Excerpt: ... “all” responsive documents have been produced, and if not, why not. (Code of Civ. Proc. § 2031.230.) Categories 2, 6, 8: Granted. When a response states that a reasonable and diligent search has turned up no responsive documents, the response must “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer...

Excerpt: ...equests for production were served on Plaintiff on August 10, 2020, along with electronically‐signed verifications. Plaintiff initially filed this motion to compel on October 8, 2020, after the 45‐ day deadline to file a motion to compel further responses to interrogatories and requests for production expired. C.C.P. §§ 2031.310(c), 2030.300(c). The 45‐day deadline is jurisdictional, and therefore the Court lacks authority to grant Plaint...

Excerpt: ...poenas Plaintiffs served on JPMorgan, Wells Fargo, BBVA USA regarding documents related to ERE, Mumba and Chartreuse Investments, Inc. (“Chartreuse”). Defendants filed two protective order motions. On November 17, 2020, Defendants filed the first motion seeking to quash service of the ERE subpoenas and one of the Mumba subpoenas and related relief. On November 17, 2020, Defendants filed the second protective order motion seeking to quash serv...

Excerpt: ...Fourteenth Cause of Action], and (4) Civil Conspiracy to Commit Fraud [Seventeenth Cause of Action]. Plaintiff's theory is that Mr. Crawford “failed to act with reasonable care and engaged in wrongful conduct when he did not exercise his due diligence prior to drafting the Second Set of testamentary documents. [Mr. Crawford] failed to confer with his client and determine his true testamentary intent.” Complaint, ¶ 73. Mr. Crawford contends h...

Excerpt: ...poenas Plaintiffs served on JPMorgan, Wells Fargo, BBVA USA regarding documents related to ERE, Mumba and Chartreuse Investments, Inc. (“Chartreuse”). Defendants filed two protective order motions. On November 17, 2020, Defendants filed the first motion seeking to quash service of the ERE subpoenas and one of the Mumba subpoenas and related relief. On November 17, 2020, Defendants filed the second protective order motion seeking to quash serv...

Excerpt: ...Fourteenth Cause of Action], and (4) Civil Conspiracy to Commit Fraud [Seventeenth Cause of Action]. Plaintiff's theory is that Mr. Crawford “failed to act with reasonable care and engaged in wrongful conduct when he did not exercise his due diligence prior to drafting the Second Set of testamentary documents. [Mr. Crawford] failed to confer with his client and determine his true testamentary intent.” Complaint, ¶ 73. Mr. Crawford contends h...

Excerpt: ...int, the declaration of Paul Johnson indicates only that the parties communicated in writing. Although the declaration states that he parties spoke on the telephone, this conversation concerned the original complaint. CCP §430.41(a) provides that if an amended pleading is filed, the responding party shall meet and confer again before filing a demurrer to the amended pleading. Consequently, the hearing on the demurrer is continued to July 13, 202...

Excerpt: ... of action, Plaintiff seeks a judicial declaration and injunction invalidating and enjoining enforcement of San Bruno Municipal Code Section 6.58.020, which bans marijuana distribution facilities, and San Bruno Municipal Code Section 3.18, which adds up to 10% tax on gross receipts of cannabis businesses operating within the City. He challenges these ordinances on the ground that they violate the First, Fourth, Fifth, and Fourteenth Amendments of...

Excerpt: ...t forth below. Defendants Ihab Hanna D.D.S. and Hanna D.D.S., Inc. move to quash a subpoena that Plaintiff Dr. Jumani has served on Bank of America, which seeks a broad range of banking records relating to Defendant Dr. Ihab Hanna, dating from Sept. 1, 2018 to the present. The subpoena seeks banking records relating to all four named Defendants. This motion to quash is filed by just two of the four Defendants—Dr. Hanna and his corporation, Hann...

Excerpt: ...s tentatively ruled upon as follows. This Court grants preliminary approval of the Settlement as set forth in the Joint Stipulation and Settlement Agreement attached as Exhibit 2 to the Declaration of Douglas Han. The Court finds the terms to be within the range of reasonableness of a settlement that ultimately could be granted approval by this Court at the final fairness hearing. Although the settlement is on the low side, Plaintiff's counsel is...

Excerpt: ...n for relief from default pursuant to Code of Civil Procedure §473.5 is DENIED. Defendant's declaration does not establish that his lack of notice was not caused by avoidance of service or inexcusable neglect. Defendant concedes that the summons and complaint were left at his place of employment with a co‐worker. While he argues the coworker was not actually or apparently in charge of the office, this argument is irrelevant. In Ellard v. Conwa...

Excerpt: ...t confirms its order granting summary judgment. The Court believes that reconsideration is appropriate based on Plaintiffs' counsel's representation that he was confused by the Court's tentative ruling for the January 26, 2021 summary judgment hearing and the relevance of the cases that the Court cited in the tentative, specifically, Sweetwater Union High School Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 948‐949; Perry v. Bakewell Hawthor...

Excerpt: ...ause of Accounting is SUSTAINED with leave to amend as to Defendant Hanna DDS, Inc. “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) The Complaint alleges that Defendant Defendant Ihab M. Hana, D.D.S. authorized the processing of insurance claims through Defendant Hana DDS, Inc.'s...

Excerpt: ...t Two, is GRANTED‐IN‐PART and DENIED‐IN‐PART. The interrogatories are relevant, but Plaintiffs agreed during the Jan. 26‐27 IDC to answer the first 40 special interrogatories. Plaintiffs did not file a motion to protective order as to the remainder. As to Special Interrogatories Nos. 29‐40, the motion is DENIED. Plaintiffs already agreed at the 1‐26‐21 IDC to provide further responses to Nos. 29‐40. See 1‐26‐21 IDC Order (Co...

Excerpt: ...bara and Board of Supervisors of the County of Santa Barbara: Michael C. Ghizzoni, Lina Somait, Office of the County Counsel For Real Parties in Interest Santa Barbara Westcoast Farms, LLC, and Scott Rudolph: A. Barry Cappello, Lawrence J. Conlan, Wendy D. Welcom, Cappello & Noel LLP; Deborah M. Rosenthal, Fitzgerald Yap Kreditor LLP HEARING (1) Demurrer of Real Parties to First Amended Petition (2) Motion of Real Parties to Strike Portions of Fi...

Excerpt: ...corresponded by email. For this demurrer, the Court concludes that the parties have met their statutory obligation, but in the future, they must confer in person or by telephone. Defendant's Demurrer is SUSTAINED with leave to amend for the reasons set forth below. Reading the Complaint liberally and drawing every inference in Plaintiff's favor as this Court must do, and not requiring as much specific in pleading because Defendant has knowledge o...

Excerpt: ... proposed order. The Court has no record of an order being submitted. Therefore, if Plaintiff submitted one, the Court asks that another order be submitted (through the clerk's office) and apologizes for requesting another order. If Plaintiffs failed to prepare an order, then they should prepare one as ordered or Defendants should prepare one pursuant to California Rule of Court 3.1312(d). The Court believes that it is best practice to have a for...

Excerpt: ... parties. Code of Civil Procedure § 452. The Court assumes that the allegations in the first amended complaint are true and reads the complaint as a whole. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38. The Court, however, does not assume as true contentions, deductions or conclusions of fact or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. If the complaint states a cause of action under any theory, regardless of the tit...

Excerpt: ...ing it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (Thomson Reuters 2019). After review of Defendant's submission and its own independent analysis and research, the Court SUSTAINS the demurrer to each cause of action with leave to amend. The FAC contains five causes of action for (1) medical malpractice, (2) informed consent, (3) fraud, (4) IIED, (5) Bus. and Prof. Code §§ 1700 et seq., unfair competition. Defendant...

Excerpt: .... v. Woodward‐Clyde Associates (1985) 38 Cal.App.3d 488. “[O]nly when the good faith nature of a settlement is disputed it is incumbent upon the trial court to consider and weigh the Tech‐Bilt factors … when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” City of Grand Terrace v. Superior Court (1987) 192 Cal.App....

Excerpt: ... 94080. Since she currently conducts hearings through Zoom, there should be no prejudice from this error. The Court rules on Defendants Silicon Valley Disposition, Inc. (“SVD”) and John M. Carroll (“Carroll”) as follows: A. Demurrer by Defendant Carroll The demurrer by Defendant Carroll on the ground that the Complaint names him only in a corporate capacity is OVERRULED. The Complaint names Defendant Carroll in the fifth and sixth causes ...

Excerpt: ...March 26. The Court ordered Plaintiff to provide proof of service of the application by March 25. On March 25, Plaintiff filed a proof of service of the summons and complaint on Defendant Ryan Pourtemour, as well as declarations of attempted service of the summons and complaint on Defendants Christine and James Pourtemour. However, no proof of service of the application was timely submitted in accordance with the Court's order. Accordingly, the C...

Excerpt: ...ies the tentative issued on February 18 as follows: The motion is GRANTED and the notice is approved. The remainder of the tentative is adopted. The Court declines Plaintiff's counsel's request for attorneys' fees of 38% In exercising its discretion after reviewing the record and weighing the factors, the Court continues to believe that one‐third is an appropriate per centage. TENTATIVE OF FEBRUARY 18, 2021 Plaintiffs' motion for approval of a ...

Excerpt: ...on with Defendant Waterville, Inc. (“Waterville”). The parties dispute whether Defendant had authority to administer the arbitration. As a threshold matter, the Court has authority to determine issues of arbitrability. Courts defer “questions of arbitrability” to the arbitrator only where the parties have “clearly and unmistakably” agreed that the arbitrator decide those issues. Rent‐A‐Center, West, Inc. v. Jackson (2010) 561 US 6...

Excerpt: ...t, the parties are to contest the tentative and appear at the hearing to explain. Defendants' demurrer is SUSTAINED with leave to amend. In this case, six plaintiffs sue Defendant for violation of Business & Professions Code § 17529.5(a)(1),(2). None of the emails are attached to the SAC. The Court further notes that while the SAC identifies the number of emails each Plaintiff received, there is no further information about the specific emails t...

Excerpt: ...aintiffs J.B.B. et. al. (see 2‐10‐21 Opposition brief) pursuant to Code Civ. Proc. Sect. 128.5(g) is also DENIED. This Court, after reviewing the record and weighing the factors, exercises its discretion and denies both requests for sanctions. J.B.B. et. al. argues Defendants Fair et. al. should be sanctioned for Mr. Fair making false statements in his 12‐3‐20 declaration. J.B.B.'s request for sanctions is based on two sentences in Paragr...

Excerpt: ...d failed to serve this motion on RJ Leonard Painting, a pro per defendant who failed to serve any party with its answer. Per the Court's order, on February 17, 2021, A&B notified all parties of the continuance and served the motion on RJ Leonard Painting. “[O]nly when the good faith nature of a settlement is disputed it is incumbent upon the trial court to consider and weigh the Tech‐ Bilt factors … when no one objects, the barebones motion...

Excerpt: ...ple v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51. Judge Fineman also represented the County of San Mateo in In re Natural Gas Antitrust Cases (Price Indexing), San Diego County, Nos. JCCP4221, JCCP4224, JCCP4226, and JCCP4228. See Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672. Judge Fineman represented the County of San Mateo in other cases; she does not have the full names or case numbers for those ...

Excerpt: ...n August 29, 2017, causing injury. Defendant contends the statute of limitations for any cause of action against Ms. Person has run, as Plaintiff did not name Ms. Person as a Defendant within two years of the date of injury, and the amendment does not relate back to the original filing because Plaintiff was not genuinely ignorant of Ms. Person's identity. As noted by Defendant, Plaintiff spoke with Ms. Person and took pictures of Ms. Person's dri...

Excerpt: ...ULED. Defendant's objection to evidence are OVERRULED. Plaintiffs' counsel, three different firms, seek their attorneys' fees of $304,274.25, which amount includes a .5 multiplier pursuant to the Song‐Beverly Act, Civil Code § 1794(d). The case settled for $170,000 after Defendant's failed to repair the car that Plaintiffs had purchased for $33,000. Plaintiffs have submitted declarations from counsel, verified billing statements, a National Co...

Excerpt: ...e Court finds that the same result is obtained under both California and Delaware law. Accordingly, the Court does not engage in a conflict of law analysis. The Court notes though that even if substantive Delaware law applies, California procedural law, including whether the pleadings are sufficient, are determined under California law. 3 Witkin, Cal. Proc. 5th Actions § 46 (2020) citing Restatement 2d, Conflict of Laws §§ 127, 128. Failure to...

Excerpt: ...rd Motor Company does not challenge Plaintiffs' right to costs, but in this motion challenges certain of those costs. Defendant has made ruling on this motion more difficult because of its failure to comply with California Rule of Court 3.1700(b)(2). Thus this Court's ruling does not correspond to the line item on the Cost Memorandum. After viewing the totality of the record and weighing all the factors, this Court exercises its discretion and ru...

Excerpt: ...ance with CCP § 2030.300(c). The parties' disagreement centers around the question of whether Plaintiff's responses to Defendant's special interrogatories, served on August 10, 2020, were properly verified with Plaintiff's electronic signature. According to Plaintiff's declaration, he completed his review of the discovery responses on August 10 and directed his attorney to electronically sign Plaintiff's name on the verifications. Makada Decl., ...

Excerpt: ...plaint. (See California Arbitration Act (“CAA”), codified in the Code Civ. Proc. Sect. 1281, et seq., and the Federal Arbitration Act (“FAA”), 9 United States Code Sect. 1, et seq.) Plaintiff argues that the arbitration agreement is void because he did not sign an arbitration agreement. (Opp. at 3:9‐15.) The arbitration agreement provided by Defendant, which reflects Plaintiff's signatures, is authenticated by Fatima Parayno, Defendant'...

Excerpt: ...c. (“Sedgwick”) and Plaintiff‐in‐Intervention Guadalupe Campillo‐Cortes (“Campillo”) are DENIED. Sedgwick's request for joinder is GRANTED. A. The Peculiar Risk Doctrine Applies Only to Hazardous Activities Under the peculiar risk doctrine, a property owner who hires an independent contractor to do “inherently dangerous work” can be held directly liable for damages when that independent contractor causes injury to others by negl...

Excerpt: ...er, the Court construes the complaint's allegations liberally with a view to attaining substantial justice among the parties. Code of Civil Procedure section 452. All material facts are treated as true. Apple v. Superior Court (2017) 18 Cal.App.5th 222, 240. The Demurrer to the First Cause of Action for Fraud is OVERRULED. Defendants challenge the specificity of the allegations, that there are no actionable allegations, and no damages pled. The C...

Excerpt: ...or Summary Judgment or in the alternative, Summary Adjudication, is ruled on as follows: (1) As a threshold matter, Defendants' Notice of Motion indicate that this Motion is brought to the First, Second, Third, Fifth, Sixth and Seventh Causes of Action (“COA”) based on Plaintiff's failure to produce admissible evidence in support of these COA. (See Defendants' Notice of Motion, Issues 1‐3, and 5‐7.) A defendant moving for summary judgment...

Excerpt: ...tively, Summary Adjudication, to the Complaint of Plaintiffs Sherlene and Lawrence Wong is ruled on as follows: Stillwater has brought this motion for summary judgment on two grounds: (1) that there was no direct physical loss to property as described in Coverage C of the policy; and (2) any loss was not covered by one of the sixteen perils covered under the policy. Defendants then claim that the other causes of action fail because they depend on...

Excerpt: ...(See Code of Civ. Proc. § 395.5.) “In tort, ‘liability arises where the injury occurs….'” (Mission Imports, Inc. v. Sup.Ct. (Monterey Bay Co., Inc.) (1982) 31 Cal.3d 921, 929.) Injury refers to a wrongful invasion of rights. (Black Diamond Asphalt, Inc. v. Sup. Ct. (2003) 109 Cal.App.4th 166, 172.) The burden is on Defendant to overcome the presumption that the venue selected by Plaintiffs Yolanda S. Recania and Vernon Recania (“Plaint...

Excerpt: ...oc. § 430.10(e). On 9‐11‐20, the Court granted Defendants' Motion for Judgment on the Pleadings (MJOP) with leave to amend, directed to the original Complaint's asserted causes of action for (1) actual fraudulent transfer, (2) constructive fraudulent transfer, (3) common law fraudulent transfer, (4) declaratory relief, and (5) accounting. Plaintiff thereafter filed the FAC, reasserting the same first four causes of action, but dropping the a...

Excerpt: .... Plaintiff's opposition is long on argument, but does not indicate what specific allegations in the SAC describe extrinsic fraud, and the Court has not located any. The allegations of wrongdoing describe, at most, intrinsic fraud. It is Plaintiff's burden to offer a showing that he can amend his pleading to state a cause of action. Plaintiff's Opposition makes no showing of possible amendment. The motion is DENIED as to the third through sixth c...

Excerpt: ... Fraudulent Transfer based on failure to allege facts sufficient to support this claim against it. Defendant asserts that the allegations show it was not a transferor or transferee of any alleged fraudulent transfer, and therefore cannot be liable for conspiracy to commit fraudulent transfer. Defendant argues that the controlling authority here is Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503 (“Applied Equipment”). ...

Excerpt: ...ion for breach of contract, the motion is DENIED. As with a demurrer, a motion for judgment on the pleadings “does not lie to a part of a cause of action.” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163. Here, Plaintiff's Second Cause of Action alleges multiple breaches of the 2017 Operating Agreement, not all of which appear to hinge on the parties' dispute regarding LLC ownership percentages. Complaint, ¶¶82‐92. The Second Cau...

Excerpt: ...,000 in American Express Company. Plaintiff American Express National Bank's unopposed “Motion for Order Vacating Dismissal and Entering Judgment against Defendant,” filed 10‐2‐ 20, is GRANTED. Code Civ. Proc. § 664.6. Per the parties' “Stipulation for Conditional Entry of Judgment” filed 10‐22‐18 (signed 10‐19‐ 18), the parties settled their dispute and Defendants agreed to make a series of payments to Plaintiff per a paymen...

Excerpt: ...Cal.App.3d 703, 710. Where discovery is required to oppose a jurisdictional challenge, a defendant may conduct that discovery without being considered to make a general appearance in the action. Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246. Specially Appearing Defendant may therefore participate in jurisdictional discovery without waiving their jurisdictional arguments. Plaintiff is authorized to conduct jurisdiction...

Excerpt: ...se of Action for Declaratory Relief, is GRANTED, for the reasons stated below. Both the Fifth and Sixth Causes of Action hinge the same question—namely, given the parties' 2013 settlement agreement, the resolution of the parties' prior lawsuit (Case No. CIV522693), and Defendants Fair et. al.'s recent payment to Plaintiffs J.B.B. et. al. of $475,424.12 to satisfy the Judgment in CIV522693, are Plaintiffs J.B.B. et. al. still investors in/equity...

Excerpt: ... are objecting to the remainder of the sentence. If they are, the objection is OVERRULED. Objection 2: SUSTAIN as to the bolded language “I presumed based on what I saw that he had crashed into us because he talking (sic) on his cell phone and not paying attention to the road on the basis of speculation. OVERULED as to the rest of the objection. Objection 3: SUSTAIN as to Plaintiffs' Exhibit N on the basis of hearsay, lack of foundation, lack o...

Excerpt: ... take judicial notice of its own records. 3) DENIED as to the printout from the Oregon Secretary of State for an LLC named “Oregon Drying Technologies”, generated on 10/2/20. (Kirpes Decl., Exh. A) Although judicial notice may be taken of a certificate of corporate status under Ev. Code, §452(c) (See, Friends of Shingle Springs Interchange v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483), the printout is not a certificate of corpora...

Excerpt: ...orum. According to Defendants, this Court lacks specific personal jurisdiction because “Robison and his sole proprietorships are in North Carolina, there is no dispute. Plaintiffs arranged for product to be shipped there — and this litigation arose out of a dispute about that delivery.” MPA, p.6. Defendants, however, fail to acknowledge that Defendants, as well as Plaintiffs, were parties to an agreement to ship flooring product to North Ca...

Excerpt: ...e attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Defendant asserts that the allegations are insufficient to support that she breached the duty...

Excerpt: ...e is GRANTED pursuant to Evidence Code § 452(d). Cross‐Defendant's Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452(d). Judicial notice is taken of the documents' filing/recording, contents, and legal effect, but not the truth of allegations therein. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, n. 7. Cross‐Complainants have standing to sue under the lease. The Lease and Guarantees relate to the same matters, are...

Excerpt: ... contend, first, that the allegations set forth at ¶¶ 40‐49 of the Hogans' Third Amended Cross‐Complaint, relating to the third cause of action for violation of Bus. & Prof. Code § 7031 asserted against Defendant JPM, must be stricken because the Hogans failed to seek leave to amend this cause of action. According to Defendants, “the Court's ruling granting the Hogans leave to correct the problems with [the Hogan's former fifth cause of ...

Excerpt: ...Proc. § 437c, subd. (c).) “Summary judgment is proper only if it disposes of the entire lawsuit.” (All Towing Servs. LLC v. City of Orange (2013) 220 Cal. App. 4th 946, 954.) The present motion addresses only the counts for open book account and account stated; the motion fails to address the claims for Goods sold and delivered (Complaint ¶ CC‐1(b)(3)) and credit extended (i.e., money paid at Defendant's request) (Id. ¶ CC‐1(b)(6)). Si...

Excerpt: ...of the tenancy. In support, Defendants cite to Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036 (“Delta Imports”), which held that a motion to quash service of summons is the only method to challenge whether a complaint states a cause of action for unlawful detainer supporting a five‐day summons. However, Borsuk v. Appellate Division of the Superior Court (2015) 242 Cal.App.4th 607, 611‐ 617 (“Borsuk”), disagree...

Excerpt: ...is a breach of contract case involving Defendant's breach of the parties' “2015‐2016 Statement of Financial Responsibility.” See 4‐9‐18 First Amended Complaint, Ex. A; 10‐22‐20 Howard Decl., Ex. 3. The agreement contains an attorney's fees clause which provides that the prevailing party in an action to enforce the contract is entitled to recover attorney's fees and court costs. Id. at ¶7 (“Additional Terms of Agreement”). Plain...

Excerpt: ... action for intentional interference with prospective economic relations is SUSTAINED with leave to amend on the ground that the Complaint does not sufficiently allege an independent wrongful act. “An act is not independently wrongful merely because defendant acted with an improper motive. … [A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other de...

Excerpt: ...eo that there were only two legal rentable units on the property. Id., ¶ 30‐34. At the time Plaintiffs purchased the property, they believed there were three legal and permitted rental units on the property. Following their discovery in 2018, Plaintiffs commenced this suit against their agent, the sellers, and the listing agent. The moving Defendants (“Listing Broker”) demur to Plaintiffs' second, third, fourth, and fifth causes of action ...

Excerpt: ...sider and weigh the Tech‐Bilt factors … when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261. While Defendant Duff's motion is bare bones, it does provide sufficient information for the Court to conclude that the settlement is in good faith. Liab...

Excerpt: ...ocedure section 1005(b), which requires opposing papers to be filed and served at least nine court days before the hearing. November 11, 2020, Veteran's Day, was a legal holiday. However, despite this delay, Defendants timely filed and served their Reply. Therefore, the Court exercises its discretion to still consider Plaintiffs' Opposition, but reminds Plaintiffs in the future to timely file and serve their papers or else they may not be conside...

Excerpt: ... of the existence of judicial opinions and court documents, along with the truth of the results reached— in the documents such as orders, statements of decision, and judgments—but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, n. 7 (citations omitted); Evidence Code § 452(d). T...

Excerpt: ...rom November 4, 2020, to November 19, 2020. Plaintiff had sufficient time to respond to Defendant's Opposition and no prejudice has been demonstrated. This Court exercises its discretion in determining whether to grant a motion for reclassification. Stern v. Superior Court (2003) 105 Cal.App.4th 223, 231. Since the initial time for defendant to respond to the complaint has passes (and Defendant has answered), this Court decides the motion pursuan...

Excerpt: ... on July 15, 2019. Defendant's counsel, Joseph Siguenza, has been an attorney in the law offices of Defendant for 29 years. Siguenza Decl., ¶¶ 1, 2. Mr. Siguenza signed the answer on behalf of Defendant. Plaintiff claims he discovered the conflict of interest in April of 2020 when discussing discovery responses with his counsel. On July 20, 2020, Plaintiff filed this motion to disqualify. Plaintiff contends defense counsel, Mr. Siguenza and his...

Excerpt: ...to be made no later than 60 days after the completion of the record. Here the record was completed on May 4, 2020 when a response including only objections was provided to the deposition subpoena. This Motion was filed more than 60 days later on September 10, 2020. The Vogt declaration provides evidence that the Deponent represented that the lack of responsive documents was because of a need for more time to produce the documents. Defendants argu...

Excerpt: ...uires and Michael Mengarelli, and Notice of Motion and Motion to Enforce Settlement Agreement, all filed on March 11, 2020, is DENIED. A motion to seal records must include a declaration “containing facts” sufficient to justify the sealing. (CRC Rule. 2.551(a)(1); see also Rule 2.550(d) [court may grant motion only if it “expressly finds facts” establishing grounds justifying sealing. The present motion seeks to seal portions of documents...

Excerpt: ...Plaintiff ancey sent and received documents to and from Defendant IRA Services' principals, including Defendant Edwin Blue and company counsel. During discovery in this case, Yancey produced to Defendants eleven (11) documents over which Defendant IRA Services, Inc. has asserted attorney‐client privilege and work product protection. IRA Services identified the eleven documents on a privilege log, and requested that Yancey return them. Yancey re...

Excerpt: ...s is denied. A. The Motion Is Untimely. Discovery motions must be heard no later than 15 days before the initial date set for trial. (Code of Civ. Proc. § 2024.20, subd. (a).) The initial trial date was June 4, 2020. The matter was continued to July 27, 2020 and again to September 21, 2020. Both continuances specified that all discovery deadlines would be based on the new trial date. Based on the September 21, 2020 trial date, the deadline to he...

Excerpt: ...al pursuant to the terms of their insurance contract as mandated by Insurance Code § 2071, the appraisal would be mandatory. See Doan v. State Farm Gen. Ins. Co. (2011) 195 CalApp.4th 1082, 1093. The question for this motion is whether the Court must grant a request made after the Plaintiffs filed a lawsuit and litigated it for a year, including conducting discovery and holding an Informal Discovery Conferences with the Court. The parties have n...

Excerpt: ...lationship to an insured – in this case, Defendant MIS – can be liable to the insured for a breach of the implied covenant of good faith and fair dealing. This issue was addressed in Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202. The parties disagree, however, with respect to whether the decision in Tran applies to the facts of this case. In Tran, an insured brought an action against attorneys‐in‐fact of a reciprocal insurer/int...

Excerpt: ...an agreement between the parties to arbitrate the claims alleged in the Complaint. (See C.C.P. § 1281.2.) Plaintiff Darlene Ipsen, by and through her Successor‐in‐ Interest Diane Berg (“Plaintiff”), asserts that her claims should not be ordered to arbitration because Kardosh is not a party to the arbitration agreement, and therefore her claims against Kardosh are not subject to arbitration. The arbitration agreement however, provides tha...

Excerpt: ...uest for judicial notice. The motion is DENIED to the extent it is based on the sham pleading doctrine. The argument is that Edwin Blue's deposition testimony is inconsistent with allegations in the complaint, which makes the cross‐complaint a sham pleading. This argument lacks merit. The Court GRANTS Yancey's request for judicial notice of the Deposition Transcript of Edwin Blue, taken September 20, 2019. However, “although the existence of ...

Excerpt: ...s documents granting authority to execute the documents in its chain of title.” MPA, p.3. Defendants also seek documents “pertaining to any title insurance, the creation and administration of the trust (Trust) of which US Bank‐CSFB alleges it is trustee, and a conflicting assignment of the Deed of Trust and underlying note to a separate trust for which U.S. Bank also claims to be trustee.” Id., p.4. According to Defendants, “each of the...

Excerpt: ..., Plaintiff Yancey served Defendants/Cross‐Complainants with several sets of Requests for Production of Documents (RFPs), which apparently sought, collectively, over 250 categories of documents. It appears that Defendants have served only objections to all of Yancey's RFPs. That is, it appears Defendants have not agreed, in any of their RFP responses, to produce any of the requested documents. However, that fact does not tell the whole story, b...

Excerpt: ...ute of limitations grounds is OVERRULED. The face of the ACC does not show that these causes of action are time‐barred. The demurrer to the eleventh through seventeenth causes of action on the ground of the sham pleading doctrine is overruled. SVP contends that statements Edwin Blue made in his deposition testimony conflicts with allegations in the ACC. However, “although the existence of statements contained in a deposition transcript filed ...

Excerpt: ... to amend. The Cross‐complaint is not time‐barred, but the Second Amended Complaint fails to sufficiently allege a valid liquidated damages clause. A. Tennessee's Six‐Year Statute of Limitations Applies to this Action. 1. Tennessee Has a Substantial Relationship with the Parties The initial question is whether (1) the chosen state has a substantial relationship to the parties or their transaction, or (2) there is any other reasonable basis ...

Excerpt: ...oceedings pursuant to the parties' Arbitration Agreement. California law has specific rules for arbitration involving skilled nursing facilities. Health & Safety Code § 1599.81. Plaintiff does not dispute the parties entered into an Arbitration Agreement. Plaintiff contends, however, that (1) as a result of pain medication he was taking at the time of entry into the Agreement, he lacked sufficient mental capacity to form a valid agreement; (2) b...

Excerpt: ...California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Super...

Excerpt: ... is DENIED as to Defendant CLEE. The evidence establishes that Defendant CLEE is a suspended corporation. Wu dec., Ex. C. As a suspended corporation, Defendant CLEE cannot seek relief in this action. See Timberline, Inc. v. Jaisinghani, 54 Cal. App. 4th 1361, 1365 (1997) (“Except for filing an application for tax‐exempt status or amending the articles of incorporation to change the corporate name, a suspended corporation is disqualified from ...

Excerpt: ...n, as required by CCP section 435.5(a)(3), showing that the parties met and conferred, in person or by telephone, for the purpose of determining whether an agreement could be reached to resolve the objections raised in this Motion. Defendant's counsel, Michael Ayzen, provides a declaration that he sent an email to Plaintiff's counsel; however, the parties are to meet and confer, in person or by telephone. Further, Mr. Ayzen's statements regarding...

Excerpt: ...0.10(e) on the grounds that the First Amended Complaint does not sufficiently allege an independent wrongful act. Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130 (“Ixchel”); .Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 1 Cal.4th 376, 393. The Court concludes that the holding of Ixcel applies in this case and requires that Plaintiff allege an independent wrongful act for each of the first three causes of action. Ixchel at 1...

Excerpt: ...Bank and Chase Home Financial LLC. She discloses that she currently owns and/or has a potential beneficial interest as of September 30, 2020 of more than $1,500 but less than $10,000 in Citigroup Inc. Com New. Moving party Dosi Tennant's Motion to Set Aside Default Judgment and for an Order for Return of Money to Phillip Tennant, filed 12‐18‐19, is DENIED WITHOUT PREJUDICE for failure to serve Plaintiffs with the moving papers. See 12‐18‐...

Excerpt: ... Fees is GRANTED pursuant to Civil Code § 2924.12(h) in the amount of $14,450. The July 20, 2020 Order signed by the Hon. Leland Davis III found that Plaintiffs are entitled to an award of attorneys' fees pursuant to Civil Code § 2924.12(h). Thus the entitlement to fees is established by that order. Attorney fees are ordinarily determined by the court pursuant to the “lodestar” method. Under the lodestar, a “reasonable” hourly rate is t...

Excerpt: ...rt SUSTAINS with leave to amend the demurrer as to all causes of action. The Luthra Defendants have failed to file a notice of motion in violation of California Rules of Court Rule 3.110; Code of Civil Procedure § 1010. They only filed a demurrer, memorandum of points and authority and declaration. However, since Plaintiffs substantively responded and the Court can determine from the demurrer the basis for the demurrer, the Court will consider t...

Excerpt: ...TAINED with leave to amend. The relationship between a mother and son is sufficient to establish a confidential relationship for a constructive fraud cause of action. Estate of Gelonese (1974) 36 Cal.App.3d 854, 863. Plaintiff Janice H. Marini is defendant Matt D. Marini's mother, thus establishing the confidential relationship. Compl. ¶ 2. The agreement does not need to be in writing, even though it concerns real estate, because it was fully pe...

Excerpt: ...r a residential loan and alleges that they, despite her increasingly adamant and urgent instructions to make her the only borrower on the loan application, Defendants failed to do so and prepared escrow documents that they knew or should have known would not be acceptable to the escrow holder and title insurer, that these acts were negligent, and these acts caused her damage. Plaintiff is not attempting to expand Defendants' duties as were the pl...

Excerpt: ...The gravamen for the motion is that the Plaintiff filed to appear at a mediation with a private mediator in violation of California Rule of Court Rule 3.894(a)(1), (3) and for that reason, the mediation was unsuccessful. The authority to award sanctions rests with the discretion of this Court. Wallis v. PHL Associations, Inc. (2008) 168 Cal.App.4th 882, 893. Courts have awarded sanctions against an attorney who failed to attend a hearing or trial...

Excerpt: ...Defendant procured Plaintiff's signature on the Release through fraud/misrepresentation, and (b) Plaintiff only signed it due to her unilateral mistake. Civ. Code § 1689. Based on the evidence presented with this motion, the Court cannot rescind the Release on either of these bases. The Court also questions the statutory and/or legal authority for this motion as none is provided in the notice of motion or the memorandum of points and authorities...

Excerpt: ...rposes only pursuant to Code Civ. Proc. § 1048(a). Case No. 19‐CIV‐07192 (the “Bell” case) and Case No. 19‐CIV‐07194 (the “Galicha” case) are hereby consolidated; the lead case will be 19‐CIV‐07192. Consolidation is a procedure for uniting separate lawsuits for trial, where they involve common questions of law or fact and are pending in the same court. See Code Civ. Proc. § 1048. The purpose is to enhance trial court efficie...

Excerpt: ...o this claim is that the Cross‐Complaint cites to an inapplicable section of the Labor Code. This argument is based on the allegation in Paragraph 19 of the Cross‐Complaint that Cross‐Complainant Roxanne Bell (“Bell”) resigned from her employment with DFS. However, the Cross‐Complaint cites to both Labor Code section 201 and section 202 in support of the First Cause of Action. CrossComplaint (“CC”), ¶¶20, 27. Section 202 governs...

Excerpt: ... in its entirety, including Ruan's Cross‐Complaint, pending resolution of the related criminal case against Ruan. See 8‐13‐20 Decl. of Bin Zhang Ryan, Ex. A (Complaint in People v. Ruan Chunxiang, 20NF007061A). The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings. Keating v. Office of Thrift Supervision, 45 F.3d 322, 324–25 (9th Cir. 1995). Nevertheless, a court may decide in...

Excerpt: ...n October 2, was one day late, and therefore the opposition should not be considered by the Court. Notably, however, Plaintiff submitted his reply brief on October 7, and he has not attempted to demonstrate any prejudice resulting from the late service. Consequently, the Court finds no grounds to disregard the opposition. The Court has fully considered Defendants' opposition and Plaintiff's reply. Turning to the merits of the motion, Plaintiff co...

Excerpt: ...rpleader Defendant Jawad Kamal (“Kamal”), on the ground that Mortazavi has not established that the documents are protected from disclosure and in camera review based on privilege and the common interest doctrine. Mortazavi contends that under section 915, the Court lacks authority to conduct an in camera review of absolutely privileged communications. However, a court may conduct an in camera hearing notwithstanding section 915 if necessary ...

Excerpt: ...e names “Harutyun Arthur Pembejian” and “Arthur Pembejian.” The underlying Guarantee Agreement itself shows the Judgment debtor spells his surname as both “Pemdedjuan” and “Pembejian.” The attached real property records indicate the Judgment debtor holds title to his residence (710 East Harvard Rd., Burbank, Ca.) under the name “Harutyun Arthur Pembejian.” Thus, all three names appear to be the same person. Further, Plaintiff ...

Excerpt: ...led to a judgment as a matter of law. In this case, the complaint asserts causes of action based on an account stated, money lent and an open book account. However, the motion only addresses the open book account and account stated causes of action. It does not address the cause of action based on money lent. Instead, for reasons that are not clear, the memorandum of points and authorities and the separate statement address liability for the debt...

Excerpt: ...ndant”) to the Complaint of Plaintiff Jax Martin, a minor by and through his Guardian ad Litem, Kamila Malinowski (“Plaintiff”), is ruled on as follows: (1) Defendant's Request for Judicial Notice of Exhibits 1, 2 and 3 is GRANTED pursuant to Evidence Code section 452(d). Defendant's Request for Judicial Notice of Exhibits 4 and 5 is GRANTED. Defendant's Request for Judicial Notice of Exhibit 6 is DENIED because there is no court‐filed st...

Excerpt: ...n approximately 1989 and were colleagues for several years until Mr. Liberty left the firm. They were co‐counsel in Asahi v. Actelion, San Mateo Superior Court Case No. CIV478533. See Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945. There were other cases where Mr. Liberty and Cotchett, Pitre & McCarthy were co‐counsel, but Judge Fineman does not recall working with Mr. Liberty on any of those cases. At the time, she assu...

Excerpt: ...nt's Breach of Fiduciary Duty is DROPPED. Although these claims fail to specify against which defendants they are brought, Plaintiffs state that they are not alleged against Defendant. (2) Demurrer to the Second Cause of Action for Nuisance is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to state facts sufficient to support this claim. Plaintiffs concede that this claim was inadvertently pled against Defendant, and only intended to be pled a...

Excerpt: ...h below. Gramercy demurs to the Petition on the grounds that the Petition is untimely, as it was not filed within ninety (90) days of the Labor Commissioner's final determination denying Petitioner Jordan Siliato's 2011 retaliation and wrongful termination claim against Gramercy, as required under CCP § 1094.6. Petitioner does not dispute that he did not file his Petition within 90 days; indeed, Petitioner concedes he filed his Petition more tha...

Excerpt: ...As to other UMF, see UMF 21, 23, 26, 27, 28, Plaintiffs disputes based upon objections, but does not formally make an objection and provides reference to evidence. Therefore, the Court does not formally rule on the objections. Defendants' Motion for Summary Judgment is DENIED. This is a medical malpractice action where Plaintiff contends that defendant Tsuchiyose breached the standard of care in treatment of Plaintiff after a colonoscopy procedur...

Excerpt: ...FACC”) as follows: FALSE LIGHT On the Claim for False Light, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Symphony, as a limited liability company, does not have standing to bring a false light cause of action. Coulter v. Bank of Am. (1994) 28 Cal.App.4th 923, 930; Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 878 (“[T]he tort [of false light] is of a personal character ‘concern(ing) one's feelings and one's own peace of mind.'...

Excerpt: ...ocedure § 430.60; California Rule of Court Rule 3.1320(a). Despite the procedural defect, the Court considers the substance of the demurrer. A demurrer only challenges defects that appear on the face of the pleading, or in matters outside the pleading that are subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 (error for c...