Excerpt: ...392. ““In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recover punitive damages.” Monge v...

Excerpt: ...eficiencies in the responses and Mark Wynne (Mark) failed to substantively respond. (See Exh. 1 to decl. of Richard Lucal and Exh. 1 to decl. of Mark Wynne filed in opposition.) No. 16: The information sought is within Mark's knowledge since it requests information only he knows, so the response is evasive. The Estate also argues that in other pleadings Mark has stated that he and his wife never asked for reimbursement for expenses until after Ma...

Excerpt: ...tiffs to make a prima facie showing of the existence of a triable issue of material. Plaintiffs did not meet their burden. It is noted that on 12‐16‐19, the court had posted its tentative ruling to grant this motion and was convinced to continue hearing on the motion to allow Plaintiffs to take the deposition of George Tsarouhas, who (based on hearsay statements by investigator Linda Arce) stated on 11‐2‐18 that he “informed the City of...

Excerpt: ...SC 1904774, Roberts v. Coachella Valley Water District, RIC 1904943, and Roberts v. Coachella Valley Water District, RIC 1905897 should be deemed related matters and for determination of whether the foregoing matters, along with the consolidated cases RIC 1825310 (PSC 1905977) should be designated as complex. Hearing is set for 3‐18‐20 at 8:30 a.m., Department 6. The OSC is set because the court is aware that Petitioner has filed three other ...

Excerpt: ...d is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “[D]iscretion should be exerci...

Excerpt: ...er. Plaintiff cites to no authority, which supports imposing a fiduciary duty under such circumstances. Additionally, although plaintiff argues there is a statutory duty imposed under Corporations Code section 17704.09, the first amended complaint fails to state facts imposing such statutory liability. The allegations stated in the second, third and fourth causes of action are sufficient. Request for judicial notice: Granted as Exhibit 1, pursuan...

Excerpt: ... support a claim for punitive damages under Civil Code section 3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (Civ. Code, § 3294, subd. (c).) In cases involving conduct performed without intent to harm, a finding of “malice” for punitive damages purposes requires proof by clear and convincing evidence that defendant's tortious wrong amounts to “despicable conduct” and that such despicable conduct wa...

Excerpt: ... the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “No matter how unlikely or improbable, a plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Kerivan v. Title Insurance Co. (1983) 147 Cal. App. 2d 225, 229.) In short, the ruling on a demurrer determines a legal issue on the basis of assu...

Excerpt: ...cumstances of the case, including factors such as complexity of the case, procedural demands, skill exhibited and results achieved, and the court may reduce the amount if it is determined to be unreasonable. (Goglin v. BMW of North America (2016) 4 Cal. App. 5th 463, 470.) The prevailing buyer has the burden of showing the fees incurred were allowable and reasonably necessary to the conduct of the litigation. (Ibid.) The hourly rate of $525 is hi...

Excerpt: ...tanding. Sustained as to the Third Cause of Action without leave to amend. The Legislature acted within its authority when it enacted the End of Life Option Act. State Defendants request judicial notice is granted pursuant Evidence Code §452(d) to as to Exs. 1, 3 – 6 and denied as to Ex. 2. Judicial notice of legislative history is proper under Evidence Code § 452(c). (See In re Ge M. (1991) 226 Cal.App.3d 1519, 1523, n. 2.) Plaintiffs' relev...

Excerpt: ... not clearly appear on the face of the Cross‐Complaint. (See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Staniforth v. Judges' Retirement System (2016) 245 Cal.App.4th 1442, 1449.) Further, nothing in the alleged oral agreement suggests that by its terms it could not be performed within one year. (See Civ. Code § 1624(a)(1).) Moreover, because the Parks fully performed under the alleged agre...

Excerpt: ...present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts t...

Excerpt: ...In reviewing the First Amended Complaint (FAC), the second cause of action is duplicative of the first cause of action and should be combined into the first cause of action as agreed. As to the third cause of action: Negligent infliction of emotional distress is divided into two claims, direct victim claims or bystander claims. (Smith v. Pust (1993) 19 Cal.App.4th 263, 273.) Under the bystander theory. “[A] plaintiff may recover damages for emo...

Excerpt: ...e showing a triable issue of fact. Defendants' evidentiary objections are sustained as to nos. 4, 10, 11, 17‐19, 21‐23 and overruled as to nos. 1‐3, 5‐9, 12‐16, 20, 24‐26. The court declines to rule on nos. 27‐34 because the evidence to which Defendants object was not material to the court's analysis. Plaintiff's objection to additional evidence are sustained. For summary judgment purposes, “[i]n an employment discrimination case,...

Excerpt: ...itigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may 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 purpose of the section is to per...

Excerpt: ...To have standing a party must be beneficially interested in the controversy; that is, he or she must have some special interest to be served or some particular right to be preserved and protected over and above the interest held in common with the public at large. The party must be able to demonstrate that he or she has some beneficial interest that is concrete and actual, and not conjectural or hypothetical. (Id. at p. 496.) Plaintiff does not h...

Excerpt: ...s. In making a finding of contempt, it is essential that the court have received evidence on the ability to comply with the order. Hassell v. Bird (2018) 5 Cal. 5th 522, In re Grayson (1997) 15 Cal. 4th 72; In re Young (1995) 9 Cal. 4th 1052, 1053. In Koehler v. Superior Court (2010) 181 Cal. App. 4th 1153, 1169‐1170 the Court made clear that the ability to pay is an element of the contempt, not an affirmative defense to be proven by the party ...

Excerpt: ...ndment privilege against selfincrimination. Certainly, Elks Lodge is not subject to a criminal proceeding, and the privilege against self‐ incrimination is personal to an individual criminal defendant and does not apply to codefendants in a civil action. (See Avant! Corp., supra. at 886‐87 [employees' assertion of 5th Amendment privilege did not require a stay of proceedings against corporate defendant that was not entitled to 5th Amendment p...

Excerpt: ...tion Deadlines and Notice of Entry of Order Granting Stipulation pursuant to Evidence Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 C...

Excerpt: ...d the court lacks jurisdiction over them. This action is stayed pending the outcome of the arbitration. This matter was originally held on December 12, 2019. Prior to the hearing, the court issued its tentative ruling to grant the motion as to moving defendant. The court continued the hearing to allow the parties to file supplemental briefing. The supplemental briefs did not cause the court to change its prior tentative. Request for Judicial Noti...

Excerpt: ... “defendants.” A global use of “defendants” with nothing more do not state a cause of action. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) Accordingly, it is not clear why Defendant is named other than he was an employee or agent of City. Immunities: While Defendant is demurring to the entire SAC—it is only to the causes of action asserted against him. As such, the question is not whether each immunity individually applies to ea...

Excerpt: ....c.i.; H.9.c.ii.; H.9.c.iii.; Page 2 of 8 H.9.c.iv.; H.9.c.v.; and H.9.c.vi. It also the order of the court that he parties to fix the first paragraph of page 1 of the notice, “on‐ exempt” should be changed to “non‐exempt” or hourly (which might be easier for the class members to understand); paragraph 7 on page 4 of the notice is confusing and should be clarified; the notice should identify who the released parties are; and there is ...

Excerpt: ... ¶¶1 and 2 that each of them are a 25% “owner and shareholder of Defendant, GREEN AMERICA, INC., …, as is the owner of 25% of all outstanding shares of Green America.” They further allege at ¶13 that they are “shareholders and directors of GREEN AMERICA at the time of the transaction.” This is a sufficient allegation that plaintiffs are shareholders of the corporation; whether the corporate records show this or not is a question of e...

Excerpt: ...gues that all of the causes of action fall within the anti‐SLAPP statute because they pertain to statements made by parents to the District during board proceedings or pertain to statements made during the course of an official investigation. The anti‐SLAPP statute attacks causes of action asserted against a defendant from any acts done by the defendant “in furtherance of the [defendant's] right of petition or free speech.” C.C.P. § 425....

Excerpt: ...l to the disposition. As requested by petitioner, granted as to the fictitious business statement of Real Journey Academies along with the various Education Code sections. As to standing of the petitioner: RCOE argues petitioner does not have standing because it does not operate the school; it is only the non‐profit corporation. However, petitioner has requested judicial notice of a Fictitious Business Statement which states that The Journey Sc...

Excerpt: ... by the buyer in connection with the commencement and prosecution of such action. (CCP §17994(d).) The additional term “expenses” was included in this section to cover items that would not otherwise be included in the detailed statutory definition of “costs” under CCP § 1033.5. (Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137‐138.) “If the items on a verified cost bill appear proper charges, they are prima facie eviden...

Excerpt: ...proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”) Although the language of the statute indicates that the order deeming matters admitted is mandatory, “the nonresponding party can avoid the deemed admitted order by serving a verified response before the hearing on the motion.” (Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 978, 987.) The Court should review the responses as a whole to...

Excerpt: ...efendant's Memorandum of Costs.” Defendant correctly points out that the motion to strike or tax costs is untimely. Pursuant to CRC Rule 3.1700(b)(1), a notice of motion to strike or tax costs must be filed and served 15 days after service of the memorandum of costs. If the cost memorandum was served by mail, the period is extended by five (5) days. (CRC Rule 3.1700(b)(1); CCP § 1013(a).) Delay in challenging a costs bill waives any objection ...

Excerpt: ...s partial representations but also suppresses some material facts. (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.) Defendant is to file its Answer within 30 days. Other than where a fiduciary relationship is present, circumstances in which nondisclosure may be actionable presupposes some other relationship between the plaintiff and defendant in which a duty to disclose may arise – such a relationship is present where there i...

Excerpt: ...gations of the complaint controverted by the defendant; and 2) a statement of any new matter constituting a defense. (CCP § 431.30(c).) A general denial is not sufficient to controvert a verified complaint (even if the answer containing such a denial, is verified), i.e., a verified complaint must be denied positively or according to information and belief. (CCP § 431.30(d); City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 476....

Excerpt: ...th 580, 593‐94.) While Plaintiff argues that a pregnancy‐related disability may qualify as a physical disability under FEHA, Plaintiff does not actually allege a “pregnancy‐related disability,” and her reliance on Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331 and Kocak v. Community Health Partners of Ohio, Inc. (6th Cir. 2005) 400 F.3d 466 is entirely misplaced. Sanchez involved a high‐risk pregnancy and Kocak involved a plai...

Excerpt: ...) and that they were behind the campaign for Measure L (FAP ¶33.) While these activities do meet petitioning activity, the remedy by the Wirt of Mandamus is to direct the City and City Manager to perform their duties regarding Measure L, and invalidating portions of the Municipal Code. (Prayer ¶1‐3.) None of this has anything to do with these Respondents. As stated by one court: “It would be inappropriate for us to insert into a pleading cl...

Excerpt: ...ation: The First Amended Complaint (FAC) at paragraph 6, states that the RCA has de facto taken plaintiff's property. RCA demurrers on among other grounds, that the first cause of action fails to plead sufficient facts and that no final decision has been made regarding the use of Plaintiff's property, thus the claim is not ripe. Plaintiff opposes these assertions, with among other things that it specifically expresses the de facto taking so that ...

Excerpt: ...(4) justifiable reliance, and (5) resulting damage. (Engalla v. Permanente Medical Group (1997) 15 Cal. 4th 951.) (Lovejoy v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 157‐158.) Plaintiffs allege that Louise told Autry that WFLF was looking for a new ranch for the horses because the owner of their previous home had stolen from WFLF and poisoned some of the horses. (Complaint (Compl.)), ¶18.) Louise this statement was allegedly false and intende...

Excerpt: ...Harassment fails because it is barred by the statute of limitations, and because defendant took appropriate steps to stop the alleged harassment. The second cause of action for Disability Discrimination and the tenth cause of action for Wrongful Termination fails because plaintiff Page 8 of 8 admits she did not suffer from a qualifying disability and because defendant had a legitimate nondiscriminatory reason to fire plaintiff. Plaintiff's third ...

Excerpt: ...de §844.6(a), “a public entity is not liable for: (1) An injury proximately caused by any prisoner. (2) An injury to any prisoner.” The parties dispute over whether Plaintiff is a prisoner. “As used in this chapter, ‘prisoner' includes an inmate of a prison, jail, or penal or correctional facility. For the purposes of this chapter, a lawfully arrested person who is brought into a law enforcement facility for the purpose of being booked, ...

Excerpt: ...lements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection...

Excerpt: ...aim forms, photos, and accident reports, [b]illing records, and X‐ray films … concerning: Luis Antonia Cuellar.” (See Declaration of Alina Dermendjian (“Dermendjian Decl.”) in support, Exhibit A.) On 7‐18‐19, Plaintiff's counsel sent correspondence requesting that the subpoena be limited to the body parts impacted in the incident (Plaintiffs' left leg). Thus, moving party made reasonable good faith efforts to meet and confer. Defens...

Excerpt: ...” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, n. 2.) Accordingly, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon … or has been deemed to have been rejected ….” (Gov. Code, § 945.4.) “Thus, failure to timely present a claim...

Excerpt: ...interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.” There are two requirements for a class action: (1) an ascertainable class and (2) a well‐defined community of interest in the questions of law and fact involved. (Bell v. Farmers Insurance Exchange (2004) 115 Cal.App.4th 715, 740.) A class is ascertainable by examining the class definition, the size of the class and the me...

Excerpt: ...irectly entering into any contract, plaintiff argues that his alter ego allegations in paragraphs 7 to 10 of the complaint are sufficient to hold defendants liable for defendant Flanagan's actions. However, the alter ego allegations are insufficient under the present circumstances. As defendants correctly argue, alter ego liability ordinarily seeks to hold an individual liable for the debts of the corporation. (Sonora Diamond Corp. v. Superior Co...

Excerpt: ...rade libel; 3) intentional interference with contractual relations; 4) intentional interference with prospective economic advantage; and 5) negligent interference with prospective economic relations. In the mid‐2000s, Elder and several investors sought to develop a residential real estate project (the “Project”) in Riverside County. The Project was financed by a construction loan of $13 million and a $3.5 million personal loan from Ben Clym...

Excerpt: ...new of the complaints filed by other employees. Plaintiff contends she did not suffer the harm she is suing for in this complaint until she failed to submit an application for a promotion in late January of 2017. (See Plaintiff's Separate Statement of Undisputed Material Facts, Nos. 12‐14, 23, 25‐26, 28 and Aberra decl., ¶¶ 1‐8, 10‐17.) The motion for summary adjudication of the first, second, third, fifth, ninth, and tenth causes of ac...

Excerpt: ...ving, he was Page 2 of 3 taken to Riverside University Hospital where he was diagnosed with a massive cerebral hemorrhage. Plaintiff's wife, Alayne M. De Garmo asserts loss of consortium. Plaintiffs filed this action on 10/3/18, and filed the First Amended Complaint (FAC) as a matter of right on 10/24/18. After the court sustained Defendant's demurrer to the 2nd‐4th causes of action, Plaintiffs filed the Second Amended Complaint (SAC) on 4/15/1...

Excerpt: ...of the fall. When Defendant failed to settle his claim informally, he filed his Complaint on November 18, 2018. He asserts one cause of action for premises liability. Plaintiff now moves to file a First Amended Complaint (FAC) to add new claims for personal insult and injury to personal relations under Civ. Code §43, as well as a penalty of perjury cause of Page 6 of 7 action. In support of Plaintiff's motion, he alleges that Defendant is withho...

Excerpt: ...roperty Management, Inc. (“T & C”) and Hovey Rooter Service & Plumbing Repair (“Hovey Rooter”) (collectively, “Defendants”). Plaintiffs allege that in December 2014, Bissett entered into a residential lease (the “Lease”) with Peterson (through his agent, T & C) for a residence located in Riverside (the “Residence”). After she moved into the Residence, Bissett began experiencing problems with the plumbing, and in January 2015, ...

Excerpt: ...ver property in Anaheim. Ramos owns real property in Corona [3287 Star Canyon Circle], which Daskalakis recorded an abstract of judgment. However, on 4/14/17, after refusing to make further payments as required under the stipulated judgment, Ramos transferred the Corona property to Defendant JD Management Services, LLC for no consideration. Page 2 of 7 The operative pleading is the first amended complaint. It asserts the following causes of actio...

Excerpt: ...ling: BACKGROUND On 3/27/18, Plaintiffs Ana Villasenor and Ramon Cabrales filed their judicial form complaint for motor vehicle, arising out of a car accident on 9/8/16 at 660 Cherokee Road, Perris from a car operated by Defendant Cesar Cordero Rodriguez. Trial is currently set for 11/15/19. Moving Papers: Defendant moves to compel further responses to special and form interrogatories, and requests for production against Plaintiff Ana Villasenor....

Excerpt: ...ent may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose Page 2 of 3 tr...

Excerpt: ...indicates that the only remaining issue left for judicial intervention is with respect to the Ninth Cause of Action for wrongful constructive termination in violation of public policy. The Ninth Cause of Action is not uncertain and it is sufficiently pleaded. The cause of action for wrongful termination in violation of public policy is an exception to the general rule that an employer has an unfettered right to terminate an at‐will employee. (G...

Excerpt: ...nsideration, Plaintiff relies on (and Defendant addresses) relief pursuant to CCP § 473(b). The court has discretion to rule on grounds even not stated in motion where there is no objection and the parties have a fair opportunity to address the issues. Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277‐ 1278. CCP § 473(b) authorizes the court upon any terms as may be just, to relieve a party or his or her legal representative from a judgmen...

Excerpt: ... appear telephonically or in person for the purpose of selecting the date for hearing on this MSJ. Pursuant to CCP §437c(h) if it appears from affidavits submitted in opposition to a motion for summary judgment that facts essential to justify opposition may exist but cannot then be presented, the court shall deny the motion, order a continuance or make any other order as may be just. (Cal. Code Civ. Pro. §437c(h).) When a party submits a declar...

Excerpt: ...‐Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal. App. 3d 318, 333–334.) Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action. (Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 125.)” Quiroz v. Seventh Avenue Center (2006) 140 Cal. App. 4th 1256, 1285‐1286. It is noted t...

Excerpt: ...ch amount the court finds reasonable. Page 2 of 3 As to the Wong subpoena, Defendants seek every type of caregiver record she holds, for Mark, including documents, correspondence (including from attorneys), medical records, payment history, etc. As to the PRA Coordinatory subpoena, Defendants seek every type of document related to Mark's disability records. As to the Medley subpoena, Defendants seeks all documents re social service claims/benefit...

Excerpt: ...ntiff's expectations (¶20), defendant's knowledge and concealment of the defects (¶¶21‐23), and then allege that “NISSAN has a long history of minimizing the significance of the CVT defect by preparing and issuing Technical Service Bulletins (‘TSBs') and written service campaigns to its dealerships' service and repair facilities, through which it implies that the defect occurs only in certain, seemingly rare circumstances and is capable ...

Excerpt: ...he granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “[D]iscretion should be exercised liberally in favor...

Excerpt: ...oothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Staniforth v. Judges' Retirement System (2016) 245 Cal.App.4th 1442, 1449). Notwithstanding, Plaintiffs' causes of action do not set forth sufficient facts to state claims. The first cause of action for fraud is not pleaded with the requisite specificity (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) Plaintiffs fail to satisfy the statu...

Excerpt: ...ater the need for discovery must be shown. Hoffman Corp. v. Superior Court (1985) 172 Cal.App.3d 357. The party seeking discovery must show that the information is directly relevant to the case, and that it is essential to determining the truth of the matters in dispute. Britt v. Superior Court (1978) 20 Cal.3d 844; Harris v. Superior Court (1992) 3 Cal.App.4th 661. “An implicit waiver of a party's constitutional rights encompasses only discove...

Excerpt: ...er the responses. See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439. Plaintiff does not provide the court with a copy of the form interrogatory and proof of service from which the court could determine when the discovery was served, nor with copies of the responses such that the court could determine whether or not this motion was timely, nor with copies of the meet and confer emails referenced in the moving papers such that the cou...

Excerpt: ...ch the indemnitor is equitably responsible. (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217.) There are not two separate equitable indemnity doctrines in California, but a single “comparative indemnity” doctrine, which permits partial indemnification on a comparative fault basis in appropriate cases. (Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 808) Comparative equitable indemnity includes the entire range of possible...

Excerpt: ...that the review of Plaintiff's medical records showed he signed a consent for the surgery by Plaintiff and on 1‐29‐15. Dr. Kruschner opined that the care and treatment provided by Plaintiff complied with the standard of care and the care and treatment was not the medical cause of injury to Defendant. Thus, the burden shifted to Plaintiff to make a prima facie showing of the existence of triable issue of material fact. Plaintiff did not provid...

Excerpt: ...the 2014 Agreement was offered on a take‐it‐or‐leave‐it basis and thus suffers from some degree of procedural unconscionability, it is not substantively unconscionable and meets the requirements for a mandatory employment arbitration agreement under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 102. Plaintiff's argument that the 2014 Agreement's confidentiality provision renders the Agreement substantively...

Excerpt: ...O'Connell v. Superior Court (2006) 141 Cal. App. 4th. 1452, 1463.) “The trial court's determination must be guided by a mix of the potential‐merit and interim harm factors; the greater the plaintiff's showing on one, Page 5 of 7 the less must be shown on the other to support an injunction.” (Butte v. State of California (1992) 4 Cal. 4th 668, 678.) Plaintiff has established that he is likely to prevail on the merits. On October 31, 2014, Pl...

Excerpt: ...hat if their answer was no, they were to answer no further questions and the presiding juror was to date and sign the form. Plaintiff filed his motion stating that a new trial should be granted on grounds of irregularity in the proceedings of the court, the jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair. An irregularity is any overt act Page 2 of 7 of the trial court,...

Excerpt: ...ew of Page 3 of 7 conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if ...

Excerpt: ...gatories or requests for production within the time limits waives most objections to interrogatories, including claims of privilege and work product protection (Weil & Brown §8:1030, §8:1483.1; CCP §2030.290(a); §2031.300(a)). Filing a motion for protective order does not extend a party's time to respond to discovery. As discussed in Weil & Brown at §8:1021, protective orders are usually sought “under the gun” because responses are due: ...

Excerpt: ...(Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being Page 4 of 4 deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. S...

Excerpt: ...documents and their legal effect]; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐55). As alleged in the Complaint, Plaintiffs' cause of action for breach of the implied covenant is duplicative of the first cause of action for breach of the governing documents and is thus superfluous. (See Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1203 [“[W]e may disregard the claim [for breach of the implie...

Excerpt: ...of discretion.” And, ultimately, the benefits were terminated because petitioner is considered a non‐ relative under the benefit guidelines since she is of the seventh degree of relationship as a step‐grand aunt and not within the fifth degree of relationship as required. It is noted that the parties appeared on 6‐7‐19. Petitioner was of the impression that a letter sent by Tom Johnson on 2‐6‐14 was significant. The letter addressed...

Excerpt: ...nterest. “The definition of ‘public interest' within the meaning of the anti‐ SLAPP statute has been broadly construed to include not only government matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a government entity.” Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479. It includes “activities that involve private persons and entit...

Excerpt: ...to and those items for which there was no response. The further responses are to be served on Plaintiff Kim Wynne within 30 days of the date of this order. Sanctions are imposed against opposing defendants payable to moving party, in the amount of $1,375 (5 hrs. X $275), which amount the court finds reasonable. Waiver of objections: Failing to respond to interrogatories within the statutory time limit (or pursuant to a stipulation) waives any obj...

Excerpt: ...e's identity and the facts creating Empire's liability. (Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 179.) Empire argues that Plaintiff knew of its identity and liability because of a traffic collision report related to the collision in this case. In that report, there is a reference to Empire on page 15 of a 22‐page report. The report says that the officer contacted the Safety Manager at “Empire Transportation/Riverside Transit Agency.” T...

Excerpt: ...urrer: Although a generalized claim for money is not actionable as conversion, a conversion claim will lie “when the money at issue is a specific identifiable sum held for the benefit of another that has been misappropriated.” (SP Investment Fund I LLC v. Cattell (2017) 18 Cal.App.5th 898, 907; see also PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 396.) Plaintiff alleges that Michael ...

Excerpt: ...has been sustained, and before an amended complaint was filed, that discovery cannot be compelled without an operative Page 7 of 7 pleading. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 129.) The court has yet to rule on the demurrer and there is an operative pleading. Additionally, in its prior ruling, the court found that Plaintiff is not permitted to conduct discovery on area that involve RCA's decision making ...

Excerpt: ...f ordinary care. Plaintiff's evidentiary objections: Evidentiary Objections: Overruled as to Nos. 1 – 5, 7‐14, and 16 – 18. Sustained as to Nos. 6 and 15. To maintain a cause of action for negligence, the plaintiff must show: (1) a legal duty to use due care; (2) breach of such duty; (3) the breach was the proximate or legal cause of resulting injuries. (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.) Premises liability is a form ...

Excerpt: ...lation ‘ “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” [Citation.] The intention of the parties must be first determined from the language of the contract itself. [Citation.] However, where the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all the f...

Excerpt: ...urs spent and the rates sought are reasonable. Defendant claims the Court should refuse to award fees as Plaintiff's counsel has not disclosed its fee agreement and will be compensated from the settlement proceeds. In the alternative, Defendant contends the fees are only entitled to reasonable attorney's fees and no lodestar multiplier warranted. Finally, Defendant claims that Plaintiff has made no effort to apportion the fees to the two claims w...

Excerpt: ...st for sanctions is denied. Pending demurrers do not stay discovery. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436 n.3.) It is true that where a demurrer has been sustained, and before an amended complaint was filed, that discovery cannot be compelled without an operative pleading. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 129.) In this case, the court has yet to rule on the demurre...

Excerpt: ...onse does not comply with Cal. Code Civ. Proc. §2030.220(c). Defendant is ordered to provide a code‐compliant response. Rog No. 43: Defendant now supplements its response and provides the names of its employees, as well as the employees of Browning Dodge Chrysler Jeep Ram and Lake Elsinore Dodge Chrysler Jeep Ram. Because the response has now been supplemented, no further response is required. Rog No. 46: Defendant appears to be willing to sup...

Excerpt: ...underlying discovery requests and the instant motion. All three defendants were represented by attorney Olen Guiab since the beginning of the case. Attorney Guiab's most recent appearance was via the 5‐15‐19 Joint Stipulation to Terminate Stay of Proceedings, in which he agreed that the hearings on the instant motions (originally set for 3‐ 4‐19) could proceed. The Court then set the hearings for 6‐21‐19. Defendant's documents indicat...

Excerpt: ... and causation of decedent's death through admissible expert testimony. Defendant's Evidentiary Objections to the Declaration of Dr. Sonner are overruled. The court declines to rule on Defendant's remaining objections. Plaintiffs has presented the Declaration of Dr. Sonner (as well as the previous declaration of Ms. Saputo, R.N. regarding the standard of care), which adequately rebuts Defendant's experts' opinions. Dr. Sonner's declaration eviden...

Excerpt: ...ve been completed. Perry v. Brown (2011) 52 Cal.4th 1116 is not applicable to this matter. There the Supreme Court was asked by the United States Court of Appeals for the Ninth Circuit to answer a very specific question. The question was “whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiativ...

Excerpt: ...Inc. (1994) 28 Cal. App. 4th 540, 549.) Generally, a court may take judicial notice of the fact of a document's recordation, the date it was recorded and executed, the parties to the transaction and the legally operative language as long as there is no genuine dispute regarding the document's authenticity. (Scott v. JP Morgan Chase Bank (2013) 214 Cal. App. 4th 743, 755.) Court grants the request to take judicial notice of the court orders. Denie...

Excerpt: ...pet cemetery and there is a 45‐foot wide access road adjacent to the property for the tow yard to use. Allowing the tow yard owner to use any portion of the pet cemetery property for any purpose other than as a pet cemetery would be a violation of the Judgment. Here the owners of the property admit that prior to their sale of the tow yard, the property boundaries for the pet cemetery were regularly violated. Under the Judgment entered on 12‐1...

Excerpt: ...ty seeking the amendment has been dilatory, and the delay has prejudiced the opposing party (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486.) Unreasonable Delay: Defense counsel claims Defendants inadvertently did not list the proposed affirmative defenses. It was not until the weekend of 3‐30‐19 when defense counsel noticed the affirmative defenses of lack of consideration and past consideration were not asserted in the Answers, and not...

Excerpt: ...began working with plaintiff as soon as they were served (i.e., since October 2018). Further, that defendants worked with plaintiff for several months resolving issues on necessary landscaping work that needed to be completed at the property. Additionally, defendants have remedied the conditions that precipitated the complaint. Evidence from both sides establishes that defendants and plaintiff engaged in multiple settlement negotiations from Janu...

Excerpt: ... Union High School Dist. (2012) 53 Cal. 4th 861, 872). If the essential facts of any valid cause of action are alleged, the complaint is good against a general demurrer (Sheehan vs. San Francisco 49ers, Ltd. (2009) 45 Cal. 4th 992, 998). For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, no matter how unlikely (Del E. Webb Corp. vs. Structural Materials Co. (198...

Excerpt: ... Dept. 6. Therefore, she did not see the Tentative Rulings made on all three motions and thus was prevented from making a request for oral argument. Hearings on the motions were continued to 6‐7‐19 and Defendant's counsel was directed to give notice to Plaintiff. Timely opposition to the motions had been filed. The Court's tentative ruling remains the same as stated on 5‐31‐19. RFA No. 20: Plaintiff requests that Defendant admit that Plai...

Excerpt: ...of discretion.” And, ultimately, the benefits were terminated because petitioner is considered a non‐ relative under the benefit guidelines since she is of the seventh degree of relationship as a step‐grand aunt and not within the fifth degree of relationship as required. Standard of Review: An administrative agency decision is subject to review regarding “whether the respondent has proceeded without, or in excess of jurisdiction; whether...

Excerpt: ...ficer, director, or managing agents of defendants. Page 2 of 2 (See Civ. Code § 3294, subd. (b); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.) The law does not simply impute every employee's malice to a corporation; rather, the punitive damages statute requires proof of malice among corporate leaders: that the corporation's officers, directors or managing agents had knowledge of the employee's unfitness, authorized or ratified the w...

Excerpt: ...r deny the RFA. Plaintiff argues that Defendant must have sufficient information to admit or deny this request based on the repair orders for the subject vehicle. Defendant argues that the information should be obtained from the repair facility and that it would have to interpret the repair orders that were prepared by other entities. Defendant's argument is well‐taken. Although it may have access to the repair orders, the cause of the problem ...

Excerpt: ...dant were in a public forum regarding a public issue. Plaintiff meets its burden on the second prong of the analysis as to the first and second causes of action because sufficient evidence for the purposes of the present motion has been presented that plaintiff did not attack defendant and pin him against the wall. Plaintiff presents no evidence supporting his claims for breach of fiduciary duty or misappropriation of a trade secret. Since plaint...

Excerpt: ... Osseous Technologies of America v. Discovery Ortho Partners (2010) 191 Cal.App.4th 357, 366.) The third and fourth causes of action for equitable indemnity fail because plaintiff and defendant are not joint tortfeasors. “It is well‐settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff's injury.” (Stop Loss Ins. Broker, Inc. v. Brown & Toland Medical Group (...

Excerpt: ...ements contained in the document and its proper interpretation are not subject to judicial notice if those Page 2 of 5 matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Although a court may take judicial notice of the existence of each document in a court file, it can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and con...

Excerpt: ...d for some of the records from his prior employers. However, that is not what happened here. It was defendant who terminated plaintiff because defendant did not believe plaintiff could perform the job duties (despite having received medical documentation from plaintiff's physician which indicated he could do so). Any issues as to plaintiff's previous ability or inability to work around high frequency machinery are irrelevant to the instant action...

Excerpt: ...e statute of limitations bars any of Plaintiff's claims. Issue No. 4, 5: Defendants introduce evidence contradicting the express terms of the promissory note, which is prohibited by the parol evidence rule. Defendants failed to meet their initial burden that the promissory note is void. Issue Nos. 6‐10: The motion is procedurally defective because it asserts affirmative defenses not pleaded in the answer. The motion also fails on the merits bec...

Excerpt: ...ld the plaintiff prevail in litigation pursuant to this section.” “An action results in the release of previously withheld documents ‘if the lawsuit motivated the defendants to produce the documents.' [citation.] Cases denying attorney fees to a plaintiff under the Act have done so because substantial evidence supported a finding that the ‘litigation did not cause the [agency] to disclose any of the documents ultimately made available.......

Excerpt: ...ispute that Plaintiff's counsel received checks from Empire on or about 1/25/19, which paid the judgment entered against it in full. (Motion, Dec. Griffin ¶6; Oppo., Dec. Novak ¶3.) Plaintiff's counsel, Sean Novak, declares that on 1/28/19, his office sent the original Satisfactions of Judgment to Empire. (Oppo., Dec. Novak ¶6, Ex. “B”.) Mr. Novak declares that shortly after [no date is specified], his office received inquiries about the s...

Excerpt: ...of the real property which is facilitated by that extension of credit.” Defendants fail to present any legal authority (cases) holding that the ultimate failure to actually receive expected monies eliminates any duty or obligation on their part under the statutes. Nor do they present authority substantiating their contention that CC §2957 requires the actual receipt of compensation, and as demurring parties it is their burden to establish that...

Excerpt: ... v. Superior Court (1975) 49 Cal.App.3d 22, 29.) The court may read the complaint as a whole so that conclusory allegations may be sufficient when read in context with the facts alleged as to the defendant's wrongful conduct. (Perkins v. Superior Court (General Tel. Directory Co.) (1981) 117 Cal.App.3d 1, 6‐7.) To support a claim for punitive damages under Civil Code § 3294, a party must plead facts supporting a showing of malice, oppression o...