Excerpt: ...Nolin v. Nat'l Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285‐ 286; see, Food Pro Int'l, Inc. v. Farmers Ins. Exch. (2008) 169 Cal.App.4th 976, 994 [mere carelessness or ignorance does not justify punitive damages].) Conscious disregard alone is insufficient and an award of punitive damages requires either the intent to harm the plaintiff or both willful and despicable conduct. (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5t...

Excerpt: ...iano v. Lyle Doughty, FCS050116, dated November 6, 2018, and a quitclaim deed recorded in Solano County as document 1997‐00031840, showing Plaintiff's ownership of her property since 1997. Minute orders may be judicially noticed as records of a court of this state. (Ev. Code § 452, subd. (d).) The existence and legal significance of a recorded document may be judicially noticed as facts that cannot be reasonably controverted. (Ev. Code § 452,...

Excerpt: ...portunity to negotiate and reach an agreement. As a result of the package deal, BMO Harris Bank N.A. (“BMO”) received a recovery in connection with its secured interest in the Nissan store and a potential recovery as a junior lien holder to the Toyota store. The parties do not dispute that TMCC holds a valid, perfected senior secured interest in all of the assets which relate to the Toyota store. Intervenor BMO holds the junior lien. The fact...

Excerpt: ...e note, deed of trust, assignment of deed of trust, substitution of trustee, notice of default, notice of trustee's sale, and trustee's deed pertaining to the foreclosure at the heart of this case. The court takes judicial notice of the existence and legal significance of these recorded documents, and the adjustable rate note, as facts that cannot be reasonably controverted. (Ev. Code § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodlan...

Excerpt: ... test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ... test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ...tion must be alleged with specificity to allow the court to determine whether there is a prima facie foundation for the charge. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 216‐217.) In an action for fraud against a corporation, the plaintiff must allege “the names of the persons who made the allegedly fraudulent representations, their authority to s...

Excerpt: ...ocha Dehe”), a federally recognized Indian tribal government. (Declaration of Anthony Roberts (Roberts) at ¶¶ 1‐2.) Yocha Dehe enjoys sovereign immunity from suit by default. (Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 760.) Though Yocha Dehe partially waived its immunity when it entered into a compact with the State of California to operate Defendant as a gaming facility, that waiver only permits patro...

Excerpt: ...the landlord. Plaintiffs allege that the owner of the real property was Defendant Menemsha Equity, LLC, a limited liability company. (FAC, ¶¶ 5, 8.) Plaintiffs allege that Defendant Weisberg is the sole member of Menemsha who, at all relevant times, acted within the scope of his agency or representation for Menemsha. (FAC, ¶¶ 2, 6.) But, a limited liability company is distinct from its members. (Corp. Code § 17701.04(a).) The liabilities of ...

Excerpt: ...matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) For purposes of demurrer, a court assumes the truth of the allegations in the complaint, but not the contentions, deductions, or conclusions of law. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contac...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ...6 Cal.4th 446, 460.) Because Defendant has not met this burden, Plaintiff has no burden to produce any evidence or disprove anything and the court must deny the motion without looking at any opposing evidence. (Y.K.A. Indus., Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353‐354; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940; United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 338.) An insurance agent...

Excerpt: ...head, neck and spine by Dr. Tabaraee, M.D. in Manteca which is 67 miles from Fairfield. Defense shall provide Plaintiff with 3 proposed dates for examination. Plaintiff shall select 1 date among the 3 proposed dates. The examination will be conducted and completed on one day between the hours of 9 and 5 and limited to 4 hours in duration. Plaintiff shall undergo a mental examination related to his claims of short‐term memory loss, difficulty co...

Excerpt: ...bilitation (“CDCR”) staff that allegedly mistreated Plaintiff. Government Code section 820.8 reads: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” Plaintiff's allegations against DIAZ are that DIAZ had �...

Excerpt: ...ential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Punitive Damages. Civil Code section 3294, subdivision (a) provides that punitive damages are only available in actions not arising from breach of contract if is “proven by clear and convincing evidence that the defendant has been guilty o...

Excerpt: ... firm acting as escrow agent that completed transaction despite instructions from seller to terminate sale].) In this case, Plaintiff alleges that the foreclosure sale was completed May 1, 2018, that Defendant had duty to disburse surplus funds by June 8, 2018 and that, despite no other claimants to the surplus funds, Defendant maintained control of the funds and attempted to condition release of the funds upon dismissal of a suit Page 2 of 3 for...

Excerpt: ...nded. In FCS053677, Plaintiff alleges physical injury due to “excessive force.” On April 29, 2020, the parties appeared via Zoom in FCS053677 for a case management conference one hearing. The parties agreed the cases are related. Based upon that agreement, the court orders the cases to be related. To date, no motion or stipulation has been received by the Court to consolidate the two actions. Parties to appear to address consolidation of the ...

Excerpt: ...as a matter of law. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.App.4th 826, 850) Despite this court's prior ruling that “Defendant Forsythe owed [Plaintiffs] a duty not to create an unreasonable risk of injury to them and breached that duty by informing Defendant Snyder he would look the other way if Snyder drove over Plaintiffs' signs” (Minute Order (2/26/20)), a duty that is not based on the duties of an owner of real property owed to inv...

Excerpt: ...entire Declaration of Rob Reiter generally and to his various assertions of JPMC's negligence particularly. The court declines to rule on these objections to evidence as it deems them not material to disposition of the motion for summary judgment, as discussed below. (Code Civ. Proc. § 437c, subd. (q).) Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (C...

Excerpt: ...th 1228, 1238; DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 812.) Defendant concedes that he “did reside in the property for about two years”. (Decl. of Aaron Nguyen, ¶ 3.) And, regardless of whether Defendant can be held liable for breach of the lease agreement, the facts alleged in the complaint give adequate notice that Defendant may be held liable for intentionally or negligently causing damage to real property owned by Pl...

Excerpt: ...nesses and governmental agencies. However, these discovery issues arose prior to declaration of a state of emergency or imposition of shelter in place orders and the discovery has been pending since August 2019. In addition to the multiple extensions, the court also considered Defendant's delay in responding to Plaintiff's December 2, 2019 meet and confer letter and the contents of Defendant's February 12, 2020 meet and confer letter. A. Motion t...

Excerpt: ... 2, Unlabeled “Exhibit 2”; Decl. of Jones, Exh. B.) Page 2 of 3 These causes of action are all based on duties arising out of Defendant's attorney‐client relationship with Decedent. (Complaint, ¶¶ 23‐63, 76‐80.) Plaintiff does not have standing to commence these causes of action, which survive the death of Decedent. (Code Civ. Proc. § 377.20(a).) A cause of action that survives the death of the person entitled to commence an action �...