Excerpt: ...ministrative remedies and statute of limitations grounds. Defendant Dina also moves to quash the summons. A defendant establishes their initial burden on summary adjudication by showing evidence to negate an essential element of a cause of action, demonstrate plaintiff does not have or cannot obtain needed evidence or establishes a complete defense. Cal. Code of Civ. Proc. §437c(c), Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. Once d...

Excerpt: ... this motion, arguing new evidence establishes the proof of service is false. Under Cal. Code of Civ. Proc. §1008(b), a court may set aside an order upon a showing of “new or different facts, circumstances, or law[.]” Additionally, a court may set aside any void judgment or order under Cal. Code of Civ. Proc. §473(d). The law favors disposition of claims on their merits, rather than through default. Mink v. Superior Court (1992) 2 Cal.App.4...

Excerpt: ...a three-day notice to quit. Plaintiff moves for summary judgment. Defendants filed a quiet title action, case no. 21SMCV01047, alleging the foreclosure was fraudulent. Plaintiff moves for summary judgment in the UD. Defendants move to consolidate this action with the quiet title action and/or to stay the UD until the title claim is resolved. Motion to Consolidate A court may consolidate matters. Cal. Code of Civ. Proc. §403, 1048. A court may or...

Excerpt: ... to intervene. Pursuant to Cal. Code of Civ. Proc. §387, a nonparty may petition a court to intervene. The motion must be granted if a provision of law confers an unconditional right to intervene or if the moving person “claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest...

Excerpt: ...service requirements in the Vienna Conventions. The hearing, scheduled for May 20, 2021, was continued by stipulation. Per Cal. Code of Civ. Proc. §418.10(a)(1), a defendant may move to quash service of summons on the grounds of lack of jurisdiction. A default judgment void for lack of proper service may be set aside under Cal. Code of Civ. Proc. §473(d) if filed within two years of entry of judgment. Trackman v. Kenney (2010) 187 Cal.App.4th 1...

Excerpt: ...f, Robert Hull 3. Defendants William Gillespie's and Satcal, Inc. dba Keller Williams Realty's DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT Responding Party: Plaintiff, Robert Hull Tentative Ruling 1. Plaintiff Robert Hull's Motion to Compel Defendant Doug Denhart to Provide Further Responses to Form Interrogatories is GRANTED in part (i.e., as to Nos. 2.2, 2.3, 2.4, 2.11, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 17.1 an...

Excerpt: ...ttorney who represented defendant IVC and allegedly participated in the scheme, moves for judgment on the pleadings. A plaintiff cannot allege a cause of action against an attorney for civil conspiracy with his client arising from an attempt to contest or compromise a claim or dispute without first obtaining a court order allowing the pleading to be filed. Cal. Civ. Code §1714.10. Failure to procure such order may be raised by any appropriate mo...

Excerpt: ...ion generally known in the trade or used by good faith competitors is not protected as a trade secret. American Paper & Packaging Prods. v. Kirgan (1986) 183 Cal.App.3d 1318, 1326. Defendants argue the allegedly stolen information is not proprietary because a database of customer leads purchased from a database generator supplier would be readily available to competitors. Whether such information is readily available is a factual issue the court ...

Excerpt: ... settlement agreement provided for arbitration. Pursuant to that agreement, Essex submitted its dispute to JAMS. The arbitrator issued a “partial final award” in Essex's favor for $1,264.425.91. Essex moves to confirm; COA seeks to vacate. A party in an arbitration in which an award has been made may petition the court to confirm the award. Code of Civ. Proc. §1285. An arbitration award is subject to limited judicial review, with all presump...

Excerpt: ...espoke, Needham, Soldinger and Stanton move for judgment on the pleadings. Plaintiff requests writs of attachment against Stanton and general contractor defendant Boswell Construction. A motion for judgment on the pleadings is essentially identical in function to a general demurrer and is decided based of the face of the challenged complaint and judicially noticeable evidence. Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 18...

Excerpt: ...he video without a protective order, and it was widely distributed, damaging Nutribullet's reputation and leading to the filing of other claims. AW argues this action is barred by the one-year statute of limitations for legal malpractice claims. Evidentiary Objections Plaintiffs' Objections: Objections 8-9 SUSTAINED (hearsay). Other objections OVERRULED. Defendants' Objections: OVERRULED. A defendant can fulfill its initial burden on summary judg...

Excerpt: ... agreement, damaging the property and diminishing other tenants' quiet enjoyment. Via the cross-complaint, Huesca and Luske allege they stipulated to an unlawful detainer judgment awarding Aimco possession and $7,398 in holdover damages in exchange for a general release of all claims. Cross-complainants argue Aimco violated the stipulation by filing the instant breach of contract lawsuit; Aimco demurs. Breach of Contract The elements of a cause o...

Excerpt: .... Defendants' Objection 3 SUSTAINED (contradicts plaintiff's deposition testimony) other objections OVERRULED. Motion for Summary Judgment A defendant can meet her initial burden on summary judgment by producing evidence showing a complete affirmative defense exists. Cal. Code of Civ. Proc. §437c. Once defendant has met that burden, the burden shifts to plaintiff to show a triable issue of material fact. Salas v. Dept. of Transportation (2011) 1...

Excerpt: ... defendant concealed or suppressed a material fact, (2) defendant was under a duty to disclose, (3) defendant intentionally concealed or suppressed the fact with intent to defraud plaintiff, (4) plaintiff was unaware of the concealed fact and would not have acted as he did if he had known about it and (5) damage. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. To establish fraud against a corporation, plaintiff must (1) identif...

Excerpt: ...unts A plaintiff cannot plead common counts to “resurrect” a factually identical breach of contract claim barred by the statute of limitations. Leighton v. Forster (2017) 8 Cal.App.5th 67, 494-495. When a cause of action is unenforceable because the contact is not in writing, the claim generally lies on a quantum meruit common claim, subject to a two-year statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 90 Cal.Rptr.2...

Excerpt: ...r plaintiff's claims should be reclassified as a limited civil action. See 5/4/2021 minute order. Plaintiff opposes. An action may be treated as limited civil if the amount in controversy does not exceed $25,000. Code of Civ. Proc. §85. A court may, on its own motion, reclassify a case before trial if it becomes clear the matter will “necessarily” result in a verdict below the jurisdictional amount. Code of Civ. Proc. §403.040. Walker v. Su...

Excerpt: ... were deficient. The parties met and conferred, and on August 14, 2020, defendant supplemented his responses. Plaintiff alleges there remained unresolved issues with the responses. On December 4, 2020, the court held an informal discovery conference. The parties met and conferred again on January 14, 2021 but were unable to resolve all outstanding discovery issues. At plaintiff's request, the court granted leave to file the instant motion to comp...

Excerpt: ...pack failed to pay for over $750,000 worth of goods and fraudulently induced plaintiff to continue providing goods despite having no intention of paying. Finally, plaintiff alleges defendants failed to make a payment due under the debenture. Defendant Loudpack demurs to the claims for breach of the implied covenant of good faith and fair dealing and breach of contract. Defendants LPF and Ravner demur to plaintiff's common counts claims— reasona...

Excerpt: ... Act. Defendant demurs, arguing, as a matter of law, the website's accessibility information (quoted in the complaint) meets ADA requirements. This hearing was set for May 12, 2021 but continued to June 2, 2021 at plaintiff's request to allow him to file opposition. On demurrer a court can take judicial notice of pleadings and orders in federal court. Cal. Evid. Code §452(d). Additionally, a court can take judicial notice of information obtained...

Excerpt: ...dant Pegasus Asset Management (PAM) was to provide property management services. Plaintiff alleges PI failed to perform due diligence, discover drainage issues or find qualified tenants. Plaintiff alleges PAM failed to install or maintain a manager, and both defendants concealed that they were not licensed in Texas. PAM moves to compel arbitration on the grounds that the property management agreement between plaintiff and PAM contains an arbitrat...

Excerpt: ...ndants argue plaintiffs fail to include an indispensable party, a former co-tenant. Defendants present no judicially noticeable evidence that she must be joined. Absent judicially noticed material that contradicts the complaint, a demurrer must be decided on the four corners of the pleading. E.g. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94. The complaint alleges no wrongdoing directed at the former co- tenant. Complaint at ¶4. The other ten...

Excerpt: ...h facilities. Defendants Prasad and St. John separately move for summary judgment/adjudication. Evidentiary Objections Plaintiffs' Objection: OVERRULED Defendant Dr. Prasad Objections: OVERRULED Defendant St. John Objections: OVERRULED Defendant Dr. Prasad's Motion Wrongful Death/Medical Negligence For a medical negligence claim, plaintiff must prove a negligent act or admission by a health care provider proximately caused injury. Cal. Civ. Code ...

Excerpt: ... Gold Pacific cross-complained, alleging Palm failed to pay and seeking indemnity. Palm demurs to the first amended cross-complaint (FACC) and moves to strike. Cohan Claims – alter ego Generally, an alter ego claim must be pleaded in the complaint. First Western Bank and Trust Company v. Bookasta (1968) 73 Cal.Rptr 657, 659. Often, however, an alter ego theory requires less particularity of pleading, since “the defendant may be assumed to pos...

Excerpt: ...2020. Defendant moves to compel further responses. The scope of discovery is broad, and all information that might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1599, 1611. Under Cal. Code of Civ. Proc. §§2030.300, 2033.290, 2031.310, a party serving discovery requests can move to compel further responses if the responding party provides incomplete r...

Excerpt: ... because the property is held in an irrevocable trust. Defendants move to strike all tort claims in the first amended complaint on the grounds that obtaining writs of attachment and recording real property liens constitute protected activity under the anti-SLAPP statute. 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 cou...

Excerpt: ...ty, and because no real property claim was articulated. Plaintiff moves to re-record the lis pendens, arguing it has new evidence of the claim's validity. Plaintiff argues transcripts from a separate action, Actual Funding Investment, LLC v. Behrooz Yasmen, prove defendant Masoud Kahrobaie, acting on behalf of the Kahrobaies, provided funds to allow Shama Enterprises, LLC to obtain a 25% ownership interest in the property on the Kahrobaies' behal...

Excerpt: ...es, so is not responsible under a premises liability theory. Additionally, UPS argues its guard did not proximately cause the fall under the negligence claim. A moving defendant has the initial burden on summary judgment to prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action, or show that an element cannot be established. Stonegate Homeowners Ass'n. v. Staben (2006) 144 Cal.App.4th 740, 750. On...

Excerpt: ...ds that plaintiff cannot prove damages. Additionally, defendant moves for summary adjudication of the unjust enrichment claim. A defendant moving for summary adjudication meets the initial burden by presenting evidence showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 850. Once that initial burden is me...

Excerpt: ...eeks to recover commission allegedly owed under a real estate listing agreement with Alexander. Defendant Alexander moves for summary judgment, arguing the listing agreement was unfair and impermissible under the rules of professional conduct. Evidentiary Objections Plaintiff's Objection 1 OVERRULED, Objection 2 SUSTAINED (hearsay) Defendant's Objection 1 OVERRULED, Objection 2 SUSTAINED (lack of personal knowledge) California Rules of Profession...

Excerpt: ...2010) 1818 Cal.App.4th 60. The elements of trespass are (1) plaintiff's ownership of the property, (2) defendant's intentional, reckless, or negligent entry, (3) lack of permission, (4) harm and (5) causation. Ralph's Grocery Company v. Victory Consultants (2017) 17 Cal.App.5th 245, 262. Plaintiffs revoked defendant's permission to park on the property in January 2017. Plaintiff's separate statement (PSS) 18. Defendant admitted at the contempt he...

Excerpt: ...uch was not required. Upon learning plaintiff provided services without leave, the bankruptcy court set an OSC re: disgorgement of plaintiff's fees. On October 11, 2018 plaintiff and Christel Pascucci entered into a settlement agreement under which plaintiff disgorged all fees and assigned his claims against WHB to Christel; the agreement was approved by the bankruptcy court on October 15, 2018. On October 14 and 15, 2018 debtor and Christel Pasc...

Excerpt: ...anufacturer of the stairs, moves for summary judgment on causation grounds. Summary Judgment Standard A court determining a summary judgment or adjudication motion must (1) identify the issues framed by the complaint, (2) determine whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determine whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4t...

Excerpt: ...intiff responded to the January and February discovery on May 29, 2020 and provided further responses on October 8, 2020. Defendant claims these responses were deficient and contained improper objections. To date, plaintiff has not responded to the December 23 RFPs. Defendant moves to compel further responses. Analysis Information is discoverable if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating...

Excerpt: ...ication. Plaintiff's evidentiary objections OVERRULED. Summary Judgment Standard A court determining a summary judgment motion applies a three-step process: (1) identifying issues framed, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. A de...

Excerpt: ...rance agreement, under which lender would refrain from seeking to collect until May 1, 2020, when the entire outstanding debt came due. Plaintiff alleges the loan has not been paid and moves for summary judgment. Evidentiary Objections Defendant's Objections: SUSTAINED as to objections 6 and 7 (hearsay) and 16 (improper legal opinion/speculation.) OVERRULED as to other objections. Plaintiff's Objections: SUSTAINED as to objection 1 and 2 (Respond...

Excerpt: ... a type of remedy. Batt v. City & County of San Francisco. (2007) 155 Cal.App.4th 65, 82. Plaintiff seeks declaratory relief in connection with her first cause of action. A separate claim for declaratory relief is redundant and adds nothing by way of law or fact. SUSTAINED without leave to amend. Private Nuisance A nuisance consists of “anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to t...

Excerpt: ...l contract, promissory estoppel, fraud and negligent misrepresentation. Breach of Oral Contract The elements of a cause of action for breach of oral contract are (1) the contract, (2) plaintiff's performance, (3) defendant's breach and (4) damages. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. Defendants argue terms and parties are insufficiently alleged because plaintiff lumped together both defendants and failed to clarify how those who...

Excerpt: ...ing that the action is barred by state and local eviction moratoriums adopted in response to COVID-19. The court sustained a demurrer to the initial complaint on the grounds that, under the county eviction moratorium, the lease was automatically renewed. Leave to amend was granted, and defendant demurs to the FAC on essentially the same grounds. State Executive Order N-28-20, issued March 4, 2020, states “[t]he statutory cause of action for jud...

Excerpt: .... A party may obtain discovery regarding any non-privileged subject matter relevant to a pending action if the matter itself is admissible or is reasonably calculated to lead to the discovery of admissible evidence. Cal. Code of Civ. Proc.§2017.010. Generally, evidence of insurance coverage is not relevant in a civil action, but it is not strictly excluded from discovery. Irvington‐Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 740. ...

Excerpt: ...sustained in part. Defendants Elliman and Kanani demur to the SAC on similar grounds. Defendants Ezhari and Babak Ezhari, Trustee, also demur. Elliman/Kanani Demurrer Breach of Covenant of Quiet Enjoyment The court previously sustained defendants' demurrer to this cause of action without leave to amend. 11/19 Minute Order, pgs. 1-2. The SAC should not have named Elliman Trust and Kanani in connection with this claim. SUSTAINED without leave to am...

Excerpt: ...laintiff because the patio did not meet the county's air flow requirement. On February 24, 2021 the DPH issued a citation shutting the patio. Plaintiff moves for a temporary restraining order to allow dining on the patio. Pursuant to Los Angeles County's Health Officer Order, “to operate for outdoor dining service, the facility's outdoor dining area must allow for the free flow of outdoor air through the entire space and must follow the State's...

Excerpt: ...default against Banner Promotions on May 7, 2020, which now seeks dismissal for lack of jurisdiction and forum non conveniens. Plaintiff files supplemental briefing detailing attorney's fees incurred obtaining entry of default and opposing defendant's motion to set aside default for attorney error. A court has general personal jurisdiction over a defendant if the defendant has “constant and pervasive” contacts with the forum state. Daimler AG...

Excerpt: ...marketing and sales services in 2016 and terminated him in 2017. Eckey alleges Damon fired him because of his sexual orientation and because he complained about Damon's unlawful practice of selling used beds as new, and he did not receive owed commissions. Damon alleges Eckey was fired because of poor sales performance, inadequate management style and disrespect toward customers and coworkers. Damon alleges Eckey took confidential documents, incl...

Excerpt: ...t up to code. Plaintiff served requests for production of documents and special interrogatories on July 2, 2020. Despite several extensions, defendants did not timely serve responses. At a December 7, 2020 informal discovery conference, the court ordered defendants to serve code-compliant responses within 30 days. Defendants responded on January 7, 2021. Plaintiff argues defendants' responses were insufficient and moves to compel further response...

Excerpt: ...final modification agreement, they would qualify for a loan modification. Plaintiffs allege they made the payments but did not receive a good-faith loan modification offer. BANA argues the modification was denied because of multiple unsatisfied liens on the property. The third amended complaint contains a cause of action for breach of contract against BANA. Evidentiary Objections: Plaintiffs' objections OVERRULED. Breach of Contract The elements ...

Excerpt: ...ity of Santa Monica both demur to the first amended complaint. Negligence/Defendant Bird The elements of negligence are (1) duty of care, (2) breach and (3) causation. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Vehicle rental companies are generally not responsible for the negligence of those who rent vehicles. See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143. This is codified in the federal Graves Amendment. 49 U.S.C. §3010...

Excerpt: ...lly refuses to turn over the footage. Defendant Kawauchi lives in Los Angeles; defendant Sato is a Japanese national. Defendants argue service on Sato is void because plaintiffs have not complied with the Hague Convention requirements for foreign service of process. Additionally, defendants allege plaintiffs' proof of substituted service is false, as surveillance video shows nobody was served at Kawauchi's house on the date and time stated in the...

Excerpt: ...ission to file supplemental briefing as to the issue of contractual indemnity only. Regents' Motion Parties to a contract have the right to assign responsibility to one contracting party for the other's legal defense when a third-party claim is made against the other. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 565 fn. 12. Therefore, a contractual indemnitor has the obligation, upon tender by the indemnitee, to accept and assume ...

Excerpt: ...s to any arbitration provision in “a contract evidencing a transaction affecting interstate commerce.” 9 U.S.C. §2. Under the FAA, any provision in an employment contract requiring controversies to be settled via arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. Defendant argues since it is involved in interstate commerce, the FAA applie...

Excerpt: ...aining a “buy-sell” provision allowing either party to buy out the other's interest. In 2014 defendant Horn, as trustee of the Janis F. Horn Trust, sued plaintiff Levy in a separate action (the 2014 action) alleging he wrongfully withdrew money from the companies. Horn argued that, because of the alleged misconduct, plaintiff forfeited buy-sell and management rights. Plaintiff argued the withdrawals were allowed, and he retained the buy-sell ...

Excerpt: ...iff alleges defendant Shama colluded and conspired in hiding Masoud's assets from his creditors, including real property. Plaintiff further alleges that in 2016 Masoud (via his shell entity Nato) and Shama entered a settlement agreement under which Masoud's interest in the Washington property would be held secretly in trust for Masoud by Shama, protecting it from judgment enforcement. Evidentiary Objections Plaintiff's Objections: Objections 6, 1...

Excerpt: ...t Dyne moves for summary adjudication, arguing he did not sign the credit agreement or authorize anyone to sign it on his behalf. On September 16, 2020 the court continued the hearing to allow plaintiff to depose Dyne. Evidentiary Objections: OVERRULED. Analysis To obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” See Aguilar v. Atlantic Richfi...

Excerpt: ...the course and scope of employment, workers' compensation is the exclusive remedy. Cal. Lab. Code §3602. If an employee of an independent contractor suffers a work-related injury, he may not sue the hirer and his exclusive remedy lies in workers' compensation. Privette v. Superior Court (1993) 5 Cal.4 th 689. A hirer may be independently liable to a contractor's employee, despite Privette, if the hirer retained control and affirmatively contribu...

Excerpt: ...fficer Lagin because he directed her to speak with him in the street. Defendants City of Beverly Hills and Lagin move for summary judgment. Defendants' Evidentiary Objections: all overruled. A court determining a summary judgment or summary adjudication motion applies a three-step process: (1) identifying the issues framed, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining...

Excerpt: ...are based on the indemnity provision in the purchase agreement between Jamsid and Pervaiz. Cross-defendants Jasmid and Rabbani argue the contract's indemnity provision does not apply, since Metro Fusion's lawsuit arises from a leak caused by Sano's alleged negligence long after purchasing the store, noting the court granted summary adjudication as to all negligence causes of action against Rabbani. Summary adjudication as to the negligence causes...

Excerpt: ...on performed was faulty. Defendants demur and move to strike claims for punitive damages and attorney's fees. Plaintiff filed opposition in related case No. 19SMCV01786 (Vaynman v. BHR). Because the opposition was not filed in the instant (lead) case, the court was unaware of its filing and continued the hearing to 12/15/20. Demurrer First Cause of Action for Financial Elder Abuse Financial elder abuse occurs when a person or entity takes propert...

Excerpt: ... to shield it from judgment enforcement. Defendant Mirna admits the transfer was made “out of desperation to attempt to save her home.” Plaintiff alleges this gives rise to causes of action for fraudulent transfer, fraud, constructive trust and unjust enrichment. Defendant Mirna demurs. The Guerra defendants move to quash subpoenas seeking all their bank savings and checking statements from January 2013 through May 2020. Fraudulent Transfer U...

Excerpt: ...fendant Jorquez's real estate agents, demur and move to strike portions of the first amended complaint. Breach of Covenant of Quiet Enjoyment The covenant of quiet enjoyment exists between a landlord and tenant. E.g. Pierce v. Nash (1954) 126 Cal.App.2d 606. Breach is a contract claim, not a tort. Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896. The doctrine of civil conspiracy requires “commission of an actual tort.” Applied Equipment Cor...

Excerpt: ...tachment may only issue in an action on a claim for money based on contract where the total amount owed is equal to or greater than $500, and the amount sought is “fixed or readily ascertainable” by reference to the contract. A writ of attachment may not issue against a claim secured by real property and may only issue against a natural person when the claim arises out of the conduct of a “trade, business, or profession.” Cal. Code of Civ...

Excerpt: ... Set One is DENIED in part (i.e., as to Request Nos. 59 and 66) and otherwise GRANTED. Defendant is ordered to produce verified, code-compliant responses without objection within 20 days, subject to the limitations contained herein. Background Plaintiff Alicia Camacho (“Plaintiff”) alleges that, on or about April 27, 2013, Plaintiff purchased a 2013 Nissan Sentra VIN #3N1AB7AP0DL708666 (“subject vehicle”). Plaintiff alleges that the subje...

Excerpt: ...h California and all witnesses/evidence are in China. Under Cal. Code of Civ. Proc. §410.30, if a court finds “in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” Before the court can determine whether an alternative forum is appropriate, it must first find (1) the parties are subject to the alternat...

Excerpt: ... strike portions of the first amended complaint. Fraud The elements of fraud are (1) a representation, (2) falsity, (3) knowledge of falsity, (4) intent to deceive, (5) reliance and (6) damages. Mosier v. So. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4 th 1022, 1045. Fraud must be pleaded with heightened particularity. Alfaro v. Community Housing Improvement System & Planning Assoc. (2009) 171 Cal.App.4 th 1356, 1384. This is only applicable t...

Excerpt: ...Civ. Code §425.16. Analysis 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 376, 395. This is a threshold issue—if moving party fails t...

Excerpt: ...t with KS Property Group and its principal Kaufman. A court determining a summary judgment motion applies a three-step process: (1) identifying issues, (2) determining whether moving party made an adequate showing negating the opponent's claim and (3) determining whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. Defendant has the initial burden of showing one or more eleme...

Excerpt: ... for damage due to a water leak, allegedly from the adjacent Sano dba Tutti Frutti frozen yogurt store. Sano and its owner/manager Fatima Pervaiz cross-complained against prior yogurt shop owner Jasmid International and its president cross-defendant Azita Rabbani, alleging they caused the leaks. The plumbing was installed in 2010; in 2015 it leaked and was repaired. Rabbani moves for summary judgment/adjudication. Sano moves for leave to file a f...

Excerpt: ...ages, regarding whether plaintiff faced lesser action other than termination. The court did not grant leave to file a reply or supplemental separate statement or evidence, so those documents are disregarded, and plaintiff's objections to those filings are SUSTAINED. Third Cause of Action for Failure to Reasonably Accommodate & Fourth Cause of Action for Failure to Engage in the Interactive Process Cal. Gov. Code §12940(n) requires an employer to...

Excerpt: ...attery cause of action against a police officer, plaintiff must show the officer used excessive force. Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272. When an excessive force claim arises in the context of an arrest or investigatory stop, it is analyzed under the Fourth Amendment. Graham v. M.S. Connor (1989) 490 U.S. 386, 394. A use of force claim does not necessarily have to involve an arrest or stop; excessive force that does not im...

Excerpt: ...emonstrate why his cause of action for breach of fiduciary duty is not barred by the statute of limitations (Cal. Code of Civ. Proc. §340.6). The elements of a cause of action for breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach and (3) damages. Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4 th 1179, 1183. An action against an attorney for a wrongful act or omission, other than for actual fraud, arising...

Excerpt: ...r plaintiffs violated the California Coastal Act by blocking public access to the trails. Plaintiffs seek class certification of their quiet title, declaratory relief and injunctive relief claims, with the proposed class consisting of all Sycamore Park property owners. Defendants/cross-complainant MRCA seeks to compel cross-defendant homeowner Elizabeth Stephens to answer deposition questions and produce a cell phone video. Class Certification Mo...

Excerpt: ...ontempt, alleging Aghchay repeatedly violated an order not to park on Spannhoff's property. Aghchay's Motion for Mandatory Injunction When determining whether to grant a preliminary injunction, courts evaluate two interrelated factors: likelihood plaintiff will prevail and interim harm plaintiff is likely to sustain if the injunction were denied, versus harm defendant is likely to suffer if the injunction issued. Bd. of Supervisors of Butte Count...

Excerpt: ... false representations regarding malpractice insurance and poor work performance. Each party demurs. This was put over to allow the court to review additional pleadings. Sunkin's Demurrer to First Amended Cross-Complaint Statute of Limitations Under Cal. Code of Civ. Proc. §340.6, any cause of action, other than fraud, based on an attorney's provision of legal services is subject to a one-year statute of limitations. That statute of limitations ...

Excerpt: ...taining workers compensation insurance. Cross-Defendants' Demurrer to and Motion to Strike Portions of Cross-Complaint Tort vs. Contract; Statute of Limitations A pleading “valid on its face may nevertheless be subject to a demurrer when matters judicially noticed by the court render the complaint meritless.” Del. E. Webb. Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605. A cause of action for breach of oral contract is su...

Excerpt: ...lti-asset family partnership, including car dealerships and real estate, is shared 50/50 between brothers Kamran and Kayvan. Defendants argue it is split 35/35/15/15 between Kamran, Kayvan and sisters Soheyla and Pouran. While terminating sanctions should not be applied unless the court concludes that lesser sanctions would not bring about the compliance of the offending party, they are available “in the first instance” for egregious abuses o...

Excerpt: ...iversity's cross-complaint alleges failure to turn over client files and property, overcharges, false representations regarding malpractice insurance and poor work performance. Each party demurs. University's Demurrer to Complaint Uncertainty A plaintiff may sue an unknown defendant as “Doe,” amending with defendant's true name once ascertained. Cal. Code of Civ Proc. §474. Including Doe defendants does not render the allegations uncertain. ...

Excerpt: ...t, i.e., California's labor laws, a significant benefit has been conferred on a large class of persons, i.e., the Porterville employees, the necessity and financial burden of private enforcement are such as to make the award appropriate in this class action and PAGA lawsuit, and the fees should not in the interest of justice be paid out of the recovery in this court's opinion. Plaintiffs also are entitled to an award of reasonable attorneys' fees...

Excerpt: ... defendant Loomstein made defamatory statements about TOL's sole shareholder, Kenneth Schwenker, calling him an “idiot with no idea of what he is doing” and claiming “everything he does is wrong.” Plaintiff alleges defendant repeated those statements to Pearson, who repudiated his contract with TOL. Plaintiff alleges intentional interference with contractual relations, intentional interference with prospective economic advantage, negligen...

Excerpt: ...to compel depositions of Brian Toll and John Terzian, owners of defendants' organization. Plaintiff served deposition notices on both individuals via overnight mail on March 2, 2020. Defendants' head of security, Scott Gaglia, reported directly to Toll and Terzian (Plaintiff's Exhibit E), who had access to security footage from the night of the incident (Plaintiff's Exhibit G). Cal. Code of Civ. Proc. §2025.270 requires deposition notices to be ...

Excerpt: ...fendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal. App. 4th 457. “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” Id. “Once the defendant has made such a showing, the burden shifts to the plaintiff ...

Excerpt: ...duct in managing the properties. Chang alleges Lee did not pay him for working as property manager for 30 years. Chang alleges causes of action for breach of quasi- contract, breach of implied-in-fact contract and quantum meruit; Lee demurs to all causes of action. Chang moves to strike the complaint's attorney fees request. Demurrer Statute of Limitations The statute of limitations for breach of implied-in-fact contract, breach of the covenant o...

Excerpt: ...e over control of a family business partnership's assets plaintiff siblings accuse defendant siblings of embezzling, making unilateral financial decisions and denying plaintiffs access to funds. Defendants cross-complain, alleging plaintiffs engaged in various misconduct, including embezzlement. Plaintiffs' Motion for Preliminary Injunction On May 27, 2020 the court issued a temporary restraining order preventing all parties from withdrawing fund...

Excerpt: ...nterscope Geffen A&M Records, UMG Recordings and West Beverly Group move for summary judgment, arguing they have no legal interest in the Club, had no involvement in the alleged events and are not alter egos of the club's owners. Plaintiff seeks issue and evidentiary sanctions, arguing defendants failed to preserve security camera footage of the incident. MSJ/MSA Defendants' Notice of Non-Opposition Defendants claim plaintiff did not timely file ...

Excerpt: ... the patient's bill of rights, negligence, fraud and wrongful death. Defendants move to compel arbitration. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline, et al. (2007) 153 Cal.App.4th 1276, 1282. A motion to compel arbitration should be granted unless there are grounds for revoking the contract, or the agreement clearly does not appl...

Excerpt: ... sister. Plaintiff alleges KRS attorney defendants Alderman and Hilgers provided insufficient and/or negligent legal services. Defendants Alderman and Hilgers left KRS in 2010 to start Alderman & Hilgers, LLP (A&H). Plaintiff alleges Alderman continued acting as an intermediary between him and KRS. In 2011 KRS demand the unpaid fees, and in June 2012 KRS sued plaintiff for those unpaid fees. Alderman agreed to assist in defending the claim but di...

Excerpt: ...endant paid the entire judgment against Kassabian, though it exceeded the $1M policy limits. Plaintiff now sues for bad faith. Defendant moves for summary judgment, arguing plaintiff instructed defendant to withdraw all settlement offers and did not consent to settle the action. Additionally, defendant argues plaintiff has no damages, as it paid legal costs and the judgment. In the alternative, defendant seeks summary adjudication as to each caus...

Excerpt: ...ons. Defendants demur to plaintiff's causes of action for violation of California Health & Safety Code §17920.3, intentional infliction of emotional distress, breach of contract and fraud and move to strike the request for punitive damages. Intentional Infliction of Emotional Distress (IIED) The elements of IIED are (1) extreme and outrageous conduct directed at the victim, (2) intent to cause emotional harm or conscious disregard for the probab...

Excerpt: ...mplex to himself through sales to alter egos. The original action was converted to a direct action by the HOA in 2019. In May 2019 the HOA filed this complaint (“the current action”), alleging Spahi used alter egos to purchase several units (the same units at issue in the original action) from the HOA at prices far lower than their appraised value. The current action alleges Spahi is responsible for paying any judgment that may be awarded aga...

Excerpt: ... the Levine Trust, own real property and an alleged easement with access to adjacent wooded greenbelt land. Plaintiffs allege defendants Cole and the Bright trustees purchased the greenbelt from the defendant J. Paul Getty Trust, subject to the Levine easement. Cole hired defendants J&J Tree Service and Abbot to cut trees on the greenbelt and within the easement. Plaintiffs allege defendants removed trees from their property and trespassed onto t...

Excerpt: ...'s character, as demonstrated through prior conduct, is usually inadmissible to prove conduct on a specified occasion. Cal. Evid. Code §1101. Evidence of prior conduct is admissible if the defendant's counsel “opens the door” by introducing or referencing that conduct via testimony. People v. Page (1980) 104 Cal.App.3d 569, 574. Evidence of prior wrongful conduct may be admitted to show existence of a common plan or scheme if the probative v...

Excerpt: ...es, causing disfigurement. Plaintiff alleges the doctor defendants were agents of defendant USC. Defendant USC argues neither doctor was acting as its agent and moves for summary judgment. An agency relationship exists when one person assents to act on another's behalf and subject to their control. Huong Que, Inc. v. Mui Luu (2007) 150 Cal.App.4th 400, 410. The chief characteristic of agency is “that of representation, the authority to act for ...

Excerpt: ...operty. Objections Lask Declaration: OVERRULED as to objections 1, 2, 3, 4, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18 SUSTAINED as to 5, 9, 10. Stern and Bornemann Declarations: All objections OVERRULED. Trespass/Private Nuisance – Statute of Limitations An action for a private nuisance or trespass damaging real property is subject to a three-year statute of limitations. Holdgrafer v. UnoCal Corp. (2008) 160 Cal.App.4 th 907, 925. A trespass or n...

Excerpt: ...itution's usury prohibition. Plaintiff's evidentiary objection OVERRULED. Defendants' evidentiary objections OVERRULED. A loan is usurious if the amount of interest to be paid exceeds the lesser of 10% per annum, or 5% per annum plus the rate established by the Federal Reserve Bank of San Francisco on advances to member banks on the 25 th day of the month preceding the date of the loan. Cal. Const. Art. XV §1(2). A lender cannot exceed the const...

Excerpt: ...lities. Defendants CLARE and the individual defendants move for summary judgment or adjudication. Alleged Defects in Moving Papers Plaintiff argues defendant's motion is improper because it does not cite directly to defendant's separate statement. There is no such requirement. Defendant filed a memorandum of points and authorities, the required separate statement and cited to evidence attached as part of defendant's compendium of evidence. This i...

Excerpt: ...tional distress and breach of contract and move to strike portions of the complaint. Warranty of Habitability (Cal. Civ. Code §1942.4) Plaintiff has not alleged a “public officer or employee” notified defendants of a substandard condition at the property, as required by section 1942.4(a)(2). This is a prerequisite to a claim for violation of this statute. Those facts are not alleged. SUSTAINED without leave to amend, unless plaintiff can so ...

Excerpt: .... Code of Civ. Proc. §1985.6(f)(1). Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. Williams v. Superior Court (2017) 3 Cal.5th 531, 541. When a party seeks to prevent discovery of relevant evidence based on an asserted privacy right, the asserting party must establish a legally protected privacy interest, an objectively reasonable expectation of privacy ...

Excerpt: ...he HOA's lenders. The purchase agreements contained indemnification provisions, under which buyers would indemnify the HOA. Plaintiff seeks to enforce those indemnification provisions and recover legal fees. In 2015, an HOA shareholder filed a derivative complaint against Spahi and his alleged alter egos and co-conspirators, alleging breach of his duties as director and fraud on the HOA. In 2019, Ocean Towers HOA became the sole plaintiff in the ...

Excerpt: ...ary adjudication as to the causes of action for fraud, intentional infliction of emotional distress and battery. Evidentiary Objections All objections to defense expert Emily Sikking, M.D. declaration are OVERRULED. Summary Judgment The elements of a cause of action for medical malpractice are (1) the duty to use such skill, prudence, and diligence as other members of the medical profession commonly possess and exercise; (2) breach; (3) causation...

Excerpt: ...ation pursuant to the contract's arbitration clause. A written agreement to arbitrate a controversy is “valid, enforceable, and irrevocable” and must be enforced upon a petition to compel, unless petitioning party waived the right to arbitrate or grounds exist for revocation of the arbitration agreement. Cal. Code of Civ. Proc. §§1281, 1281.2. California has a strong public policy in favor of enforcing arbitration agreements. Coast Plaza Do...

Excerpt: ...ly, plaintiff would have sought timely treatment and avoided permanent injury. Defendants move for summary adjudication on the fraud cause of action on the grounds that defendant did advise plaintiff of excess material extruding from the tooth. Defendants argue undisputed evidence shows plaintiff did not suffer injury as a result of any alleged concealment. The elements of fraudulent concealment are: (1) defendant's concealment or suppression of ...

Excerpt: ...e A party may amend its pleading once without leave of the court after a demurrer is filed, but the amended pleading must be filed and served no later than the date for filing an opposition to the demurrer. Cal. Code of Civ. Proc. §472. All opposition papers must be served and filed nine court days prior to the hearing. Cal. Code of Civ. Proc. §1005(b). The demurrer was initially scheduled for December 20, 2019. Plaintiff's first amended compla...

Excerpt: ...u Unfired School District (“SMMUSD”). Plaintiffs allege the IEP was not implemented during the 2016-2017 school year by kindergarten teacher, defendant Cronrod. Plaintiffs also allege defendant Cronrod discriminated against O.J. Plaintiffs further allege SSMUSD parents created a website and circulated emails containing false statements about O.J. and the nature of his disabilities. Plaintiffs allege this created a hostile environment. Defenda...