Excerpt: ...erved on the third party. CRC 3.1346. No proof of service was filed in this matter, however, a responsive pleading by the Defendants indicates that service of the motion was made by mail on December 13, 2 2019. Furthermore, the motion is untimely under CCP § 2025.480, which requires the motion to compel attendance at a deposition “shall be made no later than 60 days after the completion of the record of the deposition.” Although the motion i...

Excerpt: ...ableness of the hourly rate or the amount of hours spent. As a preliminary note, a Substitution of Attorney was filed on behalf of Defendant LATAP on November 25, 2019. LATAP appears in pro per. Mr. Cogan remains attorney of record for Defendants Henry Lopez and Jan Lopez. Mr. Cogan has filed an objection on behalf of all three defendants, despite the fact that he is no longer attorney of record for LATAP. The Court has reviewed the briefing and,...

Excerpt: ... the Court can also retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. The parties entered into a settlement orally in open court on June 24, 2019. The terms of the settlement were memorialized by the Court in writing and signed by both parties and attached to the minute order of June 24, 2019. The settlement provided that Defendant would pay the amount of $15,000.00, plus 7% i...

Excerpt: ...y. Objections: Plaintiff has submitted four objections to evidence. The objections are OVERRULED. Summary Adjudication Standard: CCP § 437c states a motion for summary adjudication shall be granted if all the papers submitted show that there is no triable issue of material fact as to the challenged cause of action and that the moving party is entitled to judgment as a matter of law. “A defendant…has met his or her burden of showing that a ca...

Excerpt: ... uncertain. CCP § 430.10(e) & (f). Procedural Issues: Cornerstone's opposition claims that the present demurrer is untimely. Cornerstone's Proof of Service of Summons appears to make reference to the Plaintiff's summons for the Complaint. The Court notes that Cornerstone has not obtained a summons as to the new party, BCA, as required by CCP 428.60. The proof of service is therefore invalid. Without proper proof of service on BCA, the timeframe ...

Excerpt: ...e the motion has not been withdrawn, the Court will rule on the merits. Legal authority. Which county constitutes the proper venue in a particular case is determined according to CCP § 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of resid...

Excerpt: ...rded by Defendant to the insurer from April 17, 2008 to May 17, 2008 in order to open the claim regarding the incident of Jasmine Bolds here (sic).” On the basis of the authority cited by Defendant, Soltani‐Rastegar v. Superior Court (1989) 208 Cal.App.3d 424, the Court finds that the documents requested are protected by the attorney client privilege; however, the key document sought here is an undated sweep log. Defendant admits that the und...

Excerpt: ...ted. Finally he seeks monetary and terminating sanctions for Plaintiff's various abuses of discovery. An unverified discovery response is ineffective and is the equivalent of no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Plaintiff while represented by counsel provided unverified discovery responses. Plaintiff's counsel then withdrew. Defendant sought to further meet and confer directly with the Plaintiff about the...

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: ...l basis upon which they are entitled to relief under CCP § 430.10(e), specifically as to a duty owed. As such, the pleadings fail under CCP § 430.10(f) as uncertain. Defendant requests in a footnote that the Court take judicial notice of the original complaint. The request for judicial notice, although procedurally deficient, has not been objected to and is therefore GRANTED. The present case arises from Plaintiff's fall from a bunk bed or slee...

Excerpt: ...ts, Plaintiff was again seen on November 30, 2015 due to an acute injury to Plaintiff's right elbow. Defendant noted the elbow suffered from a nondisplaced fracture of the radial head. Plaintiff was placed in a cast and seen two weeks later for removal of the cast and follow up. While subsequent x‐rays showed healing of the fracture, plaintiff continued to complain of discomfort and additional diagnostic procedures showed fragments and a need f...

Excerpt: ...ffs challenge whether Defendant has its initial burden to establish the existence of an agreement to arbitrate. While Plaintiffs are correct that Defendant did not attach a copy of the agreement, the moving papers quote the language of the agreement. Further, Plaintiffs own complaint provides a copy of the agreement that contains the arbitration terms and their supporting correspondence shows that they previously claimed that there was an agreeme...

Excerpt: ...ion rather than merely convenient or beneficial to its preparation and “reasonable in amount.” CCP § 1033.5(c)(2) and (3). The right to costs is statutory in nature and a court has no discretion to award costs not authorized by statute. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. However, the court does have the power to disallow costs “allowable as a matter of right” if they were not “reasonably necessary,”...

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