Excerpt: ...l investigation and analysis of the Electrical System Defect plaguing Plaintiff's vehicle and establishing Defendant knew of such defect and knew it could not repair it, but failed to repurchase the vehicle. Although Plaintiff is correct that Defendant did not substantiate its object based on burden, information regarding other customers' vehicles and bulletins and recalls that do not apply to Plaintiff's vehicle are not relevant to the issues in...

Excerpt: ...n matter”) bars Cross-Complainants from obtaining the same easements the Sloan plaintiffs obtained. However, there is no prior judgment against Cross-Complainants in favor of Cross- Defendant finding the Cross-Complainants do not have an easement, i.e., the prior judgments made no determination of whether Cross-Complainants have easements. (See Cross-Defendant's RFJN, Exh. 1.) Because the issue of Cross-Complainants' easement rights was not pre...

Excerpt: ... Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construction means that ...

Excerpt: ...City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of lib...

Excerpt: ...all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice...

Excerpt: .... (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939; Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439.) In addition, “[t]he doctrine [of unjust enrichment] applies where plaintiffs, while having no enforceable contract, nonetheless have conferred a benefit on defendant which defendant has knowingly accepted under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. The...

Excerpt: ...� 9 and Exhibit 7.) The central dispute between the Plaintiff and Bryan Cave pertains to whether Bryan Cave has validly asserted the attorney-client privilege and attorney work product doctrine to the documents listed in the privilege log. “Code of Civil Procedure section 2025.480 provides in part, “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponen...

Excerpt: ...ause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims f...

Excerpt: ...the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 123...

Excerpt: ...be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transporta...

Excerpt: ...nd 17.1). Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080 provide the authority for the court to issue a protective order regarding the discovery requests at issue. Plaintiff first contends, “Here, the duty to warn, train or educate USA Swimming's staff or minor swimmers on the issue of child hood sexual abuse simply did not exist at the time of Plaintiff's alleged abuse. Defendants cannot be liable for the breach of a nonexis...

Excerpt: ...ting the initial papers seeking summary judgment on the complaint, preparing the trial brief re complaint, calculating prejudgment interest on the judgment on the promissory note, and asserting the parol evidence argument on appeal to preserve the judgment on the complaint. For this work, plaintiff incurred a reasonable number of attorney fees at a reasonable rate. (See generally PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Notably, the M...

Excerpt: ...of the law does raise a presumption that the violator was negligent. This is called negligence per se.”]; see also Evid. Code § 669, and CACI 400 and 418.) Under the doctrine of negligence per se, the plaintiff “borrows” statutes to prove duty of care and standard of care, but still has the burden of proving causation. (David v. Hernandez (2014) 226 Cal.App.4th 578, 584.). Since the law does not permit an independent cause of action for ne...

Excerpt: ...t the age of 66”  ¶ 28, “and attempts to evict Decedent from her home”;  ¶ 31(D), “Defendant Gonzales attempted on several occasions to evict Decedent from her real property residence, causing Decedent great stress and illness.” Defendant met his initial burden to show the complaint arises, at least in part, from protected conduct. (See Code Civ. Proc., § 425.16, subds. (b), (e)(2).) When a “claim for relief” is “based on...

Excerpt: ...r the UCL is overruled. The demurrers to the fifth through eighth and the tenth causes of action are sustained with 15 days leave to amend. Demurrers for uncertainty are overruled. 9th COA for Unlawful and Unfair Business Practices (B&P Code Section 17200) At the outset, the Court notes that Plaintiff objects to Defendant's memorandum because it violates Rule 3.1113(d) because it is 19 pages long, instead of the maximum 15 pages. CRC 3.1113(d) (�...

Excerpt: ...on itself, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” CCP § 435(b)(1). “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems roper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436(a). Regarding punitive damages under Civ. Code...

Excerpt: ...191, subd. (a).) The complaint alleges defendant ordered goods from plaintiff, who manufactured and shipped them to defendant, who failed to pay for it. (Compl. ¶¶ BC-1. BC-2.) Defendant offers scant evidence this contract involved intrastate commerce. Defendant fails to show plaintiff negotiated the deal in California, manufactured the goods in California, or shipped them within California. Defendant ties plaintiff to California only by statin...

Excerpt: ...le and serve a supplemental brief addressing the amount of the reasonable attorney fees it had incurred to obtain the default of the Defendants. Plaintiff did not file any supplemental briefing. Accordingly, there is no proof before the Court of the amount incurred by the Plaintiff to obtain the defaults and the Court deems Plaintiff to have declined to pursue such an award. Accordingly, the Court now rules as follows: The motions of Defendants T...

Excerpt: ...tiff resides out of state or is a foreign corporation, and (2) there is a “reasonable possibility” the moving defendant will prevail. (CCP § 1030(a).) A “reasonable possibility” does not require defendant to show that there was no possibility that plaintiff could win at trial, but only that it was reasonably possible that defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [“reasonable possibility” s...

Excerpt: ...ed materials. The “taxpayer” privilege is thus directly at issue here. (See Webb v. Standard Oil Co. of Calif. (1957) 49 Cal.2d 509, 513-514.) But that privilege is not absolute. (Schnabel v. Sup.Ct. (Schnabel) (1993) 5 Cal.4th 704, 721.) Plaintiffs' Complaint puts the financial performance of Griffin's Grill (“Grill”) during the 2017- 2018 period directly at issue. (Complaint ¶¶ 9-17.) For example, Plaintiffs claim that they were damag...

Excerpt: ...Roldan v. Callahan & Blain (2013) 219 Cal.App.4th 87, in which our Court of Appeals created a procedure to excuse an indigent party from arbitration fees. In Roldan, the Court of Appeals remanded with direction to the trial court to make a determination concerning the plaintiff's ability to pay for arbitration. (Id. at 96.) The Court of Appeals instructed: “If the court determines that any plaintiff is unable to do so, it must issue an order sp...

Excerpt: .... reasonable attorneys' fees and expenses.” (8/22/19 Jones decl., Ex. 1 ¶ 12.9.) Notably, this is not an action on the written contract containing the attorney fee clause. (Cf. Civ. Code, § 1717.) This is instead an action on alleged oral agreements and for equitable contribution. Nonetheless, the attorney fee clause is “phrased broadly enough” to support an attorney fee award to the prevailing party here. (See Santisas v. Goodin (1998) 1...

Excerpt: ...e existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. To satisfy the moving party's initial burden, the petition or motion must be accompanied by prima facie evidence of a written agreement to arbitrate the controversy in question. In ruling on the petition or motion, the court must deter...

Excerpt: ...CP § 2031.220 or § 2031.230 as applicable. In addition, Plaintiff must produce its responsive documents to the Defendant within 10 days. Defendant is awarded sanctions of $3,512, payable by Plaintiff within 45 days. Defendant shall give notice of this ruling. Motion to Compel Compliance or Further Responses Plaintiff has waived the ability to object to Defendant Wright Finlay's' RFPs 66 and 67 in RFPD Set Two. As such, Plaintiff is not in a pos...

Excerpt: ...nce or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, CCP § 598 provides that, within the same trial, the court may, “when the convenience of witnesses, the ends of just...

Excerpt: ...a triable issue of material fact. (See Code Civ. Proc. § 437c, subd. (p)(2); Aguilar, supra 25 Cal.4 th at 849-850). Defendant's motion expressly relies on plaintiff “looking where she was walking” (Def. SSUF #2.) By including this fact in the separate statement, defendant represented that it was in fact material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; see also Cal. Rules of Court, rule 3.1350(d)(2).) Plaintiff ...

Excerpt: ...y Larwin, the court must accept that construction on demurrer. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) The Demurrer as those COAs is therefore overruled. For COAs 9 and 10, the XDs assert that the names of the individual tenants and the terms of the contracts with each must be alleged, citing The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, and Westside Center Associates v. Safeway Stores 23...

Excerpt: ... 826, 850-851.) First, defendants fail to “completely dispose[] of” the claim. (Code Civ. Proc., § 437c, subd. (f)(1).) “‘If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.'” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 163.) Defendants fail to address numerous allegations supporting the punitive damages claim, including:  Bisio knew...

Excerpt: ...he defendant of the nature, source, and extent of [the] cause[s] of action'” against it. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858.) Further, the general allegations fall short of the standards for alleging fraud claims. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 (“general and conclusory allegations do not suffice”); Committee on Children's Television, Inc. v. General Foods Corp. (...

Excerpt: ...nuary 2011, agents from the US Department of Education (“DOE”) conducted an audit of defendant's beauty school to determine proper use of federal student aid funds. The DOE reviewed 58 student files. Defendant participated in the audit and learned at that time of only minor, correctible issues. The school was downgraded from HCM1 to HCM2 to permit the DOE more control over its handling of financial aid. According to defendant, she heard nothi...

Excerpt: ...ry, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-21. ) Under the Code, “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.” (CCP § 2030.010.) Under th...

Excerpt: ... apply to summary judgment, the court finds that Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228-29, is the better reasoned decision, and that the facts set forth in plaintiff's evidence do not constitute a “default,” “default judgment,” or “dismissal.” (See Code Civ. Proc. § 473, subd. (b)). Plaintiffs' evidence fails to establish that the failure to attach Mr. Jones' declaration to the moving papers was caus...

Excerpt: ...gs, they allege that they were terminated on or about March 6, 2014 after they complained to the DFEH about alleged FEHA violations by Uni-Caps. Their operative SAC alleges wage and hour violations and discrimination based on their Korean descent. Uni-Caps' answer raises numerous affirmative defenses, including the after-acquired evidence doctrine. As discussed in the order granting Uni-Caps leave to file the cross-complaint, Uni-Caps learned at ...

Excerpt: ...��A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of the summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum. . . .” “On a challenge to personal jurisdiction by a ...

Excerpt: ...��Attorney Rader”). Attorney Rader is attorney of record for Plaintiff Abernethy. Attorney Rader is not attorney of record for the Law Offices of Hagendorf & Abernethy (the “Partnership”), Rader has been filing papers on behalf of the Partnership since 08/2019. Standing. A complaining party who files a Motion to Disqualify is required to have standing.” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352.) Where a Motion for Disqualification ...

Excerpt: ...ions must be submitted as well. As to the Settlement: 1. Exhibit 1 to the Spivak Declaration is supposed to be Plaintiff's letter to the LWDA. Exhibit 1 as filed is the original complaint in this matter. Please provide a copy of Plaintiff's letter to the LWDA so the Court may evaluate compliance with pre-filing requirements for PAGA claims. 2. The “Eligible Employees” under the settlement are defined as all non-exempt hourly employees of Defe...

Excerpt: ... unopposed motions to compel responses from Defendants Estrada Trucking Company, Caleb Estrada Vasquez, Gabriel Estrada, and Romeo Estrada to special interrogatories, form interrogatories, and requests for production of documents, are granted. A propounding party may move for an order compelling responses to interrogatories at any time “[i]f a party to whom interrogatories are directed fails to serve a timely response.” (Code Civ. Proc., § 2...

Excerpt: ...the Company, or its officers, agents or other employees . . . [¶] includ[ing] but [] not limited to . . . claims for wages and other compensation, . . . and claims for violation of any of the federal, state, or other government law, statute, regulation, or ordinance . . .” Plaintiff's complaint alleges claims which fall within the arbitration provision. Plaintiff alleges that the provision cannot be enforced because it is both procedurally and...

Excerpt: ...ions must be submitted as well. As to the Settlement: 1. Exhibit 1 to the Spivak Declaration is supposed to be Plaintiff's letter to the LWDA. Exhibit 1 as filed is the original complaint in this matter. Please provide a copy of Plaintiff's letter to the LWDA so the Court may evaluate compliance with pre-filing requirements for PAGA claims. 2. The “Eligible Employees” under the settlement are defined as all non-exempt hourly employees of Defe...

Excerpt: ...1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity ...

Excerpt: ... of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) The elements of a cause of action for breach of contract are: (i) the existence of a contract; (ii) the plaintiff's performance or excuse for nonperformance; (iii) the defendant's breach; and (iv) damage to the plaintiff resulting from the breach. (Oasis West Realty, LLC v....

Excerpt: ...urt, submitted an amended settlement agreement without a redline showing all changes, deletions and submissions. The Court reminds counsel that if a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well. Late papers will not be accepted. The Court continues to have serious concerns about how carefully the settlement materials were drafted and whet...

Excerpt: ... and additions must be submitted as well. As to the Settlement: 1. Exactly how many persons are in the class, and approximately how many allegedly noncompliant sparkplugs are at issue? The Court needs both figures in order to evaluate the fairness of the settlement. 2. When will coupons be mailed relative to final approval? This information does not appear to be in the parties' Stipulation (“Stip.”). 3. The coupon option offers class members ...

Excerpt: ...tions against Plaintiffs in connection with discovery. Plaintiffs argue that the order must be “clarified” because it was based on misinformation provided by Defendants at the hearing of the matter. Plaintiffs also argue that pursuant to a private agreement between the parties, the motions to compel which were the basis of the sanctions were to have been taken off- calendar. The Court's original order does not require clarification. Defendant...

Excerpt: ...rupsky v. Ford Motor Company, No. 2013-00662411. Plaintiffs object to this request on the grounds that Ford asks the Court to take judicial notice of the truth of Mr. Taylor's statements and the content of his opinions, not their mere existence. Plaintiff's objection is SUSTAINED, and Ford's request for judicial notice is DENIED. The Court has not considered Mr. Taylor's declaration. Plaintiffs have also filed evidentiary objections to the declar...

Excerpt: ...se submit the LWDA letters of all plaintiffs in the Wade, Rafael, Thomas and Ortega matters currently pending in this Court so the Court may review compliance with PAGA pre-filing requirements. 2. Other than the Actions (as that term is defined in the parties' Stipulation and Agreement (“Stip.”)), are the parties aware of any other pending matters that will be affected if this settlement is approved? 3. How many Eligible Employees are there, ...

Excerpt: ...aintiff's Request for Judicial Notice is granted. The Euland Parties' Request for Judicial Notice is granted as to #2-8 and 10-14, and is denied as to #1 and 9. However, when the court takes judicial notice of documents, it does not accept the truth of matters stated in those documents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. Petitioner/Plaintiff's Second Cause of Action alleging CEQA violations is barred ...

Excerpt: ... Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant's knowledge. (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertain...

Excerpt: ... of Civil Procedure section 395, subdivision (a), because the individual Defendants reside in Orange County. (Opp. at p. 2; FAC, at ¶ 14.) However, the general rule applies only if no special venue rules apply. (See Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2019) Venue § 9.5 [the phrase “except as provided by law” is “a subordinating declaration that permits application of the general venue rule of CCP § 395(a) only if ...

Excerpt: ...4) 230 Cal.App.4th 666, 681; Kiseskey v. Carpenters' Trust for So Cal. (1983) 144 Cal.App.3d 222, 228.) Pursuant to Government Code section 815, subdivision (a), a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person, except as otherwise provided by statute. (Gov. Code, § 815.) “It is a well-settled rule that ‘[t]here is no common law gov...

Excerpt: ...iary objections in opposition to that motion. MOTION FOR PROTECTIVE ORDER AND ORDER APPOINTING DISCOVERY REFEREE Defendants Irvine Company LLC, The Irvine Company Apartment Communities, Inc., Newport Bluffs LLC, and The Newport Bordeaux Apartments' motion for protective order and order appointing a discovery referee is granted in part and denied in part. Defendants are granted four additional hours to depose Plaintiff. Further, the court will app...

Excerpt: ...ere, Jose de Jesus Gutierrez Mercado (“Mercado”), was a class action plaintiff, not just an individual plaintiff. Yet Gutierrez has not filed any reply to the opposition, let alone anything at all addressing defendants' important factual assertion. The court concludes that when Gutierrez received the notice of class action settlement in Mercado's case, he should have sent it to his lawyer or discussed it with him. In fact, from the very outse...

Excerpt: ...(Govt. Code, § 900, et seq.) provides that, with certain specified exceptions, a person seeking to sue the state or a local public entity for money or damages must first present a claim to the public entity. Generally, no suit for money or damages may be brought until a timely claim has been filed and acted upon by the public entity. (Govt. Code, § 945.4.) “Under [Government Code] section 911.2, ‘[a] claim relating to a cause of action for ...

Excerpt: ...um must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or un...

Excerpt: ... cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” Navellier, supra, 29 Cal. 4th at 89. In order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have “'stated and substantiated a legally sufficient claim.'” Briggs v. Eden Counc...

Excerpt: ...uding his mental state.” Mem. Supp., at p. 5. Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. (The Rutter Guide, Cal. Proc. Before Trial, § 8:293, citing inter alia, Britt v. Sup.Ct. (1978) 20 Cal. 3d 844, 855–56, & Pioneer Electronics (USA), Inc. v. Sup.Ct. (2007) 40 Cal. 4th 360, 370 [right of...

Excerpt: ...on of documents results in a waiver of any objections to the requests. CCP §§ 2030.290(a) and 2031.300(a). If a party to whom interrogatories or requests for production of documents is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §§ 2030.290(b), 2031.300(b). If a party to whom requests for admission were directed fails to serve a timely response, t...

Excerpt: ...nd respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless it determines that the right to compel arbitration has been waived by the petitioner or that grounds exist for the rescission of the agreement. Code Civ. Proc. § 1281.2. A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such...

Excerpt: ...ry objections are all overruled because they do not comply with the requirements in CRC 3.1354(b), which requires each written objection to be numbered consecutively. Defendant's objections 1-10 to the expert declaration of Angelina Maria Arturo, D.P.T., R.P.T. are overruled. Defendant's objections 1-7 to the declaration of plaintiff Carmen Casas Guerrero are overruled. Defendant's objections 1-6 to the declaration of David Guerrero are overruled...

Excerpt: ...unattended for 30 minutes after administering medications. (TAC, ¶ 1.) Moving Defendants submit the expert declaration of Steven T. Forman, M.D., who is board- certified in cardiovascular diseases, interventional cardiology, and venous and lymphatic medicine and who attests that he has performed hundreds of percutaneous coronary intervention procedures such as the one performed by Defendant Cobb. Dr. Forman attests that, based on his review of t...

Excerpt: ...en to produce admissible evidence on each element of its causes of action entitling him to judgment on the causes of action. (CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) Only if the plaintiff meets its burden does the burden shift to the other side to present specific facts establishing a triable issue of fact. (CCP §437c(p); Aguilar v. Atlantic Richfield (2001) 25 Cal.4th at 845.) “In...

Excerpt: ...ssues: Defendants' separate statement does not comply with California Rule of Court 3.1350(b), because it does not state verbatim the issues for summary adjudication as they are given in the notice of motion. Nevertheless, given that it is clear as to which causes of action Defendants seek summary adjudication, this defect is not prejudicial. The Court DENIES defendants' request for judicial notice of Exhibits A through D. Exhibit A is deposition...

Excerpt: ...Cal.4th 245, 255. Therefore, it is Plaintiffs' burden to present competent evidence that the exclusion of Valencia from Deponents' depositions is warranted. Pursuant to Code of Civ. Proc. § 2025.420, a court may, “for good cause shown,” make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden or expense. Included with...

Excerpt: ...This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2024.050(a).) “The court shall take into consideration (1) The necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Any likelihood tha...

Excerpt: ...sumers were mailed to approximately 20 individuals pertaining to their loan files, which were requested in connection with some of the requests for production of documents. Although omitted in the moving papers and the Carlin Declaration, based on an email dated 10/4/19 from VOM's counsel to Attorney Martin, nonparty Hebert Borja, one of the consumers, did object to the deposition subpoena. Ex. D. There is no information in the moving papers rega...

Excerpt: ...dments of pleadings are allowed in theory at any time in furtherance of justice, and while courts generally exercise liberality in permitting amendments, the Court must also consider whether prejudice will result to the other parties. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; W&W El Camino Real, LLC v. Fowler (2014) 226 Cal.App.4th 263, 270.) Prejudice exists where the amendment would require delaying the trial, add to the costs of ...

Excerpt: ... no. 30-2016-00888891, is granted. Code of Civil Procedure section 1281.2 provides, inter alia: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it...

Excerpt: ...ears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action ...

Excerpt: ...ettlement until performance in full of the terms of the settlement.” Pursuant to Code of Civil Procedure section 664.6, the following must be shown: (1) there is a valid and binding settlement agreement of all or part of the case; (2) the parties agreed to all material settlement terms; (3) if it is a written stipulation, the writing is signed by both parties; (4) the settlement agreement was made pending litigation; and (5) a motion to enforce...

Excerpt: ...papers, including the proposed letter to the aggrieved employees. The Status Conference set for January 10, 2020 is ordered off calendar. Since the amount of the proposed settlement is so small, as to both the total settlement and the average aggrieved employee's individual payment, the court requires more details as to the “data, information and documents produced by defendant” that led to the settlement. Plaintiff must inform this court as ...

Excerpt: ...:00 a.m. Although plaintiffs' First Amended Complaint alleges compliance with the Government Claims Act, plaintiffs' compliance was untimely. Gov. Code §911.2 requires that a claim be presented not later than one year after the accrual of the cause of action. Plaintiffs allege that on May 23, 2016 they received notice from defendant M.A.S. that their tenancy would be terminated on October 31, 2016, and OCTA forced the car wash off the premises o...

Excerpt: ...romise cannot recover its post-offer costs and shall pay the defendant's costs from the time of the offer. (Code Civ. Proc., § 998, subd. (c)(1).) The purpose of Code of Civil Procedure section 998 is to encourage the settlement of litigation without trial. To effectuate this purpose, a 998 offer must be made in good faith. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262; Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1529 [settlement ...

Excerpt: ... economic loss rule because Plaintiff has not alleged that there was any personal injury or property damage, and because Defendant's only duty to Plaintiff arose through their warranty contract. The Seventh Cause of Action alleges, in effect, that Defendant failed to disclose to consumers that the vehicle's diesel engine and attendant systems had numerous defects, of which Defendant became aware during the design and manufacturing process. (Compl...

Excerpt: ...uction of documents. Cal. Civ. Proc. Code § 1987.1(a), (b). The court “may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Id. § 1987.1(a). The subpoena seeks a broad category of documents related to any alleged assault, battery, robbery, violent crime, murder, sexual crime, or any other behavior that allegedly...

Excerpt: ...0.290(a) and 2031.300(a). If a party to whom interrogatories or requests for production of documents is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §§ 2030.290(b), 2031.300(b). Similarly, if a party to whom requests for admission were directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any do...

Excerpt: ...dant's insurance carrier agreed to defend the case under a reservation of rights and filed an answer on Defendant's behalf. Defendant's counsel states that “all efforts to locate Defendant and obtain his cooperation and participation in this litigation have been unsuccessful,” including internet database research and the retention of process servers and a private investigator. Goldman Decl. ¶ 5. The court in Brigante v. Huang (1993) 20 Cal.A...

Excerpt: ...s at issue in this motion. Accordingly, Defendant's motion is DENIED as MOOT. Defendant to give notice. MOTION NO. 2: Defendant Knott's Berry Farm LLC moves to compel Plaintiff Jennifer Spradlin to provide further responses to Defendant's Special Interrogatories, Set One, Nos. 1, 2, 4, 23, 31, and 51. Plaintiff has submitted evidence to show that on October 24, 2019, Plaintiff served via mail Supplemental Responses to Special Interrogatories, Set...

Excerpt: ...ia state law – certainly none that they have cited - which would explicitly authorize the requested relief, at least in the trial court. Clearstone and Mr. Katz cite to federal case law for the proposition that amici curiae briefs may be filed at the trial court level, but these cases expressly discuss the practice as a potential vehicle for intervenors to raise issues without submitting to the court's jurisdiction. See e.g. In re Bayshore Ford...

Excerpt: ...g in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates. (c) Notice of motion shall be served on the principal and sureties at least 30 days before the time set for hearing of the motion. The notice shall state the amount of the claim and shall be supported by...

Excerpt: ...ly reinstated contractor's licenses belonging to Atkinson Contractors LP [“Atkinson”], Walsh Construction Co. [“Walsh”], and Atkinson / Walsh Joint Venture [“AWJV”]. [Collectively “Contractors” or “Real Parties in Interest.”] Petitioners allege that Respondent acted in excess of its authority in reinstating Contractors' licenses and deprived them of a defense under B&P §7031 in a separate action between Petitioners and Contra...

Excerpt: ...rshaki against Defendant Mid-Century Insurance Company. The operative verified First Amended Complaint was filed on 4/17/19. The FAC alleges causes of action for: (1) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (2)-(5) Insurance Bad Faith. No trial date is set. MOTION NO. 1 – Demurrer to the FAC Defendant, Mid-Century Insurance Co. demurs to the 1 st – 5 th causes of action for failure to state a cause of action. Defend...

Excerpt: ..., 34, 35, 36, 37, 38, 39, 40, 41, 42, 53, 54, 62, 67 and 69; and pay sanctions in the amount of $1,110.00. Defendant seeks the sanctions against both plaintiff and his counsel. Facts/Overview: Plaintiff contends that he was enrolled in the special education division of Glenn Yermo Elementary School. He contends Mitchell Schneider was an instructional assistant. He claims Schneider would “shake, push shove, hit, yank or otherwise abuse” plaint...

Excerpt: ...ult; (9) IIED; (10) negligent hiring, supervision, and/or retention; (11) wrongful termination in violation of public policy. Plaintiff alleges that she was groped on numerous occasions by Defendant Valadez while both were employed by defendant UCI. Plaintiff also alleges sexual harassment by other, unnamed male supervisors. Plaintiff alleges that she reported the harassment, but UCI failed to investigate and retaliated by placing her on a one-on...

Excerpt: ...iologist, and Dr. Alexander did not testify at the trial. (Motion; 5:9-10:11.) Plaintiff asserts, Defense counsel's insinuations that plaintiff did not call the aforementioned doctors to testify because they would have testified adversely to plaintiff induced prejudicial juror speculation and constituted attorney misconduct.” (Motion; 5:20-23.) The court overruled Plaintiff's objection to this aspect of Defendant's argument. Plaintiff relied on...

Excerpt: ...tionate liability; fails to inform the Court how the $200k settlement to the minor Plaintiffs will be allocated; and fails to provide any evidence of JASMINE's financial condition and insurance policy limits. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488,499.) The Motion states generally that the parties considered the approximation of Plaintiff's recovery as well as JASMINE's proportionate liability and insurance coverage issu...

Excerpt: ...perly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the ...

Excerpt: ...of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal ...

Excerpt: ...nfer declaration is facially insufficient per CCP §430.41 (it fails to make plain that a conference in fact took place), this Court declines to send the parties back to discuss the demurrer more since the demurrer lacks merit. The plaintiffs' case in chief includes the following essential elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a b...

Excerpt: ...t designated in the complaint is not the proper court.” [CCP §§ 396b, 397(a) (emphasis added)] The strict timing requirements of CCP § 396b (transfer motion to be filed at time answer is due) do not affect a party's right to seek transfer under § 397 (transfer for failure to commence suit in proper court). [Walt Disney Parks & Resorts U.S., Inc. v. Sup.Ct. (Galvan) (2018) 21 Cal.App.5th 872, 879-880, 230 CR3d 811, 816]. Here, the motion is ...

Excerpt: ...to plaintiff. Complaint, at ¶¶42-43, 53-54. When claims under CLRA or UCL are based on fraud-like allegations of concealment or omissions, they “must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims,” but requires more than the general rule of pleading to state the ultimate facts. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234, 1260-1...

Excerpt: ...of action for “negligent supervision of passengers” and “negligence-respondeat superior” are vulnerable to demurrer because they are not “cognizable cause[s] of action under California law” and are “merely duplicative of the first cause of action for negligence.” (Dem. at 3-5.) The Court agrees that the purported claim for “negligent supervision of passengers” is not a valid cause of action or an alternate theory of recovery; ...

Excerpt: ...mplaint once as a matter of right, provided that it is done within a specified time. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573.) “[T]he purpose of the statute permitting amendments as of right before an answer is filed or a demurrer is ruled upon is to promote judicial efficiency and reduce the costs of litigation.” (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505–506). In light of this ruling, ...

Excerpt: ...erial fact. “In general, [w]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.” Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d. 799, 810 (Footnote omitted.).) This case represents an exception to the general rule. On June 28, 2019, Huckey v. City of Temecula (2019) 37 Cal....

Excerpt: ... procedural history of this case. The opposition addresses causes of action that have been dismissed, repeats legal theories the Court has already found unmeritorious, and fails to mention the one new allegation that is at the center of this Demurrer regarding materiality. 1. RJN The Court grants Defendant's Request to judicially notice the Order from the Bankruptcy Court granting Wells Fargo relief from the stay in order to proceed with the fore...

Excerpt: ...tate facts sufficient to constitute this cause of action. It fails to allege plaintiff's reliance (i.e., plaintiff would not have acted as he did had he known the truth) with specificity. (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634 [elements].) 5th cause of action, conspiracy. Civil conspiracy is not an independent tort. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 129.) Because the underlying fraud is not a...

Excerpt: ... subds. (b); see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Defendants showed those causes of action arise from a “written statement . . . or writing made before a . . . judicial proceeding” – namely, disclosures in their 6/3/19 responsive brief. (Code Civ. Proc. §425.16, subd. (e)(1); accord G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612-616 [claims based on filing unredacted documents]; see Heller decl. ¶¶ 8-16 & E...

Excerpt: ... that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the ...

Excerpt: ...n of an arbitration between McNaughton, Copenbarger and NHOM. One of the issues that was being litigated, and was to be decided, in the arbitration was the respective ownership interests in NHOM, as between Copenbarger, McNaughton and West Coast. The arbitration has now been terminated by the AAA, however, because NHOM has taken the position that it no longer can afford to pay the fees/costs associated with the arbitration and, at least as things...

Excerpt: ...ings.” (See 11 USC § 157, subds. (b)(2).) Defendant presents no evidence the subject of the wrongful foreclosure action has filed a claim against the estate. (See 11 USC § 157, subd. (b)(2)(C).) More basically, a party may “pursue [its] bankruptcy-related fees in state court” after “dismissal of the bankruptcy case restored to the parties their preexisting rights and remedies.” (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 936.) Defen...

Excerpt: ... of any disputed factual matters therein. This is a legal malpractice matter. The Underlying Action involves a December 26, 2013 sale by Jerome and Susan Biddle to Plaintiff of a building and real property located at 338 West 7th Street, San Bernardino, California (the “Property”). (Def. UMF No. 3.) In the instant action, Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use in...