Excerpt: ...urth causes of action in the first amended complaint on government immunity grounds. C.H. was instructed to “set forth a specific regulation or statute triggering the §855 exception for the first through fourth causes of action.” Defendants demur to plaintiff's second amended complaint (SAC). “Public entities have broad immunity from liability for injuries suffered by an inpatient of a mental institution.” State Dept. of State Hospitals ...

Excerpt: ...dence of a physician's compliance or breach of the applicable standard of care can only be supplied with expert testimony. Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412. An expert witness' declaration is sufficient to show the absence of a triable issue of fact on summary judgment. Lerner v. Superior Court (1970) 70 Cal.App.3d 656, 660. Defendant provides the declaration of Dr. Cassileth, who reviewed medical records from Diaz and Kaiser ...

Excerpt: ...tective Order Any issue decided in a prior criminal proceeding is conclusively determined as to the parties in a subsequent civil action. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601. A felony conviction is exempt from the hearsay rule in a civil action, even if the conviction is under appeal. Principal Life Ins. Co. v. Peterson (2007) 156 Cal.App.4th 676. A judgment is not final for purposes of collateral estoppel while ...

Excerpt: ...e and premises liability claims. Evidentiary Objections City's Objections: 1 and 2 SUSTAINED (lack of authentication), 3 SUSTAINED (legal conclusion), 4-9 OVERRULED. Santa Monica Municipal Code Section 713 When a public entity is under a mandatory duty imposed designed to prevent against the risk of a particular kind of injury, that entity is liable for an injury of the kind proximately caused by its failure to discharge that duty. Cal. Gov. Code...

Excerpt: ...ement covering all disputes arising out of employment with NCFC. There is a liberal federal policy favoring arbitration, requiring arbitration agreements to be put on equal footing with other contracts and requiring courts to resolve any doubts as to whether a dispute falls within an arbitration provision in favor of arbitration. AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339; AT&T Tech., Inc. v. Comm Workers of Am. (1986) 475 U.S. 643...

Excerpt: ...azian, Sweeney and Bradford move for summary judgment/adjudication, arguing undisputed facts show Adefuye's claims lack evidentiary support. Member Defendants—Assault/Battery A corporate officer or director is not liable for the corporation's torts unless they ratify or directly participate in the wrongdoing. Frances T. v. Village Green Owners Ass'n. (1986) 42 Cal.3d 490, 503-504. At deposition, Adefuye admitted he never met Aivizian or Sweeney...

Excerpt: ...reduced in the reply brief from the amount sought in the initial motion), billed at hourly rates of $300-515/hour, for five attorneys who performed almost 200 hours of work. Plaintiff's initial motion sought costs, but the reply stated that costs would be sought via a separate mechanism. The prevailing party in a defective vehicle case brought by a buyer is entitled to reasonable attorney's fees. Cal. Civ. Code §1794(d). A court has broad discre...

Excerpt: ...tion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying the cause of action arises from defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. If moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, su...

Excerpt: ...were never removed. Evidentiary Objections OVERRULED. A court determining a summary judgment motion applies a three-step process: (1) identifying the issues, (2) determining whether moving party made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. A defendant moving for summary judgment has th...

Excerpt: ...mmett and managed by defendants Barrington Plaza and Douglas Emmett Management. Resident plaintiffs allege defendants failed to provide adequate fire safety precautions, resulting in a fire that displaced, injured, and in one case killed, tenant plaintiffs. Plaintiffs also the building remained suffused with ash and toxic debris after the fire. Defendants Barrington Pacific, Douglas Emmett Management and Douglas Emmett (collectively “Barrington...

Excerpt: ...mmett and managed by defendants Barrington Plaza and Douglas Emmett Management. Resident plaintiffs allege defendants failed to provide adequate fire safety precautions, resulting in a fire that displaced, injured, and in one case killed, tenant plaintiffs. Plaintiffs also the building remained suffused with ash and toxic debris after the fire. Defendants Barrington Pacific, Douglas Emmett Management and Douglas Emmett (collectively “Barrington...

Excerpt: ...nts had been satisfied. Based largely on this ruling, the court issued judgment on the pleadings for defendants. Defendants seek prevailing party attorneys' fees on the grounds that one of the judgments included an attorney's fee provision. Attorney's fees incurred in enforcing a judgment are recoverable if the underlying judgment includes an award of attorney's fees. Cal. Code of Civ. Proc. §685.040. This applies to later actions against third ...

Excerpt: ...f's medical provider and health insurer), Sutton Place Apartments, Ocean Park Boulevard (plaintiff's prior landlords) and Mercury Insurance Company (rental insurance provider). Delakas argues the subpoenas are overly broad and burdensome. While some medical records may be discoverable, as plaintiff put her physical and mental health at issue, the subpoenas to Fried, the Sleep Institute and Aetna seek all records concerning treatment without limit...

Excerpt: ...ee the project. Plaintiff alleges Joseph assisted his father Stuart in a conspiracy to misappropriate project funds. The court will refer to the Rubin defendants by their first names to distinguish the parties. Defendant Joseph Rubin's Motion for Judgment on the Pleadings Joseph moves for judgment on the pleadings, arguing the first amended complaint includes no specific allegations against him, and its allegations contradict Stiffelman's sworn t...

Excerpt: ...se nuisance and that Mardirossian's chain link fence trespasses onto his property. Mardirossian moves to quash deposition subpoenas for production of business records from his law firm, Mardirossian Akagarian (MA). Hartunian/Festa Subpoenas for Business Records Howarth served subpoenas on Rich Festa, a State Farm employee, and Avo Harutunian, Farmers Insurance employee, seeking documents and communications related to fire insurance for Mardirossi...

Excerpt: ...echanic's lien. Breach of Contract The breach of contract claim does not allege a contract between Puryear and Groundtech, and the contract does not name Puryear as a party. Complaint ¶¶14-19, Exhibit 1. The complaint alleges RDG breached its subcontract by failing to pay Groundtech but does not state an obligation that Puryear allegedly failed to fulfil. Complaint ¶¶17-19. The complaint fails to adequately allege a contract claim against Pur...

Excerpt: ...fair business practices and requesting injunctive relief. There is a strong public policy in favor of allowing amendments to pleading. Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 296. Generally, unless there is prejudice to the opposing party or unreasonable delay, it is an abuse of discretion to deny leave to amend at any stage of litigation. A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068. Discovery is ongoing, and trial has...

Excerpt: ...alifornia public policy favors arbitration. People v. Mapblebear Inc. (2022) 81 Cal.App.5th 923, 930. Absent fraudulent inducement, a party cannot avoid enforcement of an arbitration agreement because the party has limited proficiency in the English language. Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519. It is incumbent upon the party with limited English proficiency to inform the other party and request to have it rea...

Excerpt: ...me barred, and undisputed expert evidence shows Kohan did not breach the standard of care. Kohan's Evidentiary Objections All objections OVERRULED. Statute of Limitations Cal. Code of Civ. Proc. §340.5 states a one-year statute of limitations for medical negligence claims, which applies if the gravamen of the claim is the manner in which the professional rendered health care services. Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th ...

Excerpt: ...lliams used his position for self- dealing, reimbursing himself for personal expenses, paying himself an unauthorized salary and negligently managing Metro's properties and finances. Williams demurs to portions of the first amended complaint and moves to strike the request for punitive damages. Shareholder Derivative Claims (First, Third, Sixth, and Ninth Causes of Action) For a shareholder to bring a derivative action on behalf of a corporation,...

Excerpt: ... to pay rent under the guaranty agreement and defamed him by accusing him of domestic violence. Breach of Contract Under Cal. Civ. Code §2815, “a continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration which he does not renounce.” A third party cannot enforce a contract, even if he is incidentally benefitted by it, unless it is “the intention of the part...

Excerpt: ...aintiff's rights,” unintentional harm can nonetheless constitute malice or oppression for the purposes of awarding punitive damages. Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.702, 716. The Amron defendants argue the FAC does not allege intentional conduct or aggravating circumstances or rise to the level of “despicable” conduct required for punitive damages. The FAC alleges defendants were aware their dog had a vicious nature and pr...

Excerpt: ...mith, signed an arbitration agreement on August 17, 2021 applying to any claim or controversy arising out of care at Terraza Court. Plaintiff Smith moves for trial priority; defendants move to compel arbitration. Trial Preference Under Cal. Code of Civil Procedure §36(a), a court will grant trial preference to a party to a civil action over 70 years old if the party has a substantial interest in the action, and the party's health is such that pr...

Excerpt: ...fired De Mill, then contracted directly with Wittrock to complete the work. Wittrock alleges it agreed to stay on the job if VBA paid outstanding amounts owed by De Mill; VBA allegedly failed to make required progress payments and denied existence of a direct contract with Wittrock. VBA demurs to the first amended cross-complaint. Standing/Licensing Under Cal. Code of Civ. Proc. §7031, a contractor cannot recover compensation for performance und...

Excerpt: ...lack of consent and (3) harm. CACI 1300. The battery claim is alleged against unnamed doe defendants. Defendants Giacomino Drago, Il Pastaio, FSC Corporation dba Il Pastaio, Celestino Drago and Steven Piano (collectively the restaurant defendants), previously named as Does 1-5, demur. The complaint does not clarify how any restaurant defendant is liable for battery. It lacks specific allegations that restaurant employee defendants shot plaintiffs...

Excerpt: ...ights,” unintentional harm can nonetheless constitute malice or oppression for the purposes of awarding punitive damages. Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.702, 716. The Amron defendants argue the FAC does not allege intentional conduct or aggravating circumstances or rise to the level of “despicable” conduct required for punitive damages. The FAC alleges defendants were aware their dog had a vicious nature and propensity to...

Excerpt: ...due June 5, 2023. Volkswagen responded two days late (June 7), with verifications sent June 10, 2023. Volkswagen moves for relief from its waiver of objections due to untimely discovery responses. A court may relieve a party from waiver of objections to discovery requests for failure to timely respond if the moving party shows responses were subsequently served, the responses are in substantial compliance with the statute, and the failure was the...

Excerpt: ... an option contract whereby Jones could purchase the property for $2,275,000. The initial version of the option included a copy of a form real estate purchase agreement (RPA) that would govern the sale following exercise of the purchase option. Later, the option was amended deleting the RPA and listing the terms of the purchase agreement. Plaintiffs allege they attempted to exercise their option on November 22, 2021, but Farmer refused to perform...

Excerpt: ...vements. Busiashvili cross-complained seeking an easement. She moves to amend, adding a claim for adverse possession. The case was filed January 30, 2019; trial is set for September 18, 2023. Courts are to liberally exercise discretion to allow amendments to pleadings at any time. Desny v. Wilder (1956) 46 Cal.2d 715, 751. Leave to amend may be denied when the party seeking amendment delayed without justification. Melican v. Regents of Univ. of C...

Excerpt: ...hich the court granted in part, reducing the fees to $18,298.00. On June 30, 2023 SCLU filed another memorandum of costs after judgment, seeking $55,862.55 in post-judgment attorney's fees. Vara moves to strike and/or tax. A trial court has discretion to disallow recovery of costs if it determines they lack sufficient evidentiary support or were incurred unnecessarily. See, e.g., Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th ...

Excerpt: ...ng plaintiff meets the initial burden if they present evidence proving each element of the cause of action. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A successor-in-interest to a beneficiary foreclosing on a deed of trust may prosecute an unlawful detainer. Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 483- 484. After default on a deed of trust, the trustee is to record a notice of default. Cal. Civ. Cod...

Excerpt: ...business for decades, contributing capital, participating in meetings and receiving distributions. The court uses first names of the various Harkham parties for ease of reference. Terry alleges Efrem and his son Aron deny his status as partner, refusing to distribute profits from the hotel's sale and preventing him from inspecting books and records. Terry also alleges Efrem and Aron engaged in self-dealing, taking out loans against the hotel for ...

Excerpt: ...vailability. Shamooil moves to compel. Under Cal. Code of Civ. Proc. §1281.2, a court shall order a controversy to be arbitrated if it determines that a valid agreement to arbitrate the controversy exists. Plaintiff properly noticed and served a petition to compel arbitration pursuant to the arbitration provision in her policy. Plaintiff abided by the provision's requirements, including demanding arbitration and proposing arbitrators. State Farm...

Excerpt: ...f emotional distress, retaliation and negligence, which were included in the initial complaint, not present in the first amended complaint (allegedly due to plaintiff's mistake), and subject to demurrer in the second amended complaint because the court did not give leave to restore them. Plaintiff seeks to add new causes of action for unfair business practices and wrongful discharge in violation of public policy and seeks punitive damages. Courts...

Excerpt: ...ing Pacific Horizon's use of the disputed easement to ingress and egress. The Meehans seek attorney's fees of $137,456.28 under California Civil Code §1717 and Article 5, Section 5.1 of the CC&Rs. A court may not award fees for legal work unrelated to a cause of action for which fees are authorized. Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 130. When all causes of action rely on the same facts, fees need not be apportioned between ca...

Excerpt: ...the request for punitive damages. Levy A demurrer can be sustained when matters contained in attached exhibits contradict the allegations in the complaint. Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505. Levy demurs, arguing he was merely a member of defendant HLI Holdings, LLC and cannot be liable for the entity's torts or contractual obligations. Levy argues the purchase agreement (FAC, exh. 1) shows he was not a party to the...

Excerpt: ...tir. A dispute arose between Davis and Rickel, culminating in Rickel's removal from the business. Davis and Rickel entered into a handwritten settlement agreement in 2014 under which Rickel gave up his interest in the business in exchange for a share of profits from “the fund's” future investments. On September 23, 2021 the court issued a ruling determining “the fund” referred only to DTS, not to all the Disruptive entities. Davis now mov...

Excerpt: ...laim. Caraballo and Athens demur breach of contract claim in the first amended complaint (FAC) and move to strike allegations Caraballo “defamed” plaintiff. Athens Demurrer The elements of a claim for breach of contract are (1) contract, (2) plaintiff's performance or excuse for nonperformance, (3) breach, and (4) damage. Otowroth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458. The FAC alleges either that all Los Angeles r...

Excerpt: ...r judgment on the pleadings, arguing the claims are time-barred. A motion for judgment on the pleadings is functionally identical to a demurrer and may be made on the grounds that a cause of action is barred by the statute of limitations. Cal. Code of Civ. Proc. §438(c)(2)(A), Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440. Breach of Note An action for failure to pay under a note payable on demand must be brought within six years of the...

Excerpt: ...l burden if they present evidence proving each element of the cause of action. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A successor-in-interest to a beneficiary foreclosing on a deed of trust may prosecute an unlawful detainer. Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 483- 484. After default on a deed of trust, the trustee is to record a notice of default. Cal. Civ. Code §2924. Three months after ...

Excerpt: ...ey's fees and costs. SM provides the lease and residential ledger reflecting lease payments made. SM Separate Statement 5-9. The declaration of general manager Nicole Brown states the ledger is kept in the ordinary course of business and is updated when a tenant makes a payment. Browne declaration ¶6. The ledger is admissible under the business records exception. The ledger and lease show the Ins failed to make required lease payments. This carr...

Excerpt: ...ld be stayed. The court allowed the parties to file additional briefing regarding applicability of Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482, 486. In Alberto, the court held an arbitration agreement and confidentiality agreement should be read together since both were conditions of plaintiff's hiring and both governed disputes related to plaintiff's employment. The Alberto court held the confidentiality agreement was unconscionable f...

Excerpt: ...ove for summary adjudication of the Bus. and Profs. Code §7031 claim and adjudication of issues of duty connected to the breach of contract claim. Plaintiffs filed and withdrew a summary adjudication request as to treble damages. A plaintiff fulfills his or her initial burden on summary adjudication or judgment by proving each element of the relevant cause of action. Code of Civ. Proc. §437c(p)(1). The burden then shifts to defendant to show a ...

Excerpt: ...on her claims under the Unruh Civil Rights and Cal. Gov. Code §11135, arguing that UCLA's policy of allowing ‘incompletes' to remain visible on a student's transcript after a course has been completed disparately impacts disabled students. The Regents move for judgment on the pleadings on three of D.E.'s causes of action. Evidentiary Objections Objection 1 SUSTAINED (irrelevant, hearsay,) objections 2-3 OVERRULED, objections 4-5 SUSTAINED (hea...

Excerpt: ...oss- complainants received shares of Halo stock. Cross-complainants allege the sale was fraudulently induced, with Halo misrepresenting its financial status, connections in the industry and compliance with relevant laws. Halo demurs to the first amended cross-complaint. Cancelled Entity 7PG Upon the filing a certificate of cancellation by a limited liability company, the company's “powers, rights, and privileges shall cease.” Cal. Corp. Code ...

Excerpt: ... loud music, yelling, partying and noise from F&F, with disturbances continuing late at night. G8 alleges F&F's inadequate security measures endangered residents, including a shooting at F&F that shattered windows and damaged a resident's couch. The F&F defendants demur to the claims for public nuisance, private nuisance, interference with contractual relations, negligent interference with contractual relations, interference with prospective econ...

Excerpt: ...venting delaying plaintiffs' move-in. A writ of attachment can issue where a claim for money based upon a written contract of a fixed or readily ascertainable sum in a commercial claim is in excess of $500 and unsecured by real property. Cal. Code of Civ. Proc. §484.090(a)(1). The claim upon which the writ is based must have “probable validity.” It must be more likely than not that plaintiff will obtain a judgment. Cal. Code of Civ. Proc. 48...

Excerpt: ...o had adequately shown Visconti fulfilled the requirement set forth in Cal. Code of Civ. Proc. §391, commencing more than five unsuccessful litigations within the last seven years. The court declined to issue a final ruling declaring Visconti a vexatious litigant. Instead, the court scheduled an evidentiary hearing for Visconti to present evidence showing a reasonable probability of prevailing on her cross-complaint. Visconti's brief for the evi...

Excerpt: ... Stang, Ziehl & Jones LLP (PSZJ) seeking communications with Stiffelman related to various topics, communications with investors in the project, communications with several named financial institutions related to the project, project-related communications with named third parties, and communications related to debts owed by Stiffelman. Under Cal. Code of Civ. Proc. §1985.3, if a subpoena seeks a consumer's personal records maintained by a witne...

Excerpt: ...it contracted with VBA to complete the work, and VBA failed to pay $401,430.48 for materials and labor. VBA demurs. Breach of Contract A claim for breach of contract must specify whether the alleged contract is oral, written or implied by conduct. Cal. Code of Civ. Proc. §430.10(g). VBA argues the cross-complaint does not clearly allege the form of the contract, as required by §430.10(g). This objection is valid. The cross-complaint states “V...