Excerpt: ...tion against it. To establish a claim for elder abuse, plaintiff must prove (1) that California Rehabilitation Institute had a substantial caretaking or custodial relationship with plaintiff involving ongoing responsibility for his basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (2) that plaintiff was 65 years of age or older or a dependent adult while he was in California Re...

Excerpt: ...ntiff. Plaintiff's Objections to Defendant's Evidence Plaintiff's objections to Wu's declaration are overruled. Plaintiff has made objections to facts in the separate statement. Objections can be made to evidence pursuant to Rule of Court, rule 3.1354, but there is no authority for making objections to facts. The objections were not considered. Defendant's Objections to Plaintiff's Evidence Objection number 1 sustained, all others overruled. Moti...

Excerpt: ...nc., the only agreement between the parties which contains an arbitration agreement. Plaintiff argues the FAA does not apply to the agreement, as the agreement is governed by Massachusetts law. Plaintiff follows with the argument that when a Massachusetts company has a contract with its employee in California, and the agreement specifies that Massachusetts law applies, Massachusetts defers to California employment law, and an employee cannot be f...

Excerpt: ...t. (1989) 213 Cal. App. 3d 1045, 1047.) “If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) “‘“[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments 'relate to the same general set of facts….”'” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 76...

Excerpt: ...fifth causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action. Demurrer to Entire Complaint by Defendant Chad Carney Carney demurs to the entire complaint on the grounds that his liability is based solely on alter ego, and the allegations of alter ego are insufficient. A demurrer is the proper pleading to challenge alter ego allegations when it is the sole basis for liability. As to the first cause...

Excerpt: ...documents or information, defendant shall simultaneously serve a privilege log with the document production that, at a minimum, identifies each document for which a privilege or privacy right is claimed, its author, recipients, date of preparation, and the specific privilege or privacy right claimed. The remainder of the motion is denied. 1. The term “YOU,”“YOUR,” and “DEFENDANT” shall mean Defendant GENERAL MOTORS, LLC; and any and a...

Excerpt: ...e contract by UMG failing to promptly correct the defect which prevented ROK's customers from downloading approximately half of the music content provided by UMG for more than a year. Objections to Evidence ROK's objections to UMG's evidence: overruled. <0048001d00030052005900 > Motion for Summary Judgment or in the Alternative Summary Adjudication A defense of estoppel requires the party to be estopped was apprised of the facts; that party inten...

Excerpt: ...on under Section 2032.310 only for good cause shown. (b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances. (c) A stipulation by a party under this subdivision shall include both of the following: (1) A stipulation that no claim is being made for mental and emotional distress over a...

Excerpt: ...they would have entered default had it not been rejected. The file does not reflect that a request to enter default was ever filed. The parties have both argued that there was an agreement, although they differ on the contents of that agreement. The court is not inclined to make a determination here as to the agreement of time to respond to the complaint. Plaintiffs have not shown prejudice as they have opposed the demurrer. First Cause of Action...

Excerpt: ...mproperly alleged on information and belief, which causes the entire complaint to fail to state facts sufficient to constitute a cause of action and be uncertain. Complainants may state allegations on information and belief, where matters are not within their personal knowledge, and information leads them to believe the allegations are true, including the information that leads them to have the belief. (Doe v. City of Los Angeles (2007) 42 Cal.4t...

Excerpt: ...nagement conference is also continued to October 7, 2019. Defendants shall give notice. On February 13, 2019, plaintiff Shan Fu Seun filed a complaint asserting claims for breach of contract, fraud, negligent misrepresentation, intentional interference with contractual relationship and negligent interference with contractual relationship arising out of the defendant Ben Huan Lee's, Eun Zoo Lee's and Robert Sang Lee's conduct in a real estate tran...

Excerpt: ...0056000300 00510011> The elements of fraud are: “(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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the rep...

Excerpt: ...redecessor performed its obligations under the contract and whether any lack of performance excused ROK's obligations under the contract by UMG granting ROK's competitors rights the ROK had requested and was denied after UMG promised it would not do so, and granting those rights to competitors put ROK in the position of not being able to compete in the marketplace. Applications to File under Seal Plaintiff has filed an application to file documen...

Excerpt: ...real property and develops the properties as shopping centers, self- storage facilities and apartment complexes. Westbrook Development, LLC, an affiliate of plaintiff, has assigned its claims to Westbrook. Defendant currently provides no services to plaintiff and has no interest in it. Defendant held himself out as a representative of Westbrook, renting space and collecting rent and key money, which he kept. Defendant provides no current services...

Excerpt: ... amend. Feldman is to file an answer to the complaint within 20 days. Request for Judicial Notice Feldman requests judicial notice of the lease and the trust. Courts have taken judicial notice of contracts not attached to complaints, where the complainants provided or referenced them with their briefing, without objection. (San Francisco Unif. Sch. Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal. App. 4th 438, 444 n.5.) None of th...

Excerpt: ...d compelling reasons, prejudice absent sealing and the lack of less- restrictive means, before ordering filed documents sealed. (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988, “the protection of trade secrets is an interest that can support sealing records . . . .”.) A proposed sealing must be narrowly tailored to serve the overriding interest, such as by sealing portions of pleadings or redacting particular text. ...

Excerpt: ... privacy over any of the responsive documents or information, Defendant shall simultaneously serve a privilege log with the document production that, at a minimum, identifies each document for which a privilege or privacy right is claimed, its author, recipients, date of preparation, and the specific privilege or privacy right claimed. The remainder of the motion is denied. 1. The term “YOU,”“YOUR,” and “DEFENDANT” The court finds tha...

Excerpt: ...ssible evidence establishing the elements of her cause of action. Summary adjudication is denied as to issue 3 as defendant failed to meet its burden of establishing that plaintiff cannot obtain evidence in support of the elements of her cause of action and failed to establish that it did not engage in retaliatory acts against plaintiff. Summary adjudication is denied as to issue 4 as summary adjudication was not granted as to issues 1, 2 and 3. ...

Excerpt: ...sentation (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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pleaded with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands...

Excerpt: ...the allocation of the settlement among plaintiffs, the settlor's financial condition and insurance policy limits; and evidence of collusion, fraud or tortious conduct between settlor and plaintiff to make nonsettling parties pay more than their share. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488.) The burden is on parties claiming a lack of good faith. (Code Civ. Proc., § 877.6, subd. (d).). Competent evidence is required fro...

Excerpt: ...n for conspiracy on the grounds that they fail to state facts sufficient to constitute a cause of action and the seventh cause of action is uncertain. Sixth Cause of Action for Elder Abuse “Section 15610.30, subdivision (a), provides that financial abuse of an elder or dependent adult occurs where a person takes or assists in taking real or personal property of such an adult to a wrongful use or with an intent to defraud, or both.” (Wood v. S...

Excerpt: ...t party are not required to show that the nonresident will not win at trial, but only need to demonstrate with substantial evidence that it is “reasonably possible” that moving party would prevail. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-1433.) There is no dispute that plaintiff resides out of the state, and defendants are California residents. Defendants have provided evidence that demonstrate it is reasonably possib...

Excerpt: ... state facts sufficient to constitute a cause of action and the seventh cause of action is uncertain. Sixth Cause of Action for Elder Abuse “Section 15610.30, subdivision (a), provides that financial abuse of an elder or dependent adult occurs where a person takes or assists in taking real or personal property of such an adult to a wrongful use or with an intent to defraud, or both.” (Wood v. Santa Monica Escrow Co. (2007) 151 Cal. App. 4th 1...

Excerpt: ...ctions of $2160 within 30 days. Defendant/cross-complainant Magdy moves for issue or evidence sanctions against plaintiff/cross-defendant on the grounds that he failed to obey the court's order of February 6, 2019, without substantial justification. A document response must consist of: 1) an agreement to comply, stating whether the productions or inspection will be allowed “in whole or in part,” and that all documents or things in the possess...

Excerpt: ...he property. Defendants failed to manage the property, leaving it in a dangerous condition. It has insect infestations, mold, a gas leak, defective shower among others conditions. Defendants are aware of the conditions. The complaint alleges causes of action in: (1) breach of the warranty of habitability' (2) unjust enrichment; (3) unfair competition; (4) violation of LARSO; (5) negligence; (6) elder abuse; and (7) conspiracy. Defendant Cole demu...

Excerpt: ...tember 4, 2014. Plaintiff suffered mental and emotional distress and has no medical expenses. At this time, the parties have agreed to settle this case for $35,000. After payment of attorney's fees and costs, Petitioner seeks to deposit $13,685.14 with the California Achieving a Better Life Experience (CalABLE) Program pursuant to Cal. W&I Code Section 4875 et seq. CalABLE is a California government agency and the CalABLE account is specifically ...

Excerpt: ...aint is denied. Defendant are to file an answer to the complaint within 20 days. First Cause of Action for Breach of Legal Duty Owed to Parents <0047004800490048005100 004c004f004800470003[to provide the entire file, including documents regarding the assessment of Miriam as having emotional issues, a learning disability and failing grades and that defendants failed to comply with its policies and procedures in making the assessments of Miriam. De...

Excerpt: ...n on the grounds that it fails to state facts <0056000300580051004600 00440051004700030057>here is a misjoinder or defect in parties. The motion is granted in part. The trial date is continued to September 30, 2019 at 10:00 a.m. All associated cut-off dates are to the continued trial date. Demurrer to the Fifth Cause of Action for Specific Performance Specific performance requires a contract breach; inadequacy of a legal remedy; underlying contra...

Excerpt: ...ulent Concealment, Fifth Cause of Action for Intentional Misrepresentation and Sixth Cause of Action for Negligent Misrepresentation The elements of fraud are: “(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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In Califo...

Excerpt: ...ulent Concealment, Fifth Cause of Action for Intentional Misrepresentation and Sixth Cause of Action for Negligent Misrepresentation The elements of fraud are: “(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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In Califo...

Excerpt: ... the allocation of the settlement among plaintiffs, the settlor's financial condition and insurance policy limits; and evidence of collusion, fraud or tortious conduct between settlor and plaintiff to make nonsettling parties pay more than their share. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488.) The burden is on parties claiming a lack of good faith. (Code Civ. Proc., § 877.6, subd. (d).). Competent evidence is required fr...

Excerpt: ...rana National Park, that Antonio did not act with gross negligence and that Antonio getting lost in the National Park was not foreseeable. The initial burden rests with the side moving for summary judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743 nn. 6-7.) “As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plain...

Excerpt: ...'s central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 [26 Cal. Rptr. 2d 834, 865 P.2d 633].) In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37.) The p...

Excerpt: ...Emmett Builders, Inc. and Douglas Emmett Management, LLC. Enforcement by Non-Signatory Defendants All defendants in this case may seek enforce the arbitration agreement which states: “Any reference in this Agreement to the Company will be a reference also to any parent, subsidiary or affiliated entities of the Company (including, without limitation, those entities referenced on Exhibit “A” attached hereto and incorporated herein), all benef...

Excerpt: ...ed on an assertion of attorney-client or work product privilege, defendant shall serve a privilege log which identifies each document for which a privilege or work product protection is claimed, its author, recipients, date of preparation, and the specific privilege or work product protection claimed. The remainder of the motion is denied. Definitions The terms “YOU,”“YOUR,” and “DEFENDANT” are overbroad as defined by plaintiff. FCA v...

Excerpt: ...respond that they have withdrawn their DLSE claims to pursue litigation. This is not alleged in the complaint. The court considers this only for the purpose of determining whether leave to amend should be granted. The demurrers are sustained with leave to amend. Seventh Cause of Action for Breach of Contract “The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformanc...

Excerpt: .... Plaintiff's request for sanctions is denied. Timeliness Plaintiff argues the motions are untimely as filed beyond the 45-day jurisdictional limit and as improper motions for reconsideration. The motions were never ruled on by the court, but were taken off calendar as improperly filed and reserved. Defendants properly reserved the time for hearing and corrected the filing into separate motions. The motions then were placed back on calendar. For ...

Excerpt: ...tion status conference for December 9, 2019 at 8:30. Defendant has established the existence of an agreement, which plaintiff does not dispute signing. Plaintiff's argument that the agreement was obtain through fraud is misplaced. Contractual arbitration clauses generally must be enforced where one of the parties seeks rescission of the entire contract on the basis that it allegedly was induced by fraud, mistake, or duress, or where an alleged br...

Excerpt: ...file an amended complaint within 20 days. Fourth Cause of Action for Fraud, Negligent Misrepresentation and Concealment Fraud must be pleaded with particularity. “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) The strict rule of construction, however, is relaxed when the defendant ...

Excerpt: ...t there are several claims against the bond which exceed the amount of the bond. Hudson seeks to deposit the proceeds of the bond and have the claims litigated in this single action. Hudson has also established the only relief sought against it is the payment of the bond proceeds, and it should be released from liability and dismissed from the action. The argument that the claimants will seek to recover costs and attorney fees from Hudson is not ...

Excerpt: ...er. An interrogatory response must be as complete and straightforward as reasonably available information permits. (Code Civ. Proc., § 2030.220, subd. (a), (b).) If a respondent does not have personal knowledge for a full response, the party shall so state and make a reasonable and good faith effort to obtain the information by inquiries. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 406; Re...

Excerpt: ...f $1200 within 30 days. The discovery at issue here was served May 4, 2018. Following several extensions, responses were served on August 16, 2018. Defendant initiated meet and confer efforts on October 1 st and provided extensions of time for supplemental responses. No supplemental responses have been served. Plaintiff agreed to provide documents in response to requests 1-3, 6-7, 21, 24-28 and <0055004800560053005200 00480054005800480056>t 4. Pl...

Excerpt: ...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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Defendants argue there are no allegations that Michael Valerio knew the there was a water leak when he represented there was no water leak. In fact, the fourth cause of action alleges at paragraph 34 that Michael Vale...

Excerpt: ...re triable issues of fact as to whether plaintiff's assignment to the Badging Office denied her opportunities to learn new skills or work overtime and damaged her chances of obtaining a promotion. Summary adjudication is denied as to issues 2 and 5 as the actions complained of, that supervisors treated plaintiff with hostility and spread rumors that plaintiff was having a relationship with Petrus, first occurred when she complained of scheduling ...

Excerpt: ... Defendant County asserts that this cause of action fails because Plaintiff has failed to plead a statute providing for liability pursuant to Government Code section 815. Defendant's assertion is unavailing. California Government Code section 815 provides that “[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 provided by...

Excerpt: ...conclusory words or the words in the language of Civil Code section 3294 must not be read in isolation, but in the context of facts alleged in the rest of the complaint. The complaint alleges that the building has a severe roach infestation and that it is increasingly dilapidated for failure to make any repairs, that defendant owners have been cited by the City, placed in REAP, and had complaints from tenants but have made no repairs and failed t...

Excerpt: ...y Morse is sufficient. The new cause of action is related to the current facts alleged in the current complaint. Defendants argue that there was a long unexcusable delay. The need for the motion was not apparent until December 2018, and the motion was filed in early March. This is not an unexcusable delay. "[I]f an amendment is appropriate the trial Court should continue the trial if necessary, even if the matter is on fast track." (Honig...

Excerpt: ...p of Trust and Confidence and Third Cause of Action for Breach of Contract Defendants demur to these causes of action on the grounds that they are duplicative of the medical negligence cause of action. A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner and a negligent failure to do so may be both a breach of contract and a tort. (No. Am. Chem. Co. v. Supe...

Excerpt: ...rt -- to the cross- defendant.” (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal. App. 3d 1439, 1445 n.7.) The second amended complaint alleges that defendants/cross-complainants breached the sales agreement and made intentional or negligent misrepresentations and concealments by stating the property was in perfect condition and failing to disclose defects in the renovations. This is not the same harm for which they are...

Excerpt: ...sel, courts must cautiously balance parties' right to have attorneys of choice, attorneys' interests in representing clients, burdens on clients in replacing counsel, and any tactical abuse, against the principle of having fair resolutions by vigorous representations by independent attorneys. (McMillan v. Shadow Ridge at Oak Park Homeowner's Assoc. (2008) 165 Cal.App.4th 960, 965.) A member shall not, without the informed written consent of the f...