Excerpt: ... excusable neglect. A government tort claim must be presented within six months after accrual of the cause of action. Gov. Code §911.2. A plaintiff who fails to timely file a claim may seek relief for leave to present a late claim which must be presented within one year after accrual of the cause of action. Gov. Code §911.4(b). “If the public entity denies an application for leave to file a late claim, the claimant must obtain a court order f...

Excerpt: ...tice. Defendant argues that because judgment was entered in her favor in that case, plaintiff had no lawful reason to refuse defendant's proffered partial rent payment. That argument is not proper on a motion for new trial, as it could have been raised prior to trial, and was not mentioned in the trial of this matter. The agreed -upon jury instruction CACI 4327 was given. “A notice of intention to move for a new trial is deemed to be a motion f...

Excerpt: ... she does not pay the outstanding increased amount demanded. On February 29, 2024 the court granted Lady J's ex parte application for temporary restraining order to stay the auction of the inventory. A hearing for the preliminary injunction was set for April 3, 2024. See 2/28/24 Minute Order. On April 3, 2024 the court continued the hearing because defendant's papers were not served and allowed additional time. No opposition was filed. “[A] cou...

Excerpt: ...mended complaint alleges defamation, invasion of privacy and fraud against Townsend. On March 4, 2024, Townsend filed a special motion to strike (anti -SLAPP) which is set for hearing on June 6, 2024. On March 11, plaintiff filed the instant motion “to strike” Townsend's motion to strike. Townsend filed her opposition on April 3, 2024. As of April 16, 2024, no reply has been filed. Plaintiff purports to make this motion to strike Townsend's m...

Excerpt: ...declaratory and injunctive relief. Defendant cross -complains f or (1) declaratory relief; (2) quiet title; (3) negligence; (4) private nuisance; (5) trespass; and (6) negligent trespass. Defendant seeks an order permitting a property inspection during trial, pursuant to Code of Civil Procedure section 651; see, e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1104. The properties are located in a hillside area of Beverly Hills, 13 miles from the cou...

Excerpt: ...A)(3) as against VGA 4. Breach of Implied Warranty of Merchantability (Violation of CIV §§ 1791.1; 1794; and 1795.5) as against VGA 5. Violation of the Magnuson- Moss Warranty Act as against VGA 6. Negligent Repair as against AVN The first four causes of action stem from alleged violations of the Song -Beverly Act (SBA). Defendants move for summary judgment or in the alternative summary adjudication on all claims. On March 29, 2022, Plaintiff p...

Excerpt: ...the Barrington Plaza apartments in which numerous plaintiffs were injured and/or lost property and the Bru plaintiffs' decedent perished. Defendant Universal Protection Service (UPS) moves for summary judgment or, in the alternative, summary adjudication of plaintiffs' claims in 22STCV03442 and related cases 22STCV03650, 22STCV03445, and 22STCV24322, arguing that even though it had a contrac tual duty to perform services for Douglas Emmett Manage...

Excerpt: ...d and to the second cause of action on the ground that plaintiff Association lacks legal capacity to sue for declaratory relief. Defendants argue the first cause of action for breach of declaration of restrictions is subject to demurrer because the restriction on building a home pursuant to Paragraph 6 of the 1950 CC&Rs expired January 1, 1976. See Demurrer at pg. 7; FAC at ¶18, Exh. 1 at ¶ 6. They note the FAC alleges no other breach, and the ...

Excerpt: ...ises liability; and (3) negligence supervision. All defendants demur and move to strike requested attorneys' fees. Defendants' Demurrer “A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” Ivanoff v. Bank of America, N.A. ¿(2017) 9 Cal.App.5th 719, 725. The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” Id. The Court “assume[s]...

Excerpt: ...air business practices in her 147 -page complaint. It is unclear from the FAC specifically what allegations are being made and what specific damages are being sought. Plaintiff attached photographs of patient file s and attic space, as well as text messages, 30 pages in total, to the FAC. Via the original complaint, filed 3/10/23, plaintiff sought $170 for unreimbursed parking/cell phone charges. She sought $100 in alleged unpaid wages, $62 for f...

Excerpt: ...nce makes a motion to dismiss/motion for judgment on the pleadings, and the court will treat it as such. Under the JCEO, “[a] copy of any written notice terminating a tenancy shall be filed with the Department within three business days of service on the tenant.” LAMC §165.05B(5), emphasis added. Failure to comply with this provision – or any provision of JCEO — may be raised as an affirmative defense by the tenant. LAMC §165.07. Emeral...

Excerpt: ...cting in her capacity as a real estate agent workin g for defendants Arbid and Power Brokers, Inc. Defendants Power Brokers International, Beverly Hills Fine Homes and Arbid (collectively “PBI”) demur, as do defendants Rexford Flats, Rexford 52 and Mehrdad (collectively “Rexford”). Rexford also moves to strike special and punitive damages. Defendants PBI Demurrer Negligence The elements of a cause of action for negligence are (1) duty, (2...

Excerpt: ..., to lift the stay of proceed ings and return the matter to court. Under Cal. Code of Civ. Proc. §1284.3(b)(1), “[a]ll fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, shall be waived for an indigent consumer.” Plaintiff cites Cinel v. Barna (2012) 206 Cal.App.4th 1382, arguing the case states an indigent party's arbitration fees are waived, ...

Excerpt: ...ancial discovery regarding Popeye and Weiss, supported by testimony given at the depositions of plaintiff, defendant and plaintiff's partner witness Markelian. Trial is scheduled for April 15, 2024, having been set on June 13, 2023. Civil Code 3295(c) states “No pretrial discovery by the plaintiff shall be permitted … unless the court enters an order permitting such discovery… However, the plaintiff may subpoena documents or witnesses to be...

Excerpt: ..., under which units in Doe's building would be converted from rentals to condominiums. Olson would purchase units, and Doe would choose one unit as her residence . Doe regularly used her condo for short term rentals through Airbnb, which she claims was permitted under her agreement with Olson. Doe alleges Olson and his friends harassed her, spreading defamatory rumors, spying on her, recording her without consent, tampering with her unit, intimid...

Excerpt: ...'s personal property valued at over $100,000. Defendant moves to strike plaintiff's request for punitive damages on the grounds that the allegations supporting the request are impermissibly vague and do not state sufficient facts to support the claim. Punitive damages are allowable only when plaintiff proves defendant has been guilty of oppression, fraud or malice. Cal. Civ. Code §3294(a). Facts giving rise to a claim for punitive damages must b...

Excerpt: ...the written a greement was orally modified in 2015, with UB to receive a monthly $300 fee. UB alleges 20% of net profits from the property's rental income would be calculated at the end of each year, with UB receiving the difference between that percentage and the $3,600 received in monthly payments. Defendants dispute the terms of the 2015 agreement, arguing UB is entitled only to a monthly $300 fee, not 20% of each year's net rent profits. UB a...

Excerpt: ...and mat erials. In 2005 the Wolfs signed a promissory note for $500,000 in favor of Jerry and Orit Kohen, secured by a deed of trust on the Wolfs' home. Between 2005 and 2015, Yaakov Wolf made payments toward satisfaction of the purported debt. In 2016, the Kohens assigned the note and deed of trust to defendant Haroni. The Kohens argue the Wolfs repeatedly drew on a line of credit created by the promissory note; the Wolfs argue Eisenberg drew on...

Excerpt: ...Cohens disagree that a settlement agreement was ever formed, as party Elaine Cohen failed to sign. Cross -defendants Paul and Elaine Cohen demur to the third cause of action for breach of a settlement agreement and seventh cause of action for estoppel. They also move to strike portions of the cross -complaint. The Kaplans request sanctions against Paul Cohen and his former counsel Bloch for falsely representing that Elaine Cohen signed the settle...

Excerpt: ...trike the complaint under the anti -SLAPP statute. Evidentiary Objections: OVERRULED. Courts resolving an anti -SLAPP motion under Cal. Civ. Code §425.16 follow a two- step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff's cause of action arises from defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 37...

Excerpt: ...raud, elder abuse, intentional infliction of emotional distress and negligent infliction of emotional distress. Defendant Wells Fargo demurs. Common Law Claims/UCC Division 11 of the California Uniform Commercial Code displaces common law claims where provisions of the article cover the “circumstances giving rise to the common law claims[.]” Zengen v. Comercia Bank (2007) 241 Cal.4 th 239, 251-253. Successive sections of Division 11 address t...

Excerpt: ...ants and/or is an alter ego of defendant Blaine Labs. On November 2, 2023 the court sustained Cabo's demurrer to the first amended complaint due to failure to adequately allege conspiracy or alter ego liability. He now demurs to the third amended complaint (TAC), arguing plaintiffs still have not adequately a lleged conspiracy or alter ego liability. Conspiracy allegations against Cabo have not been amended since the FAC. This is a tacit admissio...

Excerpt: ... declare Visconti a vexatious litigant and for an order requiring Visconti to post a security bond or dismiss her cross-complaint. Plaintiff provides a proof of service on Visconti, who is currently incarcerated, and Murphy, who was served on January 25, 2024, via US mail and electronic service. A trial court may order a party, the party's attorney or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a r...

Excerpt: ...endant of the basis on which the plaintiff is seeking relief.” E.g. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. Uncertainty All causes of action in the FAC are alleged with a similar formula. All preceding paragraphs are re-alleged and incorporated. Then Doe states in a conclusory fashion that defendant engaged in conduct constituting the elements of the claim. This is insuffic ient to overcome demurrer. The court cannot determine whe...

Excerpt: ...ailable as construction expenses were incurred. Sunset was required to incur expenses out -of -pocket, which would then be reimbursed. Sunset states it could obtain reimbursement by requesting a draw, which would result in Lionscove sending an inspector to the property to determine how much of the construction fund should be disbursed. Sunset argues Lionscove acted in bad faith, stalling reimbursements, delaying inspections, and disbursing smalle...

Excerpt: ...videntiary Objections: Martin's objections OVERRULED. Under the “Sidewalk Accident Decision Doctrine,” a landowner's duty to repair and maintain an adjoining sidewalk is not owed to persons who use the sidewalk, unless the landowner causes the sidewalk's dangerous condition. Alpert v. Villa Romano Homeowners Assoc. (2000) 81 Cal.App.4th 1320, fn. 11. A property owner can be liable for “suffering the roots of his tree to cause, with his know...

Excerpt: ...project to remain unfinished and go substantially over budget. Defendants Bohrer and BCI demur. Breach of Contract (First CoA)/Disgorgement (Seventh CoA) On demurrer, facts contained in an exhibit attached to a complaint take precedence over and supersede any inconsistent or contrary allegations in the pleading. Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864. BCI argues it is not a contracting party; the agreement attached to the c...

Excerpt: ... Olson, under which units in Doe's building would be converted from rentals to condominiums. Olson would purchase units, and Doe would choose one unit as her residence. Doe regularly used her condo for short term rentals through Airbnb, which she claims was permitted under her agreement with Olson. Doe alleges Olson and his friends harassed her, spreading defamatory rumors, spying on her, recording her without consent, tampering with her unit, in...

Excerpt: ...W and Kids both move for summary judgment/adjudication. Kids Artistic Sense MSJ Kids moves for summary judgment on the grounds that the notice to pay rent or quit is defective. It argues the notice failed to accurately state “the usual days and hours” Singleton would be available to receive rent payment. “A landlord must serve a tenan t with a valid three-day notice in order to prevail in an unlawful detainer action.” Bawa v. Terhune (201...

Excerpt: .... dba W.I. Simonson, Watkins, Bland and Vides move for judgment on the pleadings. Validity of Motion As a threshold matter, plaintiff argues the motion is void because it targets the complaint, which was superseded by the first amended complaint. The motion explicitly the “operative First Amended Complaint,” so targets the correct pleading. Conversion The elements of a cause of action for conversion are (1) plaintiff's ownership or right to p...

Excerpt: ...inetti Wang & Team LLP (ASWT) and Janet Janet & Suggs (JJS). After the underlying case settled, Pourat alleges Doe and the defendants failed to pay his fees. ASWT and managing partner Arias demur, stating they were not party to any fee sharing agreement with Pourat and are required by ethics rules to hold the disputed fees in trust until Pourat's fee dispute with Doe is resolved. Service and Filing of Demurrer Pourat argues the demurrer should be...

Excerpt: ...e covered under two separate policies. The guest house was insured under a policy issued by defendant California Fair Plan Association, which plaintiffs allege wrongfully denied the claim. Fair Plan demurs. One-Year Suit Provision Fair Plan argues the claims are time barred, as the policy states “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” F...

Excerpt: ...ent Permit and the ten -foot setback requirement at the property boundary and interferes with Howarth's quiet enjoyment of his property. Finally, Howarth alleges Mardirossian failed to construct a solid masonry wall to mitigate noise from the tenn is court as required by the Coastal Development Permit. Mardirossian moves for summary judgment and/or adjudication. Evidentiary Objections Howarth Objections 1- 3 SUSTAINED (improper legal opinion); ob...

Excerpt: ...d on appeal. In this action, Yazdi sues patient Robles and dentists Baum and Mizrahi. Yazdi alleges Baum testified falsely at arbitration, and subsequent dental treatment by defendants Baum and Mizrahi caused or exacerbated Robles' injuries. On November 8, 2023 the court denied Baum's anti -SLAPP motion to the initial complaint and sustained his demurrer with leave to amend. Defendant Robles now files an anti -SLAPP motion and demurs, as do defen...

Excerpt: ...nding defendants waived their right to arbitrate due to unreasonable delay and substantial invocation of the litigation machinery. Defendants appealed, filing a notice of automatic stay pending appeal on December 11, 2023. Plaintiffs move for an order seeking to clarify that, pursuant to new legislation, no stay is in effect. Cal. Code of Civ. Proc. §1294, which effect January 1, 2024, states perfecting an appeal from an order denying a motion t...

Excerpt: ...has filed numerous small claims actions against Blue Shield, arguing it was underpaid for emergency services provided to Blue Shield members. Blue Shield seeks a court declaration stating its payment methodology is valid, resulting in payments to AOC equal to or exceeding fair market value, that AOC is not entitled to its full billed charges for services to Medicare members and Blue Shield is entitled to reimbursement for overpaid claims. Defenda...

Excerpt: ...d (2) what is the basis for Houck's claim to fees/costs. Cal. Code of Civ. Proc. §1032 provides the prevailing party entitled to recover costs. A prevailing party includes “the party with a net monetary recovery.” Cal. Code of Civ. Proc. §1032(a)(4). If no party prevailed according to the statute, the court “may allow costs or not and, if allowed, may apportion costs between the parties.” Id. In its judgment the court awarded Houck a pr...

Excerpt: .... Regents now demur to the TAC's causes of action for failure to provide adequate equipment, personnel or facilities and cause of action for violation of the Americans with Disabilities Act (ADA). First Cause of Action “Public entities have broad immunity from liability for injuries suffered by an inpatient of a mental institution.” State Dept. of State Hospitals v. Superior Court of Napa County (2022) 84 Cal.App.5th 1069. Cal. Gov. Code §85...

Excerpt: ...int (CCP 436). The parties met and conferred in accordance with CCP §435.5(a). Plaintiff's primary contention is that the cross-complaint was not timely filed. El-Batrawi seeks leave to file its amended cross-complaint and argues new party Terren Peizer does not need leave, as the court has not set a trial date. CCP § 428.50. El-Batrawi concedes the cross-complaint was late filed but argues lack of prejudice. Per CCP §428.50(a) a cross-complai...

Excerpt: ...d a promissory note for $500,000 in favor of Jerry and Orit Kohen, secured by a deed of trust on the Wolfs' home. Between 2005 and 2015, Yaakov Wolf made payments toward satisfaction of the debt. In 2016, the Kohens assigned the note and deed of trust to defendant Haroni. Plaintiff Daniella Wolf sues for declaratory relief and quiet title, arguing the note and deed of trust are invalid, neither she nor Yaakov owes the Cohens or Haroni any money, ...

Excerpt: ...it is a recorded document. The parties met and conferred prior to filing the demurrer per CCP §430.41(a). In ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice or documents not accepted for the truth of their contents. For purposes of ruling on a demurrer, all facts alleged are assumed to be true. Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967. Wong argues the deed is not in his name, but...

Excerpt: ...ff seeks a writ of attachment against defendant's interest in property located at 2500 Briarcrest Road, Beverly Hills, CA 90210. No opposition was filed. “Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” Code Civ. Proc. §484.010. “The...

Excerpt: ...the implied covenant of quiet enjoyment; (4) bad faith retention of security deposit; (5) violation of LAMC § 45.33; and (6) violation of Los Angeles County Code § 8.52.130. The FAC alleges termination of the tenancy without just cause. Defendants demur to the first, second, third, fourth and fifth causes of action in the FAC and move to strike requested punitive damages and attorneys' fees. “The primary function of a pleading is to give the ...

Excerpt: ... damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367. Defendants argue the cause of action for breach of contract alleges the cosmetic dental services were not performed to plaintiff's satisfaction, and these allegations al...

Excerpt: ... Defendants' request for judicial notice of the court file is granted, per Evidence Code § 452(d) as to the fact of filing and the allegations made, but not the truth of the allegations. To state a claim for punitive damages (Civil Code 3294), plaintiff must allege specific facts showing malice, oppression or fraud. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042. The basis for punitive damages must be pled with specificity; conclusory ...

Excerpt: ...ay monetary sanctions. Defendants each bring a motion for terminating sanctions. Both defendants filed proofs of service of their respective motions. Plaintiff has not filed an opposition to either motion. Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” Code Civ. Proc. §§2031....

Excerpt: ...nd on any terms as may be proper, allow a party to amend any pleading.” Courts have held “there is a strong policy in favor of liberal allowance of amendments.” Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) (“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to an...

Excerpt: .../or compensatory damages in an amount to be proven at trial.” Complaint, 29:1. The complaint does not set forth an identifiable sum of monetary relief sought. On December 13, 2023 the Court granted plaintiff's motion to compel Athens' further responses to plaintiff's first set of requests for production of documents. On December 21, 2023, Athens moved for an order reclassifying this case as one of limited jurisdiction. The Court rejects plainti...

Excerpt: ...ntiff's deposition; defendant requests sanctions of $1,810 for each motion. Plaintiff, now in pro per, has not filed an opposition to either motion. Motion to Compel Plaintiff's Answers to Form Interrogatories “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response….” Code Civ. Proc. § 2030.260, subd. (a). “If the party to whom interrogatories are dir...

Excerpt: ...nal account and report, distribution of sales proceeds, discharge of the receiver and exoneration of the bond. Code of Civil Procedure section 564 provides for appointment of a receiver. California Rules of Court, Rule 3.1184 provides a receiver must present: (1) a final account and report, (2) a request for the discharge, and (3) a request for exoneration of the receiver's surety. Cal. Rules of Court, rule 3.1184(a). Rule 3.1184 further provides...

Excerpt: ...arding whether the contract should be rescinded due to fraud/negligent misrepresentation. Plaintiff seeks to file a FAC, adding new causes of action for fraud, racketeering and declaratory relief, and removing Mercedez Benz as a defendant. Defendant Sonic's Motion to Compel Arbitration Evidentiary Objections SUSTAIN: 1, 2, 3 (second sentence only), 4, 5 (third and fourth sentences only) OVERRULE: 6, 7, 8, 9, 10 Code of Civil Procedure section 128...

Excerpt: ... defendant being represented by counsel and served a courtesy copy of the discovery on defendant's insurance carrier. On September 5, 2023 defendant answered. On October 4, 2023 plaintiff's counsel told defense counsel that the responses were untimely and must be responded to without objection. On October 20, 2023, defendant responded, with objections. Defendant moves for relief from waiver of objections, based on mistake or inadvertence. A party...

Excerpt: ...(1), 576.) Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . ..” (CCP § 473(a)(1); see CCP § 576.) Policy favors liberally granting leave to amend so that all disputed matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) ...

Excerpt: ...4th 1350, 1358. “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” Ibid. A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078. Demurring party must meet and confer and file a dec...

Excerpt: ...intiff moves for summary judgment or, alternatively, summary adjudication. The proof of service indicates plaintiff served defendant with a motion for judgment on the pleadings on September 5, 2023. The Court is unsure whether there is a typographical error in the proof of service or whether the instant MSJ/MSA motion was never served on defendant. As of January 11, 2024, no opposition has been filed. The function of a motion for summary judgment...

Excerpt: ...Code section 1793.2 (against SOA only); (3) violation of subdivision (a)(3) of Civil Code section 1793.2 (against SOA only); (4) breach of the implied warranty of merchantability (against SOA only); and (5) negligent repair (against DCH only). As to DCH, plaintiff alleges it failed to properly perform necessary repairs. DCH cross complained against SOA, seeking (1) express indemnity; (2) implied indemnity; (3) equitable indemnity; and (4) declara...

Excerpt: ...nted as necessary for certification by the California Department of Consumer Affairs to become a speech language pathologist assistant. Plaintiff alleges she learned the program does not enable her to become a speech language pathologist assistant. Defendant demurs and moves to strike the requested attorney's fees. First Cause of Action: Breach of Contract (Express) To prevail on breach of contract claim, plaintiff must prove (1) the contract, (2...

Excerpt: ...IA moves to quash for lack of jurisdiction, arguing it is not AIL's parent company and lacks minimum contacts with California. “A nonresident defendant is subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous and systematic.” Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362. This is established if defendant maintains a physical business presence and employees and regul...

Excerpt: ...ute the easement and move for an order enforcing the settlement per Code of Civ. Proc. §664.6. On November 30, 2023 the court issued a tentative ruling granting the motion. The court granted the Cohens' requested continuance to retain new counsel and file an opposition. When a court enters judgment under Cal. Code of Civ. Proc. §664.6, it has discretion to appoint an elisor to execute documents requiring party signatures. Blueberry Properties, ...

Excerpt: ...e §809, challenging a prior peer review that occurred on November 18, 2021, is pending. This lawsuit also challenges the underlying peer review events at issue in the §809 hearing. This motion was previously set 3/24/23, continued to 4/26/23, then to 5/24/23, then 6/27/23, then 8/9/23, then 9/5/23, then 10/10/23, then 11/13/23, finally to 12/20/23. All these prior continuances were at the parties' joint request, either by stipulation or by cont...

Excerpt: ...unds. The court will refer to the Rubin defendants by their first names to distinguish the parties. On September 26, 2023 the court granted Joseph's motion for judgment on the pleadings as to the first amended complaint with leave to amend. Joseph now demurs to the second amended complaint. Fraud in the Inducement A cause of action for fraudulent inducement, if it is based on affirmative misrepresentations, must be pleaded specifically. Stansfiel...

Excerpt: ...ens or outstanding debts. The settlement provides that on April 1, 2023, Main St. is required to “begin the process of transferring the Liquor License” to Sequoia, and that Main St. “shall be responsible for the payment of any escrow fees, transfer fees, and related costs associated with the transfer of the Liquor License” and “will submit all required returns, documents, and funds required to obtain releases of any holds that are on th...

Excerpt: ...e Rubin defendants by their first names to distinguish the parties. On September 26, 2023 the court granted Joseph's motion for judgment on the pleadings as to the first amended complaint with leave to amend. Joseph now demurs to the second amended complaint. Fraud in the Inducement A cause of action for fraudulent inducement, if it is based on affirmative misrepresentations, must be pleaded specifically. Stansfield v. Starkey (1990) 220 Cal.App....

Excerpt: ...roduction of documents on defendants Rari Capital Infrastructure, Longarzo and Fei Labs; defendants responded with objections on April 19, 2023. Yu alleges on May 17, 2023 defendants agreed to supplement the production and waive objections except attorney-client privilege, then served supplemental responses consisting only of objections without any new document production. On August 9, 2023 the parties held an informal discovery conference, after...

Excerpt: ... as to the third cause of action for declaratory relief. After trial the court ruled Pacific Horizon was entitled to a road easement for egress and ingress over a disputed portion of street in the parties' common interest community. The court issued its final judgment on September 20, 2023. On August 10, 2023, the court denied the Meehans' motion for attorney fees, finding the attorney's fees provision in the CC&Rs did not apply to the dispute. O...

Excerpt: ...court may issue a protective order that it not be taken at all to prevent “any party, deponent … from unwanted …. burden or expense.” Cal. Code of Civ. Proc. §2025.420. Von Neitsch argues her deposition should not take place due to ongoing medical issues, allegedly caused by Dr. Naysan. Additionally, she argues proposed deposition topics violate her right to privacy. She raises the same privacy concerns with respect to the dentist deposi...

Excerpt: ...hall share equally in the responsibility for maintaining the boundaries and monuments between them[,]” and “[w]here a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days' prior written notice to each affected adjoining landowner.” Defendant demurs, arguing the complaint does not allege Hill gave thirty days' notice. Hill's opposition does not address this argument. SUSTAINED with ten day...

Excerpt: ...he 2018 surgery, but denied summary judgment as to the 2020 surgery. The court denied summary judgment as to the medical battery claim arising out of the 2020 surgery, concluding “[t]his argument should be made via motion for judgment on the pleadings[.]” 9/13/2023 minute order pg. 3. Defendants Kohan and his corporation seek judgment on the pleadings as to the medical battery claim. On November 8, 2023 the court issued a tentative ruling gra...

Excerpt: ...f alleges she reported these conditions but Essex did not remedy them. The Essex defendants demur to plaintiff's cause of action for fraud and move to strike the request for punitive damages. Fraud The elements of fraudulent concealment are (1) defendant concealed or suppressed a material fact, (2) duty to disclose, (3) defendant intentionally concealed the fact with intent to defraud, (4) plaintiff was unaware of the fact and would not have acte...

Excerpt: ...cuments. He argues Arakelian's responses were insufficient and their objections meritless and moves for further responses. Timeliness Under Cal. Code of Civ. Proc. §2031(c), “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party...

Excerpt: ...allege retaliatory termination for reporting sexual abuse at the facility, hostile work environment, lack of meal/rest breaks, requiring work off-the- clock without pay and failure to reimburse. Defendants move for summary adjudication. Evidentiary Objections Plaintiffs' Objections: Objection 1 SUSTAINED (lack of personal knowledge), Objection 2 OVERRULED, Objections 3-5 OVERRULED, Objection 6 SUSTAINED (lack of authentication), objection 7 OVERR...

Excerpt: ...anagement company, but defendants did not remedy the issues. Defendants demur to the first amended complaint. Negligence A person who hired an independent contractor is generally not liable to third parties for injuries caused by the contractor's negligence in performing the work. Privette v. Superior Ct. (1993) 5 Cal.4th 689, 693. Homeowners associations have a “duty to exercise due care for the residents' safety in those areas under their con...

Excerpt: ...the website. Dr. Murrey served subpoenas duces tecum on third parties Amazon, Facebook/Instagram (both owned by Meta Platforms, Inc.), Yahoo and Cloudflare, seeking production of business records. On January 31, 2023 the court heard plaintiff's motion to compel further responses to his subpoenas. The court denied as to all requests directed at Meta except requests 15 and 16, which sought documents related to a contractual relationship between Fac...

Excerpt: ...on (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), For harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental lease, if – (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing...

Excerpt: ... made defamatory statements during a podcast about the trial. Plaintiff alleges the episode was broadcast by defendants Audiochuck and its managing member Flowers. Defendants Flowers and Audiochuck demur and move to strike all claims under the anti-SLAPP statute. Defendant Townsend joins. Defendants also demur to the complaint. Plaintiff filed no opposition. Courts resolving anti-SLAPP motions under Cal. Civ. Code §425.16 follow a two-step proce...

Excerpt: ...ause is unenforceable, some of the plaintiffs never agreed to arbitrate and defendants waived the right to arbitrate by invoking the litigation machinery. California public policy strongly favors arbitration as an efficient alternative to litigation. Cal. Code of Civ. Proc. §1280 et seq., Madden v. Kaiser Found. Hosps. (1976) 17 Cal.3d 699, 706. A party waives its right to arbitrate when it “substantially invokes” the litigation machinery be...

Excerpt: ...ted funds and mismanaged properties. Williams' cross-complaint alleges Freeman reduced his salary, took a salary of his own in violation of Metro's operating agreement and interfered in Metro's business, causing it to miss investment opportunities and lose profits. Freeman demurs to Williams's cross-complaint. Quantum Meruit/Breach of Oral Contract A quantum meruit claim cannot proceed when there is an express oral contract covering the same subj...

Excerpt: ...c includes an arbitration agreement: “[b]y signing below, you agree that, pursuant to the Arbitration Provision on page 5 of this contract, you or we may elect to resolve any dispute by neutral, binding arbitration and not by a court action.” Motion pg. 1, Arroyo decl. exhibit A. The agreement applies to any dispute between “you and . . . our employees, agents, successors or assigns, which arises out of or relates to your credit application...

Excerpt: ...nt, arguing Doe cannot present admissible evidence showing Roe knew or should have known Doe committed sexual abuse or had a propensity for sexual abuse. Evidentiary Objections Doe's objections OVERRULED. Motion for Summary Judgment A court determining a summary judgment motion applies a three-step process: (1) identifying the issues framed by the complaint, (2) determining whether moving party made an adequate showing that negates the opponent's...

Excerpt: ... affirmative defenses. Steiger demurs to the FAA. Affirmative defenses are subject to demurrer when they consist only of legal conclusions without factual support. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. Steiger argues the FAA pleads legal conclusions, not facts. This is most true of the affirmative defenses for adequate remedy at law, statute of limitations, ratification and the business judgment rule. As pleaded, thes...

Excerpt: ... summary judgment motion as to inverse condemnation action and ordered supplemental briefing as to other claims. Nuisance To prevail on a nuisance claim, plaintiff must establish defendant engaged in conduct that is (i) intentional and unreasonable, (ii) unintentional but caused by negligent or reckless conduct, or (iii) the result of abnormally dangerous activity. Lussier v. San Lorenzo Valley Water Dist. (1988) 209 Cal.App.2d 92, 100. Pourmola ...

Excerpt: ...on and failing to provide accurate wage statements. The parties executed a settlement agreement on October 6, 2023. The prevailing employee in a PAGA action is entitled to reasonable attorney's fees and costs. Lab. Code §2699(a). After fees and costs, the remainder of a PAGA award is to be distributed as follows: 75 percent to the State labor and workforce development agency, and 25 percent to the aggrieved employees. Lab. Code §2699(i). A PAGA...

Excerpt: ...r enforcing the settlement under Cal. Code of Civ. Proc. §664.6. An elisor is a person appointed by a court “to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents.” Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635, fn. 2. When a court enters judgment under Cal. Code of Civ. Proc. §664.6, it has discretion to appoint an elisor to execute document...

Excerpt: ...ruling denying the motion on the grounds of improper service. The matter was continued to November 30, 2023 to provide plaintiff Jeffries the opportunity to file an opposition. Defendant Johnson obtained the property via quitclaim deed from her mother, Dorothy Jane Jeffries. Motion Exhibit A. On March 1, 1977 Johnson recorded a grant deed providing herself, Nordeck, and her brother Robert Dan Jeffries each a 1/3 interest in the property. Id. Exhi...

Excerpt: ...s the responses were deficient, with improper objections and insufficient production. On July 14, at the IDC, the court instructed the parties to resolve the disputes. Kaiser alleges on August 21, Davis's counsel promised to amend by September 21, 2023. Kaiser alleges Davis did not amend the responses and moves to compel further. Form Interrogatories Form interrogatory No. 2.6 requests identifying information of Davis's employers for the past fiv...

Excerpt: ...ation (MHA), recorded Crestwood's CC&Rs in 1950. Blackman decl., exhibit 1. The CC&Rs refer to MHA as “the Corporation,” and establish “the right of enforcement of said conditions and each of them [is] vested in the Corporation and in the owner or owners of any one or more of said lots as above defined.” Id. pg. 2. The 1950 CC&Rs established an architectural committee with the power to approve or disapprove new construction. Id. ¶6. The ...

Excerpt: ... agree that . . . any controversy or claim, whether at law or equity, arising out of or related to the provision of services by UPS, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration.” UPS, Exhibit A §54. The terms define “claimant” as “any person asserting or against whom UPS asserts any claim in any forum for legal or equitable relief ....

Excerpt: ...s allege GNG was unlicensed and defendants breached the contract by failing to obtain work permits. On July 21, 2023 the granted plaintiffs' motion for summary adjudication in part, ruling defendant GNG was liable for disgorgement as a matter of law under Business and Professions Code §7031. The court denied summary adjudication as to individual defendants Farhad and Faryar Ghaemi. Plaintiffs renew their motion against Farhad and Faryar Ghaemi b...

Excerpt: ...nds that the notices are defective, each notice appears to supersede the others and the complaint is not properly verified. Defective Notices Love argues the notices are defective because they do not include language regarding abandoned personal property required under Cal. Civ. Code §§1946-46.1. Those statutes set forth the requirements for terminating a tenancy. Air Venezia's unlawful detainer is not based on a notice to terminate tenancy; it...

Excerpt: ...e court ruled Pacific Horizon was entitled to an easement for egress and ingress. The final judgment issued on September 20, 2023. Pacific Horizon filed a memorandum of Costs on October 4, 2023. The Meehans move to strike, arguing Pacific Horizon is not the prevailing party. Under Cal. Code of Civ. Proc. §1032, if any party recovers other than monetary relief, the “prevailing party” shall be determined by the court, which has discretion to a...

Excerpt: ...ectively “Essex”). In case no. 23SMUD01577 (filed 10/11/23), Essex seeks possession of Johnson's unit via unlawful detainer. Johnson moves to consolidate. Cal. Code of Civ. Proc. §1048 allows a court to order consolidation of actions involving common questions of law or fact to promote “convenience and economy by avoiding duplication of procedure.” Estate of Baker (1982) 131 Cal.App.3d 471, 485. A court's decision on a motion to consolid...

Excerpt: ... defense counsel argued were incorrectly calculated. The court recalculates and amends its tentative ruling. Estevez's exhibit 22 (itemization of hours and fees) indicates attorney Gonzalez spent 10 hours total on April 22, 27 and 29, 2021 drafting discovery requests at $300/hour. To reflect a reasonable amount of time saved through counsel's use of templates, the time will be reduced from ten to four hours, a reduction of $1,800 (6 x 300). See C...

Excerpt: ...s for production of documents on plaintiffs. The special interrogatories include a declaration of necessity under Code of Civ. Proc. §2030.050. Does argue the number of special interrogatories is excessive, burdensome and oppressive. Does argue a protective order “limiting the identifying information requested in Defendants' discovery[,]” is necessary to ensure plaintiffs' safety. Id. pg. 6. The first amended complaint includes a fifty-page ...

Excerpt: ...y failing to perform improvements and repairs Draz allegedly paid for. The Goosens move for summary judgment. Declaratory Relief Declaratory relief is a prospective remedy which exists to declare future rights rather than to redress past wrongs. Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497. Draz requests a declaration that he is entitled to a “ten-year amortization period to use the pro...

Excerpt: ... court denied summary judgment as to the medical battery claim arising out of the 2020 surgery, concluding “[t]his argument should be made via motion for judgment on the pleadings[.]” 9/13/2023 minute order pg. 3. Defendants Dr. Kohan and his corporation seek judgment on the pleadings as to the medical battery claim. A cause of action for medical battery lies when the defendant performs a medical procedure without plaintiff's consent, or if t...

Excerpt: ...uly 30, 2021, with buyers transferring $829,814.39 to the referee. On March 8, 2022 the court granted plaintiffs' motions to deduct fees (including referee fees and attorney's fees), costs of sale and lost rental income from defendant Richman's share of the sale proceeds because Richman's failure to vacate caused the fees and costs to be incurred. Referee Grobstein is holding $196,096.83 in funds for Richman, representing 50% of the sale price, m...

Excerpt: ...tribution against defendant Baum, who brings this moves to strike (Cal. Code of Civ. Proc. §425.16, the anti-SLAPP statute) and demurs. Anti-SLAPP Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff's cause of action arises from defendant's constitutional rights of fr...

Excerpt: ... damages requests. Breach of Contract A contract with “uncertain and indefinite” terms is void and unenforceable. Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474. A cause of action for breach of contract is subject to demurrer if it cannot be discerned from the complaint whether the contract is oral, written, or implied. Cal. Code of Civ. Proc. §§430.10(f) and (g). Defendant argues uncertainty, as the complaint does not specify...

Excerpt: ... account and accepted updated terms of service on December 9, 2020 (before the incident) and January 4, 2023 (after the incident). McCachern decl. ¶12. Each version of the TOS includes a clause requiring arbitration of “any dispute, claim, or controversy based on past, present, or future events arising out of or relating to ... the Lyft Platform[.]” Id. The agreement states it is governed by the Federal Arbitration Act (FAA). Id., Exhs. 3, 5...

Excerpt: ... action); defendant Cabo demurs and moves to strike the damages request. Statute of Limitations Plaintiff Saachi's claims against Cabo are based on allegations that defendants Blaine and Blaine Labs sent Saatchi a package with a return address of “Peter KOONI Edalat.” FAC ¶135-139. Peter Edalat is Saatchi's deceased son, and “Kooni” is a homophobic slur in Farsi. Id. ¶137. The package allegedly contained a printout from a defamatory web...