Excerpt: ...rsuant to Code Civ. Proc. §664.6. The motion appears to have merit. The Opposition only argues the Court lacks jurisdiction because Plaintiffs filed a 10‐29‐18 Request for Dismissal without requesting that the Court retain jurisdiction to enforce the Settlement Agreement. That issue, however, is now moot because the Court is granting Plaintiffs' related Motion for Relief from Dismissal under Code Civ. Proc. §473(b). The Opposition does not ...

Excerpt: ...al, filed 02‐14‐19, is GRANTED. Code Civ. Proc. §473(b); Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21; see also The Rutter Group: Civ. Proc. Before Trial, §12:982 (“Where a settlement agreement provides the court may retain jurisdiction to enforce the settlement, but the dismissal fails to provide for retained jurisdiction, plaintiff's remedy is to move to vacate or modify the dismissal under CCP §473(b) for ‘mistake, inadve...

Excerpt: ...usiness owners policy].” [Opposition, p.11] AMCO notes that “TDIC concedes that its BOP Policy does cover ‘Tenant Improvements and Betterments,'” and asserts that a portion of the sums AMCO paid were for improvements covered by the business owners policy issued by TDIC to Endodontics Associates. TDIC responds that AMCO “has failed to produce admissible evidence supporting such a claim.” [Reply, p.9] It also contends that “the partie...

Excerpt: ... state facts sufficient to support a cause of action. The First Amended Complaint fails to allege any facts with respect to Plaintiffs Marquetta Benton and Marquel Benton. Also, the First Amended Complaint attaches the form for one cause of action for general negligence. The elements of a negligence claim are: (1) a legal duty of care toward the plaintiff; (2) a breach of that duty; (3) legal causation; and (4) damages. (Century Sur. Co. v. Crosb...

Excerpt: ... Dec. 2015 notifying them of an address change and thereafter had no further interaction with Plaintiff or the court until after judgment was entered against him in early 2018. Defendant concedes he did not notify the court of a change of address, as required by CRC 8.32. By his own account, Defendant intermittently monitored the case on the court's website/docket in 2016 and 2017, but thereafter stopped. Defendant admits he could have contacted ...

Excerpt: ...nder CCP §1632. That section provides, in pertinent part, as follows. (b) Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract o...

Excerpt: ...e section 435.5 is based on an incorrect reading of the Code of Civil Procedure. Moving party's Reply brief contends that the meet/confer requirement is inapplicable because the motion is pursuant to sections 128(a) and 436. Section 128(a) merely identifies the court's general powers; it has nothing to do with a motion to strike. Section 436 authorizes a motion to strike. However, section 435.5 provides that the moving party must meet and confer ...

Excerpt: ...ing KW's Demurrer to the fraud cause of action in Plaintiffs' original Complaint, on grounds Plaintiffs had alleged no underlying facts supporting their conclusory allegation that KW ratified/authorized Defendant Yu's conduct (Civ. Code § 2339), and had alleged no facts supporting employer liability under the doctrine of respondeat superior. The 12‐6‐18 Order granted Plaintiffs leave to amend to allege, if they could, a fraud claim against K...

Excerpt: ...o the settlement, or (2) had no intention of honoring the terms of the settlement, or (3) allowed the motion to be filed because it intended to cause a delay of the trial or delay performance on the settlement causing additional damage to Elevation.” [MPA, p.3] Elevation, however, has failed to set forth sufficient facts to establish that Terrace acted for the sole purpose of harassment or delay. Counsel for Terrace asserts in his declaration t...

Excerpt: ...th interests materially adverse to those of a prospective client in the same “or a substantially related matter” if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” (Rules of Prof. Conduct, Rule 1.18(b), (c).) Plaintiff contends that Defendant Chew failed to close escrow on the sale of Chew's property after consulting with Perkins Coie. Plaintiff contends that cer...

Excerpt: ...1) Defendant entered into an account with Bank of America, (2) Defendant authorized all transactions on the account, (3) the present balance is $5,005.59, and (4) Defendant's last payment on the account was on April 16, 2017. These admissions are sufficient to establish amount of a debt, but not sufficient to entitle Plaintiff to judgment on the pleadings. B. The Motion Fails to Dispose of Any Cause of Action. The complaint alleges three common c...

Excerpt: ... to Evidence Code Sections 403, 702, 1401, and 1402, and California Rules of Court Rule 3.1110(g). The assertion that the March 17, 2015 agreement, including both the English translation and the Chinese language version, was prepared by SUE is not supported by the evidence currently before the court. The remainder of Defendant's evidentiary objections are OVERRULED. Plaintiff's Motion for Summary Adjudication is DENIED pursuant to Code of Civ. Pr...

Excerpt: ...1, is ruled on as follows: The motion to Request nos. 12‐16 is GRANTED. The County establishes good cause for production of these documents. (See C.C.P. § 2031.310(b)(1).) Once good cause is shown, the burden shifts to the responding party to justify the objection. (Kirkland v. Sup. Ct. (2002) 95 Cal.app.4th 92, 98.) Here, Jane Doe #1 failed to oppose this motion, and therefore has not justified her objections. The motion to Request no. 17 is ...

Excerpt: ...detect the wrongful acts of Clark. A. The Proposed Cross‐Complaint Appears to State a Cause of Action. Generally, whether a pleading states a cause of action should be decided by demurrer, not on a motion for leave to file the pleading. For purposes of this motion only, the Court declines to apply the case of Jaffe v. Huxley Architecture (1988) 200 Cal.App.3d 1188. The same court that decided Jaffe later limited that case to its facts. (See Pla...

Excerpt: ...ion to Compel Arbitration and Stay Action is DENIED. Plaintiff waived his right to compel arbitration. Plaintiff complied with Code of Civil Procedure section 1281.5 by alleging that he does not waive the right to arbitrate and intends to move, within 30 days after serving the Complaint, to compel arbitration. (Code of Civ. Proc. Sect. 1281.5, subd. (a); see Complaint at 12:13‐20.) Section 1281.5 requires that “within 30 days” after serving...

Excerpt: ...owledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363). Fraud must be pled with specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The plaintiff must allege facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Here, Plaintiff fails to allege facts sufficient to support a claim f...

Excerpt: ...t the sale. As the winning buyer, AJE is the owner of the personal property listed in the UCC‐1 Statements. After the sale, Cross‐defendants remained in possession of the property at the dental office, despite AJE's having purchased the personal property at the sale. AJE estimates that the property is valued at $161,000. Cross‐defendants' Opposition does not contest the estimate. B. Opposing Arguments Lack Merit. NGUYEN contends that the ap...

Excerpt: ...lication for leave to present a claim as contemplated by that section. Indeed, Petitioner does not indicate that “application was made to the board under Section 911.4 and was denied or deemed denied,” as required to obtain relief under Gov't. Code § 946.6. As set forth below, Respondent appears to have waived any defense as to the timeliness of Petitioner's claim pursuant to Gov't. Code § 911.3(b). Petitioner submitted a Government Claim o...

Excerpt: ...ED. All requests for judicial notice are GRANTED. This matter was originally heard on January 24, 2019 at which time the court continued the matter to March 7, 2019 and ordered defendant Suzie Investments, Inc. to comply with CCP §430.41(a)(3) by filing the declaration required by that statute. The Second Declaration of Seth Weiner in Support of Demurrer to Complaint filed on February 1, 2019 satisfies the statute, so the demurrer may now procee...

Excerpt: ...tion: (1) Paul McKinnie, et al. v. Phyllis Harrison, et al., Case No. 18CIV04938 (“McKinnie action”), and (2) William Grosso, et al. v. Phyllis Harrison, et al., Case No. 18CIV02540 (“Grosso action”) However, Ms. Harrison has not demonstrated that a transfer order is necessary given that both the McKinnie and Grosso actions were also filed in this court. (See C.C.P. § 403 [“A judge may, on motion, transfer an action or actions from ano...

Excerpt: ... Defendant's business records subpoena, which requests records relating to “treatment for any condition” since July 1, 2010 is overly broad, as it makes no attempt to limit its scope to the conditions alleged in Plaintiff's complaint. The scope of the subpoena shall be limited to records relating to the conditions identified in Plaintiff's complaint, including records relating to the treatment Plaintiff sought immediately following the allege...

Excerpt: ...e days before the date a motion to strike must be filed” (Id. sect. 435.5, subd. (a)(2).) The motion to strike must include a declaration setting forth in detail the compliance with section 435.5, or reasons why compliance was not possible. (Id. sect. 435.5, subd. (a)(2) & (3).) Plaintiff's motion fails to comply with these statutory requirements. No declaration is on file. The motion is also possibly untimely. A motion to strike an Answer must...

Excerpt: ...ons. Under Plaintiffs' reasoning, any litigant could avoid the mandatory 21‐day period merely by waiting until the Court has ruled on a motion and then filing a motion for sanctions. Plaintiffs cite no authority for this interpretation. The interpretation is unreasonable because it would render the waiting period provision meaningless. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 (statutes must be construed in m...

Excerpt: ...its entirety. The Complaint alleges claims for open book account, account stated, money lent, and money paid at Defendant's request. (Complaint ¶¶ CC‐1(a) & CC‐1(b).) The motion against the entire complaint can be granted only if it defeats all causes of action. The motion is denied because it fails to dispose of three of the four causes of action. A. The Motion Establishes that Defendant Owes $3,321.48 to Plaintiff for “Money Paid.” Th...

Excerpt: ...�) Cross‐Complaint, is ruled on as follows: (1) Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication, to the Complaint is DENIED. Plaintiff fails to meet her initial burden of establishing each element of her causes of action. (See C.C.P. § 437c(p)(1).) Plaintiff not only seeks recovery of the possession of the vehicle, but also seeks damages in connection with all three causes of action alleged. (See Third Amen...