Excerpt: ...ficient facts showing entitlement to exemplary damages against Defendants. A motion to strike may be used to attack claims for damages that are not supported by the cause of action pleaded. The motion to strike may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See Civil Code § 3294; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53,...

Excerpt: ..., if the propounding party proves the truth of those facts at trial, he or she may seek an award of the reasonable costs and attorney fees incurred in proving those facts.” See CCP 2033.420(a). The court is required to award those costs and fees unless it finds the party who denied the requests “had reasonable ground to believe he would prevail on the matter” or “there was other good reason for failure to admit.” See CCP Section 2033.42...

Excerpt: ...ffs shall file and serve a second amended complaint by August 15, 2018. Defendants Leonard A. Faas Jr., Faas Enterprises, Inc. dba Walnut Creek Car Wash, and Walnut Creek Car Wash (“Faas”) demur to everything except the negligence cause of action in the First Amended Complaint arguing that each claim fails to state a cause of action. They also argue that the FAC is uncertain. Uncertainty As to uncertainty, Defendant argues that the FAC is unc...

Excerpt: ...sed because this Court does not have personal jurisdiction over the Defendant. Plaintiff's opposition directly addresses the personal jurisdiction issue and therefore Plaintiff had sufficient notice of this issue. Therefore, the Court construes Defendant's motion as a motion to quash and grants that motion. A court may exercise two types of personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. “General jurisdic...

Excerpt: ... one retained liability expert and plaintiff's treating orthopedist as a non‐retained expert. Therefore, it is puzzling that Defendant states: “Plaintiff's presentation of evidence in support of her damages claim will be involved and detailed. Cumulative of Plaintiff's treating medical providers (including treating physicians, surgeons and physical therapists), Plaintiff will have to call orthopedic experts, psychological experts, occupationa...

Excerpt: ...ant has timely made the first payment, and the next payment is not yet due. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 07/25/18 ‐ 13 ‐ Second, defendant has raised legitimate concerns about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears th...

Excerpt: ...nal misrepresentation or concealment. The elements which must be pleaded to allege a fraud or deceit claim are (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud or to induce reliance; (4) justifiable reliance, and (5) resulting damages. See CACI 1900; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363; Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4...

Excerpt: ..., simply by sending written notice within thirty days of entering into the contract. Plaintiff appears not to have done that. By that simple act, plaintiff could have avoided all the alleged disadvantages of arbitration. Plaintiff also argues that she must pay to commence arbitration. As defendant says in its opposition, that is not so. See paragraph 5 on page 4 of the credit agreement. Plaintiff further asserts that she will not have certain pro...

Excerpt: ...hompson's motion for summary adjudication is granted as to cause of action 1 against Thompson and denied as to cause of action 1 against Waymire and the City; and granted as to causes of action 7 and 9. MSJ: Standing Respondents argue that Petitioner/Complainant Margaret Thompson (Margaret) does not have standing to bring this lawsuit and requests summary judgment against her. The writ petition and all of the remaining causes of action in the Sec...

Excerpt: ...tive notice of the motion seeking the August 8, 2016 order. Had she wished to state her claims she should have done so in connection with that motion. ...

Excerpt: ...s about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears that the failure to record a deed of trust has not been material. Plaintiffs obtained and apparently have recorded an abstract of judgment in the sum of $ 45,000, even though there was no provision for such a remedy in the ...

Excerpt: ... when an elder abuse claim upon neglect is proper: The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and ...

Excerpt: ...s, the subject location did not pose a hazard to pedestrians when used with due care. Macerich also argues, in the alternative, that any defect was trivial or open and obvious as a matter of law, precluding recovery. Hines opposes. Evidentiary Issues Macerich's objection to Hines's request for judicial notice is overruled. The Court grants the request for judicial notice under Evidence Code section 452, subdivisions (c) and (h). Relevant Law To r...

Excerpt: ...(1) the claim upon which the attachment is based is one upon which an attachment may issue; (2) plaintiff has established the probable validity of the claim; (3) the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based, and (4) the amount to be secured by the attachment is greater than zero. See CCP Section 484.090(a); California Retail Portfolio Fund GmbH & Co. v. Hopkins Real Estate Group (2...

Excerpt: ...aintiff's application for temporary restraining order is based on its claims for trade secret misappropriation (first cause of action); unfair competition (fourth cause of action); and breach of contract against Defendant Nehls (second cause of action). Although the Complaint alleges a breach of contract claim against MacCarter (based exclusively on provisions of the Employee Handbook (Complaint at ¶ 14 and Ex. B)), Plaintiff sought a CONTRA COS...

Excerpt: .... Plaintiff, Martinez, has failed to raise a triable issue concerning whether defendant, Carvalho, was attempting to collect a consumer debt. Carvalho, has established his right to judgment as a matter of law. (CCP § 437c (c).) A. Background. In April 2005, plaintiff, Martinez, hired the law firm of Gagen, McCoy, McMahon, Koss, Markowitz & Raines (“Gagen, McCoy”) to provide legal services in connection with an employment matter. Gagen, McCoy...

Excerpt: ...ched that would resolve the objections to be raised in the demurrer.” (Code of Civil Procedure §430.41(a) (emphasis added).) Section 435.5(a) has a similar requirement for motions to strike. Defendants' attorney declares that she sent a letter to Plaintiff's attorney discussing the problems that Defendants had with the First Amended Complaint and asking Defendants' attorney to call her. Plaintiff's attorney did not receive a response to her le...

Excerpt: ...tration as an expeditious and costeffective way of resolving disputes.” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843.) “Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if [the court] determines that an agreement to arbitrate the controversy exists.' (Code Civ. Proc., § 1281.2.)” (Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 176.) “...

Excerpt: ...osed. For the following reasons, the MSJ is granted. At the outset, the Court notes that Plaintiff's Exhibits to the Hennessee Declaration in support of the MSJ are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Defendants are directed to tab their exhibits in all future filings or risk monetary sanctions. Standard Code of Civil Procedure (“CCP”) §§ 437c(c) provides, in relevant...

Excerpt: ...ts administrators or directors of care, Mark Callaway and Phylene Sunga. Defendants argue that neither count states a cause of action, and both need to be alleged more specifically. Defendants further argue that plaintiff may not sue the individual defendants. First Cause of Action, Elder Abuse The demurrer to this cause of action is overruled. Plaintiff alleges she was injured on August 8, 2015 while she was a resident at Lone Tree's skilled nur...

Excerpt: ...ertainty and the failure to state a claim. The Court refers to the property currently owned by Plaintiff as “Plaintiff's Property”, and not as the “disputed slice”. The property currently owned by Klamczynska and Klamczynski is referred to as Lot 9. And the property currently owned by the Oznowiczes is referred to as Lot 8. Plaintiff argues that his property became landlocked in 1967 when Lots 8 and 9 engaged in a lot line adjustment and ...

Excerpt: ...ed Discovery (data storage). The Court finds that this cost is more properly viewed as overhead. Further, plaintiffs' counsel has not adequately explained why it is necessary to spend $ 20,000 each year for data storage, and has not adequately explained how the $ 375.00 allocation for this case was calculated. (Mikhov Dec., ¶ 9.) Other Disputed Items. The other disputed cost items are neither expressly allowed nor expressly disallowed under the ...

Excerpt: ...Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980. This is because California law has a strong preference for resolving disputes on their merits. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. Here, the Court has before it conflicting declarations. One declaration indicates that personal service was effected. One declaration says there was not actual notice. Ordinarily, the Court would resolve that conflict in favor of granting the motio...

Excerpt: ...e or at the same time as the answer to the complaint or cross‐complaint. (b) Any other cross‐ complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross‐complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. Section 426.50 also is relevant. It says:...

Excerpt: ...nded cross‐complaint on or before June 27, 2018. Meet and Confer Declaration (CCP § 430.41) Gregory L. McCoy, counsel for HomeSite, Tina Tomei and Darryl Phelps, filed a declaration stating he sent an email on April 4, 2018, listing the defects in the cross‐complaint and requested an opportunity to meet and confer. Cross‐Defendants' counsel, Christine Wheatley responded with an email, declining to make any modification to the cross‐compl...