Excerpt: ...m another or to do an act with a positive, active, and absolute disregard of its consequences.'” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412; Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140.) The effect of describing something as willful misconduct is that it is sufficiently opprobrious and culpable to have the legal consequences of an intentional tort. (Mahoney v. Corralej...

Excerpt: ...e from Orange Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Amanda Donohue, D.O. complied with the applicable standard of care at all times and no act or omission on the part of Amanda Donohue, D.O. caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 4-7 and 12. Dr. Brown further noted that although Dr. Donohue is associated with California Heart Associates...

Excerpt: ...t adjudication turns on factual questions, the trial court assesses the evidence in light of the parties' respective burdens. The moving party's affidavits are strictly construed while those of the opposing party are liberally construed. Once the defendant's initial burden is met, the burden shifts to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense. CCP §437c; Aguilar v. Atlan...

Excerpt: ...r third person not yet a party to the action only if the cause of action asserted: (1) arises out of the same transaction, occurrence, or series of transactions or occurrences set forth in the complaint, or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the COA brought against him. (Id. At §6:525, citing CCP § 428.10(b).) Here, the proposed XC seeks to name a third party that is allegedly responsi...

Excerpt: ... claim for misrepresentation, plaintiff must allege with particularity:  defendant represented to plaintiff that an important fact was true;  that representation was false;  defendant knew that the representation was false when made;  defendant intended plaintiff to rely on the representation;  plaintiff reasonably relied on the representation;  plaintiff was harmed; and  plaintiff's reliance was a substantial factor in causi...

Excerpt: ...uty in order to have an actionable “wrong” under B & P C§17200. This Court further observed that the allegations were enough to permit the inference that Chicago did something wrong and caused harm as a result thereof. On 11/13/17, Chicago filed a motion for judgment on the pleadings directed at the narrow question of whether plaintiff had stated a legal basis for relief. Although Chicago's approach to split the attack was gamey, this Court ...

Excerpt: ...usiness practices was now one for declaratory relief based on the lots yet to have flooring ordered and installed. At the very least there are 352 “remaining lots” which plaintiff claims entitlement to commissions (even though defendant has not necessarily even determined any profit margin). ...

Excerpt: ....App.2d 798, 805); Batte v. Bandy (1958) 165 Cal.App.2d 527, 533 (“Affidavits devoid of averments of facts showing that due diligence was exercised to make service have consistently been held to be insufficient…”). Plaintiff's declaration, paragraph 5, does not provide enough information about what was found at the registered address for the agent for service of process for Creek Systems Inc. (Kevin M. Daly) at 8105 Irvine Center Drive, Sui...

Excerpt: ...Agreement is illusory. However, the Court has located no authority that addresses facts the same as or similar to the facts presented here. Given the public policy that arbitration agreements should be enforced wherever possible, the Court concludes that a valid arbitration agreement has been shown here. There is no showing that the 2016 Agreement is void due to fraud in the inception or is procedurally unconscionable. Plaintiff has forthrightly ...

Excerpt: ...court GRANTS the Petition for the reasons set forth below. This litigation is stayed pending resolution of the arbitration. A. Basic Procedure In Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414, the California Supreme Court explained the procedure a trial court must follow when a party files a petition to compel arbitration. The only question is whether the trial court should specifically enforce the arbitrati...

Excerpt: ...evelopment. The project included seventy-eight (78) residential units and six (2) two-story structures. Although there was already a Condominium Act in California, the governing decision-makers of Manor elected to operate the development as a non-profit stock cooperative. While similar to a condominium, the biggest difference is that in a co-op the resident members do not own the unit they occupy; instead, they enjoy an exclusive leasehold of the...

Excerpt: ...evidence is put forward, the burden shifting analysis in circumstantial evidence cases is not utilized. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138. With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. Cordova v. State Farm Ins. Companies (9th Cir. 1997) 124 F.3d 1145, 1150; Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221 (“This comme...

Excerpt: ...sts for Admission, Set One (the “RFAs”) were propounded to Plaintiff on 10/19/17, and that despite an extension to 12/7/17, no responses were ever provided. (Kruppe Decl. at ¶¶ 2-4 and Ex. A.) The arguments presented in the Opposition do not warrant a continuance: unless responses in substantial compliance with C.C.P. § 2033.220 are provided before the hearing, the matters specified in those RFAs shall be deemed admitted. Sanctions are imp...

Excerpt: ...e party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or la...

Excerpt: ...ring is continued for the limited purpose of serving any omitted parties , their opposition will be due to the Court, at least 9 court days before the nex t hearing. This is not an authorization for the parties who were served with th e moving papers, to submit their oppositions at this time. Also, the MP's Notice of motion [see ROA 296] does not comply with CR C 3.1382 by identifying each party, each pleading or portion of pleading affecte d by ...

Excerpt: ...v. Williams (1994) 23 Cal.App.4th 238, 246 Plaintiff has not shown the harsh, time-consuming, expensive and potentially unjust remedy of a receivership is “absolutely essential” in this case. See, City & County of San Francisco v. Daley (1993) 16 CA4th 734, 745 Plaintiff's evidence supporting “insolvency” under CCP §654(b)(6) is insufficient to show that a receivership is warranted. At most, the evidence is equivocal. If believed, it sho...

Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...

Excerpt: ...djudication as to all four issues and also DENIES the motion for summary judgment. A. 1st COA: Legal Malpractice DENIED as to Issues 1 and 2. Issue 1. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law because Reid is unable to establish any breach by Defendants of their duty of care. Issue 2. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law becaus...

Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...

Excerpt: ...ssuance or nonissuance of the injunction. “The trial court's determinatio n must be guided by a mix of the potential-merit and interim-harm factors; th e greater the plaintiff's showing on one, the less must be shown on the other t o support an injunction. Of course, the scope of available preliminary relief i s necessarily limited by the scope of the relief likely to be obtained at trial on th e merits. A trial court may not grant a preliminar...

Excerpt: ... demonstrate inadvertence , mistake, surprise or excusable neglect. Here, defendant explains that he is self-represented, and unfamiliar with ho w to respond to a lawsuit. He explains that he did come to court on two prio r hearing dates, and appears to be participating as best he can. He was unawar e of the risk of default, despite already making what amounts to a genera appearance in the action. See City of Riverside v. Horspool (2014) 22 3 Cal...

Excerpt: ... because Outsourcing is without counsel, and a corporate entity is not able t o represent itself in general litigation. (See Gamet v. Blanchard (2001) 9 1 Cal.App.4th 1276, 1284 n.5; CLD C o n s t . , I n c . v . C i t y o f S a n R a m on (2004) 12 0 Cal.App.4th 1141, 1145-1150.) The cross-defendants, Sanders Engineering Co. and Craig Jackson, hav e objected to this, via their demurrer to the operative pleading. (See Docke t #153). Outsourcing w...

Excerpt: ...oving papers, was a letter from the Defendant's counsel, dated 10/5/17, expressing that a response to this motion was unlikely. (See ROA 28, Ex. C.) Because of the harmful effect that admissions can have on the case, the RP can serve verified, substantially-compliant responses to RFAs, before the hearing, and if so, then the Court must deny the motion to deem them admitted. [See CCP §2033.280(c); St. Mary v. Superior Court (2014) 223 Cal.App.4th...

Excerpt: ...arvig requests from this Court an order relieving it from further participation in this case. An attorney may withdraw as counsel of record if the client breaches the agreement to pay fees, insists on pursuing invalid claims or an illegal course of conduct, or when other conduct by the client renders it unreasonably difficult for the attorney to do his job, including when there is a breakdown in the attorney-client relationship. California Rules ...

Excerpt: ...ng averment for punitive damages. Initially, there continues to be a concern over standing. Although defendants have not raised the issue, this lingers on from the prior unsuccessful application for appointment of a guardian ad litem. As indicated in the operative pleading and opposition papers, it appears this litigation is being handled by plaintiff's daughter, Dellia Montgomery. The “authorization” presented by her to this Court specifies ...