Excerpt: ...e of the evidence that “minimum contacts” exist between defendant and the forum state to justify the imposition of personal jurisdiction. (Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.) Here, Plaintiffs Jeffrey C. Poetsch and JC Poetsch Advisors, Inc. (“Plaintiffs”) have not established that the court has either general or specific jurisdiction over Defendants....

Excerpt: ... de‐published. (See Opposing P&A at 7:2 (citation to depublished opinion in Leung v. Verdugo Hills Hospital (review granted; opinion vacated).) Defendant Chang's motion to confirm settlement in good faith is GRANTED. The disputed Tech‐Bilt factor is the rough approximation of plaintiff's total recovery and settlor's proportionate liability. The party opposing the good faith determination has the burden of establishing the lack of good faith. ...

Excerpt: ...endants' requests for admission Nos. 3‐8 from Plaintiff Carol Hoy ask her to admit that she created notes relating to (1) William Hoy's medical care, (2) this lawsuit, and (3) William Hoy's deposition, and that she subsequently destroyed those notes. Plaintiffs contend that the requests are “fundamentally unfair.” However, Plaintiffs have provided no pertinent authority supporting the claim that the requests are unfair. In determining wheth...

Excerpt: ...dgment or adjudication, the court considers all of the evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843‐856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the party opposing the motion. Id. As to the 10‐17‐18 First Amended Complaint's (F...

Excerpt: ...nlawful detainer action filed against him, which the court granted through February 16, 2018 conditioned upon Moore's payment of monthly rent of $6,300.00 during the stay. (Ibid.) Moore paid the $6,300.00 monthly rent in December 2017 and January 2018, which is the amount he now wants released. Staying the unlawful detainer action is in the nature of an injunction, and a bond may be required. (The Rutter Group, Cal. Prac. Guide: Landlord‐Tenant...

Excerpt: ... the face of the record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121‐ 1122.) Defendant contends here that the judgment is void because he was ...

Excerpt: ...Purchase Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs' first, second, third, and fourth causes of action are jointly asserted against Defendants Lurline and Jaojoco. Each of the causes of action arises from the same transaction governed by t...

Excerpt: ..., but also “prejudgment interest in the amount and at the rate provided by law.” (See Complaint, Prayer, 2:21.) Plaintiff presents no evidence as to the amount of interest sought. Further, Plaintiff has not presented admissible evidence to establish all the elements of an account stated, including that Defendant JBJ Holdings, Inc. (“Defendant”) owed Plaintiff money from previous financial transactions and that Plaintiff and Defendant agre...

Excerpt: ...ant moves to strike the SAC on the ground that Plaintiffs are no longer represented by counsel, and cannot represent themselves in propria persona because Plaintiffs are an LLC and trustees of a trust. A court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436(b).) Defendant fails to show that the SAC was “not drawn or filed" in ...

Excerpt: ... DENIED as to the Notice of Rescission because it was not provided with the request. Defendants' Request for Judicial Notice of the Complaint in this action is GRANTED. (2) Demurrer to the First Cause of Action for Rescission is OVERRULED. Defendants demur to the First Cause of Action based on failure to allege facts sufficient to constitute a cause of action on the following grounds: (a) Plaintiff accepted the benefits of the contract and theref...

Excerpt: ...a HIPAA‐compliant protective order which protects the identity of Patient No. 2 in satisfaction of 45 CFR Section 164.512(e)(1)(v) within ten days of this order. Within 5 days of issuance of the protective order, Defendant shall provide verified responses to Request for Production nos. 65 – 68 ("RFP") and produce documents redacting any personally identifying information of Patient No. 2. Plaintiff William Hoy ("Plaintiff") ha...

Excerpt: ...igence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the l...

Excerpt: ..., and Aug. 28, 2019, is GRANTED‐IN‐PART, as set forth below. Plaintiff filed 12 separate motions to compel further responses to written discovery requests—4 motions against each of Defendants Autobahn, Inc., JPMorgan Chase Bank, and Hartford Fire Ins. Co. The 12 motions were set for hearing on Aug. 13, Aug. 14, and Aug. 28, 2019. Defendants then served further responses to the discovery requests before the Aug. 13‐14 hearings. Accordingly...

Excerpt: ...etition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate the controversy, the court shall order petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate exists, unless it finds that certain exceptions apply. (See C.C.P. § 1281.2.) Thus, the court must first order the dispute to arbitr...

Excerpt: ...NDANTS' ATTORNEY 0F RECORD JENNY L1 AND DENNIS FAORO IN THE SUM 0F $1,280 TENTATIVE RULING: The Motion of Plaintiff HaiboYu (“Plaintiff”) to Compel Defendant Aim Consolutions, Inc. (“ACI”) to Further Respond to Form Interrogatories and Request for Production of Documents and Other Tangible Things, Set One, and Defendant Hailin Li (“Li”) to Further Respond to Form Interrogatories, is ruled on as follows: (1) Plaintiff's Motion to Compe...

Excerpt: ...not have authority to stipulate to dismissal of the cause of action. This claim is supported by counsel's declaration, which states that (1) counsel mistakenly believed she had authority to enter the stipulation to dismiss, (2) Plaintiff was not aware of the stipulation, and (3) Plaintiff did not grant authority to enter into the stipulation. [Graves Decl., ¶¶ 2, 4] A misunderstanding between an attorney and client furnishes a proper and suffic...

Excerpt: ...n is GRANTED, in part, and DENIED, in part. Collateral Estoppel As indicated in Moriarty v. Laramar Mgmt. Corp., 224 Cal. App. 4th 125, 141 (2014) and other authorities, the preclusive effect of a judgment in a UD action is limited. This is because the only issues typically litigated in a UD action are the plaintiff's right to possession, and the defendant's defenses to the plaintiff's claim of possession. In the prior UD action, the jury determi...

Excerpt: ... the Ceccatos' supplemental briefing. This motion was continued from July 18, 2019 for supplemental briefing by the Ceccatos. 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. The court requested further briefing regarding both concurrent and successive representation, as well as briefing on the issue of whether the m...

Excerpt: ...ct, conversion and common counts.” Notably, however, Plaintiff's complaint did not assert causes of action for breach of contract or conversion. Nonetheless, the complaint states facts sufficient to constitute causes of action for account stated and money lent, and the answer admits those facts. The answer, however, does not show on its face that it is incapable of amendment. As a result, the motion is granted with leave for Defendant to amend ...

Excerpt: ...hen the patent expires. (Brulotte v. Thys Co (1964) 379 U.S. 29, 33‐34.) Royalties may continue to be collected past the patent expiration if the royalties represent other than patent rights (hybrid agreement). (Kimble v. Marvel Entm't, LLC (2015) ___ U.S. ___, 135 S. Ct. 2401.) The License Agreement granted patent rights, “technology rights,” and “Improvements,” each of which is specifically defined. RUST‐OLEUM acknowledges that ...

Excerpt: ...ary, the Complaint expressly states that the breaches were by “Defendants,” an allegation that does implicate RPM. The premise of this motion is that RPM cannot be liable for breach of the licensing agreement because RPM had no contractual obligations under the licensing agreement. The motion argues that RPM “assigned Sierra” to Rust‐Oleum, and Rust‐Oleum continued to perform Sierra's payment obligations under the license agreement. S...

Excerpt: ...to Defendant's demurrer, there is no requirement that a claim for breach of implied covenant must plead the plaintiff's performance of the contract. The authority cited in the Demurrer (Habitat Tr. For Wildlife v. City of Rancho Cucamonga) pertains to claims for breach of contract, not breach of implied covenant. B. Fourth and Fifth Causes of Action (Fraud, Negligent Misrepresentation) Demurrer is SUSTAINED as to Phuong T. Nguyen, DDS, Inc. The c...

Excerpt: ...n dated February 6, 1992. Plaintiff has not identified a proper basis for judicial notice pursuant to Evidence Code Section 452. Defendant's Request for Judicial Notice is GRANTED pursuant to Evidence Code Sections 451 and 452. Defendant's Motion for Summary Judgment is GRANTED pursuant to Code of Civ. Proc. Section 437c. No triable issue of material fact exists as to the dates of record notice of Defendant's interest in the Property and Defendan...

Excerpt: ...3 months old. Trial is set for 9‐9‐19. There have been no trial continuances. Although Plaintiff seeks leave to amend relatively late in the case, the evidence before the Court does not demonstrate any prejudice compelling enough to justify denying leave to amend. The Opposition does not argue that granting leave would affect the 9‐9‐19 trial date. Indeed, the proposed FAC adds no new causes of action; all 9 causes of action were already ...

Excerpt: ...a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff presents evidence to establish all of the elements of the First Cause of Action for Br...

Excerpt: ...of the subject documents at the time the motion is made. (See CRC Rule 2.551(b)(4).) No documents are lodged under seal with this motion or RPM's motion for summary judgment. The motion fails to comply with the requirement that redacted public versions of the documents be filed. (Id. Rule 2.551(b)(5).) No redacted versions are filed. The court cannot determine whether the proposed redactions are sufficiently narrow. (See Rule 2.550(d) (sealing mu...

Excerpt: .... However, Defendant does not dispute that she was personally served with the summons and complaint on May 22, 2019. Accordingly, the court finds there are no grounds for granting Defendant's motion to quash service. Alternatively, Defendant seeks to set aside the default and default judgment on the basis of mistake and excusable neglect. According to Defendant, her failure to respond was due to the fact that she has a brain injury and cannot rea...

Excerpt: ...tion to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable harm.” [MPA, p.12] Mr. Nguyen relies...

Excerpt: ...�� namely, whether the nature of his option to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable...

Excerpt: ...ur to them. However, California requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead only legal theories, but not any ultimate facts. Defendants argue that the facts are set forth in the Cross‐complaint. Even if that were true, the allegations belong in the Answer. The case of Schaefer v. State Bar of California (1945) 26 Cal. 2d 739 does not support Defendants. Schaefer...

Excerpt: ...f $25,737, plus a 2.0 multiplier, plus $1,206.15 in costs/expenses. The Court declines to apply a loadstar enhancement/multiplier. The Court finds no basis to conclude the case was complex or novel. It appears to have been a fairly routine consumer warranty/lemon law case. Complexity is judged in part by whether the case involved: 1) numerous pre‐trial motions raising novel issues; (2) a large number of witnesses and documents; (3) a large numb...

Excerpt: ...ts proposed answer within 5 days of this order. Defendant Adams claims that he sent the summons and complaint to an unnamed attorney in Santa Rosa. Mr. Adams indicates that he was too busy to follow up on his instructions that the attorney file an answer to the complaint. Based on the facts as set forth in Mr. Adams' declaration, it is questionable whether Mr. Adams exercised reasonable diligence in responding to the complaint. The court finds, h...

Excerpt: ...ach of Express Warranty Defendant contends Plaintiff has failed to assert a cause of action for breach of express warranty because Plaintiff has not alleged that the “latent defect” in the timing chain system manifested itself during the five‐year warranty period. According to Defendant, Plaintiff has alleged “no manifestation of the purported defect in the timing chain.” [MPA, p.4] Construing the complaint liberally, however, Plaintiff...

Excerpt: ...ases on their merits if possible. Here, Plaintiffs have already had multiple opportunities to draft and file a Complaint asserting a valid cause of action, beginning with their Complaint filed in federal district court, which was dismissed for lack of subject matter jurisdiction. Nonetheless, because Plaintiffs may be able to assert a valid cause(s) of action based on their allegation of unpaid wages (whether in the form of a breach of contract c...

Excerpt: ...equested relief must be sought from the judge or court that entered the original sealing orders, under the general rule that “The power of one judge to vacate an order duly made by another judge is limited.” Greene v. State Farm Fire & Cas. Co., 224 Cal. App. 3d 1583, 1588 (Ct. App. 1990). The People have provided no authority indicating that this court can unseal records ordered to be sealed by another judge or court. Further, as indicated i...

Excerpt: ...or a Plaintiff to demur to them. However, California law requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead on legal theories, but not any ultimate facts. Defendants cite cases that recognize a fine distinction between proper ultimate facts and improper legal conclusions; such pleading must be read in context with other allegations. (See cases cited at Defendants' Opposi...

Excerpt: ...h Trevor initially stopped, he left and later returned with his son, Defendant Lawrence Tam (“Lawrence”). The investigating police officer completed a traffic collision report that incorrectly identifies Lawrence, as the driver, and Trevor, as the son. Plaintiff filed this Complaint against Lawrence only, but then filed an Amendment to the Complaint substituting Trevor as Doe 1. Trevor brings this motion on the ground that Plaintiff improperl...

Excerpt: ...leging a fraud claim against a corporate defendant, a plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Lazar v. Sup.Ct. (Rykoff‐Sexton, Inc.) (1996) 12 C4th 631, 645. Newsweek has not alleged who made the alleged fraudulent representations or what was said. Consequently, Newsweek has fail...

Excerpt: ...D pursuant to Evidence Code Sections 451, 452, and 453. Defendant's objections to evidence are DENIED. Plaintiff's objections to evidence are DENIED. Defendant's Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED pursuant to Code of Civ. Proc. Section 437c. Defendant has not demonstrated that he is entitled to judgment as a matter of law as to any of the four causes of action in Plaintiff's Complaint. As to the Firs...

Excerpt: ...f”), is ruled on as follows: (1) Defendant's Request for Judicial Notice Defendant's Request for Judicial Notice is GRANTED as to Exhibits A, B, C, E, F, G, J and K. Defendant's Request for Judicial Notice is GRANTED as to Exhibits D, H, I, and L, but the court does not take judicial notice of the truth of the matters asserted in any of these documents. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 8...

Excerpt: .... (SAC paras. 23 ‐ 27.) The new allegations do not describe conduct that is “extreme and outrageous” for IIED. Further, the wrongful conduct “must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 152.) The new allegations do not state or imply that Defendants' conduct was “directed at Plaintiff.” None of th...

Excerpt: ...egis Group of Northern California, LLC et. al.'s Demurrer to Plaintiff Sodini Enterprises, Inc., et. al.'s 5‐17‐19 First Amended Complaint (FAC) is OVERRULED. A demurrer challenges defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view of ...

Excerpt: ...nscious disregard of the rights and safety of others. Rather, the complaint alleges that the ant infestation and accumulation of dog droppings occurred, but not that Defendants caused them or that Defendants intentionally refrained from addressing the problems. As to the mold, Plaintiff alleges that he discovered the mold on June 30, 2017, and a restoration company began remediating just one week later. (SAC para. 16 & 17.) As to the shelving, Pl...

Excerpt: ...er Plaintiff to file a proper one. Instead, the Court admonishes and directs attorneys John F. Martin, Marta R. Venegas, Brittany C. Jones, and the entire law firm of Martin& Vanegas to learn and comply with all Rules of Court in this and every other case. Plaintiff also has filed, without leave of court, two sets of supplemental evidence (July 19 and 22) after Defendant had already filed its Reply papers. Plaintiff never sought leave for the del...

Excerpt: ...il Procedure Section 187, cited by Plaintiff as support for this Motion, authorizes the Court to use the means necessary to carry jurisdiction into effect, but does not specifically discuss a motion to stay the action. CCP Section 418.10(a)(2) reads “A defendant... may file a notice of motion… [t]o stay or dismiss an action on the ground of inconvenient forum.” Here, it is plaintiff moving for a stay, and the ground for the request is not r...

Excerpt: ...ty, Defendant it is entitled to judgment as a matter of law. The facts of this case are not in dispute. According to Plaintiff's complaint, on the evening of October 25, 2015, [P]laintiff was on the premises of the PALO MAR STABLES, there to visit with defendant ROBIN [HOWLAND] and/or to tend to her own horse. As she walked on the premises, she walked past the vicinity of [Ms. Howland's horse,] Valentino, who was at that time not properly in his ...

Excerpt: ... based on failure to allege facts sufficient to constitute a cause of action. (See Code of Civ. Proc. § 430.10(e).) The Complaint indicates that Plaintiffs are bringing causes of action for General Negligence, Intentional Tort and Premises Liability. (See Complaint ¶ 10.) It also appears Plaintiffs may be attempting to allege a cause of action for Breach of Contract as well. (See Complaint, ¶ 12.) However, “each complaint must have one or mo...

Excerpt: ...f Action for “fraud in the inducement” and “promissory fraud” is OVERRULED. Cross‐Defendants argue the XC fails to allege any misrepresentation(s) of fact. It alleges, however, that Cross‐Defendants falsely represented, both on their website and orally, that (a) they had accelerated 120+ Startups; (b) they had obtained $400,000,000 for those startups; (c) those startups are currently valued at $4 billion; (d) they had partners and loc...

Excerpt: ... the choice of law provision contained in the parties' Agreement. Defendant Cheung contends that, notwithstanding the choice of law provision, California law applies to the dispute over attorney's fees pursuant to Rincon EV Realty LLC v. CP III Rincon Towers, Inc., 8 Cal. App. 5th 1 (Ct. App. 2017) and ABF Capital Corp. v. Grove Properties Co., 126 Cal. App. 4th 204, 220 (2005). The facts of Grove are similar to the present case: Plaintiff and re...

Excerpt: ...ent Agreement”) entered into with Defendant in August 2018. (See Campbell Decl., Exh. A.) The court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement, if requested by the parties. (C.C.P § 664.6.) The Settlement Agreement, which is signed by both parties, contains such a provision here. (See Settlement Agreement ¶ 23.) Plaintiff establishes that Defendant George P. Esho...

Excerpt: ...motion seeks to strike the request for “restitution” and “damages” in ¶1 of the XC's Prayer for Relief. As an initial matter, the Opposition brief argues a request for rescission may validly exist without any accompanying claim for restitution. This is irrelevant because CrossDefendants have not moved to strike the XC's request for a rescission; they only seek to strike the request for “restitution” and “damages” in ¶1 of the Pr...

Excerpt: ... Before Trial (Rutter, Jun. 2019 Update) ¶ 9:102.6.) Respondent's Request for Judicial Notice is GRANTED, BUT NOT FOR THE TRUTH OF THE MATTERS ASSERTED THEREIN, as to: (1) Request no. 1 (Petition filed on March 28, 2019); (2) Request no. 5 (Petitioner's reply papers filed May 2, 2019); and (3) Request no. 6 (Court's tentative ruling and order of May 9 and 10, 2019). Respondent's Request for Judicial Notice is DENIED as to: (1) Re...

Excerpt: ...esent Disclosure is operative, and Plaintiff may challenge it. Defendant correctly points out that there is no such thing as “cumulative experts” based on their specialty. Rather, the prohibition is against testimony that is cumulative. Plaintiff's motion does not identify any specific testimony of any expert witness that is cumulative of any other witness. B. Motion to Exclude Dr. Ament or to Disqualify Defendant's Counsel. The motion to exc...

Excerpt: ...e to pay rent or quit based on the language in the Late Payment Schedule agreement (“agreement”). (See Complaint, Exh. 1, p.2.) However, the agreement does not contain any language requiring a 30‐day notice. Rather, the agreement provides that after 30 days, “an eviction notice will be posted.” (Ibid.) “Unless the rent is brought current and late fees are paid, the Tennant [sp] shall be vacated from the unit after 60 days of nonpaymen...

Excerpt: ...ation overcomes the right of public access to the records and supports sealing them. Absent an order sealing this information, defendant's rights will be prejudiced as the records would be available to the public. The proposed sealing is narrowly tailored and there is no less restrictive means to protect defendant's right to privacy. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant ...

Excerpt: ...imited Dr. Steinberg's deposition to this period. In a January 29 letter to Plaintiff's counsel, defense counsel stated: Gary Steinberg, M.D. is available on 3/7 from 2:00 p.m. – 6:00 p.m. at Stanford. Unfortunately, this is the only available weekday Dr. Steinberg has within the next couple of months. If you are not available on this date, we will have to schedule his deposition on a Saturday. Please let us know. [Dolinski Decl., Ex. E] Plaint...

Excerpt: ...Same Parties. The parties must stand in the same relationship (i.e., as plaintiff or defendant) in both suits. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789 [“absolute identity of parties” required].) In ED 1005's cross‐complaint in the Lease Action, the parties are identical to the unlawful detainer action, but only as to Vinh Nguyen. Defendant Broadway Prime Motorz is not a party to the cross‐complaint. Thus, ...

Excerpt: ...DENIED as moot. All proceedings in this action are hereby STAYED pending resolution of the appeal from this court's order granting Defendant's motion to quash service of summons in Docket No. 17‐CIV‐05088, assigned Appellate Case No. A157248, or until this court orders, upon a showing of good cause, that the stay should be lifted. The court finds that the Court of Appeals' determination in Appellate Case No. A157248 may have significant beari...

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: ...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: ...(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: ...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: ...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: ...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: ...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: ...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: ... FAC on December 19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that “this motion is indisputably timely.” However, Cornerstone presents no argument or evidence in support of this position. Relation Back As noted in the court's ruling on the related demurrer, Cornerstone has provided no authority i...

Excerpt: ...act is SUSTAINED WITH LEAVE TO AMEND. This claim alleges WF breached ¶28 of the Deed of Trust (DOT), which Plaintiff contends states that Plaintiff may reinstate the loan up to five business days prior to the foreclosure sale. First, ¶28 of the DOT does not say that. And even if it did, the FAC still would not allege a breach because, as with the original Complaint, nowhere does the FAC allege that Plaintiff ever offered to reinstate the loan m...

Excerpt: ...19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that there is “no timeliness issue” with respect to the present motions. However, no argument or evidence is submitted in support of this position. Facts Sufficient to State a Claim Cornerstone's demurrer fails on the merits for the same reasons set fo...

Excerpt: ...ion and has not provided a proposed answer as required by CCP §§ 473 and 473.5. The language of those statutes is mandatory, in that they require that an application for relief from default “shall” be accompanied by a proposed answer. Although Plaintiff appears to be willing to stipulate to set aside the entry of default, the court is not empowered to grant the requested relief due to Defendant's failure to satisfy the mandatory requirement...

Excerpt: ...the breached covenant is curable. Case law holds that a prohibitory covenant, once broken, cannot be cured. (See, e.g. Hignell v. Gebala (1949) 90 Cal.App.2d 61, 69 (lease required use as apartment house; tenant used it for real estate business; breach was incurable); Pfitzer v. Candeias (1921) 53 Cal.App. 737, 739‐740 (livestock raised on land leased for growing alfalfa held to be noncurable breach).) Here, Defendant's alleged breaches of cove...

Excerpt: ...r expert and sent a witness disclosure statement to Plaintiff. [Gumear Decl, ¶¶ 5, 8, 9] Plaintiff has not opposed this motion and, accordingly, has not provided any reason why he would be prejudiced by augmentation of Defendant's expert witness list. The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses and has determined that Plaintiff will not be prejudiced in maintaining his actio...

Excerpt: ...fore this court. Accordingly, it's not clear whether CCP § 877.6 provides GE with authority to file an application for a good faith settlement determination. As set forth in CCP § 877.6, that statute applies to “a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors.” Because Defendant's complaint has not alleged that GE is a joint tortfeasor, it is not clear how this scenario fits ...

Excerpt: ...tiffs contend that the Court may enforce Defendant's payment obligation under Code of Civil Procedure section 664.6 without the parties' having signed the separate settlement agreement; Defendant contends that without a signed separate agreement, enforcement under section 664.6 is not permissible. The Court does not decide whether enforcement of the October 16, 2018, agreement is possible without an executed separate settlement agreement. The sig...

Excerpt: ...he repeated interruptions and interjections by defense counsel, Plaintiff cites no authority indicating that CCP § 2025.290 excludes breaks or interruptions from the permitted “seven hours of total testimony.” Third, the Court notes that when Plaintiff's counsel adjourned the deposition, he stated “This has been – this has been plenty long for me, starting at 9:00 to 4:00.” At the conclusion of the deposition, counsel did not indicate ...

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: ...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: ...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: ...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: ...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 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: ...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: ...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: ...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: ...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: ...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...