Excerpt: ... Ordinarily, an employee's rights against his or her employer or any fellow employee for on‐the‐job injuries lie solely under the worker's compensation law, and the worker's compensation is the injured employee's “exclusive remedy.” (Lab. Code, §§3600, 3601, 3602(a).) In such actions involving a worker injured on the job, the superior court and the Workers' Compensation Appeals Board (WCAB) do not have concurrent jurisdiction, and one o...

Excerpt: ...rer is filed, or after demurrer and before trial. (Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102, 1105.) Otherwise, amendment of any pleading requires prior order of court. CCP §473 provides that following a noticed motion, the court may allow an amendment to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in permitting amendments at any stage of the proceeding.” (Rocky Mountain Expo...

Excerpt: ... conduct, or that it was invalid. At most, she alleges an underlying action to which she was not a party to, and argues in opposition, that she was an indispensable party. From the allegations in the underlying action, RIC 1410237, Plaintiff Suntrust Mortgage, Inc. is the owner of property located at 1718 Hayden Ave. in Corona. Suntrust asserted that the property was formerly owned by Mohammad Rahmani Nejad (“Nejad”). Suntrust loaned Nejad mo...

Excerpt: ...A motion for summary judgment shall be granted when no triable issue of material fact exists or the issue is one of law and the action can be terminated in favor of the moving party without the necessity of trial. (CCP § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may alternatively move for summary adjudication as to a cause of action, but a motion for summary adjudication can only be granted if it completely...

Excerpt: ...herwise denied. Exhibit 2 is not relevant to resolution of the issues raised in the demurrer. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569 [only relevant material may be noticed].) Each of Ameristar's Causes of Action Is untimely under the contractual limitations set forth in the purchase agreement. Generally, a statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. (Brisb...

Excerpt: ...eborah Cesario and River Springs are nearly identical motions. They assert the same arguments set forth by Thurmond and add no new arguments. Plaintiffs have filed nearly identical oppositions to these motions. Therefore, this analysis applies to all three motions. C.C.P. §425.16 provides a summary procedure by which a defendant can dispose of a lawsuit brought primarily to chill the valid exercise of the constitutional rights of free speech and...

Excerpt: ...ably should have known that the subject vehicle was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; (3) that defendant became aware of the defect after the subject vehicle was sold; (4) that defendant failed to recall or warn of the danger of the subject vehicle; (5) that a reasonable seller under the same or similar circumstances would have recalled the vehicle; (6) that plaintiff was harmed; and (7) that de...

Excerpt: ... whether the building was uninhabitable and/or posed an immediate danger to the apartment occupants are factual questions that cannot be resolved at the pleading stage. For pleading purposes, the City states sufficient facts to survive demurrer. As to judicial review under CCP § 1094.5: Gov. Code § 53069.4 provides that, notwithstanding CCP § 1094.5 and § 1094.6, within 20 days after service of a final administrative order imposing administra...

Excerpt: ...t, within two years of the judgment. Section 473(d), however, has no time limitation, but its requirements are stricter. Here, the requirements are met. “Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or defense to the court as a result of being kept in ignorance or in some other manner being fraudulently prevented by the opposing party from fully participating in the proceeding.” (County of San Diego v....

Excerpt: ...alif., Inc. (2010) 191 Cal.App.4th 53, 63.) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights, while malice means conduct which is intended to cause injury or despicable conduct which is carried out with a willful and conscious disregard of the rights or safety of others.” (Civil Code (CC) (§ 3294(c).) Malice means conduct that is intended by the defendant to ...

Excerpt: ...and pursuant to Evidence Code § 452(d) as to Nos. 7 and 8. CCP §425.16 provides that a defendant may move to strike a cause of action brought primarily to chill the valid exercise of the constitutional rights of free speech and right to petition, at the pleading stage to avoid the cost and delay of lengthy litigation. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278.) In applying the anti ‐SLAPP statute, the Court engages in...

Excerpt: ...justice be served by dissolving this injunction. For purposes of this ruling Majestic Asset Management LLC, Wintech Development, Jen Huang and Hai Huang are referred to as “moving parties” or “Majestic” and The Colony at California Oaks Homeowners Association is referred to as the “HOA”. Request for Judicial Notice: Moving parties: Granted as to nos. 1 and 4 pursuant to Evidence Code sections 452 and 453. Court declines to take judici...

Excerpt: ...amages apply. (Arista v. County of Riverside (2018) 29 Cal.5th 1051, 1062‐1063.) Although there is no general duty to avoid negligently causing emotional distress to others, such a duty is recognized with respect to two categories of person: 1) direct victim plaintiffs, i.e., persons who suffer serious emotional distress as the result of defendant's breach of a duty of care owed directly to them; and 2) bystander plaintiffs, i.e., persons who s...

Excerpt: ... and the parties could not reach agreement to avoid the instant pleading motion (Antonyan Decl. ¶ 5, Exhibit 4). This demurrer and the motion to strike Page 5 of 7 were not filed until 7‐27‐20, the same day as the Exhibit 4 email from plaintiff's counsel to defendant's counsel describing plaintiff's decision of the meet and confer issues. The issues on the demurrer and motion to strike are fully briefed. In light of the circumstances on this...

Excerpt: ...20, 8:30 a.m., Department 5. As to the third cause of action: The central issue is that that plaintiff has not sufficiently alleged publication, or a false statement of fact, and asserts the common interest privilege. As Witkin points out, “[i]t is sometimes said to be a requirement, and it certainly is the common practice, to plead the exact words or the picture or other defamatory matter. The chief reason appears to be that the court must det...

Excerpt: ...ught a cause of action for traditional writ of mandate. She alleges that City has violated the law by depriving her of the opportunity for a hearing to revoke the requirement of a Wild/Vicious Animal Permit (WVAP). Petitioner alleges violations of Norco Municipal Code (NMC) sections 8.05.070 [permit procedure] and 8.05.100 [permit revocation.] (First Amended Petition (FAP) ¶74.) NMC section 8.05.100(b) provides, in part: “The animal control of...

Excerpt: ...mote the determination of actions on their merits.” (Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) The purpose of CCP §1008 is for reconsideration of a prior ruling based on new or different facts, circumstances or law. This seems to be an improper motion for reconsideration as Plaintiff is asking the court to now consider legal authorities not previously provided. The legislative intent of...

Excerpt: ...fiduciary duty exists is generally a question of law; whether the defendant breached that duty towards the plaintiff is a question of fact. (Marzec v. Public Employees' Retirement System (2015) 236 Cal. App. 4th 889, 915.) The SAC now alleges that Qilin, Qiliang, and Golden Taste breached the fiduciary duty they owed to Plaintiff as partners of Golden Globe. (SAC ¶52.) It also incorporates the allegation that when Plaintiff acquired his 51% of G...

Excerpt: ... But that policy “‘“does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.”” (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763]…) .” Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1057. Where the employee contests the ...

Excerpt: ...f Michael Bova.) Accordingly, plaintiff's causes of action against Farmers for breach of contract and breach of the implied covenant of good faith and fair dealing fail in the absence of a covered peril. The court has discretion to consider a late filed opposition particularly where there is no prejudice to the moving party. Kapitanski v. Von's Grocery Store (1983) 146 Cal. App. 3d 29, 32. Moving party filed a substantive Reply, thus its procedur...

Excerpt: ...truction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) Alternatively, a written contract can be pleaded by attaching a copy to the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) Plaintiff alleges that on 1‐ 26‐18, it submitted a proposal for the project to Centro Medico. (FAC ¶8.) Thereafter, Centro Medico provided an “Intent to Award Con...

Excerpt: ...enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The statute was enacted to provide a summary procedure for specific performance of a settlement contract without the need for a new lawsuit. (Weddington Productions v. Flick (1998) 60 Cal. App. 4th 793, 809.) The court may not ...

Excerpt: ...tion to dismiss set for 9‐25‐20. Procedural background includes but is not limited to that Plaintiff filed this action on 6‐29‐16. When the Third Amended Complaint was the operative pleading, on 7‐8‐20, the court sustained City's demurrer to the 9th, 13th, 14th, 18th and 19th causes of action, while the Plaintiff had already dismissed the 15th, 16th and 17th causes of action. These were the only causes of action asserted against the C...

Excerpt: ... denied. A motion under CCP § 2033.280 shall be granted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response . . . in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).) Defendant provided substantive responses on 8‐4‐20, such that CCP § 2033.280 does not apply. The responses are timely because they were served 35 days aft...

Excerpt: ...t to the form of the protective order, and, in particular, whether there should be a sharing provision, allowing plaintiff's counsel to share the information with other counsel in similar cases. (Von der Lancken decl., ¶ 5, Exhibits A to D.) Based upon both the Van der Lancken declaration and Exhibits A to D attached to his declaration show compliance. There is no dispute that defendants are entitled to a protective order for their trade secrets...

Excerpt: ...anagement Conference for 9‐17‐20 is continued to 11‐19‐20 at 8:30 a.m., Department 5. To support a claim for punitive damages under Civil Code (CC) §3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (CC §3294(c).) Ordinary negligence (mere carelessness or simple failure to exercise due care for plaintiff's safety) does not amount to malice, oppression or fraud and thus does not support a punitive dama...

Excerpt: ...se, or excusable neglect.” There are Page 4 of 4 two forms of relief: mandatory or discretionary. (CCP §473(b).) Relief is mandatory if the attorney is willing to take the blame and pay the costs; the court must set aside the entry of default, default judgment or dismissal. (Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Without an attorney affidavit of fault, relief is discretionary and must be based on a showing of mi...

Excerpt: ...Angeline Campos, submitted the proposed initiative measure (which would eventually be known as Measure L), which would create exemptions to allow some cannabis businesses. (AR 0013‐ 0077.) On 4/9/18, the Registrar of Voters verified the signatures and declared the petition sufficient. (AR 0183.) The City Council submitted a rebuttal argument against Measure L. (AR 0099, 0194‐0197, 0492, 0506, 0520.) On 11/6/18, the voters approved Measure L b...

Excerpt: ...srepresentation; and (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, ...

Excerpt: ... the issues of liability and punitive damages. If punitive damages are sought in a case, the judge must order a separate trial on this issue after the defendants' liability for actual damages is established. (Civil Code Sections 3294, 3295(d).) The dispute that exists here, concerns bifurcating compensatory damages from the liability phase of trial. Defendants contend that the introduction of damages would be highly prejudicial to defendants, tha...

Excerpt: ...to the Derosa Decl. • CMO § E(2)(b) – Counsel does not state whether the parties utilized the services of any neutral party to mediate this dispute. • CMO § E(2)(c) – Counsel does not provide proof that a copy of the Settlement was submitted to the LWDA. • CMO § E(3)(a) – Counsel discusses the nature of the alleged PAGA violations. (Derosa Decl., ¶ 2.) • CMO § E(3)(b) – Counsel discusses the number of alleged violations, incl...

Excerpt: ...as continued to allow Plaintiff to meet and confer regarding the second supplemental responses as required by CCP §§2016.040, 2030.300(b) and the court's General Order 2020.15. Plaintiff was ordered to file a meet and confer declaration ten days before this hearing. The declaration filed on 8‐18‐20 described that the issues remaining following the meet and confer were Special Interrogatories (SI) Nos. 4 and 7, and Request for Production of ...

Excerpt: ...e Case Management Conference currently set for 10‐1‐20 is continued to 11‐30‐20 at 8:30 a.m., Department 5. The court has the court has discretion to consider an untimely‐ served opposition. (See CRC 3.1300(d); Slayton v. Superior Court 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More importantly, in filing a substantive reply, Defendants waived any defect or irregularity in service. (Carlton...

Excerpt: ...osition. (See CRC 3.1300(d); Slayton v. Superior Court 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More importantly, in filing a substantive reply, Defendants waived any defect or irregularity in service. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (M...

Excerpt: ...eferred to as “moving parties” or “Majestic” and The Colony at California Oaks Homeowners Association is referred to as the “HOA”. Request for Judicial Notice: Moving parties: Granted as to nos. 1 and 4 pursuant to Evidence Code sections 452 and 453. Court declines to take judicial notice of nos. 2 and 3. HOA: Court declines to take judicial notice of exhibits. A, B, and C, the objections made to declarations submitted at prior procee...

Excerpt: ...nd supplement declarations/briefs in opposition 9 court days before the next hearing and supplemental reply, if any, at least 5 court days before the next hearing. Weighing of the Tech‐Bilt factors requires consider of the settlor's proportionate liability. (TechBilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499; City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262 [“The ultimate determinant of good faith is whether the se...

Excerpt: ...ehicle for repair; and (3) the manufacturer or his authorized representative did not repair the nonconformity after a reasonable number of repair attempts. (Civil Code § 1793.2; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) The only information provided in counsel's declaration relevant to good cause is a single paragraph in which counsel explains the RFPs seek information “regarding similar warranty repairs and repu...

Excerpt: ... Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499 (Tech‐Bilt). Even though Orozco may have a non‐delegable duty to maintain his vehicle, there is no evidence his vehicle was inoperable prior to the allegedly negligent repairs made by defendant certified tire. (Maloney v. Rath (1968) 69 Cal.2d 442, 447‐448 [non‐delegable duty imposed under Vehicle Code sections 26453 (conditions of brakes) and 26454 (control and stopping requirements) t...

Excerpt: ... is required to protect the interests of the party entitled to but denied discovery.” (Young v. Rosenthal (1989) 212 Cal. App. 3d 96, 118.) A decision to order a terminating sanction should not be made lightly unless the violation is willful, preceded by a history of abuse and evidence shows that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) If te...

Excerpt: ...bits B and C. Defendant Objections: Exhibit B is not authenticated by sworn declaration and the verification fails to identify the relationship of the affiant to the County, therefore a lack of foundation. Defendant notes that the verification signed by Erik Collier does not state Mr. Collier's title or position with the County. CCP §2031.250(b) requires that discovery responses for a government agency shall be signed by one of the agency's offi...

Excerpt: ... and the Cross‐Complaint of Century 21 Masters, Karen Myatt, and Todd Myatt filed on 7‐12‐19. Moving parties' (referred to herein as moving parties or Secured Income parties) Request for Judicial Notice is granted pursuant to Evidence Code § 452 (c). Objections of Realty Services to paragraph 24 of the McDermott Declaration are sustained. Court declines to rule on remaining objections. In order to obtain a summary judgment, “all that the...

Excerpt: ...er party to the contract jointly interested with such party. (Cal Civ Code § 1689(b)(1).) “A prerequisite to any claim for rescission is a contract between the parties. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 542, p. 668.) This is because rescission requires each party to the contract to restore to the other everything of value received under the contract.” (Viterbi v. Wasserman (2011) 191 Cal. App. 4th 927, 935.) One who is no...

Excerpt: ...oduction (“RFP”) on Max, who was then three years old. At the time, no guardian ad litem had been appointed by the Court. On 5‐19‐20, Max served responses objecting that he could not comprehend the discovery requests. The parties exchanged emails and met and conferred telephonically, but could not resolve the issues. On 6‐ 1‐20, Oscar Magana (Oscar) was appointed Max's guardian ad litem (GAL). The requisite meet and confer occurred. T...

Excerpt: ...AC) is not a sham pleading. The allegations in the Complaint, Notice of Errata and FAC are essentially the same. The FAC using the same transactional facts alleged new theories. The recharacterization of Kyle's claims against Defendant and the omittance of Irina's claims does not result in a sham pleading. The FAC states sufficient facts sufficient to constitute causes of action for breach of fiduciary duty; breach of partnership/joint venture ag...

Excerpt: ...to the Lease. As a matter of background, trial on this matter was completed on 11‐30‐18. On 5‐31‐19, the court issued an interlocutory judgment ordering partition. A Partition Referee was appointed. The lease which is the subject of this motion was not presented during the trial. On or about 12‐ 20‐19, Defendant disclosed a commercial lease (the “Lease”) to the referee. The Lease, executed by Defendant in 2014 as both Lessor and L...

Excerpt: ...arty shows the date of 8‐7‐20. Moving party filed a Reply addressing the timing of the document and addressing the arguments stated in the Opposition. The court exercises its discretion to consider the Opposition. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202; Kapitanski v. Von's Grocery Store (1983) 146 Cal. App. 3d 29, 32.) Defendant's Request for Judicial Notice of Declaration of Al Northrup and its exhibits: Denied...

Excerpt: ...324 provides that a motion to amend a pleading before trial must include a separate declaration that specifies the following: “(1) The effect of the amendment, (2) Why it is necessary and proper, (3) When the facts giving rise to the amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). “[It] is an abuse of discretion to deny leave to amend where the opposing party wa...

Excerpt: ... he/she/it must show a “satisfactory explanation for failing to provide the evidence earlier, which can only be describes as a strict requirement of diligence.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Facts known by the party seeking reconsideration when the original ruling was made are not considered “new or different.” In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. Plaintiffs do not meet the requirements under C.C.P...

Excerpt: ...t allegations in the complaint in the Moore Action by evidence that either does not contradict the allegations or that is not subject to judicial notice. The central arguments by the St. James parties is that admissions by the Moore parties establish that the ByLaws of the church have not been followed and the Moore parties are not members of the church or the board, thus having no power over control of the church. The admissions by the Moore par...

Excerpt: ...ad discretion to issue discovery sanctions where: (1) there was a failure to comply with a valid discovery order; and (2) the failure was willful. (Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4th 1470, 1474.) Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Young v. Rosenthal (1989) 212 Cal. App. 3...