Excerpt: ...' Evidentiary Objections: 1. Declaration of Racha Nour: All overruled. (Defendants' should have labeled these objections consecutively rather than by paragraph. 2. Declaration of Alan D. Wallace: All objections, except Objection #4, are overruled. The opinion as to his "general opinion that a reasonably careful real estate professionals [Sicl operating in the field in similar circumstances to Defendants here would have recommended to Plaintiff to...

Excerpt: ...its 1-3 attached to Defendant's Request for Judicial Notice filed March 9, 2023. Mohon for Reconsideration: The motion is denied. The Court loses jurisdiction to rule on a pending moton for reconsideration after entry of judgment. (APRI Ins. Co. v. Sup.Ct. (Schatteman) (1999) 76 Cal.App.4th 176, 181 [immaterial that moton to reconsider filed before entry of judgment]; Branner v. Regents of Univ. of Calif. (2009) 175 Cal.App.4th 1043, 1048 ["A mot...

Excerpt: ... a Court Order even in the absence of an authorization from Plaintiff.12 It would appear that Plaintiff has refused to informally provide an authorization and opposed the instant motion on the grounds that the Court cannot compel her to issue a written authorization because she asserts it is an unauthorized method of discovery to require Plaintiff to produce a written authorization in response to a Request for Production of Documents. The Court w...

Excerpt: ...ies had entered into an arbitration agreement. Defendant thereafter undertook to secure a stipulation to arbitrate, did not file motions or propound discovery and filed objections to Plaintiff's discovery to preserve its right to respond if arbitration was not successful. Plaintiff does not assert any substantive unconscionability and his claims of procedural unconscionability either lack evidentiary support2 or are not supported by the case law....

Excerpt: ...Notice: The Court denies Plaintiff's request for judicial notice. Plaintiff Rutherford's requests involve irrelevant documents given the procedural posture of the case. (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1168, fn. 1 [judicial notice can be denied on relevancy groundsl.) Defendant's Request for Judicial Notice: The Court denies Plaintiff's request for judicial notice. New evidence with the reply is generally improper (Ja...

Excerpt: ...ions as an individual or whether he was acting in an official capacity for ASTI. Plaintiffs allege their business relations began in 2014, but there are no allegations as to when the specific business plan was created, even though there are allegations that ASTI was registered with the Secretary of State on January 12, 2015. 2. Second Cause of Action for Negligent Misrepresentation: The demurrer is sustained, with thirty days leave to amend. As w...

Excerpt: ...ent S29. The trial attorneys shall personally appear at the TRC — no court call. The trial document exchange is June 8, 2023 (which is a non-appearance date) and the trial documents filing date is June 19, 2023, except that motons in limine shall be filed in accordance with the local rules. The parties are ordered to comply with the Court's Trial Setting Order which will be available on the Court's website in a few days. All trial documents sha...

Excerpt: ...errule 3. Objections to the Points & Authorities: 1 – 9. overrule (objections are proper only as to evidence, not argument) 4. Supplemental Declaration of Julie Weiner: 1-28. overrule Motion: A. Procedural Issue: Plaintiffs have “lodged” certain documents in support of their Opposition. If a party intends to “lodge” exhibits, he needs to cite to a statute, rule of court, or local rule that provides for the “lodging” of exhibits. (Lo...

Excerpt: ... Exhibits A-K and M-Q in their entirety. 2. Motion: A. Where the moving party in a motion for judgment on the pleadings is the defendant, the motion is limited to the grounds that the court has no jurisdiction over the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against the defendant. (Code Civ. Proc., § 438, subds. (c)(1)(B)(i)- (ii).) Like a demurrer, ...

Excerpt: ...ves the right to exclude any such evidence upon proper objection during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. Where any motion is granted, the Court orders the parties and their attorneys to advise all witnesses: 1. Not to mention, refer or attempt to convey to the jury any evidence excluded or limited; and 2. Not to make any reference to the fact that any Order was made on a mot...

Excerpt: ...laintiff's medical condition has greatly evolved since the action was filed. Defendants appear to have initially read the case as much more limited in terms of damages than it is turning out to be. Plaintiff does not demonstrate any prejudice, other than further delay. On the other hand, the case is very old and it has been nearly six years since the case was filed. Plaintiff complains that Defendants have not acted diligently in the discovery pr...

Excerpt: ... be a proper document that the Court can take judicial notice of. However, the same document is attached as an Exhibit to the Cross Complaint so it may still be properly considered. 3. The Court takes judicial notice of Exhibit J. Defendants, Cross‐Complainants' Request for Judicial Notice: 1. The Court takes judicial notice of the existence, filing and legal effect of Exhibits A through D and F but not of the truth of matters asserted in these...

Excerpt: ...rms” of the sales agreement Plaintiffs executed with Metro Nissan which contain the arbitration provision. (In re Henson (9th Cir. 2017) 869 F. 3d 1052, 1060 [“We expressly rejected Toyota's argument that the plaintiffs' claims were necessarily based on the Purchase Agreements merely because the lawsuit was predicated on the bare fact that a vehicle purchase occurred.”], citing Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, 112...

Excerpt: .... Motion: The motion is denied. Moving party has failed to demonstrate the existence of an arbitration agreement between Plaintiffs and Defendant. Preliminarily, the language of the arbitration provision plainly does not give Defendant the right to compel arbitration as a third‐party beneficiary or otherwise. Rather, the language refers to types of disputes between Plaintiff and the Dealership which may be arbitrated by Plaintiff or the Dealers...

Excerpt: ... (5) United Site Services, Inc. and Sanctions (continued from 11/09/ and 11/15/22) Tentative Ruling: The motions are granted in part and denied in part. Plaintiff's Evidentiary Objections: The objections are overruled. Like motions to strike at trial, evidentiary objections must be specific and particularized. It is not the Court's burden to guess which portions of the proffered evidence are subject to the objection; the burden is on the objectin...

Excerpt: ...ond by one of the following: (1) an agreement to comply; (2) a representation of inability to comply; or (3) a legitimate objection to all or part of the demand. (Code Civ. Proc., § 2031.210, subd. (a).) A representation of a party's inability to comply must state: (1) that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and (2) the reason the party is unable to comply: e.g., the document: never e...

Excerpt: ...ntiff's ‘claim' for unjust enrichment as a claim for relief. See, e.g., Ghirardo v. Antonioli, 14 Cal.4th 39, 50 (1996) (recognizing that a plaintiff may advance a stand‐alone claim for unjust enrichment, particularly where he or she seeks restitution and other remedies are inadequate). These courts focus on whether the facts demonstrate a defendant's unjust receipt of some benefit. Other courts cast unjust enrichment as an effect: it is simp...

Excerpt: ...is a cause of action. A district court has succinctly summarized the conflict as follows: Some courts have read a plaintiff's ‘claim' for unjust enrichment as a claim for relief. See, e.g., Ghirardo v. Antonioli, 14 Cal.4th 39, 50 (1996) (recognizing that a plaintiff may advance a stand‐alone claim for unjust enrichment, particularly where he or she seeks restitution and other remedies are inadequate). These courts focus on whether the facts ...

Excerpt: ...tion is denied. Certification is not appropriate because (a) Plaintiffs fail to present any facts or evidence that Zhigang, Guduan, Haixia, Zhao, and Liu can be shown to have personally engaged in any of the alleged wage‐and‐ hour violations; (b) Plaintiffs fail to establish the proposed class suffered similar wage‐andhour violations, i.e., typicality2 is lacking; (c) Plaintiffs fail to establish that proving their wage‐and‐hour claims ...

Excerpt: ...pose or address this issue in their opposition and the Court determines that the Order sustaining the demurrer for failure of the facts alleged is considered a judgment on the merits. (See Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 333‐334. Furthermore, "the same facts are pleaded in the second action [citation], [and] …, the new complaint contains the same defects as the former." (Id at 334.) 2. Eighth Cause of Action for Wrongful Forecl...

Excerpt: ...excuses further performance by the innocent party.” (De Burgh v. DeBurgh (1952) 39 Cal.2d 858, 863.) However, “[a] contract is totally breached and an anticipatory repudiation occurs when the promisor without justification and before he has committed a breach, makes a positive statement to the promisee indicating that he will not or cannot substantially perform his contractual duties.” (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d ...

Excerpt: ...een corrected. Plaintiffs' allegations appear largely, if not entirely, identical to those previously pleaded in their First Amended Complaint (FAC). For the same reason they failed before, they still fail. Plaintiffs have not alleged facts to support a misrepresentation cause of action against Defendants. 2 Most of Plaintiffs' allegations involve suggestions of fraud, rather than factual allegations of fraud, against Defendants. For example, in ...

Excerpt: ...e judicial notice of two published California appellate opinions. Because the opinions are authority, not evidence, judicial notice is unnecessary. Demurrer: The demurrer is sustained, without leave to amend. The action is barred by the statute of limitations. The general limitation period for an action against a notary in his official capacity is three years. If the action is based on notarial malfeasance, as is the case here, the action must be...

Excerpt: ... Court to consolidate the UD action or stay enforcement of a judgment from another court that is on appeal. While technically, for purposes of consolidation, the other action still is pending (Code Civ. Proc., § 1049), what exactly the Court would be consolidating is unclear. Motion to Stay Unlawful Detainer Judgment: The motion is denied, without prejudice. Generally the UD judgment is binding upon this Court unless the judgment is properly ove...

Excerpt: ...to amend, as Plaintiff concedes in her Opposition that she is no longer pursuing these claims. 2. First (violation of Civ. Code, § 2923.5), Third (violation of Civ. Code, § 2924.9), Fifth (wrongful foreclosure), and Eighth (cancellation of written instruments) Causes of Action: The demurrers are sustained with leave to amend. From the allegations and exhibits attached to the Complaint, Plaintiff is not a borrower on the foreclosed loan. She has...

Excerpt: ...f of service of the motion on file. But ultimately Respondent waived the lack of service by filing a substantive opposition. Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342‐43; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”...

Excerpt: ...ruled the demurrer for uncertainty and sustained the demurrer, without leave to amend, as to the First, Second, Third and Fourth Causes of Action. With respect to the Fifth Cause of Action for Trade Libel, the Court overruled the demurrer as to Defendant Tran and, as to Defendant Papadotos, sustained the demurrer, with thirty days leave to amend. The Court also ruled that to the extent the Sovereigns claimed that the pleading the Court treated as...

Excerpt: .... The rulings assume, to some extent, what evidence will be presented and that issues are germane, which may not turn out to be the case. The Court reserves the right to exclude any such evidence upon proper objection during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. I. PLAINTIFF'S MOTIONS IN LIMINE: Motion in Limine #1 – Exclude Evidence Regarding Alleged Absence of Prior Similar I...

Excerpt: ...tice, and [(2)] lack of prejudice, to the defendant, and [(3)] reasonable and good faith conduct on the part of the plaintiff.' (Addison, supra, 21 Cal.3d at p. 319.) These requirements are designed to ‘balanc[e] … the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the [operative] limitations statute.'” Saint Francis Memorial Hospital v. State Dept. ...

Excerpt: ...mary judgment. Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528 “a trial court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court may treat the supporting papers as curing the defective notice. [Citations.]” Luri v. Greenwald (2003) 107 Cal.Ap...

Excerpt: ...mpany (HUDSON) was the value of the subject vehicle, i.e., $5,999 [as agreed by the parties in the summary adjudication facts]. Hudson paid that amount and an additional dollar, thus, all relief afforded under Vehicle Code § 11711, subdivision (a), was afforded. While Plaintiffs assert, under DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158 (“DeSaulles”), that they are the prevailing party as the dismissal c...

Excerpt: ...t evidence appears to show.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115. The Court cannot decide this issue by demurrer. Moreover, the document is not properly authenticated. Defendant's Evidentiary Objection: 1. overruled. 2. sustained 3. sustained 2 Demurrer: Preliminarily, the Court does not consider Plaintiffs' First Amended Complaint (FAC) to be a “sham pleading.” Plaintiffs assert that the vehicle co...

Excerpt: ...October 14, 2022. The current responses potentially leave open the possibility that some documents, beyond the privileged documents, were withheld pursuant to the privilege or some other objection since only a list of what items Defendant Ozuna was willing to produce was provided and production was made without waiving the objections. (See Code Civ. Proc., § 2031.220 [outlining the requirements of a document demand response].) 2. The witness sta...

Excerpt: ...rwise indicated, a Supreme Court order granting review of a published opinion will be deemed to incorporate a provision that pending review, the appellate court opinion may be cited “not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to 2 exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to...

Excerpt: ...e each legal theory for which she seeks recovery. (Cal. Rules of Court, Rule 2.112.) Additionally, the specific acts for which Plaintiff seeks recompense are very confusing. 2. The demurrer to the referenced “emotional tort” claim (which the Court construes speculatively that this is an intent to allege some type of emotional distress claim) is sustained because the complaint fails to adequately allege (a) outrageous conduct; and (b) intent o...

Excerpt: ... Order. The offers now made by Defendants to narrow the subpoena should have been proposed and agreed to during their meet and confer. It is unclear to the Court why these things were not done. In the future, the Court orders the parties to engage in an Informal Discovery Conference with the Court prior to filing any future discovery motion. The Court orders as follows: 1. Order applicable to all requests, except as otherwise noted: a. All of the...

Excerpt: ...1403.) Although the Complaint alleges when Plaintiff Cruz purchased the vehicle and took it in for repairs, those dates are not demonstrated dates he knew or should have known that Defendant General Motors (GM) concealed that the Subject Vehicle was sold with a defective transmission. Thus, from the face of the pleading, it cannot be said the fraud claim is time‐barred. The cause of action is not barred by the Economic Loss Rule. The allegation...

Excerpt: ...l.App.4th 1242, 1249‐ 50 [“Puerto”].) But individuals under the California Constitution have a right to privacy that protects their information, i.e., medical, financial, and employment records. (Williams v. Superior Court (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 552. [“Williams”]; Hill v. National Collegiate Athletic Assn (1994) 7 Cal.4th 1, 52. A privacy interest is invaded if there is “a legally protected privacy interest, an o...

Excerpt: ... to meet and confer, the remainder of his declaration is improper and thus, not considered. The entire declaration of Plaintiff's Counsel is improper so it was not considered. 1.‐3. sustain 4. overrule (pertinent to meet and confer) 5. sustain 6. overrule (pertinent to meet and confer) 7.‐9. sustain Request for Judicial Notice: The Court overrules Plaintiff's objections to Exhibits A, B, and D attached to Defendant's Request for Judicial Noti...

Excerpt: ...anuary 2021 Terms: 1.‐8. Overrule Defendants' Request for Judicial Notice: The Court grants judicial notice of the Complaint pursuant to Evidence Code §452 (d) but denies judicial notice of the proof of services, as irrelevant, and the arbitration rules, as no ground exists to judicially notice a private company's rules and procedures. Motion: The motion is granted as to Plaintiff Christopher Wend but denied as to Plaintiff Valorie Wend. Preli...

Excerpt: ...s follows: 1. Plaintiff's counsel has improperly cited to Plaintiff's additional facts rather than directly to opposing evidence in response to many of Defendants' submitted material facts in violation of California Rules of Court, rule 3.1350(f) (2). 2. Plaintiff's counsel failed to provide only the specific deposition transcript page, rather than the entirety of various transcripts and failed to mark the relevant portions of the deposition in a...

Excerpt: ...rney's position with respect to this discovery. There was no real effort on the part of defense counsel to resolve a very simple issue involving an error which everyone involved understood to be clerical. The face page of the discovery clearly indicates who the Plaintiff is and the wrong name is clearly a typographical error and one that should have been agreed to have been corrected instead of requiring the Court to read and hear these motions. ...

Excerpt: ...iod. The statute which allows for relief from forfeiture provides for equitable relief to a defaulted tenant following entry of judgment. It is an equitable proceeding in which the Court balances the hardship to each party in either enforcing the judgment for possession in favor of the landlord or allowing for the reinstatement of the lease in favor of the tenant. After balancing the hardships, the Court determines that the hardship to Defendant ...

Excerpt: ...22 Cal. 4th 1084, 1095. The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615. “[Parties] are not entitled to compensation for this work merely because it was performed. It was their burden to persuade the trial court the work was reasonably necessary, both as to the particular tasks performed and the amount of ...

Excerpt: ...ld “make clear the specific ground of the objection.” (Evidence Code, § 353; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 764 [failure to cite Evidence Code, § 801 (governing admissibility of expert opinion) or make “coherent argument” in support of objection constituted “abandonment of the objection”].) As to all the objections, the statement opined in Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 764, fn. 6, is ap...

Excerpt: ...s to conflate the elements of promissory fraud and misrepresentation of fact. In this regard, the allegations are confusing, the basis for the claim is unclear, and the “when,” “where,” and “how” particulars of Defendant Seymen's purported promissory fraud or misrepresentations are not alleged. The detrimental reliance element also lacks specificity. b. Promises to forward payments are also not assertions of fact and it is unclear how...

Excerpt: ...al Interrogatory Nos. 69, 76‐77, 80‐81, and 92‐93. Sanctions are denied as to either party as the result was mixed. Plaintiff's Motion to Compel Further Responses to Request for Production (Set 2): The motion is granted. Defendant City of San Bernardino is ordered to provide further verified code‐compliant2 answers, without objection, and any responsive documents, to Request 1Throughout all of the motions, Plaintiff's tone is antagonistic...

Excerpt: ...000) 22 Cal. 4th 1084, 1095. The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615. “[Parties] are not entitled to compensation for this work merely because it was performed. It was their burden to persuade the trial court the work was reasonably necessary, both as to the particular tasks performed and the amoun...

Excerpt: ...uired to sustain such objections. (See W. Pico Furniture Co., supra, 56 Cal.2d 407 at pp. 417‐418 [discussing the need for evidence related to objections on burden grounds].) Similarly, no evidence was submitted as to the trade secret objection in order to show that the information or documents withheld actually constitute a trade secret. While GM did submit the declaration from Lu, the declaration is more than three years old and was therefore...

Excerpt: ...e evidence to be stricken, “. . . especially where only part of it is objectionable.” OCFCD v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 753; 3 Witkin, California Evidence (4th Ed. 2000), Presentation at Trial, §383, pp. 475‐476; cf. Rose v. State of California (1941) 19 Cal.2d 713, 742 [“A motion to strike out inadmissible evidence may be properly denied where it is general and embraces evidence which is admissible as well as th...