Excerpt: ...ee CCP 435, 430.40(a).) Plaintiff Juk Ting's First Amended Complaint (“FAC”) was filed on 5/6/19 by fax, electronic mail, and mail. Allowing two additional days for service by fax or email, the demurrer and motion to strike were due by 6/7/19. Even if allowing five days for service by mail, they were due by 6/10/17. The instant demurrer and motion to strike were untimely filed on 6/14/19. No extension to respond to an amended complaint was av...

Excerpt: ...x parte application to extend the time to file their opposition after their opposition was already due, which the Court denied. The sole basis for failing to timely file an opposition to the instant motion was plaintiffs' claim they were awaiting rulings by the Court on objections to declarations plaintiffs submitted in connection with opposing the motion for summary judgment by some other defendants (the Tilles defendants), which was heard on 9/...

Excerpt: ...he second cause of action for dangerous condition of public property. Government Code § 830.6 provides that a public entity, such as the City of Glendale, shall not be liable for “an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity.” In order to avail itself of s...

Excerpt: ...andard of care in this case and that defendants' conduct, to a reasonable degree of medical probability, did not cause or contribute to plaintiff Dee Ann Abelar's alleged injuries. [UMF No. 15, and evidence cited; Barcay Decl. ¶¶ 24- 31]. Plaintiffs fail to dispute defendants' evidence, because the only evidence upon which plaintiffs rely is inadmissible expert testimony. The Court SUSTAINS defendants' evidentiary Objection No. 1 to Plaintiffs'...

Excerpt: ...dant contends plaintiffs cannot establish breach or causation as a matter of law. The Court is not persuaded that the evidence relied upon by defendant in support thereof is susceptible to only one interpretation with respect to these issues, which are ordinarily issues of fact. With respect to breach, moving defendant has failed to provide sufficient evidence of the applicable standard of care by which the Court could determine whether defendant...

Excerpt: ..., despite the fact they were not timely filed and served within thirty days of defendant being served by substituted service with the summons and complaint (i.e, 12/13/18, the tenth day after mailing, per CCP 415.20), namely, by 1/12/19. Rather, they were filed 41 days late, which was beyond any permissible extension to respond without leave of Court. (See CRC Rule 3.110(d) [“The parties may stipulate without leave of court to one 15-day extens...

Excerpt: ...ests for Admissions Nos. 4, 5, and 6, the requests are phrased in the present tense, and the responses respond with respect to what responding party represents is the current status. As to Request No. 8, the response is an unequivocal admission. Plaintiffs' request for monetary, issue, evidentiary, and/or terminating sanctions is DENIED. Request in opposition for monetary sanctions is DENIED. The request for sanctions in the opposition is not sup...

Excerpt: ...ses of action for negligence (see Traveler's Compl. ¶¶ 19-27; Radler's Compl. ¶¶ 17-25), subject to the three-year statute of limitations under CCP § 338(b). The Court does not find, as defendants suggest, that the gravamen of these causes of action is breach of an oral contract subject to a two-year statute of limitations. (See Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606 [“To determine the statute of limitations which applies to a c...

Excerpt: ...ties submitted in support thereof and disregarded the remainder as exceeding the mandatory page limitations. (SeeCRC Rules 3.1113(d), (g), 3.1300 (d).) Defendants DSS and Andrade have sufficiently established they owed no duty to plaintiff pursuant to the Privette doctrine. The California Supreme Court has summarized the doctrine as follows: Generally, when employees of independent contractors are injured in the workplace, they cannot sue the par...

Excerpt: ...Demurrer to Plaintiff's First Amended Complaint (“FAC”): Demurrer to the seventh cause of action for intentional infliction of emotional distress and eleventh cause of action for accounting is SUSTAINED WITHOUT LEAVE TO AMEND. The conduct alleged is not extreme and outrageous sufficient to support a claim for intentional infliction of emotional distress. As for the claim for an accounting, there is no amount due and owing from defendant to pl...

Excerpt: ...ber Legal, PC, despite the fact they appear to have been untimely filed. The Complaint was served by substituted service with follow up mailing on 4/11/19. Service was therefore deemed completed on 4/21/19, the tenth day after mailing. (See CCP 415.20.) Thus, the demurrer and motion to strike were to be filed by no later than 30 days thereafter, i.e., 5/21/19. The demurrer and motion to strike were not filed and served, however, until 5/31/19. I....

Excerpt: ...to meet their burden to establish that a determination of the issues raised by this action were “final and on the merits” in the prior unlawful detainer action (BC 604193) such that preclusion should apply here. (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Notably, while plaintiff ultimately lost on appeal in the prior action, the Court of Appeal's reversal of the trial court was based on its finding that the notices were defecti...

Excerpt: ...contends that Plaintiff cannot establish the existence of a dangerous condition, that Plaintiff cannot establish defendant had notice of any dangerous condition, and that Plaintiff cannot establish that the incident was foreseeable. Plaintiff has raised triable issues of material fact with respect to whether the table constituted a dangerous condition that foreseeably caused the subject incident. Specifically, plaintiff's expert, Brad Avrit, subm...

Excerpt: ...has as its gravamen protected activity, that is, acts in furtherance of defendant's right to petition in connection with official unlawful detainer proceedings. Notably, at the heart of plaintiff's claim for breach of the covenant of quiet enjoyment is defendants' purported disruption of plaintiff's business by “posting fraudulent notices to PLAINTIFF'S business Premises and to neighboring properties, alleging, inter alia, that PLAINTIFF was be...

Excerpt: ...t Statement, filed 7/17/19, plaintiff gives the following brief statement of the case: THE PLAINTIFF TREATED WITH THE DEFENDANTS FOR INJURIES OR CONDITIONS UNRELATED TO A VEHICULAR ACCIDENT THAT WAS SETTLED. MEDICARE CLAIMED THAT THE DEFENDANTS AND EACH OF THEM INDICATED TO MEDICARE THAT THE TREATMENT RECEIVED BY THE PLAINTIFF WAS RELATED TO THE VEHICULAR ACCIDENT AND AS SUCH MEDICARE PAID THE DEFENDANTS FOR THE REPORTED TREATMENT AND SOUGHT REIM...

Excerpt: ...ssentially concedes they made no effort to meet and confer prior to filing the instant motion, arguing instead that their obligations under the rule were somehow satisfied because “Plaintiff's [sic] counsel was well aware of the motion to strike way back in January 2019.” (Reply at 3.) Such an assertion is curious, if not entirely disingenuous, because the allegations defendants seek to strike are contained in an Amended Complaint filed in Ma...

Excerpt: ...t to the First (Premises Liability) and Second (Negligence) Causes of Actions in the First Amended Complaint because those causes of action are not asserted against TKE. The First and Second Causes of Action are asserted against other named defendants and Does 1 through 50. TKE was added to this matter as DOE 51 by plaintiffs' Amendment to the Complaint (Fictitious/Incorrect Name), filed February 16, 2017. TKE accordingly has no standing to pursu...

Excerpt: ...use of action for Negligence. This Motion is granted without prejudice to plaintiffs amending their pleading to allege emotional distress damages in the fifth cause of action, if plaintiffs find it necessary to do so. Plaintiffs have ten days leave to so amend the fifth cause of action. The Motion as to all other causes of action and on all other grounds is DENIED for the reasons that follow:  Second Cause of Action (Breach of Implied Covenant...

Excerpt: ...timely opposition, which was filed and served four court days late without leave to file an untimely pleading. (See CCP § 1005(b) [opposition papers to a motion are due at least nine court days prior to the hearing].) Such untimeliness is of particular concern because it was e-filed a couple of hours after defendants had filed their reply brief to plaintiff's seeming non-opposition to the demurrer. The Court will nonetheless consider the untimel...

Excerpt: ...a copy or pleading its terms verbatim. (See Miles v. Deutsche Bank Nat'l Tr. Co. (2015) 236 Cal.App.4th 394, 402.) Indeed, for unlawful detainer actions involving commercial properties, there is no requirement that the plaintiff must attach a copy of the lease. (Cf. CCP § 1166(d)(1)(B) [requiring lease to be attached for residential properties].) In accordance with CCP § 1166(a)(3), the Complaint describes the premises with reasonable certainty...

Excerpt: ...uity Loan Trust 2006-H); (2) Countrywide Home Loans, Inc; (3) Bank of America, N.A; and (4) Mortgage Electronic Registration Systems, Inc. (as nominee for Countrywide Bank, N.A.), filed March 1, 2019, is hereby CONTINUED to August 23, 2019, at 8:30 AM. Such motion shall be heard in connection with the previously continued Motion for Summary Judgment or, In the Alternative Summary Adjudication of the Issues for Defendants (1) Bank of New York Mell...

Excerpt: ...r regarding sealing to find that: (1) There exist overriding interests that overcome the right of public access to the record, namely, the interest of plaintiff in the privacy of her medical records and financial condition and in complying with a binding agreement that the settlement terms remain confidential; (2) The overriding interests support sealing the records; (3) A substantial probability exists that the overriding interests will be preju...

Excerpt: ...iffs a Notice of Enforcement of Warehouseman's Lien for unpaid storage fees for the subject Media Library, which stated that the Media Library would be sold at public auction on January 16, 2018. (UMF No. 52 [evidence cited therein].) It is also undisputed that, there being no other bids at public auction, PTA made a bid in the amount of $73,673.02 and took title to the Media Library to satisfy its warehouseman's lien. (UMF No. 55 [evidence cited...

Excerpt: ...'s Motion for Attorney's Fees, Costs, Restitution, and Interest is GRANTED, in part. The Court finds that defendants were the prevailing parties in this unlawful detainer action and that the matter arose out of a written lease agreement with plaintiff that provides the prevailing party shall be entitled to recover actual attorney's fees in connection with the defense of an unlawful detainer action and all litigation-related costs. The Court finds...

Excerpt: ... Issue/Argument and Pages/Lines as Against Plaintiff in its Motion for Summary Judgment, withdrawing the argument that plaintiffs' claim of negligence fails because the opening in the floor where plaintiff Michelle Sutton fell was “open and obvious.” Accordingly, the Court does not address this issue in resolving the instant motion. With respect to meeting its initial burden, Defendant and Cross-defendant Milestone has submitted evidence that...