Excerpt: ...urt time and resources). As to Request No. 1, counsel are to meet and confer regarding production of additional agendas and meeting minutes that refer to those topics set out on p. 4‐ 5 of plaintiffs' memorandum of points and authorities from October, 2014, to the present. As to Request Nos. 3, 4, 5, 6, 11, and 12, defendant may respond using the term “removal from the competitive team” in place of the term “termination” used in each of...

Excerpt: ... the continued co‐ownership, management or operation of … Pacific Palisades” to a special master, who was authorized to “decide the disputed matter and direct the implementation of his decision.” (Decl. of Strauss, Exh. A, ¶ 1.11.)1 Somewhat in contradiction, the parties also agreed that a trustor could immediately apply to the family law court to seek removal of Ed Biggs as manager of the properties in trust upon a showing of “good ...

Excerpt: ...lege sufficient facts indicating how LIBERTY MUTUAL entered into an oral agreement with plaintiff and the terms of the alleged oral agreement are uncertain. Conclusory terms such as “scope of work,” “cost estimate,” and “not to exceed $450,000.00” are not sufficient. (For example, no scope of work allegedly prepared by LIBERTY MUTUAL is incorporated as an exhibit into the complaint.) The complaint also does not allege facts indicating...

Excerpt: ... these representations in open court. A restraining order to prohibit a non‐judicial foreclosure from proceeding is highly disfavored, especially when the property is a commercial or investment property as in this case. (See, Jessen v. Keystone Sav & Loan Assn. (1983) 142 Cal.App.3d 454, 457‐458.) Evidence supports a finding that Plaintiff has defaulted on payments to her mortgage lender for the commercial properties in a manner that is not w...

Excerpt: ...cording”, was a brief exchange she had with Defendant in the hallway of the company legal department, while Defendant was in route to a meeting in the office of another company attorney, in which she handed him something and said “[unintelligible] this from Ed. He wanted to make sure you got this”. The other, VOICE025.WAV (the “Meeting Recording”), involved a meeting with other corporate officers, in which substantive legal matters such...

Excerpt: ...fault in violation of Civil Code section 2923.5 (FAC, ¶¶ 24, 26‐28, 40, 42), Plaintiffs admit that Defendants accepted, considered, and approved three applications for loan modification and Plaintiffs had numerous telephone conversations with Defendants' agents regarding the applications. (FAC, ¶¶ 15, 17‐20, 22‐23, 29, 31‐32.) There is no material violation of Civil Code section 2923.5 when a borrower has “multiple telephone convers...

Excerpt: ...iability might be based. Page 6 of 6 Plaintiff has not met his burden of showing that it is reasonably possible to cure his complaint by amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040‐1041.) Plaintiff has not demonstrated in what manner he can amend the complaint or how those amendments will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Cooper v. Equity Gen. Ins. (1990) 219 Cal.App...

Excerpt: ...itration award for inclusion of costs under C.C.P. §998 is denied. Any error of law made by the arbitrator in the course of binding arbitration concerning a C.C.P. §998 costs claim is not subject to correction by the court. (Heimlich v. Shivji (2019) 7 Cal.5th 350.) MERITAGE's motion for sanctions under CCP §128.7 is granted, as the court has been able to now confirm that this motion was timely served on Plaintiff's counsel consistent with the...

Excerpt: ... Enterprises (“BME”) originally set on June 11 and continued on the court's own motion to July 23; 2) Cross‐Defendant BME's motion for attorneys' fees set July 12; 3) Cross‐complainants Owen and Silvermark's motion (and amended motion) to strike and tax costs claimed by Cross‐defendant BME set July 23; 4) Plaintiff BME's motion to strike or tax costs of Defendants Owen and Silvermark set July 23; 5) Defendant Owen's motion for contractu...

Excerpt: ...on is untimely in that it was filed more than five years after the Notice of Decision was issued and delivered to petitioner, which is well over the 60‐day time period set out in Government Code §13960(a)(1). The VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD also filed the demurrer on the ground that the petitioner has not lodged the administrative record with the court. Although this may be a ground for a judgment against petitioner for fai...

Excerpt: ...which were set out in Rappleyea v. Campbell (1994) 8 Cal.4th 975. First, ARROWPOINT has established that it has a meritorious defense in that if STANDARD is defended, the $832,750.00 judgment, which includes $750,000.00 in general damages, will most likely be reduced. Second, ARROWPOINT has established a satisfactory excuse for not defending the action in that it never had notice of the action until April, 2018. Third, ARROWPOINT has established ...

Excerpt: .... Grosvenor Airport Assocs. (2005) 2005 Cal.App.Unpub.LEXIS 2239. While this court is not bound by those unpublished decisions, it does find in the absence of any binding authority that the absence of a MC‐011 worksheet is not a proper basis for striking all costs. Nevertheless, when costs claimed in a Judicial Council Optional Form MC‐010 summary are challenged by motion, and a worksheet is then provided with the opposition, the moving party...

Excerpt: ...distress or acted with reckless disregard in causing plaintiff emotional distress. Finally, the complaint does not allege facts indicating that plaintiff experienced severe emotional distress as a result of the cutting of the tree. (See CACI 1600, 1602, 1603, and 1604). Plaintiff offers no new facts that could be alleged that would cure the defects in the complaint with respect to this cause of action. Therefore, the demurrer is sustained without...

Excerpt: ...t was brought. The complaint is uncertain, and fails to state facts sufficient to constitute any of the causes of action alleged. The court also grants the motion to strike on all of the grounds upon which it was brought. The references in the complaint to causes of action that are not alleged are improper, and the complaint does not state facts sufficient to constitute a claim for punitive damages. Had plaintiff not already filed an amended comp...

Excerpt: ...ting.” (Duran v. U.S. Bank (2014) 59 Cal.4th 1, 29; Payton v. CSI Elec. Contractors, Inc. (2018) 27 Cal.App.5th 832, 842; Cruz v. Sun World Int'l, LLC (2015) 243 Cal.App.4th 367, 384; Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 989.) Even when there is a uniform policy, certification may be denied if the evidence shows that the manner in which the policy was implemented as to each individual employee varied depending on multiple ...

Excerpt: ...tion with other causes of action is generally prohibited. (Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, 493; Childs v. Eltinge (1973) 29 Cal.App.3d 843, 853.) Plaintiff has not demonstrated that an exception should be made in her case. (See, Knowles v. Robinson (1963) 60 Cal.2d 620, 625‐626 [exceptions to the rule are primarily grounded on some circumstance removing the need of timely possession of the premises, such as voluntary...

Excerpt: ...ng stricken if an objection to it is raised. Page 2 of 6 C.C.P. §437c(d) states: Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at th...

Excerpt: ...ed Defendant's agent, Anna Chavez, that Defendant's policy of limiting staff contact was causing Decedent “physical and mental suffering”, but Defendant nonetheless took no action to avoid the harm. (FAC, ¶ 21.) This allegation establishes not just the absence of care, but an affirmative disregard of the known risk of harm caused by conduct. (Doe v. U.S. Youth Soccer Ass'n, Inc. (2017) 8 Cal.App.5th 1118, 1140.) It also sufficiently describe...

Excerpt: ...1) 192 Cal.App.4th 1149, 1155; see, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed”].) Plaintiff's second cause of action to quiet title and fourth cause of action for violation of the Unfair Competition Law against Defendant Wells Fargo are barred by the a...

Excerpt: ...ntment of a referee is also denied. The court does not find a basis for the appointment of a referee under CCP Section 639. The court notes, however, that the conduct of both plaintiff's counsel and defense counsel has been somewhat unreasonable and unprofessional in this matter. As to plaintiff's counsel, she did assert a number of meritless objections. Irrelevancy is not a proper objection in discovery. Defense counsel is entitled to seek all c...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...

Excerpt: ...crimination, the complaint does not allege sufficient facts indicating that plaintiff suffered from a disability or disorder, as that term is defined in Government Code §12926(j), or that she was discriminated against as a result of this disability. As to the first cause of action for retaliation in violation of the FEHA, the demurrer is sustained for failure to plead sufficient facts. The complaint does not allege facts indicating what conduct ...

Excerpt: ... engaged in assigned work at the time of his injury. (Complaint, p. “6”, ¶ GN‐1; Exh. C, p. “23”.) Inmates are entitled to workers' compensation benefits for injuries arising out of and in the course of assigned work and those benefits constitute the exclusive remedy for injuries sustained. (Lab. Code § 3370(a).) “Where the complaint affirmatively alleges facts indicating coverage by the workers' compensation laws, if it fails t...

Excerpt: ... of examinations and release of medical records as this matter proceeds to trial. Defendants' motion for severance was previously denied on January 22, 2019. Defendants have failed to show any new or different facts, circumstances, or law warranting reconsideration. (Code Civ. Proc. § 1008(a); Baldwin v. Home Sav. Of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) ...

Excerpt: ...ep't of Transp. (2013) 220 Cal.App.4th 104.) It is undisputed that Defendant Fancher was recruited and hired to provide nursing services at a hospital in Martinez. Page 2 of 2 (Plaintiffs' Response to UMF, 1.) It is undisputed that Defendant Fancher's shift at the hospital had ended two hours prior to the accident, that Defendant Fancher went out to have dinner by herself after her shift, and that the accident occurred while Defendant Fancher was...

Excerpt: ...ss the provisions are so clearly in favor of the employer they should not be enforced. AT&T Mobility LLC v. Concepcion [“Concepcion”) (2011) 562 U.S. 333; Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83. Armendariz identified 5 requirements for a valid arbitration of employment dispute agreement. Such an agreement "(1) provides for neutral...

Excerpt: ... objection nor does the objection substantively have merit. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276). The “substantial importance” argument is only relevant to a later claim for recovery of fees and costs associated with proving true a RFA after its denial. The court finds that the most requests are not vague and ambiguous with the exception of RFAs 15...

Excerpt: ..., ¶ 19; see, Decl. of Mikhov, ¶¶ 17, 25 [admitting that the case settled for the sum of $41,000, the same amount offered on May 23, 2017].) Section 998 applies to Song‐Beverly Act claims. (Duale v. Mercedes‐Benz USA, LLC (2007) 148 Page 2 of 2 Cal.App.4th 718, 728.) Consequently, Plaintiff is limited to recovery of only preoffer fees and costs. In addition, even without considering the validity of Defendant's 998 offer, Plaintiff has faile...

Excerpt: ....4th 771, 790 [citing “the general rule that statutory causes of action must be pleaded with particularity”]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [the same]. Plaintiff's HBOR‐based and unfair business practices causes of action are premised upon her status as a successor in interest, residing on the subject property for more than 6 months prior to the death of her mother (her last surviving parent), entitled...

Excerpt: ...ent of the CEQA process”]; 15202(a) [“CEQA does not require formal hearings at any stage of the environmental review process. Public comments may be restricted to written communications”]; El Morro Community Assn. v California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341, 1348, n.4 [“Although public hearings are encouraged, CEQA does not require them on environmental documents or in connection with project approval”]. An agen...

Excerpt: ...8.5. Motion for Attorney's Fees Plaintiff's motion for attorney's fees, costs and expenses is granted in part. Plaintiff's billed hours generally appear reasonable and do not appear to be contested on a task‐based basis by Defendant. The court reduces the hours billed which includes 2 hours for the motion for sanctions. The hourly rates for Mr. Mikhov exceed typical rates for Solano County and are reduced to $500 per hour, which is consistent w...

Excerpt: ...benefits, records related to workers compensation claims and medical records. Given the nature of the scope of damages, it is appropriate for Defendants to seek records directly from Plaintiff's employer related to his physical capacity to perform his job. Defendants have adequately established good cause for in camera review of Plaintiff's personnel records to the extent that they might contain information relevant to his claim of personal injur...

Excerpt: ...ff, other than the attachment of the deed of trust, notice of default, notice of trustee's sale and trustee's deed. (FAC, Exhs. A‐D.) A complaint must allege “ultimate facts,” not merely conclusions. With respect to the first cause of action, the First Amended Complaint (“FAC”) fails to allege sufficient facts to state a violation of Civil Code §2923.5. Plaintiff's declaration recorded with the Notice of Default establishes compliance ...

Excerpt: ...by filing a UCC financing statement claiming a security interest in Plaintiff GMP Process Piping. But, as already explained in Page 2 of 3 this Court's ruling on Defendants' demurrer to Plaintiffs' prior cause of action for breach of the implied covenant of good faith and fair dealing based on the same two claims, the parties' agreement contained no provision regarding the need for or referral regarding any accountants and specifically granted De...

Excerpt: ... the implied warranty of merchantability. The core test of merchantability is fitness for the ordinary purpose for which such goods are used, and the warranty may be breached if a vehicle is not in a safe condition. (Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1546‐1547; Isip v. Mercedes‐Benz USA, LLC (2007) 155 Cal.App.4th 19, 26‐27.) Plaintiff has adequately alleged facts from which it can be concluded that the vehicle was not...

Excerpt: ...ed to stop at the accident scene and provide his contact information. This allegation, without more, is not sufficient to indicate malice or conscious disregard on the part of defendant. As the courts indicated in Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, although alleged intoxicated driving may give rise to a punitive damages claim, such an allegation, without any alleged facts regarding ...

Excerpt: ... to this court that a default judgment had previously been submitted to the court. At the subsequent dismissal hearing, no appearance was made by Plaintiff and the matter was thereafter dismissed without prejudice due to failure to prosecute. Unfortunately, while the court appreciates that counsel has a large collections practice, counsel and his law firm are inappropriately shifting the burden of managing their legal practice to this court. This...

Excerpt: ...s appreciated value. Unlike an agreement for an interest in property, such an agreement is not required to be in writing. (Dutton v. Interstate Investment Corporation (1941) 19 Cal.2d 65). The first amended complaint also states facts sufficient to constitute a cause of action for imposition of a constructive trust and a cause of action for imposition of a resulting trust in that it alleges facts indicating an underlying wrong upon which a constr...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...

Excerpt: ... have common worksites, similar occupations, similar times of exposure, or similar types of diseases. In addition, although three of the plaintiffs are living, one is deceased and another is seeking preference in trial setting due to his health. Finally, the status of the discovery in each case appears to be different. Therefore, the court finds that there is insufficient commonality for the four cases to be consolidated. ...

Excerpt: ...he award of reasonably incurred costs and expenses even if they might be barred under Code of Civil Procedure section 1033.5. (Jensen v. BMW of N. Am., Inc. (1995) 35 Cal.App.4th 112, 138.) As already determined by this Court in ruling upon Plaintiff's motion for attorneys' fees, it was not reasonable for Plaintiff to continue to prosecute the action after Page 2 of 2 Defendant offered to settle the action for $34,000 on or about January 3, 2017....

Excerpt: ... explore options to avoid foreclosure (FAC, ¶¶ 18, 28, 38), no actual contact is required by the statute and Plaintiff fails to allege specific facts demonstrating that Defendant failed to exercise due diligence in its attempts to contact Plaintiff. (Civ. Code § 2923.5(e); Rossberg v. Bank of Am. (2013) 219 Cal.App.4th 1481, 1494.) Although Plaintiff does state that Defendant did not attempt to contact him, he provides no factual support for h...

Excerpt: ... and recording of the three lis pendens. Defendant is an incorporated business engaged in the purchase and sale of real property. (Complaint, ¶ 3.) Plaintiff is an officer and director for the corporation. (Complaint, ¶ 1.) Plaintiff's lawsuit was filed December 4, 2018, and the lis pendens were filed and recorded December 5, 2018. At the time the complaint was filed, Defendant was in escrow for the sale of one of the properties which was the s...

Excerpt: ...INTAGE CONTRACTORS or of the facts rendering VINTAGE CONTRACTORS liable. Therefore, it is not clear from the complaint that the “relation back” doctrine would not apply or that the action would be barred by the two‐year statute of limitations of CCP Section 335.1, as Defendant contends. Allegations that Defendant PAZ had a load in his truck at the time of the collision are not sufficient in this regard. Nor are the standard boilerplate alle...

Excerpt: ... of the PMK at PAKSN, INC., and the notice of the deposition of the PMK at SAGAR, INC., which are almost identical, are somewhat overbroad, and not all of the topics and requests are reasonably calculated to lead to the discovery of admissible evidence. According to the report of CMS dated March 24, 2017, CMS found several deficiencies at the La Mariposa Care and Rehabilitation Center at that time. (Declaration of Hooshie Broomand, Exhibit C). Ho...

Excerpt: ... 274.) Because Defendant has not met its burden, Plaintiff need not produce any evidence nor disprove anything. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 356; Y.K.A. Indus., Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353; United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 338.) Defendant seeks summary judgment on essentially three grounds: 1) there is a complete defense to Plaintiff's complaint...

Excerpt: ...tion to the McDonnell‐Douglas burdenshifting test. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354 [discrimination and retaliation claims subject to McDonnell‐Douglas]; Greer v. Lockheed Martin Corp. (N.D.Cal. 2012) 855 F.Supp.2d 979, 988‐989 and Sillah v. Command Int'l Sec. Servs. (N.D.Cal. 2015) 154 F.Supp.3d 891, 916 [“Claims for wrongful termination in violation of public policy and for violation of California Labor Code § 11...

Excerpt: ...21.) A duty to take affirmative action to control the wrongful acts of third parties is imposed only if there is a “high degree of foreseeability” requiring “prior similar incidents of violent crime on the landowner's premises.” (Ann m. v. Pac. Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 676, 679; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 240.) In determining whether the “extraordinarily high degree of foreseeability” has been ...

Excerpt: ...prevent her from participating in trial if it is set beyond the next 120 days. Under CCP Section 36.5, a declaration regarding plaintiff's medical condition may be signed by an attorney. However, the records attached to the declaration of attorney Thomas Mitchell do not clearly support the statements he made in his declaration. The emergency room report attached to the declaration does not indicate that plaintiff suffered a traumatic brain injury...

Excerpt: ...of privilege are inapplicable, the interrogatories are not duplicative of previous interrogatories and plaintiff's answers were unresponsive. Plaintiff has placed the existence of her disability in dispute by filing this suit and Defendant is entitled to engage in directed discovery related to her claim. Further, Defendant is entitled to discovery as to whether Plaintiff has mitigated her damages or whether she has been prevented from doing so du...