Excerpt: ...ence and wrongful death are two separate claims for purposes of the MICRA caps on noneconomic damages. MICRA Defendant (hospital) acknowledges the recent amendment to section 377.34 allows such a claim for pre -death pain and suffering. However, it contends tha t the MICRA cap of $350,000 is only available for the combined claims and that they don't each have a separate cap. In opposition, plaintiff argues that under Code of Civil Procedure secti...

Excerpt: ...erest in the Su bject Property. The Complaint requests a sale, alleging physical division of the Subject Property is not possible. Property may be partitioned by physical division, sale of the property and division of the proceeds, or court approved and supervised parti tion by appraisal. (Code Civ. Proc., §§ 873.210 -290, 873.510- 850, 873.910-980.) The presumption is toward division, and against sale, unless it is shown that division would no...

Excerpt: ...granted Feb. 1, 2023 (Dhital v. Nissan N. America, Inc. (2023) 523 P.3d 392) as to both the sufficiency of the allegations in the fifth cause of action and the application of the economic loss rule. Ford acknowledges that Dhital can be cited for persuasive value under Rule of Court 8.115. (Demurrer at fn. 1) Dhital v. Nissan N. America, Inc., supra, 84 Cal.App.5th 828, addresses both the elements of a cause of action for fraudulent inducement ba...

Excerpt: ...88.) Nationstar Mortgage, LLC's and U.S. Bank National Association's request for judicial notice filed with their reply brief is granted. (ROA 115.) The Mortgage Law Firm, PLC's request for judicial notice is granted. (ROA 86.) With respect to exhibit F, the court tak es judicial notice of the recorded notices of default but not the mailing of the notices. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth...

Excerpt: ...rounds for liabi lity and does not plead the elements of a negligence claim. (Code Civ. Proc., § 430.10, subd. (e); Govt. Code, § 815.) The City also argues the first cause of action is uncertain because it does not plead the elements of a negligence claim. (Code Civ. Proc ., § 430.10, subd. (f).) “A public entity is not liable for any injury caused by the act or omission of the public entity or a public employee unless such liability is im...

Excerpt: ...authority ov er the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the e mployee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal r...

Excerpt: ...hether the notice of motion was served as required by Calif. Code of Civil Procedure, section 1005, subdivision (b). Cross -defendant is ordered to file a proof of service for the moving papers within 15 days. Cross -defendant Michael Goguen is ordered to give notice. M otion to Quash The Hearing on Cross -Defendant Brown & Charbonneau, LLP's Motion to Quash Service of Summons and Cross -Complaint is ordered off calendar based upon defendant's n...

Excerpt: ...representation (aga inst Rich), (4) “breach of contractual duty to pay a covered claim” (against B&B), and (5) “breach of contractual duty to pay a covered claim” (against nonmoving defendant CFPA).1 Moving defendants appear to demur to the first four causes of action. 1st C/A (negligence) - OVERRULE For the first cause of action for negligence, the FAC alleges the following: Rich was the broker who sold Plaintiffs a certain insurance p...

Excerpt: ... judicial not ice at 1:25-2:17 of the demurrer is GRANTED. (Evid. Code, § 452, subd. (d) [court records].) Further, on its own motion, the court takes judicial notice of the 5 -8 - 23 minute order on defendants' demurrer to plaintiffs' First Amended Complaint. (Id.) 1 st cause of action: breach of contract. This cause of action states sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Cross -complaint, ¶...

Excerpt: ...sought. A no tice of motion must state in the first paragraph exactly what relief is sought and why (what grounds). (Calif. Code Civ. Proc. § 1010; Calif. Rules of Court, rule 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726. The notice of motion fails to comply with the Code of Civil Procedure and the Rules of Court, and the motion is denied on that basis. Assuming arguendo that plaintiff's motion seeks an injunct...

Excerpt: ...ns under CCP § 12 8.5 against Moving Defendants and their counsel of record. For the reasons set forth below, Moving Defendants' motion for sanctions and Plaintiffs' request for sanctions are both DENIED. I. Moving Defendants' Motion for Sanctions A. CCP § 436 Per the noti ce of motion, Moving Defendants' motion is brought pursuant to both CCP § 128.7 and § 436. The opening memorandum is unclear on whether CCP § 436 is supposed to be an inde...

Excerpt: ...ry Adjud ication In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal.App.5th 153, 169; FPI Development v. Nakashim a (1991) 231 Cal.App.3d 367, 381382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal...

Excerpt: ...d. 1st cause of a ction, gender discrimination (Issues #1 -3). On Issue #1, defendant failed to meet its initial burden to show plaintiff cannot establish an adverse employment action. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same]; see also Def. SSUF. #36 -38 [plaintiff was not promoted in 2020 to market general manager].) As to Issues #2 -3, defendant has show...

Excerpt: ... First Amended Complai nt. Assuming Plaintiff agrees to resubmit that Request for Dismissal with the corrections noted in the Court's May 20, 2024 e -filing rejection notice, then the present motion will be granted in full. Defendant Fawn Glen Community Association's unopposed motion to dismiss is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART. The motion is granted as to Does 1 -200 (including former Doe 1, Powerstone Property Management,...

Excerpt: ...n under CC P §437c(q). Plaintiff's request to continue the hearing on this motion to allow further discovery is denied. Plaintiff has not shown good cause for such a continuance. Plaintiff's Complaint contains one cause of action, for fraud. Fraud claims are subj ect to a three -year statute of limitations. CCP §338(d). Plaintiff filed this action on September 11, 2020, but Judicial Emergency Rule 9 tolled statutes of limitation from April 6, ...

Excerpt: ...tion in his fav or bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in acco rdance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (fn omitted).) Code of Civil Procedure section 437c, subdivisio...

Excerpt: ...e showi ng to meet its initial burden under Cal. Code Civ. Proc. 437c, subd. (p)(2) by showing a legitimate, non- discriminatory basis for any allegedly adverse employment action taken against Plaintiff Holly Lapick. (See Code Civ. Proc., §§ 437c, subds. (a), (p)(2 ); ROA No. 88, Schwartz. Declaration; SSUMF Nos. 6- 7, 11-18.) Defendant has met that burden as to Causes of Action 1, 2, and 3 by establishing a legitimate, nondiscriminatory basis ...

Excerpt: ...o employ ees on a takeit -or -leave -it basis, typically contain some aspects of procedural unconscionability.'” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 243.) After plaintiff accepted a job offer from defendant, defendant emailed the agreement to plaintiff with instructions to review, sign, and return it. (McNary decl. ¶¶ 48.) The face of the agreement shows it to be a standardized, pre -printed form. (Id. Ex. A.) “To establish...

Excerpt: ...nd HOI to arbitration, the court gr ants the Motion and orders Plaintiff and HOI to arbitrate this matter. (9 U.S.C.A. §§ 2 and 3.) As for MB, "[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party oppo sing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Gro...

Excerpt: ...re Before Trial (The R utter Group 2021) ¶ 9:24.3 [each motion “should normally be set forth in a separate document”].) No later than June 24, 2024, Plaintiff is ordered to remit an additional $60 in filing fees to the Clerk of the Court. Code of Civil Procedure section 2025.4 50, subdivision (a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code of Civil Procedure ...

Excerpt: ...'s right to file a motion to compel further supplemental responses based on the adequacy of Legends' recent supplemental responses as to plaintiff's individual claims. Defendant's Request for Judicial Notice is granted. On April 26, 2024, the court granted in part L egends' request for a protective order, ruling that the court will prohibit all discovery relating to alleged wage and hour violations occurring on or before August 20, 2021, staying...

Excerpt: ...if so, what form of) a protective order should be entered before the documents are produced. (Opp'n Br. at 4:10 -14.) The City argues that Lennar has waived its objections to the inspection demands at issue, but the court does not find such based upon the evidence p resented. The City propounded the requests for production of documents (RFP) on Lennar on 2/13/23. (Toscano Decl., ¶ 2, Exh. A.) Counsel for Lennar requested an extension of time to...

Excerpt: ... a party serves an untimely response”].) Defendant FCA US LLC shall serve complete, code - compliant, verified further responses without objections to plaintiff's form interrogatories (set one), special interrogatories (set one), and requests for production (set one) and a ll responsive documents within 30 days. Defendant shall pay $2,063.92 in discovery sanctions to plaintiff. While defendant requests relief from waiver in its opposition, a �...

Excerpt: ...oc., § 2030.290, subd. (b).) By failing to serve timely responses, Defendant waived “any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for wo rk product.” (Code Civ. Proc., § 2030.290, subd. (a).) A propounding party may move for an order compelling responses to a demand for inspection at any time “[i]f a party...

Excerpt: ...risdiction to enforc e the stipulated settlement. First, however, there is the question of service of the motion. The proof of service on the motion shows service was mailed to: Woman's Recovery Center, LLC, d/b/a Sunsets Recovery Center Ali Parvaneh, Esq. 17702 Mitchell North Irvine, CA 92614 There is nothing in the court file to connect this lawyer or this address to Respondent Woman's Recovery Center, LLC. The court will hear from counsel for...