28; 5:19‐22; 6:25, 27‐28; 7:11‐28; 8‐14; 15:1‐4, 6‐9. The portions of the DECLARATION OF DAVID ANDRIGHETTO IN SUPPORT OF MOTION TO CONFIRM VALUE OF SHARES IN ANDRIGHETTO PRODUCE INCORPORATED PURSUANT TO CORPORATIONS CODE SECTION 2000 filed herewith in redacted form at: 1:13‐28 2:1‐10, 16‐18, 22‐25; 3:1‐11; Exs. A...

Excerpt: ...otion Department. The Ceccatos assert that Bonis should be disqualified as counsel for the Montgomerys due to a conflict of interest based on concurrent representation and successive representation. Where the conflict of interest is alleged to be a concurrent representation, the “primary” value at issue is the attorney's duty, and the client's legitimate expectation of loyalty, rather than confidentiality. (Flatt v. Superior Court (1994) 9 Ca...

Excerpt: ...days after service of the demand. As a result, Plaintiff's waived any objections to the demand pursuant to CCP § 2031.260. Plaintiff contends that, pursuant to CCP § 2031.310, Defendant's motion is untimely because it was not filed within 45 days of Plaintiff's response on January 18. CCP § 2031.310 governs motions to compel further responses. Defendant, however, does not seek to compel further responses to the demand. Rather, Defendant seeks ...

Excerpt: ...‐17 Order granting Plaintiffs' SLAPP motion. Code Civ. Proc. § 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1446. Defendants have not challenged the charged hourly rates, which appear to be reasonable. Plaintiffs' appellate counsel is highly qualified. See 5‐17‐19 Sargent Decl. The charged rates of $650/hr. (for Mr. Russo) and $450/hr. (for Mr. Sargent, who ...

Excerpt: ... counsel Jennifer Emmaneel told Plaintiffs' counsel Desmond Tuck that she was waiting for someone from the City to review and verify the discovery responses. (Email from Emmaneel to Tuck, April 29, 2019, Ex. 8 to Decl. of Emmaneel.) This suggests that the responses were substantially complete on that date. In the same email, Ms. Emmaneel stated that if she could not get a City representative to review and verify the responses, she might serve the...

Excerpt: ...efendant Little's capacity. There is a recognized right to privacy in medical records and communications. This privacy interest constitutes an overriding interest that overcomes the public right of access and supports sealing within the meaning of CRC 2.550. The proposed order is narrowly tailored. It seeks to seal only the document containing Dr. Landsverk's medical opinion relating to Defendant's Little's capacity. There does not appear to be a...

Excerpt: ...As a threshold matter, Defendant BMW argues this motion is preempted by federal law (Opp. at 6‐8). Because BMW's planned motion for summary judgment on the preemption issue has not yet been filed or decided, and that issue has not been properly raised, it is not a basis to deny or delay a ruling on this motion. Accordingly, the Court does not reach the merits of the preemption argument. However, the Court agrees that RFP Nos. 37‐38 and 40‐4...

Excerpt: ...limitations shall be tried separately from the issues of liability and damages. Defendant's request to have the issues tried before two separate juries is DENIED without prejudice at this time. The trial court is best positioned to weigh the issues of judicial economy and potential for prejudice to each party and determine whether separate juries are appropriate. If the tentative ruling is uncontested, it shall become the order of the Court. Ther...

Excerpt: ...C”), Plaintiff relies on two documents: a “Notice to the Partners” and a “Partner Sale Agreement.” [Porter Decl., ¶ 6, Ex. A] According to Plaintiff, “It was not until mid‐to‐ late 2017, when a third party provided me with the ‘Notice to the Partners' and ‘Partner Sale Agreement,' that I realized Mete Tan had actually sold me thirty (30) shares in Fox.” [Id.] Plaintiff, however, has not alleged any personal knowledge regard...

Excerpt: ... AS SET‐ BACKED PASS‐THROUGH CERTIFICATES, SERIES 2007—PA3 (“HSBC”), AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) (COLLECTIVELY “DEFENDANTS”) TO PLAINTIFF'S FIRST AMENDED COMPLAINT TENTATIVE RULING: A. First through Fifth Causes of Action – Statute of Limitations. Demurrer to the first, second, third, fourth, and fifth causes of action is sustained on the ground that they are barred by the applicable statutes of...

Excerpt: ...69–70; Cent. Pathology Serv. Med. Clinic, Inc. v. Superior Court (1992) 3 Cal. 4th 181, 190.) The allegations of “willful and conscious disregard” (para. 41, 49, 50) are not mere conclusions. They are supported by allegations of specific fact that AMERIGAS knew the pipes were non‐ compliant with the ordinance and that continuing to fill the tanks was dangerous. (Proposed SAC paras. 36‐39, 47, 48.) Allegations of director/officer approva...

Excerpt: ...”) on Plaintiff's former counsel, David G. Finkelstein, Esq. (“Mr. Finkelstein”). Procedurally, Plaintiff filed a Separate Statement with his motion that fails to comply with Cal. Rules of Court Rule 3.1345. The separate statements must include the text of the request or demand. (See Cal. Rules of Court Rule 3.1345(c).) Plaintiff's counsel failed to include the entire text in the separate statement, and therefore is admonished to comply wit...

Excerpt: ...iffs”) for Terminating Sanctions Against Defendants Cevera Automotive Group, LLC and Robert V. Branzuela (“Defendants”), or Alternatively, for Issue and Evidentiary Sanctions, and Contempt, is ruled on as follows: The Motion for Terminating Sanctions, or Alternatively, for Issue and Evidentiary Sanctions, is DENIED. A trial court has broad discretion in selecting discovery sanctions, and considers both the conduct being sanctioned and its e...

Excerpt: ...‐Bilt v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488. The Tech‐ Bilt decision requires this Court to consider “the allocation of settlement proceeds among plaintiffs”. Id. at 499‐500. Given that Ms. Geipe is not a Plaintiff in this action and has not articulated a persuasive reason why $1 million of her son's settlement should be allocated to her personally for the purpose of buying a house, the Court declines to find that the se...

Excerpt: ... or cause unnecessary delay or needless expense under CCP § 128.7. Notably, Defendant's motion for sanctions was not denied on the merits. Rather, as noted in the court's May 20, 2019 order, Defendant's motion was denied because Defendant failed to follow the safe harbor procedures mandated by CCP § 128.5. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written or...

Excerpt: ...sed in the briefing, even where requested documents are relevant, in assessing discoverability, the Court considers both the requesting party's discovery rights and the corresponding burden imposed on the responding party. Given the asserted claims here, the Court generally agrees that the requested documents are reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc. § 2017.010. It also appears, however, that a co...

Excerpt: ...ation”), is DENIED. Suntrek contends that it only manufactured the solar system installed at the property, and therefore has no liability for the claims alleged in Plaintiff Tremin Corporation's (“Tremin”) Complaint (and therefore no liability on Warm Corporation's Cross‐Complaint seeking equitable contribution, indemnity and apportionment) because Tremin's claims do not allege the solar system was defective. However, Warm Corporation sho...

Excerpt: ...ration states “I was not contacted by counsel for Plaintiffs prior to the filing and service of this Motion to Compel. The only communications I had with counsel regarding the issues in this Motion were my repeated requests for production by Plaintiffs of a list of all patients Plaintiffs allege Defendants ‘stole' from Advance Male Medical, Viceroy Health and/or Dr. Shah.” Because the declaration required by CCP §§ 2016.040 and 2031.310(b...

Excerpt: ...aim that the matters raised in Plaintiffs' Petition are not reviewable because they do not fall within the grounds identified in CCP § 1286.2. The Court disagrees. The Court finds the parties expanded the scope of review under the following provision of the arbitration agreement: . . . The determination of the arbitrator shall be accompanied by written findings of fact and conclusions of law of the arbitrator and the decision shall be reviewable...

Excerpt: ...erials were publicly “scattered, spread widely, broadcast or disperse[d]” to a significant number of persons in California. But paragraph 15 (quoted above) alleges that the false material was “distributed” to Defendant's “existing and prospective customers . . . .” (para. 15.) 2. On demurrer, the Court must construe the complaint liberally in the plaintiff's favor. The allegation that Defendant “distributed to . . . existing and pro...

Excerpt: ...ice of responses to his RFA's. The request is therefore DENIED: Plaintiff's Motion to Deem Facts Admitted and request for sanctions are DENIED. Plaintiff did not demonstrate that his Request for Admissions was properly served. Motion to Compel Defendant has stipulated to an order compelling responses to Plaintiff's Request for Production of Documents and Interrogatories. This portion of the Motion is therefore GRANTED: Plaintiff's Motion to Compe...

Excerpt: ...llegations, if proven, are sufficient to permit a jury to find that Defendant's actions were malicious or fraudulent. The Complaint need not allege approval or ratification by an officer, director, or managing agent. The allegation of corporate approval or ratification is necessary only when punitive damages are sought against an “employer,” based on the wrongful acts of an employee. (See Civ. Code sect. 3294, subd. (b).) The allegations for ...

Excerpt: ... limitations defect, which appears clearly and affirmatively on the face of the FAC. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property, despite his claim allegedly accruing in November 1999, and despite having had, at all times, the right to be placed on title to the Subject Property “upon his request”. (FAC ¶¶ 22‐23.) The demurre...

Excerpt: ...T LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Plaintiff has filed four versions of the Complaint. In response to the Court's 2‐25‐19 Order sustaining Defendants' Demurrer to the Second Amended Complaint (SAC), Plaintiff filed the operative TAC, which is virtually identical to the SAC, with the exception of minor additions to ¶¶ 36‐37. These minor changes, however, do not cure the defects raised in Defendants' Demurrer to the SAC. For th...

Excerpt: ...t to “postpone stressful, prolonged legal proceedings, until a course of treatment has been established,” (2) that she was in the process of hiring an assistant to help search documents to respond to the request for production, and (3) she was willing to participate in a deposition when medically able. In the intervening month, Defendant has not offered any evidence updating her medical status, has not responded to document requests, has not ...

Excerpt: ...articular interpretation of the document. Cross‐Defendant's Demurrer to AW Distributing Inc.'s First Amended Cross‐Complaint is SUSTAINED without leave to amend as to the Third Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing, and as to the Fourth Cause of Action for Equitable Indemnity. Cross‐Defendant's Demurrer is OVERRULED as to the Second Cause of Action for Breach of Contract. Second COA Reading the pl...

Excerpt: ...or O'Keefe‐Mikumo Co., Inc. (OKM) and Mr. Mikumo such that the separate personality of the corporation no longer exists, and that an inequitable result would follow if the corporate separateness were recognized. Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538‐ 9. The Court finds the following facts/factors to be relevant and persuasive. First, the evidence suggests a unity of interest between OKM and Mr. Mikumo, which re...

Excerpt: ...UEN CHENG WONG TRUST. Code Civ. Proc. § 437c. On its merits, the motion is denied due to the existence of multiple triable issues: (1) whether the relationship between Plaintiffs and Defendant YASUO ITO was fiduciary in nature (UMF No. 8); (2) whether any Defendant failed to diligently pursue a Certificate of Occupancy (UMF Nos. 13, 15, 16, 17, 18, 19, 28, 34, 35); (3) whether any Defendant misrepresented the status of the project (UMF Nos. 29, ...

Excerpt: ...f's motion for costs, expenses and attorney fees. OVERRULED. 2. ¶7 – Speculation, Relevance, Prejudicial, Lacks Foundation, Argumentative/Conclusory The language objected to describes a Bill of Costs filed in another case. The speculation and relevance objections are not well‐taken. The language is laying foundation for the document. OVERRULED. 3. ¶9 – Argumentative, Inadmissible Opinion, Speculative, Relevance, Prejudicial The paragraph ...

Excerpt: ... burden in moving for summary judgment. (See C.C.P. § 437c(p)(1).) Plaintiff's Memorandum of Points and Authorities and Separate Statement address the open book account and account stated claims. However, the Complaint also alleges a claim for goods, wares and merchandise sold and delivered to Defendant Jeffrey Chen (“Defendant”) and for which Defendant promised to pay Plaintiff. (See Complaint, p.3, ¶ CC‐1(b)(3).) Plaintiff also appears ...

Excerpt: ...” (CRC Rule 3.1320(a).) Cross‐defendant's demurrer is embedded within the Notice. It states none of the grounds set forth in Code of Civil Procedure section 430.10. Since the Notice does not identify any specific cause of action, the Court deems the demurrer to be on the ground that the entire crosscomplaint fails to state a cause of action. The supporting points and authorities, however, argue that only the first cause of action for indemnit...

Excerpt: ...r conditions or covenants alleged to have been violated.” The court disagrees. The 3‐day notice, which is attached to the complaint as “Exhibit 3,” clearly advised Defendant that he was in violation of Section 19A of the parties' lease agreement, and the notice quotes that lease provision in full. Defendant further contends that “the complaint fails to state a cause of action for unlawful detainer in that the complaint fails to allege t...

Excerpt: ...rtinent part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding...” The power of the courts to allow amendment of pleadings is to be liberally exercised so that cases may be decided on their merits. Desny v. Wilder (1956) 46 Cal. 2d 715, 751. Courts are bound to permit amendments to the complaint “at any stage of the proceedings, up to and including trial”, and ...

Excerpt: ... documents is GRANTED, in part, and DENIED, in part. The motion to compel Mr. Lopez's deposition is GRANTED. Defendant is ordered to appear for deposition within 14 days of this order. The motion to compel production of documents is DENIED. Plaintiff is entitled to take Mr. Lopez's deposition pursuant to CCP § 2025.010. Plaintiff noticed Mr. Lopez's deposition for April 10. Defendant asserted a general objection to the deposition notice on the g...

Excerpt: ...r Code Civ. Proc. § 1008. Plaintiff failed to serve timely responses to Defendant's discovery requests, and thus waived all objections. See Code Civ. Proc. §§ 2030.290(a); 2031.300(a); 2033.280(a). Plaintiff then did not oppose any of Defendant's underlying motions to compel. Plaintiff's attempted service of belated responses on 2‐1‐19 was ineffective because they were unverified and included objections, which had been waived. Appleton v. ...

Excerpt: ...as not reasonably necessary or helpful. (The motion is not supported by any declaration.) The Motion to Tax costs for electronic filing (Item 14) is granted in the amount of $1,404.00. This Court does not require and did not order electronic filing. (Code of Civ. Proc. §1033.5, subd. (a)(14).) The Motion to Tax costs of hotels (Item 16) is granted. Counsel's explanation for staying at a hotel and for the room rates is accepted. (Decl. of Becker ...

Excerpt: ...re it is proven by clear and convincing evidence that a defendant is guilty of “oppression, fraud, or malice”. Punitive damages may not be pled generally, but must be pled with specificity. Brousseau v. Jarret (1977) 73 Cal.App.3d 864, 872. Both sides here cite to Taylor v. Superior Court (1979) 24 Cal.3d 890, in which punitive damages were permitted against an intoxicated driver. Taylor involved a defendant who had a history of prior arrests...

Excerpt: .... As indicated in the declaration of Plaintiff's counsel, Plaintiff contends that the disclosure sought is material to the litigation because it is relevant to Officer McAlindon's credibility and to establish a “pattern of practice”: Officer McAlindon's discovery answers regarding the facts surrounding the incident differs materially from Plaintiff's version of the events in that it is claimed that [Plaintiff] was not cooperating, yet [Plaint...

Excerpt: ...Opposition, p.1, 2] Plaintiff misunderstands the burden of proof. On a motion to expunge lis pendens, it is the duty of the party opposing the expungement motion to defeat the underlying bases for the motion by establishing the existence of a real property claim, and the probable validity of the underlying real property claim, by a preponderance of the evidence. CCP §§ 405.30, 405.32. Plaintiff has presented no evidence, in the form of declarat...

Excerpt: ...ninth and tenth causes of action. A. Procedural Issues. 1. The Present Motion is Permissible. The minute order from Defendant's previous motion that the Court “declines the request to make these rulings either specifically with or without prejudice” is not a ruling that Defendant may not bring the present motion. A party may not “move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the ...

Excerpt: ...OSSFELD LLP TENTATIVE RULING: The Motion of Michael G. King and Hennelly & Grossfeld, LLP (“Plaintiffs' counsel”) for Reconsideration is GRANTED. Plaintiffs' counsel provides new or different facts and circumstances to warrant reconsideration of the Court's April 8, 2019 orders denying Plaintiffs' counsel's Motions to be Relieved as Counsel for Plaintiffs. The Court notes that Plaintiffs Napean Capital Group, LLC and Frederic Shih‐Hsing Yan...

Excerpt: ...which would seek only the following documents: [Plaintiff's] personnel file, documents pertaining to [Plaintiff's] earnings, documents pertaining to any charges, complaints or lawsuits by [Plaintiff] against Advanced Medical Personnel and documents pertaining to the termination of her employment if applicable. Given the generally broad scope of discovery rights, the proposed narrowed subpoena above is reasonable and permissible and does not undul...

Excerpt: ...tified grounds upon which punitive damages are recoverable. As noted in the court's ruling on Defendants' demurrer, Plaintiff's claim for fraud is unsupported by specific factual allegations. The motion to strike all claims for attorney's fees is GRANTED WITH LEAVE TO AMEND. Attorney's fees must be authorized by contract, statute, or law. Code Civ. Proc. §§ 1021; 1033.5(a)(10). Plaintiff's complaint contains no allegations supporting the reques...

Excerpt: ...e a cause of action for fraud. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 C3d 197, 216; Philipson & Simon v. Gulsvig (2007) 154 CA4th 347, 363. Further, although Plaintiff has named multiple defendants in this suit, Plaintiff has not identified the party or parties to whom this cause of action is directed pursuant to CRC 2.112. The Demurrer to the Second Cause of Action for negligent representation is SUSTAINED ...

Excerpt: ... required by Section 2025.450(a). However, they did appear at an earlier‐scheduled, and then canceled, deposition and requested alternative dates for the rescheduled depositions based on medical need. Defendants are in agreement that the depositions should take place. Plaintiff's counsel's insistence on particular documentation regarding the medical excuse before agreeing to reschedule was made without legal support, but the short time for tria...

Excerpt: ...reement to extend the 90‐day period for initiating an action to enforce the lien, Respondent failed to file an action in this court prior to the agreed upon deadline of February 15, 2019. As a result, the lien is unenforceable. Cal. Civ. Code § 8460; CCP § 392; Automatic Sprinkler Corp. v. S. Cal. Edison Co., 216 Cal. App. 3d 627, 634–35 (Ct. App. 1989). Respondent's opposition to the Petition relies on authority holding that “the grant o...

Excerpt: ...eccato and Beatrice Ceccato (“Ceccatos”) for Reconsideration of the March 1, 2019 Order (filed on March 5, 2019) Granting the Application of Cross‐Defendants Mansa Construction Corporation dba Era Green Banker Realty, Stanley Lo, and Mirna Gonzales (“Cross‐Defendants”) for Determination of Good Faith Settlement (hereinafter “Order”), the court rules as follows: By order of the Presiding Judge, this matter is assigned for hearing t...

Excerpt: ... of Court. Plaintiff shall comply with the California Rules of Court in all other respects. Plaintiff bears the burden of pleading and proving timely filing of a sufficient complaint with the DFEH and obtaining a right‐to‐sue notice. See Holland v. Union Pac. R.R. Co., 154 CA4th at 945; Jumaane v. City of Los Angeles (2015) 241 CA4th 1390, 1402; Kim v. Konad USA Distribution, Inc., 226 CA4th at 1345‐1346. Plaintiffs' complaint appears to at...