Excerpt: ...formal order. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) Whether a “reasonable and good faith attempt” was made requires an “evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appears likely to bear fruit.” (Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1294.) The level of effort at informal resolution which satisfies the 'reason...

Excerpt: ...ahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) ...

Excerpt: ...press the intention of the parties through fraud. Civil Code §3399 states: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third person...

Excerpt: ...ce (against all); (2) negligent supervision (against all); (3) negligent hiring/retention (against all); (4) negligent failure to warn train or educate (against all); (5) constructive fraud (Civil Code §1573) (against all); (6) breach of fiduciary duty (against all); (7) intentional infliction of emotional distress (against all); (8) sexual harassment (Civil Code §51.9) (against all); (9) sexual abuse and harassment in the educational environme...

Excerpt: ...ra Surgery Center. The surgeon was defendant Mark Berman; the anesthesiologist was defendant Craig Rosenblum. Plaintiff alleges that she was administered the wrong general anesthesia before surgery, while still in a waiting room, and then was instructed to walk into the operating room, where she lost consciousness and fell. Dr. Rosenblum, the anesthesiologist, previously moved to require plaintiff to post an undertaking, claiming that plaintiff l...

Excerpt: ...nwide. Plaintiffs allege that their injuries exceed the policy limit of $25,000 for personal injury. (Complaint, ¶79.) Plaintiffs allege that Nationwide, in bad faith, has refused to tender the policy limits to Plaintiffs unless both of them agree to hold the insured defendants harmless for any damages above the policy limits. (Complaint, ¶83.) Plaintiffs allege that Nationwide has a legal obligation to tender the policy limit, regardless of Pl...

Excerpt: ...Technologies Corporation (“UTC”), Page 5 of 13 and Goodrich Corporation (“Goodrich”) (collectively “Defendants”) as a Human Resources Generalist Manager when he was wrongfully terminated on March 26, 2019, after 32 years of service. (Complaint, ¶ 13.) On that day, his supervisors Zer Moua (formerly Zer Kha)(“Moua”), Director of Human Resources (“Moua”), and Toni Busby, Associate Director of Human Resources (“Busby”) told ...

Excerpt: ... of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of actio...

Excerpt: ...de the locker room in order to intimidate and spout profanities at Plaintiff while he exited. The SAC further alleges Moore's response to the bullying complaints was to have Plaintiff use a further separate bathroom from Matthew. Plaintiff alleges that Defendants are aware Plaintiff is autistic and has a condition that requires a bathroom be close in order to avoid an accident. On 9/11/19, Plaintiff alleges that Matthew reported to Moore that Pla...

Excerpt: ...s entirety. (Triodyne, Inc. v. Superior Court (1966) 240 Cal. App. 2d. 536, 542.) When ruling on a motion to strike, the allegations of the pleading are assumed to be true and read in their context. (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) A pleading is to be liberally construed. (CLD Construction v. City of Ramon (2004) 120 Cal. App. 4th 1141, 1146.) The grounds for the motion must appear on the face of the pleading or fro...

Excerpt: ...ould resolve the objections to be raised in the demurrer.” (emphasis added). CCP § 430.41(a) provides, in pertinent part, that “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.�...

Excerpt: ...ts issued by or under the authority of the United States or any public entity in the United States. However, only relevant evidence is admissible by judicial notice. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1. Plaintiff has not asserted any causes of action based on violations of the residential care community code. Nor are there any claims for negligence or premises liability. Therefore, the documents are not relevant and judicial not...

Excerpt: ...pter 7 bankruptcy petition and order confirming the award. Evidence Code §452(d) provides for judicial notice of court records. In general, the court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code § 452(d).) But, judicial notice of other court records and files is limited to matters that are indisputably true. This generally mea...

Excerpt: ...ing or from any matter of which the court is required to take judicial notice. (Cal. Civ. Pro. §437.) A motion to strike is the proper vehicle to attack a punitive damages claim. (Cal. Code Civ. Pro. §§ 435‐436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Plaintiffs may recover exemplary or punitive damages where it is proven that “the defendant has been guilty of oppression, fraud or malice.” (Cal. Ci...

Excerpt: ...deposition or a motion for protective order. There remains some confusion over exactly which issues remain in dispute. For example, it appears as though GM is willing to produce witness(es) for Categories 1, 2, 5‐12, 18‐25, with a limitation as to scope for some of the Categories. However, GM still provides a lengthy opposition in its separate statement regarding each of the categories, but states at the end of the opposition for each of the ...

Excerpt: ...) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) Facts appearing in...

Excerpt: ...50.) A defendant has met his or her burden under CCP §437c(p)(2) of showing Page 3 of 8 a cause of action has no merit if that party has shown that one or more of the elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once that burden has been met, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of material fact exists. (CCP § 437c(p)...

Excerpt: ... referred to as the “State”). On June 23, 2019, Plaintiff was driving a motorcycle on westbound Highway 74 (Ortega Highway) near Lake Elsinore with his fiancée, Tina Coats, as a passenger. (FAC, p. 5.) Employees of the CHP and Cal Fire were investigating an earlier accident and managing the collision site. (Ibid.) The collision, coupled with the investigation caused the westbound traffic to back up, and Plaintiff stopped his motorcycle short...

Excerpt: ...ue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the oppo...

Excerpt: ...ny property acquired as a result of those skills efforts, labor, and earning with plaintiff.” (Second Amended Complaint, ¶ 3.) On 11/16/19, Defendant ended the relationship with Plaintiff and moved out. Plaintiff contends that he has asked for an accounting of all assets that were accumulated while they lived together and that said assets be split. Defendant has refused to do so. The second amended complaint is titled “complaint for damages ...

Excerpt: ...rn signal. Plaintiff alleges defendant FCA US, LLC's (“FCA”) authorized dealerships were unable to properly repair the vehicle, thereafter denying plaintiff's request for repurchase of the vehicle. The complaint states the following causes of action: 1. Breach of Implied Warranty; 2. Breach of Express Warranty. The present motion is a motion for summary judgment/adjudication brought by FCA on plaintiff's complaint. FCA argues that plaintiff c...

Excerpt: ...judgment may be void as a matter of law for many reasons, including lack of or improper service. Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal.App.3d 549, 553‐554. A two‐year outer time limit is set for motions seeking to set aside default under C.C.P. § 473(d), based on improper service. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. C.C.P. § 473.5 applies when “service of summons has not resulted in actual notice to a party in time...

Excerpt: ...e Summit Drive property is granted. The court may take judicial notice of the existence of recorded documents and their legal effect. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐18; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐55.) II. The Motion is Denied A party may file a motion to quash service of summons on the grounds of lack of jurisdiction under CCP § 418.10(a). Fu...

Excerpt: ... managed by defendants Lowe's Home Centers, LLC (“Lowe's”) and Pacific Castle Management, Inc. (“Pacific Castle”). Plaintiff alleges the wet floor created a slipping hazard, and defendants allowed the dangerous condition to be created by failing to inspect, maintain or warn of the condition. Plaintiff alleges that defendants Tyler Anderson (“Anderson”) and Mathew O'Neal (“O'Neal”), employees of Lowe's, negligently moved Plaintiff ...

Excerpt: ...n July 16, 2018, Plaintiff went to Defendant for cataract extraction with intraocular lens implant in her right eye. Defendant opened Plaintiff's right eye to remove the cataract, but there were complications during surgery and she could not remove all of it. Plaintiff was instructed to return in three months. (FAC, ¶¶ 10‐13.) On November 12, 2018, Plaintiff returned to have Defendant implant a posterior chamber intraocular lens in her right ...

Excerpt: ...of the evidence that all necessary jurisdictional criteria are met. (Jewish Defense Org. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054‐55.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1055.) Once a plaintiff meets his burden, the defendant has the burden to demonstrate that the exercise of jurisdiction is unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.) The ...

Excerpt: ...ration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by...

Excerpt: ...losing, including notifying the borrower of alternative debt relief procedures. (See Civ. Code, § 2923.55(b)(2) [requiring mortgage servicer to “assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.”] The requirements of section 2923.55(b)(2) apply only to first lien mortgages or deeds of trust on owner occupied residential property. (Civ. Code §§ 2924.15, 2923.55.) Plaintiff alleges in her co...

Excerpt: ...ing of sever or extreme emotional distress; and (3) actual and proximate cause resulting from the conduct. (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050‐51). “A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.'” (Id. at 1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001]). In order to avoid a demurrer, the plaintiff must all...

Excerpt: ... Claimants Trust (1996) 48 Cal.App.4th 976, 978‐979.) The moving party needs to show that the issues in each case are basically the same and that economy and convenience would be served by consolidation. (Id.) Consolidation is proper where there is no risk of undue confusion and prejudice. (Id. at 980.) The unlawful detainer procedures “provide an adequate, expeditious and summary procedure for regaining possession of real property wrongfully...

Excerpt: ...Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action Wrongful Death – Negligence, Violations of Penal Code § 245.6, Civil Code §§ 43 and 52.1, Assault and Battery, Negligent Hiring, Supervision and Retention: “In California, all government tort liability must be based on statute.” Bece...

Excerpt: ...subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Evidence Code §452(d) provides for judicial notice of court records. In general, the court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code §452(d).) But, judicial notice of o...

Excerpt: ...from a traditional lender, then rehab the homes with loans from private investors, and sell the homes for profit. Plaintiff alleges that Justin Tye represented to their grandparents that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff allege...

Excerpt: ...1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action for Breach of Written Contract: A breach of contract cause of action requires: (1) a contract between the parties, (2) performance by plaintiff or excuse from performance, (3) breach by the defendant, and (4) damages. Oasis West Realt...

Excerpt: ... (Magpali v. Farmers Group (1996) 48 Cal. App. 4th 471, 487.) Pursuant to Cal. Rules of Court, Rule 3.1324(a), a motion to amend a pleading before trial must include a copy of the proposed amended pleading, which must be serially numbered to differentiate it from previous pleadings and must state what allegations are to be added or deleted. (CRC 3.1324(a)(1)‐(3).) The motion must also be supported by a separate declaration. The declaration must...

Excerpt: ...aunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a c...

Excerpt: ...� 0899792, (3) Assignment of Deed of Trust recorded on October 13, 2019, (4) Substitution of Trustee recorded on August 27, 2020, (5) Notice of Default and Election to Sell recorded on August 27, 2020, and (6) Substitution of Trustee recorded on November 5, 2020. Recorded documents may be judicially noticed pursuant to Evid. Code §452(h). Generally, a court may take judicial notice of the fact of a document's recordation, the date it was recorde...

Excerpt: ...al facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) If the complaint fails to state a cause of action, the court mus...

Excerpt: ...ure to proceed with the deposition is not well grounded in both law and fact. Oaks cites to no authority which supports his contention that plaintiff should have proceeded with his deposition even though there was a dispute with his counsel regarding the deposition of Donald Oaks. Instead of wasting time to complete the deposition of Donald Oaks and commence the deposition of Brian Oaks, under conditions which plaintiff's counsel believed impeded...

Excerpt: ...435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP § 437(a).) “[T]he court treats as true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged.” (Washington Int'l Ins. Co. v. Superi...

Excerpt: ... demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form pa...

Excerpt: ...sks the court to not take judicial notice of this document because the parties adamantly dispute the proper interpretation of the June 18, 2016, claim. Plaintiff argues since the proper interpretation is contested, it is not “reasonably beyond dispute” and not suitable for judicial notice. Importantly, Defendants do not ask the court to take judicial notice of a specific interpretation of the Claim. The court can take judicial notice of the e...

Excerpt: ...ils to support either objection with sufficient evidence. For example, GM attaches the declaration of a design engineer for GM (Huizhen Lu) who generally states that such designs and engineering are trade secrets. However, the declaration fails to specify the manner in which the particular discovery in this matter involves the genericallydescribed design and engineering trade secrets he identifies. The reply points out that the declaration is fro...

Excerpt: ... action earlier because he did not know of the applicability of these causes of action as a pro per litigant. (Singh Dec., ¶4.) He indicates that he met with an attorney who informed him of the nexus between the claims and Aryal's alleged bad acts. (Id at ¶3.) Generally, the court should grant leave to amend the complaint where the party has a good cause of action which he has accidentally or mistakenly failed to raise in the complaint. (Higgin...

Excerpt: ... an official act of the executive, judicial or legislative departments of the state of New York, and thus of document that could be judicially noticed (Evid. Code, § 452, subd. (c)), it is not relevant to this motion. The request is denied on that basis. To the extent that the plaintiff relies upon it to establish the defendant's “own internal policies” (Oppo., p. 3), those policies are not subject to judicial notice. The declaration of Le m...

Excerpt: ...for an order shortening time. Defendant then filed objections to remote jury trial and a renewed request to continue trial. First, the court points out that while the amended trial setting order informs the parties that the matter may need to proceed remotely, that decision is made on the basis of the circumstances in existence at the time of trial. In‐ Person Jury Trials Defendant's unopposed motion argued that a jury trial conducted remotely ...

Excerpt: ... is a nuisance under Civil Code section 3479, which defines a nuisance as “[a]nything which is injurious to health…so as to interfere with the comfortable enjoyment of life or property….” (Complaint, ¶ 112.) A nuisance may be either private or public. A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflict...

Excerpt: ...er based on uncertainty should be overruled Defendants argue the complaint is uncertain because plaintiff uses the terms “advances” and “loans” interchangeably within the pleading without explaining the difference. As noted above, a demurrer based on uncertainty must be so uncertain as to make it impossible for defendant to respond. (See Khoury, supra, at p. 616.) The demurrer based on uncertainty is rejected because there is nothing unce...

Excerpt: ... he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cannot reasonably discover them, and where the defendant actively conceals discovery from plaintiff. (Warner Con...

Excerpt: ...ment v. Alegra (2009) 177 Cal.App.4th 1277, 1294). Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. (Id.) Defendant complains that Plaintiffs sent a meet and confer letter at the last minute, only 8 days before the deadline to file a motion to compel, showing bad faith. Plaintiffs accuse Defendant of dumping documents on ...