Excerpt: ...should be disregarded because it was filed and served on October 23, 2019. However, plaintiff is incorrect because the general rules for filing and service in Code Civ. Proc. § 1005 do not apply. Rather, subdivision (a) of Code Civ. Proc. § 484.060 provides that if a defendant wishes “to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall fil...

Excerpt: ...moving papers purport to be on behalf of PDSRET and Artz as trustee of PDSRET, the Court will consider the papers to be filed and arguments made by Artz as Trustee of PDSRET. This Court exercises its discretion to consider this motion, though filed more than 60 days of service of the operative complaint (the “FAC”). (Code Civ. Proc., § 425.16, subd. (f).) Code of Civil Procedure Section 425.16 provides in relevant part: “A cause of action ...

Excerpt: ...ges 4. Demurrer of Defendants CEP America-California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Plaintiffs' Second Amended Complaint 5. Motion by Defendants CEP America-California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Strike Portions of Plaintiffs' Second Amended Complaint Defendants Memorialcare Health System dba Memorial Health Services and Saddleback Memorial Medical Center's (collectively “Memorialcare”) demur t...

Excerpt: ...) and 1194(a). (Plaintiff also claims entitlement to attorneys' fees pursuant to California Civil Procedure Code § 998, but provides no argument in support of this contention.) Defendants do not challenge Plaintiff's entitlement to an attorneys' fees award pursuant to sections 226(h) and 1194(a). Plaintiff also argue that her section 226 wage statement claim and her section 1194 overtime claim were inextricably intertwined with her other causes ...

Excerpt: ...t agreement is directed, rather than “amended settlement agreement”, to avoid waste of limited Court time and resources. 1. The Release is vague and overly broad, as it purports to release any claim arising from facts/conduct that “could have been” alleged in this Action or any other. (See §14.1 of Agreement). The Court will only approve a Release which is limited to the facts alleged in this Complaint. 2. Please further explain the need...

Excerpt: ... must order the petitioner and 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...

Excerpt: ...rocedure before Trial §9:53.1a (The Rutter Group 2015) (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers. Such papers however, are not necessarily admissible evidence. Except for admissions in pleadings, matters stated in exhibits or other documents in the case file must be admissible under an appropriate exception to t...

Excerpt: ...confer before bringing the motion. The separate statement submitted by the moving Plaintiff does not comply with the requirement in subdivision (c) of CRC 3.1345 that it provide “all the information necessary to understand each discovery request and all the responses to it that are at issue.” Subdivision (c) further provides that the separate statement provide the text of the request, interrogatory question, or inspection demand and “[t]he ...

Excerpt: ...ne 20, 2017, more than two years ago. The court file does not reflect that the case has ever been scheduled for trial. The case was assigned to this department on July 10, 2019. On May 30, 2019, Plaintiff named D. Scott Abernethy as a Doe Defendant. Plaintiff named two additional Doe Defendants on June 19, 2019. The court file does not reflect that Plaintiff has served either of the Defendants Plaintiff added on June 19, 2019. Plaintiff is ordere...

Excerpt: ...r Specific Performance of an Implied Agreement; and Fourth Cause of Action for Breach of Contract alleged in plaintiff Karin Holloway's Complaint is sustained with leave to amend. Defendant argues that the second, third and fourth causes of action are barred by Code of Civil Procedure Sections 366.2(a) and 366.3(a). Code of Civil Procedure§ 366.2(a) provides: "If a person against whom an action may be brought on a liability of the person, whethe...

Excerpt: ...eading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless...

Excerpt: ...ust assume the truth not only of 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, w...

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 Transport...

Excerpt: ...g alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of 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, state...

Excerpt: ... 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 construction mea...

Excerpt: ...ts 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 parties.” Perez v. Golden Empir...

Excerpt: ... rates charged here. The Court applied a blended rate of $200 to 784.20 hours. Clerk to give notice. MP seeks attorney fees in the amount of $212,198.00. At first blush, this amount appears reasonable given the hourly rate of MP's attorneys were $300-385 an hour, and the case involved 2 MSJ hearings, 16 discovery motion hearings, 4 demurrer hearings, 1 motion to expunge, CMCs, and other litigation since 2011. However, a review of the billing stat...

Excerpt: ...iss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court. The trial court has inherent authority to dismiss an action. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (“Lyons”); Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 551, fn....

Excerpt: ...lleged 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 Transportation Transit District (2012) 209 Cal.App.4 th...

Excerpt: ...rprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relie...

Excerpt: ...d (h).) Preliminary Injunction: First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) Plaintiffs contend Defendants violated the HBOR by: (1) not notifying them with any notice or recordation that Caliber had acquired the beneficial interest in their mortgage (Hoffmann Decl. ¶ 4.); Defendants r...

Excerpt: ...en causes of action. The body of each cause of action contains a simple recitation of the legal elements, while nine or more pages of previous allegations are incorporated in an attempt to plead the necessary facts. Group pleading of causes of action and incorporating all prior allegations leads to uncertainty where there are many actors and events involved. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (“This type of pleading ...

Excerpt: ...ut prejudice to plaintiff filing a properly noticed and supported motion pursuant to Code of Civil Procedure section 425.13. The complaint alleges claims for punitive damages for every cause of action except for the first cause of action for professional negligence. (Complaint, ¶¶ 30, 38, 46, 52, and paragraph 3 of the prayer for relief.) However, plaintiff's causes of action for second through fifth causes of action for intentional infliction ...

Excerpt: ... Court Fees and an Order on Court Fee Waiver. (Declaration of Scott Feig (“Feig Decl.”), ¶ 2.) Plaintiff's counsel submitted the firm's credit card in the event the court denied the Request to Waive Court Fees. (Feig Decl., ¶¶ 3-4.) The order on the court fee waiver was issued on 11/28/18, and notice from the clerk of the court to pay the mandatory filing fee was served on 12/6/18. (Defendant's RJN, Exs. C and D.) On 1/7/19, defendant file...

Excerpt: ...to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214- 215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause and damages (Id.), as well as the following additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In addition, “...

Excerpt: ... connection with the project located at 600 S. Jupitar Road Allen, TX 75002.” (Compl. at ¶ 8, Exh. A.) The agreement provides, among other terms, for a monthly payment by Defendant of $970 “for a period of sixty (60) Months from the date the above described work is completed.” (Agmt. at 1, § 2.) The agreement also contains a provision re: the “ownership of system,” below, including that the “entire System” remains the “sole prop...

Excerpt: ...to Plaintiff Hipolito Lopez's Complaint are overruled. All Defendants shall file and serve their Answers to the Complaint within 20 days. Doe Defendants' request that the court take judicial notice of Plaintiff's DFEH complaint (found at Calderaro Decl., Ex. 2) is granted. On its own motion and subject to this notice to the parties, the Court takes judicial notice of Plaintiff's amendment of his DFEH complaint (found at Calderaro Decl., Ex. 11.] ...

Excerpt: ...al elements of a claim for fraud are “(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” In re Estate of Young (2008) 160 Cal. App. 4th 62, 79 (citations omitted]. To plead a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material f...

Excerpt: ...ities to amend his Complaint against the City of Anaheim and its personnel. The Fourth Amended Complaint of 176 pages still falls far short of pleading viable causes of action. Uncertainty: Code Civ. Proc., § 430.10 (f) authorizes a Demurrer when the “The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” Despite the four amendments, the pleading is still so uncertain that it is incompre...

Excerpt: ...ultimate facts to show it is entitled to such relief. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Conclusory characterization of defendant's conduct as intentional, willful, and fraudulent is a patently insufficient statement of “oppression, fraud, or malice” within the meaning of §3294. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Regardless of relaxed pleading criteria, “allegations that the Defendant's conduct was w...

Excerpt: ...emittitur”). CRC Rule 8.278(b). Although Plaintiff herself filed a second Memorandum of Costs on 06/10/19 (“Memo #2”), that memorandum was filed outside the 40-day window and cannot be considered as a either a valid memorandum or as an amendment to Memo #1. Alan S. v. Superior Court (2009) 172 Cal. App. 4th 238, 261-62. Additionally, Plaintiff is only permitted to recover appellate costs in Appellate Case No. G055258, as the other two cases...

Excerpt: ...erior Court (2007) 148 Cal.App.4th 556, 570.) Personal jurisdiction may be general or specific. A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (See Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.) Ouning presented evidence to establish that the Court does not have general jurisdiction over it, and NuWave has not presented suff...

Excerpt: ...on for protective order is DENIED as moot. (Code Civ. Proc., § 2017.020.) The court exercises its discretion to consider the motion to quash despite Defendant's failure to provide a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should be compelled. (Cal. R. Ct., rule 3.1345(a)(5).) Upon a motion reasonably made by a party, the court may quash, modify or direct compl...

Excerpt: ...amount of $870 ($1.5 hours for drafting the motions, plus 1 hour for the appearance at the hearings X $300 per hour, plus $60 for the filing fee for each motion X 2 motions) for the attorney's fee and costs incurred by Defendant in connection with these motions. Vexatious Litigant: Defendant Zhen McWilliams' motion for an order declaring plaintiff Michael McWilliams to be a vexatious litigant and requiring Plaintiff to post bond is denied without...

Excerpt: ... which contain written agreements to arbitrate that apply to this controversy, and have shown that Plaintiff has refused to arbitrate. The most recent of those are the two agreements signed by Plaintiff on 1/5/09 (the “Agreements”), which purport to address her obligations as an employee. (Rubio Decl. Exs. 3 & 4.) Plaintiff asserts that she was told that these Agreements replaced all prior ones. (Page Decl. ¶¶ 3, 4.) As these Agreements pur...

Excerpt: ... as a motion for summary judgment. Defendants' Notice of Motion states that Smith and Brown move for “an order granting Defendants' Motion for Summary Judgment as to Plaintiff Martha Torres' Complaint and for cost of suit incurred herein and such other relief as may be just.” (Def. Notice of Motion, 2:2:8-11.) The Notice also states: “The motion will be based on this Notice of Motion for Summary Judgment … and any and all evidence or argu...

Excerpt: ...ncipal and interest on the note has now been paid. The HWI contends that summary judgment cannot be granted because it is owed attorney fees under the note. But as MPs point out, attorney fees in the present case are awardable as costs, not damages. It should be noted that the Court's dismissal of the Cross-Complaint with prejudice based on mootness does not affect HWI's ability to recover costs or attorney fees as the party prevailing on the con...

Excerpt: ...tural Materials Co. (1981) 123 Cal. App. 3d 593.) Defendants' RJN Nos. 7, 8, 10 and Plaintiff's RJN Nos. 1, 2 are DENIED because they are pleadings filed in this action of which it is unnecessary to seek judicial notice. A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. (Stoops v. Abbassi, supra, 100 Cal. App. 4th at 650; Code Civ. Proc. § 438(c)(1)(B)(ii).) As with a demurrer, the ground...

Excerpt: ...y favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionat...

Excerpt: ...sitive to the Court's ruling. The Court finds that Defendants have met the requirements for relief under CCP section 473(b). Defendants timely moved for relief and demonstrated their default was taken as the result of “mistake.” Code Civ. Proc. § 473(b). Defendants mistakenly believed that their responsive pleadings were not due until 8/19/19. Defendants attempted to file their answers on 8/16/19, but their filings were rejected because thei...

Excerpt: ...tle to the property (FAC ¶ 33), equity would appear to call for a tender of the debt, and the pleading does not adequately allege a present ability to do so. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053 (“A valid tender of performance must be of the full debt, in good faith, unconditional, and with the ability to perform.”); Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, ...

Excerpt: ...dure are limited by the statutes, and these statutes are strictly construed. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) Here, Plaintiff acknowledges issues with her Notice and Application and attempts to correct some of them, while simultaneously arguing that a substantive opposition on the merits waives other defects. Plaintiff also improperly adds significant new facts on Reply. Although Plaintiff “invites” Defendant to file a Su...

Excerpt: ...d gives statement to an insurance carrier “'for the sole purpose of defending' against claims, are protected by the attorney-client privilege. The fact that litigation was only a threat on the horizon and that attorneys had not yet been selected to try to avert or meet that threat does not convert the purpose of the transmission. To hold otherwise might merely encourage insurance companies to bring in their attorneys at early stages in the clai...

Excerpt: ...y valid claim entitling plaintiff to relief, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547. Hence, under a general demurrer, plaintiff's complaint must fail to state a valid cause of action for the demurrer to be sustained. A Demurrer for uncertainty, ho...

Excerpt: ...0. The responses do not set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (Code Civ. Proc., § 2031.230.) As to the remaining RFPs, Defendants contend that Plaintiff's motion to compel further responses to her RFPs should be denied because (1) Plaintiff has already received these documents from Dr. Mitchell; (2) any documen...

Excerpt: ...tiff's unopposed request for judicial notice (ROA 28) is GRANTED, although only as to the existence of the documents at issue, and not as to the legal effect thereof, which is discussed in more detail below. Pursuant to Evidence Code § 455, the Court proposes to take judicial notice of the current Employment Arbitration Rules of the American Arbitration Association, which are amended and effective as of November 1, 2009. The arbitration agreemen...

Excerpt: ...ing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. Although the briefing says administrative costs will not exceed $23,000 and suggests Habitat for Humanity Orange County as a cy pres recipient, the settlement agreement itself contains no such provisions. The Court will not grant approval of the settlement unless the agreement itself contains this information. 2. Counsel states that he “determined” th...

Excerpt: ...tor Company's motion to tax costs. Evidentiary Objections Plaintiffs have filed evidentiary objections to the declaration of Matthew K. McCullough filed in support of Ford's opposition. The Court rules on these objections as follows: Objection No. 1: SUSTAINED on the grounds that Exhibit A to the McCullough Declaration is an improper attempt to circumvent page limits and OVERRULED on all other grounds. Ford cannot avoid the page limit for opposit...

Excerpt: ... is unnecessary for the court to examine the defendant's opposing evidence, and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.) Once the plaintiff has met its initial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific ...

Excerpt: ... strike Plaintiff Rachel Segui's motion for class certification is DENIED as untimely. The motion was filed on October 11, 2019, only 10 court days before it was set for hearing on October 25. Generally speaking, motions must be filed at least 16 court days in advance of the scheduled hearing. (CCP § 1005(b).) However, the Court will exercise its discretion to consider the motion to strike as an opposition to Plaintiff's motion for class certifi...

Excerpt: ...9 for a continued deposition not to exceed seven hours on the record. The Court expects Tien to provide straightforward, non-evasive answers to Defendants' questions at the continued deposition. Furthermore, at the continued deposition, Tien is ordered to answer the following question set forth in Defendants' statement of disputed questions and answers: “With the Waste Italia notes, Rimrock funds purchased those notes in November 2014. Do you a...

Excerpt: ...good faith, the court must determine whether “the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.” Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1984) 38 Cal.3d 488, 499. In making such a determination, the Court considers the following factors: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate li...

Excerpt: ...n the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary...

Excerpt: ...that is attached to the complaint as an exhibit references all three Defendants, i.e., it identifies the parties as Defendant Salmon Run Property Management as an agent of Co-Defendant Ashby Enterprises and Plaintiffs and its last page references Co-Defendant Sachs as a manager of Salmon Run Property Management. As such, asserting the causes of action against all three Defendants does not necessarily make them improper or uncertain. Therefore, th...

Excerpt: ...y an additional $50 per month for the upgraded machine, and to limit the number of photocopies to a total of 144,000 or pay $.01 extra per page upon Plaintiff's demand and the type of papers to use with the machines. Complaint, at ¶¶6-7 (Defendants breached the “Oral Agreement by, among other things, failing to sign the Service Agreement, failing to sign the revised Lease Agreement, failing to sign the revised Service Agreement, …”). Plai...

Excerpt: ...hey contain objections that have been waived, and they are not in substantial compliance with the Discovery Act, the Court “has no discretion and must grant the motions.” (Reply, 6:24-25; italics added.) The plaintiff cites Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390 for the proposition that the Court must hear the motions precisely because the responses are conclusory and not code-complian...

Excerpt: ...ded settlement agreement', to avoid waste of limited Court time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) As to the Settlement 1. The release appears to include PAGA claims relating to violations of Labor Code § 558. (Settlement, § 1.t.) However, the first amended complaint does n...

Excerpt: ... Civil Procedure §2025.420 permits the Court, upon a showing of good cause, to issue a protective order protecting the deponent from “unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” Id. at subd.(b). The protective order must be sought promptly and the motion must reflect that a good faith meet and confer occurred. Id. at subd.(a). The court has several options if it desires to issue a protective order, inclu...

Excerpt: ...h of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach. (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402), citing CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) With respect to the first element of existence of contract, the City has...

Excerpt: ...PART. MPs have requested summary adjudication on five issues. The Motion is GRANTED as to Issues 1, 2, and 4. The Motion is DENIED as to Issues 3 and 5. Issue 1: Issue 1 is directed to three of the causes of action (“COAs”) in Plaintiff's Complaint: strict liability (COA 1) negligence (COA 2), and breach of warranty (COA 4). But the Opp at p. 17 concedes that COAs 1 and 4 do not apply to MPs. What remains at issue is thus only COA 2, for Negl...

Excerpt: ... of record, Rima M. Badawiya and K. Fredric Willis of Lewis Brisbois Bisgaard & Smith, LLP. This is an elder abuse case arising from the care and treatment of Margarita Beltran De Leon (“Plaintiff”) while she resided at Defendant's skilled nursing facility known as Harbor Villa Care Center (the “Facility”). The Complaint in this matter was filed on February 21, 2019 and alleges of causes of action for elder abuse/neglect, negligence, elde...

Excerpt: ...to compel a further response to requests for admission if it finds that an objection is too general or without merit, or that an answer is evasive or incomplete. See Code Civ. Proc. §2033.290(a). The motion should be accompanied by a meet and confer declaration, and should be noticed within 45 days of the service of either the verified response or any supplemental verified response, or on or before any specific later date agreed upon in writing....

Excerpt: ...ants and any other PERSON(S) else [sic] acting or purporting to act on her behalf or at her direction; as used herein, the terms “PERSON” and/or “PERSONS” includes any individuals(e) entity(ies), proprietorship(s), partnership(s), or corporations(s)) contend that you have not breached any of your fiduciary duties to SALON REBELLE, state all facts that support such contention. Responding Defendant's answer is: Responding Party incorporates...

Excerpt: ...der the employer's liability provisions. Further, if he had alleged employee status, his claims would have been covered under Worker's Compensation laws, and thus would have been excluded under the policy. From this, the defendant concludes it had no duty to defend and thus no liability in this action. The plaintiff suggests there was extrinsic evidence of Remeyer's employment status available to the defendant at the time the prior lawsuit was fi...

Excerpt: ...ny judgment will be paid out through insurance and so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion is GRANTED as as to 1st, 3 rd-10 th and 12 th Affirmative Defenses as to subsections (a)...

Excerpt: ...nd Laurence shall sell the Edna Property to satisfy any liens and any amounts owing to Hemming Morse. (Judgment, §1(b).) An escrow shall be opened and the sale proceeds divided as follows: 1. Hemming Morse shall be paid the amount of $447,245.76, plus interest at the rate of 10 percent per year from and after December 1, 2010 until the date of payment pursuant to the Hemming Morse Judgment; 2. To the extent that Patrick has made any payments on ...

Excerpt: ...en reluctant to find that the defect is not dangerous as a matter of law.'” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568.) Here, the Declaration of Defendant's expert, John Brault, states the maximum depth of the depression was 1 ¼ inch. (See Brault Decl. ¶6.) The Declaration of Plaintiff's expert, Gary M. Gsell states the depth of the depression was 1 ½ inch. (See Gsell Decl. ¶18.) However, it appears both experts meas...

Excerpt: ...as to the 1 st CoA. Defendants American Golf Corporation and Root'n USA Corporation's Motion to Strike Portions of the Second Amended Complaint, is GRANTED, without leave to amend, as follows. Punitive damages are not recoverable under the ADA or the Unruh Civil Rights Act. Plaintiff is not entitled to punitive damages under the Unruh Civil Rights Act and the CA Disabled Persons Act. Civil Code section 52(a) is silent on exemplary damages and pro...

Excerpt: ...ent to show Plaintiff's job description, salary history, pay rate, wage, salary, bonuses and time off. 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. Rutter, CPBT, §8:293, citing inter alia, Britt v. Sup.Ct. (1978) 20 Cal. 3d 844, 855–56, & Pioneer Electronics (USA), Inc. v. Superior Court (2007)...

Excerpt: ...after a diligent search and reasonable inquiry,” it “cannot fully comply” with the requests, as any staphylococcus aureus tests performed on defendant Steven Dennis or any pre-2017 staph treatment for Dr. Dennis either do not exist or are not in its possession, custody, or control. (See 8/27/19 Johnson Decl. ¶ 37, Ex. 6.) Hoag Orthopedic relied on Patricia Steger, its manager of infection prevention, to verify the responses and provide a s...

Excerpt: ...back injuries and later trauma to her kidneys. (SSUF 1) By written Contingent Fee Contract dated April 18, 2013, Cronstedt retained Jones to represent her in prosecuting civil claims arising out of the balloon accident. (SSUF 6.) On January 14, 2014, Jones filed a Complaint on behalf of Cronstedt in the matter styled Sara N. Cronstedt v. City of Irvine, et al. Orange County Superior Court Case No. 30-2014-00698341-CU-PO-CJC (the “underlying lit...

Excerpt: ...ndant. (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) The amended cross-complaint now alleges 10 or 12 specific acts that may have “unfairly frustrated the agreed common purposes and disappointed the reasonable expectations of [cross-complainant] thereby depriving that party of the benefits of the agreement.” (Careau, supra, 222 Cal.App.3d at p. 1395.) Motion to Strike Cross-defendant Kurt Kafen...

Excerpt: ...lso notes, that the Complaint is not properly formatted pursuant to CRC Rule 2.112. The Demurrer is sustained with leave to amend as to: ‐ Cause of Action No. 1 – Violation of Civ. Code § 2923.4 – This code section does not mandate or prohibit any action on the part of any party. It therefore does not support a cause of action for violation of said code section; ‐ Cause of Action No. 2 – Violation of Civ. Code § 2924.11 – This code ...

Excerpt: ...d to defendant hospital for evaluation. She was seen and discharged home. Three days later, plaintiff returned to the defendant hospital with unresolved complaints of nausea, vomiting, headaches and elevated blood pressure. Fetal monitoring strips confirmed the presence of contractions. Plaintiff was again sent home. She returned later that evening, and was differentially diagnosed as experiencing deep variable decelerations with the baby display...

Excerpt: ...des parties with expansive discover y contrary court order, a civil litigant's right to discovery Court (2017) 3 Cal.5th 531, 551.) “[A]ny party may o b matter, not privileged, that is relevant to the subject m action ... if the matter either is itself admissible in evid calculated to lead to the discovery of admissible evide n 2017.010; see Davies v. Superior Court (1984) 36 Cal. limited to admissible evidence”].) The statutory phras e than ...

Excerpt: ...Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. However, based on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 386-88, defendant may not compel plaintiff to arbitrate his PAGA ...

Excerpt: ... Motion for Judgment on the Pleadings within the meaning of CCP §1008. Defendants originally made a Motion for Judgment on the Pleadings, including on the second cause of action, the motion was denied, and defendants now bring a second motion seeking the same relief. However, defendants have failed to comply with CCP §1008. Defendants did not file this motion within ten days of service of notice of the July 5, 2019 order, and defendants have no...

Excerpt: ...t plaintiff worked for defendant for only about two months. In addition, the settlement calls for plaintiff to be fully paid out of the first installment. The court concludes that the $300,000 class action settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards: ● $100,000.00 to plaintiff's counsel for plaintiff's attorneys' fees, as requested; ● $6,532.14 to plaintiff's counsel for plaintiff's at...

Excerpt: ...e substanda r subdivision. (1) In appointing a receiver, the court sha l been afforded a reasonable opportunity to correct the c violation. [¶] ... [¶] ... “(11) The prevailing party in an action pursuant to this reasonable attorney's fees and court costs as may be f i Another provision that applies is Health and Safety Co d that, once the trial court “finds that a building is in a c o endangers the health and safety of residents,” it sha...

Excerpt: ...(2017) 12 Cal.App.5th 1043, 1051. Fair Trial: “To overcome the validity of an administrative decision, a petitioner must show the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion.” Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463. In order to resolve Petitioner's contention that the administrative hearing did not afford due process, the ...

Excerpt: ...e, according to the exhibits attached to the Petition of (1) a list of the names and addresses of each m (2) the name and address of Adelanto's manag e (3) Adelanto's federal, state, and local income t a fiscal years, (4) Adelanto's operating agreement, (5) Adelanto's articles of incorporation, (6) Adelanto's financial statements, and (7) Adelanto's books and records as they relate current and past four fiscal years. (Amended Petition, Ex. 1 at p...

Excerpt: ...tion to strike, Defendant seeks Judicial Notice of plaintiff's governmental claim against the City. The demurrer is SUSTAINED in part and OVERRULED in part. The request for judicial notice is GRANTED. The motion to strike is MOOT. Request for Judicial Notice The court takes judicial notice of the date plaintiff presented his claim against the City under Cal. Evid. Code §§ 452(h) and 453. However, the court may not take judicial notice of the tr...

Excerpt: ...ivil action commenced here in Orange County. Wymont, a self-described “British Virgin Islands business entity,” entered into that retainer agreement by the hand of Jonathan Sandler, its designated personal representative. The retainer agreement provided that the personal representative (Jonathan Sandler) was personally bound to the terms thereof, including the agreement to have fee disputes resolved in San Diego. See Para 4, 12. The common in...

Excerpt: ...of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. ...

Excerpt: ... Plaintiff. Defendant contends that the mailers contain protected hyperbolic speech, and are otherwise factual; further, that Plaintiff is a public figure and cannot show that the publications were made with actual malice or negligence. Plaintiff counters that the speech was not hyperbolic, and is defamatory by implication; further, that he is a private citizen for purposes of this matter, and even if not, that he has evidence that the publicatio...

Excerpt: ...driving with a BAC of .08% or more supported by the weight of the evidence? Pederson was the only person who testified during the Administrative Hearing on 11/16/18. She admitted to having “an alcoholic beverage.” [AR 32, 9-12] She also testified that if she has two drinks, “I throw up.” [AR 32,15-19] She confirmed the officer's report that she had two vodka tonics. [AR 32:22 – AR 33:1] Field sobriety tests were administered. [AR 36:10 ...

Excerpt: ...timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanctions. CCP § 2033.280(b). On April 3, 2019, Plaintiffs served written discovery on Defendants, including requests for admission, set one, to Defendants Atlas and Nosek. Several extensions were granted, ultimately requiring responses to be served by...

Excerpt: ...C US, David Earl Stephens, James Leroy Cotterman, Jr., James D. Weber, Mark P. Hontz, Kimberly R. Kerry, Colin J. Schottlaender, William H. Swanson, Thomas A. Kennedy, Matthew Brewer, F. Kinsey Haffner, Brian J. Armstrong and Keith Peden: Standard of Proof for Summary Judgment/Adjudication Since res judicata and the statute of limitations are affirmative defenses, defendants have the burden of proof: “The burden on a defendant moving for summar...

Excerpt: ...rty to a civil action to recover damages for personal injury who is under the age of 14 shall be entitled to preference upon motion “unless the court finds that the party does not have a substantial interest in the case as a whole.” Further, per Code of Civ. Proc. § 36(e), the “court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by gr...

Excerpt: ...is likely being utilized by the individuals as a personal instrumentality, including because of such factors of underfunding of corporate responsibilities and intermingling of property and finances, in such a way as to cause injustice or disregard of corporate financial responsibilities, including vis-a-vis the plaintiffs here. (See, e.g., Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 538 (“Under the alter ego doctrine, ... when t...

Excerpt: ...ond, he wants the court to declare that plaintiffs' use of vehicles on his property related to commercial or noncommercial equestrian operations constitutes an impermissible excessive burden and overuse of the easements such that they have extinguished any right plaintiffs may have had to use his property for any purpose. Summary adjudication of the First Cause of Action requires that Thier negate both grounds for declaratory relief. Thier argues...

Excerpt: ... of Action), Issue No. 3 (Fourth Cause of Action) and Issue No. 4 (Third Cause of Action). The District's motion for summary judgment is DENIED, The District's motion for summary adjudication is GRANTED in part, and DENIED in part. Procedural Defect: Plaintiff objects to District's exhibits A through I on the grounds that Plaintiff has failed to comply with California Rules of Court, Rule 3.1350(g) which requires that “[i]f evidence in support ...

Excerpt: ...s formally dissolved on 08/31/15. MSJ, Ex. 20. Plaintiff had been dealing with AXP Lighting, Inc., for some time regarding the sample bulbs and negotiating the warranty and pricing on the bulbs prior to AXP Lighting's dissolution. MSJ, Exs. 5 and 34. On 09/21/15, Wang incorporated defendant AXP Technology, Inc. (“AXP Technology”). MSJ, Ex. 21. During the 21-days in between dissolution of AXP Lighting and the creation of AXP Technology, and fo...

Excerpt: ...entation), fourth (negligent misrepresentation), and fifth (negligent infliction of emotional distress) causes of action in Plaintiff's Second Amended Complaint. For the following reasons, Defendants' motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff ...

Excerpt: ... were made within the scope of the function of the peer review body. This same argument was rejected by the Court of Appeal in Chundu v. Cork (Nov. 19, 2018), G055362, albeit in response to an anti-SLAPP motion. At that time, the Court of Appeal stated that Cork had not produced any evidence that her comments were made as part of an official peer review proceeding, in part because she denied there was a peer review investigation. (See ROA 238.) T...

Excerpt: ...oss of consortium based on the birth of the minor Plaintiff. With respect to the moving Defendants, Plaintiffs allege that they were negligent in their care and treatment of the minor Plaintiff by failing to timely appreciate and treat the sequela of a subgaleal hemorrhage and by failing to timely intubate and fluid resuscitate her. Moving Defendants submit the expert declaration Rachel Chapman, M.D., to establish that they complied with the stan...

Excerpt: ...e failed to properly authenticate their documentary evidence, they lack foundation and personal knowledge, and contained impermissible hearsay, conclusions or opinions. Defendants' Request for Judicial Notice is DENIED. Defendants failed to properly place the St. John's University guide to “Understanding Blood Alcohol Content (BAC)” before this Court since the request was made in a footnote in the supporting memorandum in violation of CRC Rul...

Excerpt: ...e proverbial empty chair). Nevertheless, defendants prefer to have them here in the action. Pursuant to CCP §428.10(b), defendants are entitled to file a cross-complaint against new parties “if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy w...

Excerpt: ...sts as the prevailing party after the surrender of the vehicle and as agreed by the parties by stipulation or, if the parties cannot agree, as determined by the court in a single noticed motion.” A prevailing buyer in an action under the Song-Beverly Act is permitted to recover “a sum equal to the aggregate amount of costs and expenses, including attorneys' fees based on actual time expended, determined by the court to have been reasonable in...

Excerpt: ...ssing the Cross-Action; and (3) Rendering judgment against Defendants, and in favor of Plaintiff, on Plaintiffs' First Amended Complaint and prayer for relief. In the alternative, Plaintiff moves for an order granting the following discovery and trial-setting relief: (1) Granting Plaintiff's previously-filed Motion to Compel (“Discovery Motion”) as follows (Code Civ. Proc. §§ 2023.010, 2030.300, 2031.320(a)): a. Ordering Defendants to provi...