Excerpt: ...ler”) with a Request for Production of Documents, Set 3 on March 5, 2020; Muller responded on March 16, 2020; Plaintiffs found the responses deficient and attempted to resolve the matter informally by e-mail on April 9, 2020; Muller responded by reiterating objections and the parties did not resolve the dispute. Fladseth Dec. Plaintiffs move the Court to compel Muller to provide a further response to Request No. 59 in the set. Muller opposes th...

Excerpt: ...jury, often equated with an “inadequate legal remedy.” Code of Civil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the...

Excerpt: ...epartment, violated her civil rights by disregarding her complaint about being attacked, falsely claiming that Plaintiff was the aggressor and seeking to file baseless charges against her, and threatening her, all based on various improper motives including racial or other discrimination. Defendants include the chief of police Kevin Burke (“Burke”) and four police officers (“the Officers”), Teygan Mason (“Mason”), Darryl Erkel (“Erk...

Excerpt: ...ions 2030.300, 2031.310. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Superior Court (1962) 58 Cal.2d 210, 220- 221. A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. Code...

Excerpt: ...e a cause of action, is SUSTAINED with leave to amend for the reasons explained below. The demurrer to the cross-complaint for uncertainty is OVERRULED for the reasons explained below. Request for Judicial Notice Plaintiff/Cross-Defendants seek judicial notice of the complaint in this action (Ex. 1), a Google Maps aerial photograph form the public domain (Ex. 2), notices and orders and other documents purportedly sent to Defendants/Cross-Complain...

Excerpt: ... set forth below. Cross-Defendant Loanvest VII, L.P.'s Motion to Expunge Lis Lindens and Request for Attorney Fees GRANTED as set forth below. Motion to Set Aside Default Code of Civil Procedure section 473(b) allows plaintiffs and defendants to set aside dismissals or defaults. This motion must normally be made within a reasonable time, not to exceed six months from the date the order was entered. Code of Civil Procedure section 473(b). Code of ...

Excerpt: ...damages. The Court grants this request. Defendant moves the Court to quash services of the summons and complaint or, alternatively, to set aside the default and judgment. Relying on Code of Civil Procedure section 473(d), it argues that service is void because service failed to comply with the requirements. It also argues that the Court should set aside the default and judgment based on Code of Civil Procedure section 473(b) since it allowed the ...

Excerpt: ...nto a binding arbitration provision covering this dispute and Plaintiff's claims. The Court granted the motion after the May 29, 2019 hearing. Plaintiff contends that after the order for arbitration, the parties stipulated to the selection of retired Judge Scott Snowden (“Snowden”) with JAMS as arbitrator but that Defendants have now withdrawn that consent unilaterally and wish to obtain a different arbitrator. Facts and History of the Arbitr...

Excerpt: ...ppearing on the face of the complaint, exhibits thereto, and judicially noticeable matters. Code of Civil Procedure section 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in Code of Civil Procedure section 430.10. One of the grounds, in subdivision (e), is the general demurrer that the pleading fails to state facts sufficient to constitute a cause of action. Demurrer for failure to state facts sufficie...

Excerpt: ...g prior to April 15, 2020, until April 15, 2020. Plaintiffs accordingly were allowed up to April 15, 2020 to file their opposition. They filed the opposition on that date, making it timely. Defendant Ridgely Oliver Muller, M.D. (“Muller”) moves for summary judgment or, alternatively, summary adjudication against Plaintiffs' complaint. Preliminarily, he calls this a motion for summary judgment or adjudication but it is in effect simply a motio...

Excerpt: ...t making a prima facie showing that plaintiff cannot establish at least one element of any cause of action, or there is a complete defense to the cause of action. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plain...

Excerpt: ...ica (1972) 6 Cal.3d 920, 939. As long as the motion is “timely” and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice...

Excerpt: ...is is not clear. Except for any part of the motion which the Court finds to be moot, or for which the parties demonstrate otherwise, Motion to Compel Post Construction Services, L.P. to Further Respond to Defendant's Requests for Production of Documents and to Produce Additional Documents GRANTED. Reasonable sanctions of $7,276.75, based on 18 hours of work, awarded to the moving party. Denmark moves the Court to compel further responses and prod...

Excerpt: ... using the information outside this litigation. The motion is DENIED in all other respects, including the request to quash the subpoena or issue a protective order limiting the information and records to be produced. Plaintiff served Wells Fargo & Company (“Wells”) with a deposition subpoena for production of business records on January 22, 2020 seeking production of the statements, cashiers' checks, deposits and credits, checks, withdrawals,...

Excerpt: ...ure section 128.7. Defendant seeks an order that 1) Plaintiffs not seek further merits-based relief until completing the class notice and opt-out procedures; 2) Plaintiffs submit a proposed class notice; and 3) Plaintiffs and their counsel pay costs of this motion and the opposition to the failed motion for summary adjudication. It contends that Plaintiffs clearly failed to meet their burden on the motion for summary adjudication and that Plainti...

Excerpt: ...y, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party. Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490. Prejudice ex...

Excerpt: ... for a demurrer are set forth in Code of Civil Procedure section 430.10. The grounds, as alphabetically identified in the statute, are: (a) the court lacks subject-matter jurisdiction; (b) the person filing the complaint lacks legal capacity to sue; (c) another action pending between the same parties on the same cause of action; (d) defect or misjoinder of parties; (e) the pleading fails to state facts sufficient to constitute a cause of action; ...

Excerpt: ...same cause of action, the prior judgment is a complete bar. Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal. 436, 445; see also 7 Witkin, Cal. Proc. (5th Ed. 2008), Judgment, sections 334-335, 402. The doctrine applies only between the same parties or where there is “substantial identity” of the parties. Code of Civil Procedure sections 1908, 1910; French v. Rishell (1953) 40 Cal.2d 477, 481; see also, 7 Witkin, Cal. Proc. (5th Ed. 2008) Ju...

Excerpt: ...arty” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section...

Excerpt: ...ivil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that late...

Excerpt: ...uit but not of the Settlement. Upon further review of the Declaration of Attorney John Scheppach, the Court is satisfied notice of the settlement was provided to LWDA. Motion is GRANTED. The determination granting the motion and final approval of the Settlement will include the request for attorneys' fees and costs, payment of administrator expenses, and enhancement for named class Member Andrew Pomele, all made as part of this motion. The Court ...

Excerpt: ...right of reentry during the unexpired term of the original lease. See, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 492, fn.2; Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 242-243. Assignment or a novation transferring all rights and obligations of the original tenant to a new tenant by agreement between the landlord, o...

Excerpt: ...” The written version of the settlement, a written copy of which Defendant provides in the moving papers, is signed November 28, 2017 and likewise expressly states that the Court is to “maintain jurisdiction in order to enforce the terms of this Agreement.” Settlement section 4.16. When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the...

Excerpt: ... or there is a complete defense to every cause of action. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant shows that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Once the moving party has met its...

Excerpt: ...wed for loan modification, inducing them to act in reliance on this representation, to Plaintiffs' detriment. AmeriHome argues that Plaintiffs fail to plead this with requisite particularity and Plaintiffs fail to plead the elements of misrepresentation. The elements for negligent misrepresentation are similar to fraud, but without the same level of intent and knowledge: 1) misrepresentation; 2) of a material fact; 3) no reasonable ground for bel...

Excerpt: ...r than the enhanced remedies for elder abuse, solely based on the requirements of Code of Civil Procedure section 425.13. Plaintiff may resolve this issue by seeking to comply with Code of Civil Procedure section 425.13. Requests for judicial notice is denied as to the purported correspondence from the demurrer facilitator but granted as to the documents on file in the Court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Insti...

Excerpt: ...stice. Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145. As stated in Collins, supra, at 1124, [u]ltimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern must be to preserve public trust ...

Excerpt: ...which support factual assertions which he admits are undisputed and true, such as, e.g., the Ivancovich Declaration, Ex. D. Most of the objections are based on Plaintiff's primary argument that the witness, Ivancovich, is not a custodian or other properly qualified to as a witness, and lacks personal knowledge needed, to authenticate Defendant's records, a core part of Defendant's evidence, and that she lacks personal knowledge of the events she ...

Excerpt: ...tect the constitutional right of petition and free speech and it protects a broad variety of conduct which subdivisions (b)(1) and (e) define as being any “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” See also Braun v. Chronicle Pub. Co. (1997) 52 Cal.App.4th 1036, 1044-1045. Subdivision (b)(1) states that the special motion to strike a...

Excerpt: ...or the evidence excluded based on these objections but is based on the assumption that no objections have been sustained. Any “party” may move for summary adjudication. Code of Civil Procedure section 437c(a), (f). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there ...

Excerpt: ...�abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Welfare and Institutions Code section 15657 requires a culpability greater than mere negligence and is limited to acts of egregious a...

Excerpt: ...will consolidate the two actions. The parties have, despite the time for further briefing specifically for this purpose, provided the Court with no authority directly and specifically applicable to the key issues raised here, and the Court has not been able to find any. The laws governing care facilities and residential leases do not appear to apply to landlords of those licensees operating the facilities and they also contemplate unlawful detain...

Excerpt: ...oving party has the burden of demonstrating that plaintiff cannot establish at least one element of each cause of action at issue, each claim for punitive damages, an affirmative defense, or each issue of duty addressed in the motion, or there is a complete defense to each cause of action addressed. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element c...

Excerpt: ...le in the court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Institutions Code section 15610.07 defines “abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Code ...

Excerpt: ...ties as defendants, not subject to the judgment, should Plaintiff demonstrate proper authority and evidence demonstrating to the Court that it may do so and that to do so would be proper. Generally, a court's power to amend the judgment is very limited unless the error in the judgment was “clerical.” Code of Civil Procedure section 473(d); 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment §§67-70. The court “may ... correct clerical mistakes in ...

Excerpt: ...ersuasive and is also persuaded by the circumstances and explanations that at no time did Plaintiffs bring this action for any improper purpose but instead brought it solely in an effort to obtain exactly what they ask for, reimbursement for their alleged expenses. Requests for judicial notice GRANTED with the exception of Defendant's Exhibit B. This is not from a court record and does not appear judicially noticeable. The Court accordingly DENIE...

Excerpt: ...d actual or constructive notice of the condition in time sufficient to have taken preventative measures. See Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439-440. “The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.' ” Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; quoted also in Mixon v. State of Californi...

Excerpt: ...protected activity. The anti-SLAPP statute therefore does not apply to that claim. The other claim is based on the alleged malicious prosecution and related conduct at issue in the first cause of action. In large part for the reasons supporting the first cause of action, Plaintiff has provided sufficient evidence to show a probability of success as to that claim, as well. Requests for judicial notice are granted with the exception of Plaintiff's ...

Excerpt: ...rt denied that motion after the August 2018 hearing because the evidence clearly demonstrated that the Defendants had transferred ownership in 2016, so could not be liable for conduct occurring after that date, and because they had in fact given notice of the change within the time required. This time, Plaintiff argues that Defendants failed to submit the required testing reports for the testing required by the stipulation in 2014 and 2015, and f...

Excerpt: ...ions and, specifically, the purported copy of the loan agreement which Plaintiff attached to the complaint. These show, in brief, that Beyond the Glory Sports Bar & Grill, Inc. (“the Bar”) entered into the loan agreement, Defendant Monica Lynch (“Monica”), the only Defendant who has not defaulted, signed the agreement and personally as personal guarantor of the Bar's debt, the money was provided to Defendants pursuant to the agreement, De...

Excerpt: ...ive means exist to achieve the overriding interest. Plaintiff merely wants to redact certain information in the Business Agreement (“Agreement”) and the DeLuca declarations provide both an unredacted version which Plaintiff wishes to seal and a redacted copy as Plaintiff wishes to file it unsealed, with the specific portions redacted. The redacted portions amount to only a few small parts of one page of the three-page document. These portions...

Excerpt: ...and Moore v. Liu (1999) 69 Cal.App.4 th 745 that she must demonstrate that on the merits her motion to strike would have been granted. This court is not persuaded that the motion to strike would have been granted because the court does not find that the amended cross complaint (“ACC”) of Daniel Cortright (“Cortright”) arose from an “act in furtherance of a person's right of petition or free speech under the United States or Californ...

Excerpt: ...usion on the merits of the motion. The objections to the new evidence submitted in the Clifford and Coombs transcripts supplied with the Robinson reply declaration are SUSTAINED. This is improper new evidence provided in reply. In any case, this new evidence would not change the outcome of the motion. Except to the extent that it relies on the cited new evidence, the reply separate statement is not objectionable, merely poses arguments and respon...

Excerpt: ...o. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280-281. Defendant argues that the California Sherman Food, Drug, and Cosmetic Law (Health & Saf. Code, §§ 109875 et seq.) (“Sherman Law”) provides for no private right of enforcement but Defendant cites no directly applicable authority. In fact both state decisions such as Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, at 1095-1099, and federal decisions such asBrazil v. Dole Food Co., Inc. (N.D....

Excerpt: ...rocedure section 438(c). When brought by a plaintiff, a motion for judgment on the pleadings must be based on the assertion “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to <0003005200490003002600 00460048004700580055>e section 438(c)(1)(A). Otherwise, the rules governing demurrers basically apply. Cloud v. Northrop Grumman Corp. (1998) ...

Excerpt: .... Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129;Bogard v. Employers Casualty Co. (1985) 164 Cal. App. 3d 602, 618. A party may not attack a remedy on a demurrer and may demur only to the cause of action itself. Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562. See also Caliber Bodyworks, Inc. v. Sup. Ct. (Herrera) (2005) 134 Cal.App.4th 365, 385; Weil&Brown 7:42.1. After all, the statute, Code ...

Excerpt: ...concedes that the first cause of action is invalid against Defendant Michael Rosetti (“Rosetti”) and has stated that Plaintiff will dismiss that cause of action. Unless Plaintiff has already done so, the Court also hereby sustains the demurrer to that cause of action solely as to Rosetti. Defendants attack the first cause of action for breach of the covenant of good faith and fair dealing by arguing that this cause of action cannot be based o...

Excerpt: ... and does not remember ever obtaining or using it. He uses this evidence to dispute each of Plaintiff's proffered facts. This is sufficient to create a triable factual dispute because Plaintiff provides evidence showing that Defendant obtained the credit account and incurred a debt while Defendant provides evidence showing that he did not. The Court notes that in part Defendant's evidence is couched in terms of what Defendant remembers, specifica...

Excerpt: ...y made clear that the Court was not going to impose them and yet Defendant failed to appear to challenge the ruling as to that issue, which she could have done. Defendant fails to explain why she did not, or could not, have done so. In any case, even if the Court were to reconsider the ruling, it would not alter the ruling in any way and finds that the ruling was correct. The Court had discretion not to impose such sanctions and the Court finds t...

Excerpt: ...on the pleadings, Plaintiff has failed to cure the defects which this Court noted. The only changes Plaintiff made to this cause of action are at ¶¶`16- 18 and consist of minimal additional, and largely conclusory, allegations of a special relationship; use of specific terminology such as “the Biakanja factors”; and further, though largely repetitive, allegations of delay and Defendant's use of inaccurate information violating the duty of c...