Excerpt: ...pon the service of a set of requests for production of documents, the party targeted by those requests has 30 days to serve responses, and to produce responsive documents. C.C.P. §2031.260. However, that deadline can be extended by the propounding party, as long as the agreement to extend is “confirmed in a writing that specifies the extended date . . . .” C.C.P. §2031.270(a),(b). USRECH here extended in a writing BMO's deadline for respons...

Excerpt: ...nce of billable records disclosing efforts supporting such a fee and the sum amount of the recovery. Further, the court is unable to approve a stipulation to seal court files absent a compelling reason which would permit the court to make findings that such sealing is necessary in light of the public's interest in access to court files. The parties have failed to make such a showing. The information that is sought to be redacted is not highly sen...

Excerpt: ...waived and the requests for admissions are deemed admitted, is denied in its entirety. Defendant brought this motion under CCP Sections 2030.290(a), 2031.300(a), 2033.280(a), and 2033.300(a). However, defendant did not satisfy either of the two conditions for relief set out in these statutes. First, defendant did not provide discovery responses “in substantial compliance” with the statutes, as required. The responses that were finally provide...

Excerpt: ... good faith settlement, accompanied by the declaration of plaintiff's attorney, would have been sufficient if the application had not been contested. A “barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient.” (The Rutters Group, California Procedure Before Trial, section 12:871, citing The City of Grand Terrace v. Superior Court (1987) 192 Cal.Ap...

Excerpt: ... Production, Set One. On July 31, 2019, HSBC BANK served verified supplemental responses to all of these discovery requests. Yet plaintiffs never filed a new motion based on these supplemental responses or amended the present motion to include the supplemental responses. Therefore, the court will not rule on the sufficiency of either the original responses or the supplemental responses. The court notes that plaintiffs did not file a separate stat...

Excerpt: ...18, 930 [the nature of a motion is determined by the relief sought, not the label used by the party]; Sole Energy Co. v. Petrominerals Coro. (2005) 128 Cal.App.4th 187, 193 [same].) Plaintiffs admit that Defendants served responses to their discovery requests and claim that the untimeliness resulted in a waiver of objections. (Decls. of McCann, ¶ 6.) The court notes that, notwithstanding any objections, Defendants provided substantive responses ...

Excerpt: ...18, 930 [the nature of a motion is determined by the relief sought, not the label used by the party]; Sole Energy Co. v. Petrominerals Coro. (2005) 128 Cal.App.4th 187, 193 [same].) Plaintiffs admit that Defendants served responses to their discovery requests and claim that the untimeliness resulted in a waiver of objections. (Decls. of McCann, ¶ 6.) The court notes that, notwithstanding any objections, Defendants provided substantive responses ...

Excerpt: ...ity itself [must be] the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884; Park v. Bd. of Trs. of Cal. State Univ. (2017) 2 Cal.5th 1057, 1061.) Cross‐complainants' allegation that they “were forced to retain the services of attorneys to defend them [due to a complaint filed with the Bureau of Real E...

Excerpt: ...and as required by the Court's order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfa...

Excerpt: ...v. Superior Court (2004) 32 Cal.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]. Under Civil Code §2920.7(d), status of a devisee, heir or trust beneficiary does not automatically convey a right to assume and/or modify an existing loan. One must submit an application to the mortgage servicer, who “may...

Excerpt: ...efers to NEW DESSERTS and the agreement is not ambiguous given its execution in connection with Plaintiff's onboarding process for employment with Defendant. The arbitration agreement is not procedurally and substantively unconscionable, and is capable of being enforced. (See Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.App.4th 708, 723). Only the cost‐splitting provision is unenforceable; however, this term may be properly severed unde...

Excerpt: ...missed the seventh cause of action for negligence, ninth cause of action for fraudulent misrepresentation, 10th cause of action for negligent misrepresentation, and 17th cause of action for intentional infliction of emotional distress. Defendant's motion has been rendered moot with respect to all dismissed claims. The Court takes judicial notice of the grant deed presented as Exhibit 1 of Defendant's request for judicial notice showing that title...

Excerpt: ... for conversion is sustained without leave to amend. Plaintiff's allegations fail to establish that any alleged violation of Civil Code sections 2923.55 and 2923.7 were material. (Civ. Code § 2924.12, subds. (a)‐ (b).) Plaintiff does not allege any facts demonstrating that any failure to provide a single point of contact or the fact that Plaintiff initiated the contact with Defendant constituted material violations of the statutes. (See, Astur...

Excerpt: ...ons are uncertain. The complaint also does not state facts sufficient to constitute a cause for fraud based on intentional or negligent misrepresentation or concealment. Allegations of fraud must be specific. The allegations regarding the alleged misrepresentations of an “attrition of 33 employees” are not sufficiently specific. Also, the allegations are uncertain. The court notes that co‐defendant CALIFORNIA MENTOR FAMILY HOME AGENCY, LLC,...

Excerpt: ...e the administrative agency”]. C.C.P. §1094.5(e) provides an exception to this rule, authorizing the court to also consider relevant evidence which was either improperly excluded from the administrative record, or that could not have been produced in the exercise of reasonable diligence, by the party now attempting to rely upon it. Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not ha...

Excerpt: ...or this reason, discovery in a CEQA case is unusual. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102 [limited discovery Page 2 of 3 available upon a showing that it is “reasonably calculated to lead to evidence admissible under section 1094.5”]. Limited areas of discovery can be proper in a CEQA case, as acknowledged by a statute which requires setting of a CEQA hearing briefing schedule that can be exten...

Excerpt: ...g that defendant Mericle actually received actual notice of the summons and complaint, and Mericle's declaration states and/or implies that he did not receive them. Mericle further states that he continued to use his former Union City address until June 2014, then moved to Burlingame from June 2014 until June 2017, then to Fresno for about two years. Plaintiff's application for an order for published summons includes declarations of diligence sho...

Excerpt: ...ESS to 1st Amended Complaint; and (4) Motion by Defendants PONTUS MAG FAIRFIELD, LLC; PONTUS MAG MANAGING MEMBER, LLC; PONTUS NET LEASE ADVISORS, LLC; PONTUS CAPITAL, LLC; and MICHAEL PRESS to Strike Portions of 1st Amended Complaint TENTATIVE RULING The demurrer by Defendant PONTUS MAG FAIRFIELD, LLC (“PONTUS MAG”) to the 3rd , 8th and 11th causes of action is denied. The demurrer by PONTUS MAG to the 5th, 6th, 7th, 9th and 12th causes of ac...

Excerpt: ...s order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the propo...

Excerpt: ...ors and health plan providers. In its First Amended Complaint (FAC), CVMG alleges that ALLCARE's business practices have crossed the line from allowable marketplace competition into civilly actionable wrongdoing. The FAC alleges eleven (11) causes of action. ALLCARE has filed a demurrer and motion to strike as to CVMG's FAC. Demurrer: In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordina...

Excerpt: ...e was injured on August 20, 2016. (Complaint, ¶ 13.) Plaintiff did not commence this action until March 29, 2019. Consequently, Plaintiff must specifically plead facts that would establish some legal theory why the action is not barred by the statute of limitations. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) The court is mindful that Plaintiff has been on notice of the need to specifically plead facts to establish tolling of the st...

Excerpt: ... by Mr. Garcia's prior law firm (the Damrell Firm) to Petitioner David Duke's counsel herein. (The Court has already established that Petitioner, as decedent's personal representative, currently holds decedent's claims of privilege.) The parties submitted simultaneous briefing on the question presented to the Court and the Court has had an opportunity to review the parties' pleadings. Upon that review, the Court answers the question presented as ...

Excerpt: ...ories for recovery may require amendment. Counsel proposes to substitute Plaintiff's minor son through his guardian ad litem and to amend the Complaint to allege a cause of action for wrongful death as a basis for recovery. It also appears counsel's intent is to dismiss Plaintiff as a named party to the suit and not to substitute her estate. The motion to amend was unopposed. A suit could be separately filed on behalf of Plaintiff's minor son for...

Excerpt: ...nt has presented sufficient evidence to meet her burden of establishing that there is a complete defense to Plaintiff's cause of action and that one or more elements of Plaintiff's negligence claim cannot be established. (Code Civ. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) Defendant presents evidence that Plaintiff neither paid the required $25 filing fee nor submitted a proper request for a fee waiv...

Excerpt: ...se to believe the property is there. Ahart, California Practice Guide, Enforcing Judgments and Debts, §§4:693 and 4:694, pp. 4‐143 and 4‐144. Although this secondary source did not explain why such credible and reliable information should be required, it is not hard to guess the rationale. Criminal law recognizes a constitutional right against unreasonable search and seizure. A writ of possession authorizes the police to enter property. It ...

Excerpt: ...ng that plaintiffs are entitled to the property based on adverse possession, as required under CCP Section 761.020(b). The elements of adverse possession include that the possession be “actual” and that it also be “hostile” or “adverse.” (12 Witkin, Summary of California Law, 11th ed., Real Property, §§226‐227, pp. 285‐288). Conclusory allegations, which is what plaintiffs have alleged, are not sufficient. Plaintiffs' complaint ...

Excerpt: ...nces such that it would no longer be just to enforce it. Los Angeles City School Dist. v. Landier Inv. Co. (1960) 177 Cal.App.2d 744, 750. A court has the discretionary power to modify even “permanent” injunctions. Salazar v. Eastin (1995) 9 Cal.4th 836, 850‐851. Even the Stipulated Judgment [Declaration of Vu Hai N. Phan in Support of CITY's motion, ¶3 and Exhibit “B”] recognized the authority of the court to change some of its terms,...

Excerpt: ...s the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) The court should consider the following factors under the particular circumstances of the case presented: 1) an individual's ownership of all stock in a corporation, 2) the use of the same office or business location, 3) commingling of funds and other assets, 4) the holding out by one individual or entity that it is liable for the debts of the other, 5) identical directors and...

Excerpt: ...port Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 [anti‐SLAPP motion permitted against an amended complaint only if it could not have been brought earlier].) The motion was not filed until July 15, 2019. Defendant fails to provide the court with good cause to consider the untimely motion. Defendant claims that it held off on filing the motion in the hopes of settling the action at a mediation on April 23, 20...

Excerpt: ...guilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850). SEENO did not meet either of these burdens on this motion. In contending that cross‐defendant DESILVA GATES CONSTRUCTION has a present duty to defend SEENO in this construction defect action, SEENO relies on the indemnity provisions in SEENO'S subcontracts with DESILVA, specifically, paragraph 2.13.1 of these subcontracts, which are virtually identical. However, these indemnity provi...

Excerpt: ...ited civil actions is limited to any combination of 35 of interrogatories, requests for admission, and requests for production of documents. (Code Civ. Proc. § 94(a).) No additional discovery is permitted unless the Court grants a noticed motion for leave to conduct additional discovery or the parties stipulate to additional discovery. (Code Civ. Proc. § 95.) Defendant's opposition reveals that he answered 35 form interrogatories propounded by ...

Excerpt: ... Petersen (1998) 68 Cal.App.4th 1062, 1066.) But, Defendants, alleged to be or owners or operators of a self‐ storage facility, would only wrongfully exercise dominion over personal property stored on its facility if they failed to comply with the statutory provisions for satisfying a lien on personal property stored on the premises pursuant to the California Self‐Service Storage Facility Act. (Bus. & Prof. Code §§ 21700 et seq.) Plaintiff ...

Excerpt: ...(1996) 42 Cal.App.4th 1746, 1750 [the court may take judicial notice of the records and files of a state entity].) Plaintiff's claim, received by the Government Claims Program on May 24, 2017, states only a claim against “California Department of Correction [sic] and Rehabilitation”. (Decl. of Rivera, Exh. A, ¶ 16.) Nothing in the claim purports to identify any claim against, wrongful conduct by, or liability of Defendant Valdez. (Id., Exh. ...

Excerpt: ...eding as a witness in litigation in a matter regarding an event or transaction that he or she perceived or investigated in the course of his or her duties, to which that local agency is not a party, shall receive the salary or other compensation to which he or she is normally entitled from that local agency during the time that he or she prepares for his or her response and appearance, during the time that he or she travels to and from the place ...

Excerpt: ... by the client, the declaration does not provide admissible evidence and is hearsay. If Defendant is alleging that Defendant was not served and therefore the default is void, the declaration is hearsay and does not provide admissible evidence. Finally, if Defendant contends that LOCICERO is or was subject to a stay due to bankruptcy while the case was pending, Defendant fails to provide any information to support the stay. It is noted that other ...

Excerpt: ...a Reg'l Med. Ctr. (2016) 246 Cal.App.4th 1260, 1266‐1267; Holcomb v. U.S. Bank (2005) 129 Cal.App.4th 1494, 1505.) Not only has Plaintiff previously unsuccessfully raised what appear to be same claims against Defendant Solano County in case number FCS052656, which were dismissed after the County successfully demurred to the complaint, Plaintiff has filed related actions seemingly based on the same facts or <01020176011a0003002600 03580003002f01...

Excerpt: ...ion for damages against a local public entity, the claims statutes require timely filing of a proper claim as a condition precedent to the maintenance of a judicial action and the failure to file a claim is fatal to the suit. (State of Cal. v. Superior Court (2004) 32 Cal.4th 1234, 1237; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454‐455; Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1246; Spencer v. Merced County Offi...

Excerpt: ...) 25 Cal.4th 826, 853.) Plaintiff establishes that Defendant applied for and was approved for a credit card, a credit card was issued and sent to Defendant at the address provided, Defendant made use of the account, and Defendant breached by failing to make the minimum payments required for the outstanding balance owed on the account after March 13, 2018. (Decl. of Becker, ¶¶ 6‐7, 9, 12.) Plaintiff generated and sent monthly statements showin...

Excerpt: ...une 24. C.C.P. §2025.450(a) authorizes a party to file a motion to compel deposition, when the party served with a notice of deposition fails to appear for deposition. Under C.C.P. §2023.030(a), monetary sanctions can be imposed against any party engaged in the misuse of the discovery process, or attorney advising that conduct, for the “reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct”. C.C.P. �...

Excerpt: ...orneys' fees; 3) Cross‐complainants Owen and Silvermark's motion (and amended motion) to strike and tax costs claimed by Cross‐defendant BME; 4) Plaintiff BME's motion to strike or tax costs of Defendants Owen and Silvermark; 5) Defendant Owen's motion for contractual attorneys' fees set August 30; 6) Defendant Owen's motion for attorneys' fees pursuant to the California Uniform Trade Secrets Act and Membership Agreement; and 7) Plaintiff BME...

Excerpt: ...5th 1131, 1150.) This also supports causes of action under the Consumer Legal Remedies Act and for declaratory relief. (Id. at 1152‐1153.) Motion to Strike Defendant's motion to strike Plaintiff's prayer for public injunctive relief is denied. Private plaintiffs are not precluded from seeking public injunctive relief in an action claiming a violation of the UCL or the CLRA. (McGill v. Citibank (2017) 2 Cal.5th 945, 961.) Motion to Compel Furthe...

Excerpt: ...riminatory conduct on the part of Superintendent‐President Esposito‐Noy, are sufficient to state a claim for gender discrimination. The demurrer to the eighth cause of action for intentional infliction of emotional distress is overruled to the extent it is based on the contention that the first amended complaint does not allege sufficient facts indicating extreme and outrageous conduct on the part of defendant. It is true that there may be no...

Excerpt: ...72, 381. The evaluation of impartiality is objective. There must be a specific identifiable reason for suspecting the arbitrator would not be impartial, but instead would favor one particular side. It does not matter if a litigant subjectively believes the arbitration might not be able to be impartial. Id. at 389. As the California Supreme Court noted: The arbitrator cannot reasonably be expected to identify and disclose all events in the arbitra...

Excerpt: ...f attorney's fees under Government Code section 800 is allowed only if the actions of a public entity or official were wholly arbitrary or capricious. The phrase "arbitrary or capricious" encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute.' [Citations.] Attorney's fees may not be awarded simply because the administrative entit...

Excerpt: ... for trial in March, 2019, given the many overlapping legal and evidentiary issues. Further, the Court recognizes Defendants' significant efforts to seek transfer of the Sacramento case in early 2018 and willingness to adopt the Court's recommendations regarding alternatives to transfer. However, given the current trial date, transfer‐in date and the procedural status of both cases, Plaintiff in the Frank case will be prejudiced by consolidatio...

Excerpt: ...wing reason: Page 2 of 2 The moving papers do not establish that Form Interrogatories (Set One) were addressed to Yen Wang as an “Answering Party.” Supporting Exhibit 3 contains two sets of Form Interrogatories naming Chang Wang as the “Answering Party.” (Compare Bates pages P.Phillips.Compel.0046 (“Bates 0046”) and Bates 0055.) The proofs of service (Bates 0054 and 0063) do not distinguish between the parties. The unopposed motion is...

Excerpt: ...e amendments contained in the proposed Second Amended Complaint are necessary, when he learned of the new facts he seeks to include in the Second Amended Complaint, and why he did not take steps to file the Second Amended Complaint earlier. The declaration he filed with the motion is not sufficient in this regard. ...

Excerpt: ... SYSTEMS, INC. (“MERS”) back to original lender PACIFIC UNION FINANCIAL, LLC (“PACIFIC UNION”) is somehow fraudulent or a forgery. California cases have consistently found that MERS as nominee beneficiary of the deed of trust has the authority to assign the beneficiary rights. Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, and Font...

Excerpt: ...d as opposition papers, Plaintiff has failed to file with the Court any opposition to Defendant's motion for summary judgment or any response to Defendant's separate statement of undisputed material facts. (Code Civ. Proc. § 437c, subds. (b)(2)‐(b)(3).) Likewise, Defendant has filed an opposition to an apparent motion for summary judgment sought by Plaintiff. The Court has not received a motion for summary judgment from Plaintiff. Because Plai...

Excerpt: ...ombs v. Pierce (1991) 1 Cal.App.4th 568, 575.) Accordingly, an order of suspension or revocation may only be rescinded if the Court finds that the Department acted in excess of its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence. (Veh. Code § 13559(a).) Upon independent review of the record, this Court f...