Excerpt: ... However, even if the motion were to have been filed in a timely fashion, it is unlikely that the Court would grant it on the merits. There is no absolute right to counsel in civil cases. Payne v. Superior Court (Los Angeles) (1976) 17 Cal. 3d 908. A trial court is to exercise its “sound discretion” in determining the appropriate method by which to ensure meaningful access to the court. Jameson v. Desta (2009) 179 Cal. App. 4th 672, 678. Want...

Excerpt: ... forms, including the proposed order, on the clients as well as information related to why the motion has been brought instead of filing the substitution of attorney. Counsel has shown in general terms that there has been a violation of the AttorneyClient Agreement i.e. a failure to pay. Counsel has not provided an explanation as to why a substitution of attorney cannot be obtained from the client. No information has been provided that Counsel ha...

Excerpt: ...smissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). The matter was continued to August 26 to provide Plaintiff's counsel with an opportunity to present additional information as to the reason two weeks' notice was insufficient time to secure witnesses, and the reason why a motion was not filed in advance of the trial date. Plaintiff's counsel provided a declaration stating that it is the cust...

Excerpt: ...Motion: CCP § 474 permits a plaintiff to add a Doe defendant if they were ignorant of their identity when the action was commenced. When a person is sued by a fictitious name on the ground that plaintiff is ignorant of the true name of such defendant, the ignorance must be real and not feigned. Herschfelt v. KnowlesRaymond Granite Co. (1995) 130 Cal.App.2d 347, 351‐52. If this requirement is met, the Doe defendant is considered a party to the ...

Excerpt: ...ibits, including Exhibit 8 which appears to be a combined Notice of Motion and Motion to Continue Trial and Reopen Discovery. Exhibit 8 contains three separate pleadings: a Notice of Motion, Memorandum of Points and Authorities; and Declaration of Michael Cogan. None of these pleadings are signed. At the time of the ex parte hearing of July 25, 2019, the parties stipulated to continue trial and the Court granted an order shortening time relative ...

Excerpt: ... of the pleadings and their distinct issues, and also circumvents the separate filing fee requirements. While CRC 3.1112(c) provides that a motion, notice of hearing and points and authorities may be combined in a single document, it references papers relating to the same motion or demurrer, and does not authorize combining papers related to separate motions. As timely notice of all of Plaintiff's requests have been provided, albeit in the improp...

Excerpt: ...for the benefit of Plaintiffs. CCP Section 526 sets forth those situations where an injunction is proper. The situation at issue is contained in CCP § 526(a)(3) which states in pertinent part, “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the actio...

Excerpt: ..., second, third, fifth, sixth, seventh, eighth, ninth, and tenth causes of action, pursuant to CCP § 430.10, on grounds that those causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. Meet and Confer. CCP § 430.41 requires the demurring party to meet and confer “in person or by telephone” with the party who filed the pleading subject to demurrer before filing a demurrer. Defense counsel's declar...

Excerpt: ...) the causes of action for Premises Liability and Wrongful Death were improperly filed without leave of court. Legal standard on demurrer. A demurrer can only be used to challenge defects that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” inc...

Excerpt: ...om papers supporting or opposing the motion, and that specific formatting requirements be met, none of which have been. Therefore, the Court does not consider Plaintiff's objections. 5 Defendant has also filed objections to Plaintiff's evidence, specifically statements made within Plaintiff's affidavit. The Court declines to rule on the objections, finding such rulings are not material to the disposition of the motion. See CCP § 437c(q). [The Co...

Excerpt: ...and whether a further response is required to each discovery request at issue in the motion. No opposition to the motion was filed. Overbroad, Overburdensome and Oppressive: Plaintiff's responses to discovery repeatedly object on the grounds that the discovery is overbroad, overburdensome, and oppressive. No reason is given, and there is nothing in the responses to indicate how responding to the discovery would be unduly burdensome. The Court doe...

Excerpt: ...to set aside the default judgment entered pursuant to CCP § 473. Defendant alleges that service was invalid and the resulting judgment was therefore void. Defendant's wages from Grove Contracting, Inc., a California Corporation, have been garnished to satisfy this judgment since 2015. He explains that he would have brought this motion earlier, but he contends he was represented by incompetent counsel. Merits of Motion: “Personal service remain...

Excerpt: ... (Fifth COA), conspiracy (Sixth COA), defamation (Ninth COA), intentional infliction of emotional distress (Tenth COA), and negligent infliction of emotional distress (Eleventh COA). Defendant characterizes each cause of action as being supported by Lockwood's participation in a company investigation which would be protected activity. Anti‐SLAPP Standards: A SLAPP suit seeks to chill or punish a party for exercising their constitution rights to...

Excerpt: ... dismissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). There are two clauses in CCP § 473(b) under which a dismissal may be vacated – one mandatory, the other permissive. The second clause of CCP § 473(b) requires mandatory relief upon an attorney's affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. It must be made “no more than six months after entry of judg...

Excerpt: ...force the settlement until performance in full of the terms of the settlement. The parties entered into a settlement in December 2018. No settlement agreement has been provided but rather the terms of the settlement appear to be wholly memorialized in a stipulation filed with the Court. The stipulation provided the sums owed under two accounts and their respective interest rates. It also provides a payment schedule and that a default would entitl...

Excerpt: ...st 7, 2019 and should is DENIED. The first declaration of Mr. Oberst misidentified the Plaintiff but that is clearly a typo and there appears to be a sufficient basis to allege the facts contained therein on information and belief. The second request to strike was filed on August 15, 2019 and challenges Mr. Oberst's declaration filed on August 12, 2019. That request is GRANTED. Mr. Oberst's declaration filed in support of Defendants' reply seeks ...

Excerpt: ...and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. A Court is rarely justified in refusing a party leave to amend so that he or she may properly present the case. Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031. It is an abuse of discretion to deny a timely motion to am...

Excerpt: ... fees. Defendant has filed a motion to tax costs, which directly addresses the issue of costs. The motion to tax costs is scheduled for hearing on September 9, 2019. This ruling will only address the issue of attorney fees. The issue of costs will be addressed at the hearing on defendant's motion to tax costs. In the context of the motion, several objections and requests for judicial notice have been made by the parties. The Court issues the foll...

Excerpt: ...of public policy. Plaintiff's Objections to Defendant's Evidence: No. 1: Overruled. No original signature has been provided on the declaration. However, the Court presumes that counsel maintains the original signed declaration which can be easily remedied. No. 2: Sustained. No. 3: Overruled. The evidence is not considered for the truth of the legal conclusion asserted, as the reasons for termination are ultimately to be resolved by the trier of f...

Excerpt: ...The format of a separate statement of facts is controlled by CRC 3.1350(d)(e) which requires the separate statement to be in a two column format. Defendant's separate statement of facts did not follow the mandatory form imposed by the California Rules of Court. Further, the separate statement must separately identify each cause of action that is the subject of the motion. CRC 3.1350(d)(1)(A). The defects in the separate statement could have justi...

Excerpt: ...t case involves three of the drivers. The Allstate case involves the same three drivers plus a fourth. The factual and legal issues are therefore identical and consolidation is appropriate. Plaintiff Stevenson argues that she will be prejudiced because there will be a longer trial and she will be faced by additional attorneys. This argument is simply untrue. Stevenson is a party to both actions already. If the matters are not consolidated she wil...

Excerpt: ... counsel's mistake, Plaintiff request the Court issue an order relieving her from the obligation to file a claim under the Act. Merits of Motion: Pursuant to Gov. Code § 905.2(b) all claims for money or damages against public entities require the filing of a government claim prior to initiating litigation. Under Gov. Code § 911.2(a) causes of action for injury to a person shall be presented no later than 6 months after the accrual of the cause ...

Excerpt: ...n: CCP § 473(a)(1) permits any pleading to be amended in further of justice and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and w...

Excerpt: ...quest in the sum of $3,415.00 also being sought pursuant to Code of Civil Procedure sections 2023.010 and 2031.310. The Court finds that an adequate meet and confer process has occurred between the parties. Although both the opposition and reply briefs were filed a day late, the Court considers the motion ripe for hearing on the originally scheduled hearing date of July 8, 2019. Under Code of Civil Procedure section 2031.310, a party requesting d...

Excerpt: ...ot yet occurred and therefore Plaintiff alleges that additional evidence may be discovered through the deposition of Abe Salehpour. The need for a continuance to properly oppose a motion for summary judgment is directly addressed by CCP § 437c(h) which states in pertinent part, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition...