Excerpt: ...avy presumption . . . in favor of arbitrability.” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 771.) A threshold issue in determining contractual arbitrability is whether the contract included or excluded the dispute from its arbitration clause. (Elijahjuan v. Superior Court (2013) 210 Cal.App.4th 15, 20.) A party opposing arbitration has the burden of demonstrating that an arbitration clause cannot be int...

Excerpt: ...3403340334>_______________ SUBJECT: TERMINATING SANCTIONS MP: Plaintiff Valleycrest Landscape Development, Inc., now known as Brightview Landscape Development, Inc. RP: Defendant Secured Capital Partners, LLC BACKGROUND Factual and Procedural A complete factual and procedural background is unnecessary to rule on this motion, but is provided below for your understanding of the case's history. Plaintiff Valleycrest Landscape Development, Inc., now ...

Excerpt: ...CT: MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION MP: Defendant Nathan Mubasher RP: Plaintiff Amanda Cast I. BACKGROUND Factual Plaintiff Amanda Cast (“Plaintiff”) sued Defendant Nathan Mubasher (“Defendant Mubasher”) for damages based on allegations that, essentially, Defendant Mubasher did not properly represent her in an action against her former attorney who was defending her against a libel action. Servic...

Excerpt: ...ith leave to amend. Defendants' Demurrer to the 1st Cause of Action (Breach of Contract against Defendant Garcia), the 2nd Cause of Action (Breach of Contract against Defendant Melara), the 3rd Cause of Action (Breach of Contract against Defendant Hamid Dental), and the 5th Cause of Action (Misappropriation of Trade Secrets) is overruled. The Motion to Strike is granted with leave to amend. Under the California Uniform Trade Secrets Act, a ci...

Excerpt: ...and the 9 th Cause of Action (Equitable Indemnity). The Motion for Summary Adjudication is denied as to the 5 th Cause of Action (Violation of B&P Section 17045). The evidence shows that Paradice suspected that GES had stolen its trade secrets and proprietary information by April 7, 2014. See Paradice's Response to Separate Statement of Undisputed Material Facts No. 10. Under the terms of the written agreement between Paradice and GES, the limita...

Excerpt: ...Motion to Strike the attorney's fees and punitive damages is granted with leave to amend. Defendants' Request for Judicial Notice is granted. As to the 1st Cause of Action: --How were the representations of competence made? --When were the representations of competence made? --What misrepresentations were made by Alison Hilgers? --What is the relationship between the failure to disclose conflicts and the claim of fraud? As to the 2nd Caus...

Excerpt: ... forth in the ruling on the Motion filed by Andrew Fuzesi and AF Associates, these claims are barred by the statute of limitations. The Motion filed by Plaintiffs/Cross-Defendants ANSA Production, Inc. and Lisa Allison Kaz for Summary Judgment of the Cross-Complaint of Dan Floyd is denied. The Motion filed by Plaintiffs/Cross-Defendants ANSA Production, Inc. and Lisa Allison Kaz for Summary Adjudication is granted as to the 3rd Cause of Action (I...

Excerpt: ...Material Facts No. 1- 4. Further, Plaintiff contends that the only way the treatment would have reached Defendant was through Michael Tadross who denies that he received the treatment. --The film, "The Judge" was independently created even though there were some similarities with Plaintiff's treatment. The draft of the screenplay for "The Judge" was received from its creators in May 2009 and the ideas were first conceived in 2...

Excerpt: ...Floyd are the alleged evidence of his lack of loyalty and good faith to ANSA, as well as his status as Fuzesi's puppet on the board. ANSA alleges that Fuzesi put Floyd on the board and that Floyd was acting as his "inside man" to pry into confidential (attorney-client) matters, to engender discord and dysfunction at ANSA, and to harm the new management team. See Second Amended Complaint Paragraphs 100-101. It is further alleged that F...

Excerpt: ... performance of the term(s) of the Settlement Agreement? The filing of a lawsuit (SC122912) is not a failure to perform under the terms of the Settlement Agreement. A mutual release of known or unknown claims does not require performance. The remedy here is that the release may be an affirmative defense to the new action. ...

Excerpt: ...to Sow for nearly nonexistent services and that the contracts were not the result of Defendant Fusezi's good faith negotiation. Further, the operative Complaint alleges that the wrongful conduct was used to benefit the Houston Auto Show. These allegations were made in SC102007. See Plaintiffs' Response to the Separate Statement of Undisputed Material Facts No. 17-21 and 28-50. In addition, the requested damages in the prior action and thi...

Excerpt: ...s a minority shareholder, that statement does not define the level of control that he has over the company. There is no evidence of the voting structure of the company and no evidence of the other members and their role in the operation of the business. Defendant testifies that he was President of the Defendant company at the time of the accident, however he presents no evidence as to his duties as President and fails to provide a proper foundati...

Excerpt: ..., whether the Defendant is their employer or a third party." Under Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 434, "while a subcontractor may not have a common law or contractual duty to employees on the worksite other than its own, it has a statutory duty of care under Cal-OSHA provisions to report hazards to which its own employees were exposed." If Western Built knew of the danger posed by the location...

Excerpt: ...ptcy Trustee settled the underlying claim. As a result, Plaintiff cannot show a favorable termination of the underlying claim because a dismissal due to settlement does not qualify as the favorable termination element of a malicious prosecution claim. See George F. Hillenbrand, Inc. vs. Insurance Company of North America (2002) 104 Cal.App.4th 784, 799. ...

Excerpt: ... of the insurance policy. "We do not insure, under any coverage, for any loss which would not have occurred in the absence of one or more of the following excluded events: We do not insure for such loss regardless of (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss . . . 2. Water Damage, meaning . . . water which ...

Excerpt: ...es that Plaintiff's injuries were caused when the cab driver accelerated. The Second Amended Complaint alleges that Plaintiff's injuries were caused by the violations under the Consumer Legal Remedies Act, without which Plaintiffs would never have entered this cab. There is no contradiction in the pleading. As to the 9th Cause of Action, Plaintiffs allege that "Defendants misrepresented to the public and the plaintiffs on their websit...

Excerpt: ...arijuana facilities. She sued San Bernardino and Colton over their ordinances which limited the number of marijuana facilities that could operate in those areas. Plaintiff spoke to the press to advocate her position and injected herself into the controversy. As a limited purpose public figure, Plaintiff loses certain protection for her reputation only to the extent that the allegedly defamatory communication relates to her role in the public cont...

Excerpt: ...se of Action (Rescission) and the 6th Cause of Action (Fraud). The Demurrer is sustained without leave to amend as to the 4th Cause of Action (Wrongful Eviction). As to the 1st Cause of Action, the Cross-Complaint does not set forth why the premises are illegal and how the tenant was induced by fraud to enter into the lease. The allegations lack specificity. As to the 4th Cause of Action, no eviction took place, Cross-Complainant vacated due to a...

Excerpt: ...t did or failed to do. As to the 2nd Cause of Action, Plaintiffs allege that Decedent was mentally incapacitated until her death on September 8, 2015. See Paragraph 6 of the Complaint. Didn't the statute run on September 8, 2016? This action was not filed on September 8, 2017. As to the 3rd Cause of Action, the wrongful death claim based on Elder Abuse has a two-year statute of limitations; it is timely. Plaintiff agreed to dismiss the 4th Ca...

Excerpt: ...conclude that the Venice Boardwalk is not a trail subject to Government Code Section 831.4. There is a question for the trier of fact as to whether a rogue vehicle on the boardwalk was a foreseeable event. See Defendant's Separate Statement of Undisputed Material Facts No. 61. The bollards are there for the purpose of restricting general vehicle access to the boardwalk. Evidentiary Objections filed by Plaintiffs Nancy Martinez and Enrique Gut...

Excerpt: ...is back injury sustained at work two months prior was a cause of the accident in this case. The exclusion of the Otiero declaration was not error. His declaration was conclusory and lacked foundation. ...

Excerpt: ...ach of Contract) is overruled. As to the Quiet Title action, there is no allegation that Defendant claims title. See Paragraph 27 of the First Amended Complaint. The 2nd Cause of Action is properly alleged. As to the Fraud claim, it lacks specificity. See Paragraph 50 of the First Amended Complaint. Defendant's Motion to Strike is moot. ...

Excerpt: ...scapes. This Court previously found that there are disputed facts as to the capacity in which Zarraga signed the rental agreement. Jay Griffith Landscapes relies on the case of Crocker National Bank of San Francisco v. Say (1930) 209 Cal. 436, 440 and Sayre v. Nichols (1857) 7 Cal. 535. These cases involve promissory notes and what is required to establish that a signatory of a note signed merely as an agent or if he signed as an obligor. In that...

Excerpt: ...Chattel is sufficiently alleged. As to the 2nd Cause of Action for Negligent Supervision, there are no facts to show that Doe 1 was the agent of the Defendant or that Defendant had a duty to supervise Doe 1. As to the 3rd Cause of Action, how can Defendant Dr. Lo be responsible for the negligent supervision of him by Defendant Access Specialty Animal Hospital? There are insufficient allegations to support a claim for punitive damages. ...

Excerpt: ...l documents from Karagas, including an employment agreement between Plaintiff and Global Pacific Sales, Inc. There has been a sufficient compliance with the Court's order. ...

Excerpt: ...rued as a fact or an opinion. The truth of the statement is in dispute: "For years, the former Board member sat on the Board voting for Board decision while allowing other Board members to believe that he had the authority to do so." Plaintiff's evidence disputes the truth of the statements. Plaintiff testifies that he informed the Board of the nature of his ownership status and the Board found that this was sufficient to meet ownersh...

Excerpt: ...There is an issue here whether Defendant breached its duty of care. Defendant fails to negate the allegation of breach with evidence that the relevant power lines were maintained in compliance with GO 95. Further, SoCal Edison fails to establish that it did not know nor should have known that the building would encroach on the clearances under GO 95. In its Separate Statement of Undisputed Material Facts No. 7, SoCal Edison states, "Neither s...

Excerpt: ... significant benefit by eliminating the claim based on her filing of a police report. The Court finds that $11,000.00 in fees is reasonable using the lodestar analysis. Further, the moving party is entitled to costs of $3,012.34. These sums are ordered to be paid by Plaintiff within 10 days. ...

Excerpt: ...protected conduct. This is pre‐litigation conduct. The Paragraph references "Following the Plaintiffs' vacating the unit." There were obligations remaining on the lease. See CCP Section 425.16. With the finding of some protected conduct within the allegations of the 3rd Cause of Action, Plaintiff must make a sufficient prima facie showing of facts to sustain a favorable judgment. Plaintiffs' fail to do so in that the litigation ...

Excerpt: ......

Excerpt: ...9;s assessment of the liability and damages issues in this case are reasonable based upon the evidence presented and the court's own judicial experience. See Cahill v. San Diego Gas & Electric (2011) 194 Cal.App.4th 939, 963‐964. The previous Motion for Determination of Good Faith Settlement filed by Harmar failed to address the life care plan. Now based on the testimony of the life care plan experts, the evidence of each Defendant's po...

Excerpt: ...the basis of this cause of action were due upon payment. See the First Amended Cross‐Complaint Paragraphs 6 and 10. Which of the contracts were oral and which were implied? If implied, what was the nature of the conduct by which they were implied? The 2nd Cause of Action is really a Quantum Meruit claim. It is properly alleged. ...

Excerpt: ...s the representations were made. As to the unfair business practices claim, Plaintiff is alleging a claim for restitution. See Paragraph 23 of the Complaint. As to the claim for attorney's fees, what is the basis for the claim? As to the claim for punitive damages, a properly alleged fraud claim will prove the basis for punitive damages. ...

Excerpt: ...ysis, Plaintiff fails to show a probability of prevailing: ‐‐All three causes of action are based on Defendant's failure to disclose that she was under investigation and her misrepresentations regarding her qualifications to serve as the evaluator. The only evidence of the misrepresentations are the Stipulation and Order. Those representations fall within the protection of the litigation privilege. See Civil Code Section 47(b). See Jacob ...

Excerpt: ...o the 5th Cause of Action (Violation of Civil Code Section 2924.10), the 7th Cause of Action (Negligence), and the 8th Cause of Action (Violation of Business and Professions Code Section 17200) is overruled. Several of the claims are based on the alleged conduct of Ocwen. Plaintiffs fail to allege that Ocwen acquired Shellpoint's principal assets and therefore it cannot be held liable as a successor. Plaintiffs do allege that Ocwen was acting...

Excerpt: ...alleged that the loans that form the basis of this cause of action were due upon payment. See the First Amended Cross‐ Complaint Paragraphs 6 and 10. Which of the contracts were oral and which were implied? If implied, what was the nature of the conduct by which they were implied? The 2nd Cause of Action is really a Quantum Meruit claim. It is properly alleged. ...

Excerpt: ...21, 2017. The Complaint was filed on November 22, 2017. As to the 5th Cause of Action (Unfair Business Practices), what conduct gives rise to this claim? Does Plaintiff have standing to bring this claim in light of the fact that he is not a competitor nor a customer of Defendant. ...

Excerpt: ...rther, the moving party cannot ask this court to adjudicate that part of the damages sought in the 4th Cause of Action (Quantm Meruit) to be barred by the Statute of Limitations. As to the request to adjudicate the 4th Cause of Action (Quantum Meruit) and the 6th Cause of Action (Reimbursement), Alfredo Quesada is not claiming that he performed contractor services for the Maenpas. Instead, he is claiming that he performed services as a joint vent...

Excerpt: ...vidence that there was no breach of the agreement. The CO2 laser resurfacing procedure was removed from the consent form. See Defendant's Separate Statement of Undisputed Material Facts No. 5. Further, Defendant presents evidence that the fat transfer procedure was performed as agreed. See Defendant's Separate Statement of Undisputed Material Facts No. 6. ...

Excerpt: ...n (Constructive Fraud), and the 6th Cause of Action (Fraud in the Inducement); the Demurrer is sustained without leave to amend as to Plaintiff Alkviades David. As to the 1st, 4th and 5th Causes of Action, even though it appears on the one hand that only The Hills Settlement LTD and Beverly Hills Real Estate Holdings, LLC are the parties to the agreement, Exhibit B states that "Buyer's Agent, Victor Franco Noval, agrees to invest Five Mil...

Excerpt: ...470003004400560003> <004800550059004c004600 0044005100470003> overruled as to Defendant Manulele I. Tuitama. <004f0048004a0048004700 00560051004800560056> <0058005600030046005200 004f0048005000480051>t <004800560057004c004a00 00470003> <004f004f0048004a004800 004c0048005100570003> <005300480046004c004900 > <000300450048004f004c00 0057004b004800030048>ntity <0049005200550003004b00 00030036004800480003> Second Amended Complaint, Paragraphs 38-40. <...

Excerpt: ...discrimination that occurred at the event." How did this defendant participate in the sex discrimination? ...

Excerpt: ...s did not post jury fees over the past 2 years. Plaintiffs are prejudiced in that they have prepared for a bench trial. There is a failure to explain why Defendants need to conduct additional discovery. Why did they wait? ...

Excerpt: ...alderas testifies, "The only thing that changed on this traffic control plan was heading north on 17th Court per city, Ramon, after working hours and weekends only for us to open up traffic control, move the K‐Rail so that there was access going‐‐coming out of 17th Court, but we had to put a sign there for the no left turn, heading onto Montana so, when you come out of 17th Court, it was a right turn only so we would set up a sign for n...

Excerpt: ...e 6th Cause of Action (Breach of Written Contract‐‐ Authorizations), the 7th Cause of Action (Breach of Implied Contract), the 8th Cause of Action (Breach of the Covenant of Good Faith and Fair Dealing), the 9th Cause of Action (Indebitatus Assumpsit), and the 10th Cause of Action (Quantum Meruit). Defendants' Request for Judicial Notice of Exhibits A‐N is denied. Defendants' Request for Judicial Notice of Exhibits O and P is grante...

Excerpt: ...sum. Given that Intertek's liability is likely zero to negligible, the proposed settlement is within the range of the moving party's proportionate share of comparative lliability under a Tech‐Bilt analysis. The settlement is in good faith. ...

Excerpt: ...m state, purposeful availment exists. See McGee v. International Life (1957) 355 U.S. 220, 221‐222. Initially, Defendant Continentale provided insurance to Plaintiffs while they resided in Germany. Thereafter, Plaintiffs moved to California and Continentale registered all of the Plaintiffs after their move to California. The policy was intended to cover the insureds internationally. By extending the insurance to Plaintiffs knowing they resided ...

Excerpt: ...ee McMillan Process v. Brown (1939) 33 Cal.App.2d 279, 283. ...

Excerpt: ...should have raised his malpractice claims during the KRS litigation. However, at the time of Plaintiff's Answer in that litigation, the claims here were not ripe and could not have been litigated in KRS v. Saber. Res judacata does not apply because this action is based on claims that arose during the pendency of the predecessor action. As to the Statute of Limitations issue, this action was filed on January 30, 2017. Therefore, the discovery ...

Excerpt: ...are not liable under this theory of relief for products used in connection with the care and treatment of patients. The allegations are not clear and more informatin is needed, for example: ‐‐What defect caused injury? ‐‐What express warranty was breached? ‐‐How are these defendants held responsible for strict liability? Defendants' Motion to Strike is granted without leave to amend. Punitive damages are not available. Further, &#...

Excerpt: ...port a finding of a subcontract. See Tower's Separate Statement of Undisputed Material Facts No. 1‐10. Also, the First Amended Complaint alleges that the contract exists in paragraph 25. To the extent that a subcontract between McCormick and Tower Glass was a condition precedent for a subcontract between Tesla/Asis and Tower Glass, there is a question whether the condition precedent was met. Further, there is a triable issue whether there w...

Excerpt: ...ny of the discovery requests do not appear to be relebant to that claim. Also, some discovery seeks information from Defendant about Plaintiff's state of mind. The parties may wish to seek court assistance in the future through an Informal Discovery Conference. No sanctions. ...

Excerpt: ...lated event. ‐‐Rushton was not traveling to any worker's compensation appointments. ‐‐Rushton was traveling to the Hyperion Treatment Plant, where he worked. ‐‐Rushton performed his work at the plant. ‐‐On the day of the accident, Rushton was scheduled to do routine instrumental analysis at the lab of the plant. ‐‐Rushton was never told by the City that he was required to bring his personal vehicle to work. ‐‐Rushton w...

Excerpt: ...reach of Contract and Implied Covenant claims are sufficiently alleged. Plaintiff alleges that it properly and timely exercised the Extension Option and that it paid the increased rent to the landlord for 3 years based on the Fair Market Rent which was calculated for the Option Term under the terms set forth in the Second Amendment to Lease. See Paragraphs 31‐35 of the Fourth Amended Complaint. Further, the Fourth Amended Complaint alleges that...

Excerpt: ...ing as damages? The objections are not well taken. The Motion to Quash Subpoena Duces Tecum or to Limit the Scope of the Subpoena served on Farmers Insurance filed by Defendant Sundial is granted in part. Request for Production Nos. 4‐8 are quashed. These requests exceed the scope of permissible discovery under CCP Section 2017.020. As to Request for Production Nos. 1‐3, these requests are modified and limited to those documents relating to d...

Excerpt: ...mber 26, 2015 email qualifies as extortion. Defendant does not concede that the email was extortion. The email does not demand anything in return from Plaintiff and informs Plaintiff of the investigation and intent to pursue legal remedies should the investigation reveal theft. Therefore, the exception found in the case of Flatley v. Mauro (2006) 39 Cal.4th 299, 320 does not apply here. Plaintiff fails to show the probability of prevailing on the...

Excerpt: ...mber 26, 2015 email qualifies as extortion. Defendant does not concede that the email was extortion. The email does not demand anything in return from Plaintiff and informs Plaintiff of the investigation and intent to pursue legal remedies should the investigation reveal theft. Therefore, the exception found in the case of Flatley v. Mauro (2006) 39 Cal.4th 299, 320 does not apply here. Plaintiff fails to show the probability of prevailing on the...

Excerpt: ...to Strike with leave to amend as to the treble damages, injunctive relief and punitive damages only. Defendant's Request for Judicial Notice is granted as to Exhibits 1‐7 and denied as to Exhibits 8‐11. The Declaration of Jacqueline Marcott is irrelevant. This is not an evidentiary hearing. ...

Excerpt: ...n Paragraph 8 of the First Amended Complaint, an essential element of the 1st, 2nd and 3rd Causes of Action cannot be established as a matter of law and therefore fail. ‐‐There is no competent evidence that Escandari & Michon was Plaintiff's fictitious business name or that Plaintiff ever registered it per Business and Professions Code Section 17918. Further, even if Escandari & Michon was a proper fictitious business name, Plaintiff deni...

Excerpt: ...ndent contractors under Labor Code Sectin 2750.5. ‐‐Defendant's license was revoked at the outset of the Cadet project under Business and Professions Code Section 7125.2. ‐‐Defendant fails to show substantial compliance under Business and Professions Code Section 7031(e). ...

Excerpt: ...hicle during the warranty period." See Second Amended Complaint Paragraphs 26‐27. It is not clear who made the misrepresentations, to whom, what was specifically misrepresented, by what means, etc. As to the negligence claim, there is no indication how Plaintiff suffered emotional injuries. This claim is barred by the economic loss doctrine. Further, there is no separate tort of neligent infliction of emotional distress. The tort is neglieg...

Excerpt: ...oods, . . . the measure of damages shall include the cost of repairs necessary to make the goods confirm." The evidence was clear at trial that Plaintiff kept the Mercedes and stored it at her husband's warehouse. The evidence was clear at trial that the cost to replace the transmission was @$9,000.00. The amount of damages is therefore within the limited civil case jurisdiction. ...

Excerpt: ...the deadline? Further, the Motion was filed on February 9, 2018 and the Separate Statement was untimely filed on March 5, 2018. At an Informal Discovery Conference, the parties agreed and the court ordered Defendants to appear for deposition on January 23, 2018. Defendants appeared. Previously, Defendants did not appear for deposition due to illness. Under these circumstances, there is no legal authority to support the award of sanctions. ...

Excerpt: ...Design to perform repairs at the property. See Defendant's Separate Statement of Undisputed Material Facts No. 1 and the Supplemental Declaration of Jay Griffith, Paragraph 1. Even if Jay Griffith was not the owner, the evidence shows that he had management and control of the property. The Privette case does not absolve the moving party from liability under the 1st Cause of Action (Premises Liability) or the 3rd Cause of Action (Negligence). ...

Excerpt: ...d due to a glitch in the software. All company records were affected by the same glitch, not just records concerning the Plaintiff. It would be an abuse of discretion to impose a termination sanction in light of the fact that an evidentiary sanction is available. Even if the deletion of the records was inadvertent, it impairs Plaintiff's ability to prove his case. Therefore, Defendant may not submit any evidence challenging Plaintiff's va...

Excerpt: ...r v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1559‐1560. Messenger Fees and Service of Process Fees are recoverable. See CCP Section 1033.5(c)(4), "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 and Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858. ...

Excerpt: ... qualify as a default, default judgment or dismissal. In the last hearing, the court found that the 1st prong of the analysis had been met and the burden shifted to Plaintiff to establish the probable validity of her claims against Defendant. Plaintiff failed to carry her burden. Mandatory relief is denied. However, discretionary relief is available for any "judgment, dismissal order or other proceeding," so long as the judgment, etc. was...

Excerpt: ......

Excerpt: ...rt to inspect the mail program for emails relevant to Plaintiffs and his web browser." Defendants stated they would not allow Plaintiffs' expert to copy the hard drives. Plaintiff's requests are outside of the response to the Request for Production. As to Plaintiff's Evidentiary Objections to the Declaration of John Hostetler: Sustain As to Plaintiff's Evidentiary Objections to the Declaration of Steven Morris: Sustain all ...

Excerpt: ...ails to establish that no subcontract was formed between Tower Glass and McCormick. See Nos. 1‐10 which support a finding of a subcontract. Also, there is an allegation in the Complaint that a subcontract was formed. See Paragraph 25 of the First Amended Complaint. If the existence of a subcontract between McCormick and Tower Glass was a condition precedent for a subcontract between Tesla/Asis and Tower Glass, there is a triable issue. There is...

Excerpt: ... Defendants establish that Rojeski signed a form acknowledging that the treating doctors were independent contractors and not employees of Valley Surgical Center. Therefore, Rojeski knew that Dr. Gee and Dr. Chau were not employees of Valley Surgical Center. The burden shifts to Plaintiff to show that acknowledgment is not authentic. Plaintiff fails to submit evidence to dispute Defendants' Separate Statement of Undisputed Material Facts No. ...

Excerpt: ...s no cause of action in California for unjust enrichment. See Melchior v. New Line (2003) 106 Cal.App.4th 779, 793. ...

Excerpt: ...raph of the Declaration of Sheila Chesanow. 22 CCR Section 71225 requires that there by "a sufficient number of therapists to carry out the scope of services offered" and "a sufficient number of appropriate personnel shall be provided for the safety of the patients." See 22 CCR Section 71225(b) and (c). There is a triable issue of fact whether Defendant committed neglect under the Elder Abuse Act. ...

Excerpt: ...n May 17, 2013. ‐‐This action was filed on October 7, 2013. T There is a triable issues: ‐By what legal authority does the assignment of the Note and TD automatically transfer the Recognition Agremeent? ‐Was Ocean Towers excused from giving notice under Section 3 of the Recognition Agreement? ‐Did Ocean Towers reasonably comply with Section 3 of the Recognition Agreement? ‐Who was entitled to notice: First Capital Mortgage, Thornburg ...

Excerpt: ... (2008) 162 Cal.App.4th 670, 684. Plaintiff's injuries were sustained in Florida and he was treated in Florida. He resides and works in Florida. Therefore, percipient witnesses to the accident, to his treatment and his loss of income are located in Florida. It would be difficult for Defendant to depose such witnesses if the case remains in California. ...

Excerpt: ...Cal.4th 503, 511. What tort did Doefendant conspire to committ? ...

Excerpt: ...ry due to the undercurrents? ‐‐What was the mechanism of Plaintiff's injury? ‐‐Were the lifeguards the agents or employees of Defendant? ‐‐Did the conduct of the lifeguard contribute to Plaintiff's injury? ...

Excerpt: ...e 3rd Cause of Action (RICO). A cause of action for civil conspiracy cannot be stated if the alleged conspirator was not personally bound by the duty that was violated by the wrongful act and that he/she was acting only as the agent or employee of the party who did have the duty. See Doctors' v. Superior Court (1989) 49 Cal.3d 39, 44. The agent immunity rule extends to allegations that the agent aided and abetted the principal. See Janken v. ...

Excerpt: ...sufficient to make the maintenance of the action inoffensive to traditional concepts of fair play and substantial justice." See Vitual Magic Asia, Inc. v. Fil‐ Cartoons, Inc. (2002) 99 Cal.App.4th 228, 238. Defendant has availed himself of the benefits of property ownership in California in a manner that is related to this case. The real property which is the subject of this litigation is located in Los Angeles County, California. It is fai...

Excerpt: ... not have an express preemption clause. However, there is implied preemption because it is clear that Congress intended to cover aviation claims. See Gilstrap v. United Air Lines (9th Circuit 2013) 709 F.3d 995, 1004. The language of the statute is to relieve lessors, owners, and those with a security interest in an aircraft from lliability for personal injury, death and property damage when they are not in actual possession or control of the air...

Excerpt: ...aragraph 47 of the First Amended Complaint. The Violation of Business and Professions Code Seciton 7031 is properly alleged. Defendant raises factual disputes which are not appropriate to resolve on Demurrer. The fraud claim lacks specificity. How, when, where, to whom and by what means were the alleged misrepresentations made? ...

Excerpt: ...establish causation and (2) cannot establish damages. As to the first ground for summary judgment, they argue that it is undisputed that Tina took the funds; that the Defendants did not take any funds; and that Tina caused the alleged damages and Defendants' alleged conduct is irrelevant. They also argue that Plaintiff cannot establish that had the funds not been taken by Tina, they would have been awarded to him in a settlement or following a tr...

Excerpt: ...ner actively participates in how the job is done, and that participation affirmatively contributes to the employee's injury, the hirer may be liable in tort to the employee." A hirer may also be liable if the hirer "knows or reasonably should know of a concealed, preexisting hazardous condition on the premises; the contractor does not know and could not reasonably ascertain the conditions; and the landowner fails to warn the contracto...

Excerpt: ...s in the document which makes Cross‐Defendant a guarantor. There is no evidence that Dr. Ghodadra was acting as the agent of Reetu Dua and therefore bound her as a guarantor of the Precise Agreement. Further, agency is not implied from the marital relationship. See Lovetro v. Steers (1965) 234 Cal.App.2d 461, 475. Where a defendant's spouse has no personal liability, there is no legitimate basis to name him or her as a defendant in the acti...

Excerpt: ...efendant is ordered to produce electronically stored information in the manner in which it is ordinarily kept or in a word‐searchable format. See CCP Section 2031.030(a)(2) and CCP Section 2031.280(d)(2). No sanctions. ...

Excerpt: ...nspection which showed that the loss was due to the roof being "worn and drying out due to normal age" and a clogged drain. "Wear and tear" is an exclusion under the policy. Plaintiff fails to show that the claim was denied due to the absence of building coverage; this was the grounds contended by Plaintiff to support a Professional Negligence claim. Plaintiff's evidentiary objections to the Declaration of Keith Sklerov are ov...

Excerpt: ...the punitive damages is denied. The Demurrer is timely. As to the Defamation claim, more facts are needed in order to determine that the alleged insults were statements of fact. As to the Intentional Infliction of Emotional Distress claim, more facts are needed to show that Cross‐ Complainant suffered severe emotional distress as a results of the alleged insults. What is the outrageous conduct? As to the Stalking claim, the Cross‐Complaint su...

Excerpt: ..., LLC. In addition, there is no right for the moving party to compel arbitration of the claims of 1501, LLC against DK Brown. However, the moving party is entitled to enforce the arbitration provision of the Prime Contradct (WSA and 1501, LLC) as against 1501, LLC because 1501, LLC has asserted in its arbitration that James Schram is dividually subject to the arbitration provision of the contract. 1501, LLC is now estopped from asserting that Jam...

Excerpt: ...torney do? The standard is that in order to grant relief from default based on extrinsic mistake, there must be a showing of "neglect of an extreme degree amounting to positive misconduct by counsel, rather tha mere inexcusable neglect, sufficient to obliterate the attorney‐client relationship and thereby preclude any imputation of counsel's neglect to the client. Positive misconduct is found where there is a total failure on the part o...

Excerpt: ...tion (Breach of Contract), the 4th Cause of Action (Unjust Enrichment), the 6th Cause of Action (Declaratory Relief/Breach of the Corporations Code 17704.10), the 8th Cause of Action (Negligent Interference with Prospective Economic Advantage), the 9th Cause of Action (Intentional Interference with Contractual Relations), the 10th Cause of Action (Intentional Interference with Economic Advantage) and the 11th Cause of Action (Breach of Fiduciary ...

Excerpt: ...here are other factors at issue here. Plaintiff admits in his Complaint that he had personal issues and Defendant submits evidence that Plaintiff was not generating sales and was failing to supervise the sales team. How do these factors impact the sale of the stock and the value of the stock? If the value of the stock was fair and reasonable, then the transfer of the shares could be made without the consent of the spouse. See Family Code Section ...

Excerpt: ...nt debtor or who may become obligated to make payments to the judgment debtor depending upon future developments." Without a named obligor in the order, who is bound by the order? As to the request for permission to propound discovery every 30 days with a shortened response period of 15 days, what is the authority for this request? See CCP Section 708.020 and 708.030 which restrict discovery requests (interrogatories and document inspection) ...

Excerpt: ...tion (Breach of Contract), the 4th Cause of Action (Unjust Enrichment), the 6th Cause of Action (Declaratory Relief/Breach of the Corporations Code 17704.10), the 8th Cause of Action (Negligent Interference with Prospective Economic Advantage), the 9th Cause of Action (Intentional Interference with Contractual Relations), the 10th Cause of Action (Intentional Interference with Economic Advantage) and the 11th Cause of Action (Breach of Fiduciary ...

Excerpt: ...ith Defendants against the 2nd and 3rd Causes of Action for Products Liability and Negligence. ‐‐Judgment on the Griffith Defendants' Cross‐Complaint based on their failure to provide West LA indemnification and defense from the Plaintiff's action. The moving party fails to provide a properly authenticated copy of the Rental Agreement containing the indemnification provision. Further, the moving party fails to establish as a matter ...

Excerpt: ...ly designed or did not include sufficient instructions or warnings of potential safety hazards. The undisputed facts show that Dockmasters did not sell, market or distribute the product to the Plaintiff. Further, Dockmasters was not involved in the chain of commerce that resulted in the sale of the product to the Plaintiff. See Dockmasters Separate Statement of Undisputed Material Facts Nos. 26‐ 32. This product was sold by Harmar to Love Handl...

Excerpt: ...any of the monthly fees required under the contract. See Separate Statement of Undisputed Material Facts No. 31. Then in the Motion, MSG asserts that Precise paid only $14,000.00 for March and April 2015. Lastly, in its Cross‐Complaint, MSG alleges that Precise paid $42,000.00 for six months of rent. See Paragraph 24 of the Cross‐ Complaint. ‐‐What is the nature of the obligation of Precise to pay $7,000.00 per month to MSG under the writ...

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Excerpt: ...se in a way that violates CC 2784.5. To avoid the express indemnification provision, Boswell must present evidence that its own actions did not in any way contribute to Plaintiffs' injury. Boswell fails to present such evidence: ‐‐Boswell had no discussions with the City or with Over & Over Ready Mix regarding the size of the trucks. ‐‐Boswell had no discussions with the City or with Over & Over Ready Mix regardring the routes to be u...

Excerpt: ...7 ‐‐Paragraph 2 of the prayer of the First Amended Complaint Plaintiff is granted 10 days leave to amend to support the claim for punitive damages. See Paragraph 37 of the FIrst Amended Complaint. Defendants' Request for Judicial Notice is granted. As to the 2nd Cause of Action, Plaintiff now alleges sufficiient facts to state a claim. See Paragraphs 3, 33 and 34 of the First Amended Complaint. Even though the allegations of the 1st Cause...

Excerpt: ...use), there are sufficiient allegations to show a claim of "taking." See Paragraph 54 of the First Amended Complaint. As to the 3rd Cause of Action (Breach of Fiduciary Duty) and the 4th Cause of Action (Accounting), Plaintiff alleges that Lyles was her fiduciary, that he was also an agent of other Defendants and that he made misrepresentations. The allegations support a fiduciary relationship. See Paragraphs 26, 27, 29 and 66 of the Firs...