Excerpt: ...void because Thomas cannot fulfill the contract. California follows the “American Rule” regarding entitlement to attorney's fees, whereby each party bears its own attorney's fees unless such fees are expressly provided for by statute, or are included as part of the terms of a contract. Cal. Civ. Proc. Code § 1021; Reynolds Metal Co. vs. Alperson (1979) 25 Cal. 3d 124, 127. Attorney's fees as an allowable cost item are governed by California ...

Excerpt: ...tes a cause of action. Defendant argues that judicially noticeable facts show that the conditions precedent to the closing of escrow did not occur. Plaintiff responds that the agreements and addendums make it clear that the condition to expunge the lis pendens was seller's obligation, which would have allowed buyer to terminate if it chose to do so. The condition about pending litigation is for plaintiff's benefit and it may waive it. Further, th...

Excerpt: ... Inc. v. Moriana 142 S. Ct. 1906 (2022), the individual PAGA claims that are within the scope of the claims covered by the arbitration agreement can be severed from the non‐individual claims and be compelled to arbitration. In Viking River Cruises, Inc., the Supreme Court held that an arbitration agreement between a former employer and employee that purportedly waived the employee's rights to bring PAGA representative claims was invalid insofar...

Excerpt: ...y said that “her mom would purchase a home for her and the plaintiff” is insufficient. Defendants also argue that the claim against Audrey fails because she claims no property interest. The demurrer contends that Audrey does not allege an ownership interest in the first cause of action, but it alleges that Audrey claims a half ownership in the property (Complaint ¶¶s 12‐14, 38, 49‐51, 54 & 56). Similarly, defendants' argument that the c...

Excerpt: ...is based upon a determination that RRM's remainder property does not include the South Pit Expansion. The determination of just compensation is measured by what the owner has lost rather than by what the condemner has gained. County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 123. Where, as in the present case, the proceeding involves condemnation of an easement and the underlying fee retains some value, compensation consists of the decreas...

Excerpt: ...mbraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) “If so, the proceedings are stayed; if not, the proceedings are permitted.” Betz v. Pankow (1993) 16 Cal.App.4th 931, 938. “The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself,...

Excerpt: ...§§ 1194, 1197; Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66, 74. The applicable wage order, Wage Order No. 4‐ 2001, defines “employee” as “any person employed by an employer.” 3 Cal. Code Regs, tit. 8, § 11040(2)(E). “Employer” is defined as “any person . . . who directly or indirectly, or through an agent or any other person, employs or exercise control over the wages, hours, or...

Excerpt: ...tition to compel arbitration unless it finds either: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. Cal. Civ. Proc. Code § 1281.2. A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract...

Excerpt: ...g party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. California courts liberally construe the term, “on a contract,” as it is used in section 1717. Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168. In determining whether an action is “on the c...

Excerpt: ...mination that RRM's remainder property does not include the South Pit Expansion. The determination of just compensation is measured by what the owner has lost rather than by what the condemner has gained. County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 123. Where, as in the present case, the proceeding involves condemnation of an easement and the underlying fee retains some value, compensation consists of the decrease in market value due...

Excerpt: ...r responses to any of the interrogatories that were supplemented so this motion is not moot. UHS‐Corona provided information about hiring, termination and voluntary resignation for registered nurses working the L&D department from 2014 to 2017, but plaintiff now seeks the information for all RNs in the entire hospital for 2014 to 2018. (Requests 71, 72, 75, 78, 79, 82, 83, 86, 87, 90‐93, 98‐101, 106 ‐109, 114‐117, 122‐125) There is no...

Excerpt: ...r warranty. Cal. Civ. Code §1793.22(e)(3). Thus, the definition would appear to apply to the vehicle as represented by plaintiffs. Accordingly, the motion is granted with 20 days' leave to amend as to the causes of action based on the Act. To be actionable, the defendant must have been under a duty to disclose facts to plaintiff. This duty can arise from a fiduciary relationship, when the defendant had exclusive knowledge of material facts not k...

Excerpt: ...bitration agreement. Defendants argue that all of plaintiff's claims are subject to the Agreement, which defines claims broadly. Defendants argue that the Agreement is not substantively unconscionable because it provides all relief available, allows for adequate discovery and requires the employer to pay the arbitration fees. Defendants argue that the Agreement is not procedurally unconscionable. Defendants argue that the refusal to arbitrate was...

Excerpt: ...use the Act was not enacted until March 3, 2022, the conduct involved in this case occurred in May 2021 (Complaint, ¶ 9), and the Act is not retroactive, it does not apply to this case. Moreno Valley seeks to compel arbitration under an arbitration agreement that was signed by Plaintiff's husband. Plaintiff argues that Moreno Valley has failed to provide evidence that her husband had authority to bind Plaintiff to said agreements. Moreno Valley ...

Excerpt: ... employee whose claims are not typical of the agricultural workers. Defendant argues that Uribe is not a proper representative because he only worked sporadically during the class period. Defendant argues that there is no unity of interest because the agricultural workers and clerical workers are subject to different Wage Orders. Defendant argues that there no common issues of fact or law because plaintiffs do not allege overall wage and hour pol...

Excerpt: ...o. vs. Alperson (1979) 25 Cal. 3d 124, 127. Attorney's fees as an allowable cost item are governed by California Code of Civil Procedure section 1033.5(a)(10) and (c)(5), and motions for such fees are governed by California Rules of Court, Rule 3.1702. The court may properly award attorney's fees when a contract provides for the allowance of attorney's fees and suit is instituted to enforce the provisions of the contract: the trial court decides ...

Excerpt: ...lly served with the summons. Instead, the proof of service indicates “Sergio” (a room renter) was served on January 13, 2018. Plaintiff opposes the motion arguing that the motion to quash is untimely as Nunez acknowledges he received the complaint in October of 2021, and failed to file this motion until May 20, 2022, more than six months later. Plaintiff asserts that the section 473(b) motion is also untimely because default was entered on Ma...

Excerpt: ...ndependent contractor, assigned by a staffing agency, Garuda Labs, Inc. and nowhere alleges that she was an employee of Core‐Mark. The complaint must be construed liberally… with a view to substantial justice between the parties.” Cal. Civ. Proc. Code § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639. Leave to amend should be routinely and liberally granted regardless of the defect and a failure to allow amendment to an original c...

Excerpt: ...mmenced, the party asserting the plea in abatement should be granted leave to amend to plead the res judicata effect of the judgment in bar of the subsequent action. … [If] the prior litigation is not determined upon the merits, the trial court should hear and decide the rights of the parties in accordance with the issues presented by the pleadings in the second action.” Branson v. SunDiamond Growers (1994) 24 Cal.App.4th 327, 335 n.2. This a...

Excerpt: ...e has already been too much delay in proceeding with this litigation. Griffithe is admonished that he must follow the rules of court or he may be subject to sanctions. Griffithe argues that the release in the parties' Rescission Agreement bars all of the causes of action. This argument is unpersuasive because the complaint alleges that Renewable did not fulfill its obligations under the agreement. Put simply, the plaintiffs allege that the agreem...

Excerpt: ...ale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104. A plaintiff in a suit for wrongful foreclosure is generally required to show that ...

Excerpt: ...ection 425.13 before asserting a claim for punitive damages. Section 425.13(a) provides that, in an action arising out of the professional negligence of a health care provider, “no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Section 425.13(a) is not limited to causes of action for “professi...

Excerpt: ...ction arising out of the professional negligence of a health care provider, “no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Section 425.13(a) is not limited to causes of action for “professional negligence,” but applies to any cause of action “arising out of” professional negligence, ...

Excerpt: ...eges the ultimate facts that he suffered from a disability, his employer knew of his disability, failed to engage in the interactive process and failed to accommodate him, and, instead, retaliated against him with disciplinary action that was unwarranted and then firing him. As to the third cause of action for retaliation, plaintiff alleges that he requested reasonable accommodations for his disability and that instead of providing an accommodati...

Excerpt: ...(2019) 40 Cal.App.5th 555, 559. Since negligent entrustment is alleged, Medina's past driving history is relevant. If Medina has a history of acting in an unsafe manner when operating a vehicle and Stanley knew or should have known about this conduct, it can be held liable for negligent entrustment. As such, Medina's argument that the subpoenas do not seek relevant information has no merit. Medina argues that the subpoenas are overly broad. This ...