Excerpt: ...s of action for: 1. Intentional Infliction of Emotional Distress; 2. Breach of Contract; 3. Breach of Implied Covenant of Good Faith and Fair Dealing; 4. Wrongful Termination in Violation of Public Policy; and 5. Intentional or Negligent Misrepresentation. The complaint contained a specific request for punitive damages in the first cause of action. None of the other causes of action contained a specific request for punitive damages. Each cause of...

Excerpt: ...ettlement has been made in good faith. CCP § 877.6(a). A good faith determination bars any other joint tortfeasors or co‐obligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reasonable range of the settling tortfeasors' share of liability taking into consideration the facts and circumstances of the case. Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates...

Excerpt: ...ity Care Facilities Act (“The Act”). “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. A...

Excerpt: ... evidence in its Reply brief, filed November 6, 2019. For obvious reasons involving due process, new evidence is not permitted with reply papers, and is only allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. The Court declines to consider the new evidence in the reply briefing. Merits of Motion: There is no dispute that the parties together entered into the Agreement, and that the Agreement contains an a...

Excerpt: ...nly allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. Because of the fundamental unfairness to opposing counsel, were the Court to consider these new pieces of evidence without providing an opportunity to respond, the Court declines to consider the new evidence in the reply briefing. Requests for Judicial Notice: Both parties request judicial notice be taken of the published opinion of the Third District...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...A Notice of Conditional Settlement of the entire action was filed by Plaintiff on August 17, 2018, indicating that a Request for Dismissal would be filed no later than November 15, 2021. An Order to Show Cause Re: Sanctions issued on April 19, 2019 to Plaintiff and Counsel for failure to appear at the Resolution Review hearing on April 15, 2019 and failure to timely proceed with default. This matter has been continued several times due to the com...

Excerpt: ... the pleadings.” Coyne v. Krempels (1950) 36 Cal. 2d 257, 262. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for a demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrup Crumman Corp. (1998) 67 Cal. App. 4th 995, 999. A motion for judgment on the pleadings is proper when “the complaint does not state facts sufficient to constit...

Excerpt: ... in the related Federal Bankruptcy cases. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citation...

Excerpt: ...and October of 2017 at two different firms. Legal Standard. An attorney has a duty to maintain inviolate the confidence and, at every peril to himself or herself, to preserve the secrets of his or her client. Bus. & Prof. Code § 6068(e). The fiduciary nature of the attorneyclient relationship is one of the highest character, and is owed even after the termination of the relationship. Styles v. Mumbert (2008) 164 Cal. App. 4th 1163, 1167; citing ...

Excerpt: ...ction 128.5.” There does not appear to be any allegation here that the motion was filed for the purpose of causing unnecessary delay (in fact, as Defendant points out, several of the defendants charged in the FAC have not yet been served). The allegation is limited to the argument that the motion was frivolous. CCP §128.5 defines frivolous as “totally and completely without merit or for the sole purpose of harassing an opposing party.” “...

Excerpt: ...H Kelly requests that the Court take Judicial Notice of 16 items, including pleadings filed by JH Kelly and AECOM in this Court and in Federal Court. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.�...

Excerpt: ...ction of Emotional Distress; 2. Breach of Contract1 ; 3. Breach of Implied Covenant of Good Faith and Fair Dealing; 4. Wrongful Termination in Violation of Public Policy; and 5. Intentional or Negligent Misrepresentation. On March 25, 2019, the Third Cause of Action for Breach of Implied Covenant was dismissed. On April 8, 2019, the Court sustained with leave to amend a demurrer as to the remaining four causes of action. The same day the Court gr...

Excerpt: ...for the full amount demanded” in the underlying action. Defendant has objected, stating that he is complying with the terms of the agreement, and making scheduled payments, but never agreed to a term exposing him to liability greater than $15,000. Defendant has indicated he is willing to sign the settlement paperwork and comply with the terms to which he agreed, omitting item 4(E). This matter settled in open court on June 24, 2019. The ten mat...

Excerpt: ...ecessitates a substitution of attorney. That substitution of attorney has been filed as of October 4, 2019 (although the Court notes that defense counsel failed to use the mandatory Judicial Council Form MC‐050). “Before, during, or after a deposition, any party, any deponent . . . may promptly move for a protective order.” CCP §2025.420(a). On a showing of good cause, the court “may make any order that justice requires to protect any pa...

Excerpt: ...evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749. In ...

Excerpt: .... In December of 2016 parties by the name of Soni obtained a loan from Benchmark by fraudulently representing themselves with the identity of a party named Gill. The Plaintiffs did not receive the whole purchase price, the Soni's made off with over $400,000, and the property was conveyed to Gill. Plaintiffs have sued the various parties in an effort to be made whole. In its cross complaint filed August 15,2019, Benchmark seeks 1) reformation of t...

Excerpt: ...inued the matter, allowing the Plaintiff additional time to explain to the Court whether he could file an amended complaint that would state a cause of action. Plaintiff filed an amended compliant on September 23, 2019 without leave of Court. This filing was unauthorized, and is therefore stricken. This tentative decision addresses the original complaint. As discussed herein, the demurer will be granted with leave to amend. Some detail has been a...

Excerpt: ... determination as to his settlement of $5,000 payable to Plaintiffs. CCP § 877.6(a)(1) provides that a party may move by noticed motion for a hearing on the issue of whether a settlement has been made in good faith. CCP § 877.6(a). A good faith determination bars any other joint tortfeasors or co‐obligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reas...

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: ...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: ... Court. Plaintiff's failure to obtain permission was discovered in early December 2018. On December 14, 2018, the present Order to Show Cause Re: Dismissal (hereinafter “OSC”) was issued to Plaintiff. The OSC also provided Lakota the notice required by CCP § 391.7(c) informing him he had ten (10) days to obtain leave from the Presiding Judge to pursue the litigation. Plaintiff failed to seek the required leave. The OSC also provided that Pla...

Excerpt: ...County Superior Court. Plaintiff's failure to obtain permission was discovered in early December 2018. On December 14, 2018, the present Order to Show Cause Re: Dismissal (hereinafter “OSC”) was issued to Plaintiff. The OSC also provided Lakota the notice required by CCP § 391.7(c) informing him he had ten (10) days to obtain leave from the Presiding Judge to pursue the litigation. Plaintiff failed to seek the required leave. The OSC also pr...

Excerpt: ...Defendant alleges that the clerk improperly exceeded his or her authority in entering default judgment against defendant and cites to CCP § 473(d) and the Court's inherent equitable powers to set aside a void judgment or order in support. Under CCP § 473(d), the court may, “on motion of either party after notice to the other party, set aside any void judgment or order.” Defendant alleges that the Revolving Loan Agreement relied upon by Plai...

Excerpt: ...he case as a result of which the case is not ready for trial.” CRC 3.1332(c)(7). There are numerous other factors to be considered by the Court including but not limited to the proximity of the trial date, whether there have been other continuances, the length of the continuances, whether any party will suffer prejudice, and the interests of justice. CRC 3.1332(d)(1‐3) & (10). A motion to continue trial must be brought “as soon as reasonabl...