Excerpt: ...dicial notice of Craig J. Beauchamp's biography page on Plaintiffs' former counsel's website, the stipulation regarding their former counsel's suspension, and records in four other matters in which Plaintiffs have filed actions against storage companies. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.) Business and Professions Code section 17200, et seq. (“UCL”) prohibits unfair competition, including unlawful, unf...

Excerpt: ...v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) But allegations consisting of contentions, deductions, or conclusions of law are not. (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 681; Kiseskey v. Carpenters' Trust for So Cal. (1983) 144 Cal.App.3d 222, 228.) Pursuant to Government Code section 815, subdivision (a), a public entity is not liable for an injury, whether such injury arises out of an act or ...

Excerpt: ...) He brings a putative wage- and-hour class action on behalf of all non-exempt employees who worked for Defendant at any time in the four years before the case was filed. (Id., ¶ 4.) The complaint alleges six causes of action: principal claims for overtime violations, meal period violations, and rest period violations, as well as derivative claims for wage statement violations, UCL violations, and PAGA. Defendant demurs on two grounds: that the ...

Excerpt: ...limitations given that Cross- Complainant Bhandari waited approximately 30 months after the lawsuit was filed to file the Cross-Complaint against Howard. A claim for equitable or partial or comparative indemnity does not accrue, and the statute of limitations does not commence to run, until the indemnity claimant has suffered an actual monetary loss through the payment of a judgment or settlement [not at the time plaintiff's injury was inflicted]...

Excerpt: ...luded 538 employees, but Defendant's discovery responses indicated that 34% of the class was “severed,” leaving 355 employees. Counsel's damages analysis is based on workweeks, and the number of workweeks is determined in reference to these 355 employees. However, per the amended Joint Stipulation of Settlement (Supp. Campbell Decl., Exhs. 1, 3), the class still numbers 538. (Id., § 3.04(e).) Does the class actually number 355 rather than 53...

Excerpt: ...tion #5 and 46 do not exist. The Declaration of Darren Ashby, defendant's employee, admits in ¶7 that plaintiff's fitness machine was designed to shut down if it detected a “rogue” signal from the customer's Wi-Fi system. This fact creates a triable issue as to whether defendant violated Civil Code §1770(a)(5) by representing that defendant's goods had characteristics, uses or benefits that they did not have when defendant advertised that t...

Excerpt: ...vil Procedure section 437c, subdivision (d) requires that the parties set forth admissible evidence, though any objections based on failure to comply with this subdivision if not made at hearing are deemed waived. (Code Civ. Proc., § 437c(d).) A Plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto...

Excerpt: ...ed Complaint adding a PAGA claim (Labor Code § 2699). On May 9, 2017, Plaintiff requested dismissal of both her class and individual claims, without prejudice. Both requests were granted and Plaintiff was left with her PAGA claim only. Defendant now moves for summary judgment, asserting that because she dismissed her individual claims, Plaintiff is without standing to pursue the PAGA claims. The motion raises a single, legal issue: If a plaintif...

Excerpt: ..., Defendant American Multifamily, Inc. (“AMF”) has demonstrated the existence of a written arbitration agreement and that Plaintiff HMS Drywall and Painting, LLC (“HMS”) has refused to arbitrate by commencing this action in court. (See Hyundai Amco America, Inc. v. S3H, Inc.(2014) 232 Cal.App.4th 572, 577.) The arbitration agreement is contained in the “Subcontract” between AMF and HMS, dated November 8, 2017. (Kim Decl.; Ex. A.) The ...

Excerpt: ...tle holder of the vehicle, was present at the inspection site and had consented to the inspection prior to July 8, 2019. (Hansen Decl., ¶ 21.) Plaintiff contends the inspection was cancelled because of a misunderstanding regarding whether the keys to the vehicle were available. (Pastore Decl., ¶¶ 9-11, and 13, Exh. 3.) Plaintiff offered no explanation as to why Plaintiff's counsel cancelled the inspection without confirming the keys were not a...

Excerpt: ...�[a] motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Id. at 318). Although technically different than a motion to expunge lis pendens, as explained by the Howard court, the applicable standards are the same: “The inquiry upon such motion is likewise lim...

Excerpt: ...scription information from another source. However, insofar as Defendants seek to prevent Plaintiffs from seeking information about Ms. Callaway's alleged use of pain- killing narcotics through other means (i.e., at her upcoming deposition), the Court declines to rule at this time. GROUNDS FOR RULING I. Factual Background This legal malpractice action centers on legal advice Ms. Callaway provided concerning the structuring of Plaintiffs' direct c...

Excerpt: ... a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” The request is denied. To support punitive damages, the Complaint must allege facts of Defendant's oppression, fraud, or malice. (Civ. Code § 3294(a).) “Malice” is defined as conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful an...

Excerpt: ... subject of the action, and tending to render the judgment ineffectual.” CCP § 526(a)(3). “[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” White v. Davis (2003) 30 Cal.4th 528, 554,...

Excerpt: ...ability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the property  defendant's wrongful detention  defendant's reason for possession, i.e...

Excerpt: ...otion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1165. An act in furtherance of a person's right of petition or free speech under the United States or Ca...

Excerpt: ...tained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a de...

Excerpt: ...ing evidence that the defendant has been guilty of oppression, fraud, or malice, as those terms are defined in subdivision (c) of the Code section. Both “malice” and “oppression” require either an intent to injure, or evidence of “despicable conduct.” Id. at subds.(c)(1) & (2). Regarding “fraud,” Plaintiff must allege “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the int...

Excerpt: ...eclared that “trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.” See Adams v. Paul (1995) 11 Cal.4th 583, 593 (quoted in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1211). Defendants' contention is that the appeal of the underlying judgment in this case could either substantially impact or moot altogether the claims made by Plaintiffs in this case. Plain...

Excerpt: ...roduction of three categories of documents:  all documents and records pertaining to plaintiff's application for employment, employment, and separation from employment, including employment applications, resumes, letters of reference, interview notes, background checks, offers of employment, employment agreements, personnel file, performance evaluations, documents pertaining to performance, documents pertaining to discipline, incident reports,...

Excerpt: ...e. The responses comply with the requirements of Code of Civil Procedure section 2033.220, Subdivision (c). The plaintiff complains that the defendants or their attorney had access to information (such as the CHP Report) that was readily available and intentionally chose not to use it before responding. But a court cannot order a further response to a request for admission that has been unqualifiedly denied, even if the facts involved are unquest...

Excerpt: ...on to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.2000) 207 F.3d 1126, 1130.) “The United States Supre...

Excerpt: ... the CDC's website about preventing construction falls. The court overrules Plaintiffs' objection nos. 1-29 to RDO's evidence. The court sustains objection nos. 1, 2, 4-7, 9-18 to the Declaration of Brad Avrit and overrules objection nos. 3, 8, The Privette v. Superior Court (1993) 5 Cal.4th 689 line of cases modifies the general tort rules under Civil Code section 1714. Plaintiffs' argument that a duty of care exists under Biakanja v. Irving (19...

Excerpt: ...nce to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion mus...

Excerpt: ... trial, and set a new trial date of 12/02/19. While the Court kept the present motion on calendar, it ordered the parties to meet and confer regarding the outstanding discovery issues. It is unclear as yet whether such efforts have been undertaken by the parties, but as a practical matter, such efforts would go a long way to resolving the issues presented by this motion. The Court addresses the substance of the motion nonetheless. The motion conc...

Excerpt: ...ainer judgment was never ruled upon by the Court of Appeal, or any other court. In general, void judgments, as opposed to merely erroneous ones, are subject to collateral attack at any time, and do not have res judicata effect. Moffat v. Moffat, 27 Cal.3d 645, 654 (1980). However, if the validity of the judgment claimed to be void has been litigated and determined, that determination is res judicata as to any subsequent proceeding attacking it. G...

Excerpt: ... for the submission of falsified evidence by their attorney, Omar J. Yassin; (2) Disqualify Yassin as Defendants' counsel; and (3) Compel on-site inspection is DENIED. Defendants Pacific Los Alisos, LLC; Elaine Voechting; and Ben Lopez's Evidentiary Objection to “Statement of Manjula Sridhar” is SUSTAINED. Discovery sanctions against Defendants: Plaintiffs seek to impose discovery sanctions against Defendants for: (1) producing an allegedly f...

Excerpt: ...om translating a document presented to the court. Mr. Denis is qualified to translate. He has also stated under oath that his translations are true and accurate. (Supp. Denis Decl., ¶¶ 4-5; see also Certificates of Translation.) Mr. Denis's potential bias does not bar the evidence but rather goes to the weight of it. “The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a wel...

Excerpt: ...ct or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Moving Cross-Defendants contend that any representation of the Cross-Complainan...

Excerpt: ...rranty of Habitability and Fifth Cause of Action for Constructive Eviction is OVERRULED. The demurrer to the Fourth Cause of Action for Nuisance is SUSTAINED with 20 days leave to amend. Breach of Implied Warranty of Habitability: The elements of the cause of action for breach of the implied warranty of habitability are: (i) a material defective condition affecting habitability of the premises; (ii) notice to the landlord within a reasonable time...

Excerpt: ...factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferr...

Excerpt: ...dicial review of an arbitration award is extremely limited. Singerlewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 615. An arbitrator's decision is not reviewable for errors of fact or law, regardless of whether such error appears on the face of the award and causes substantial injustice to the parties. Id. at pp. 615-616. Parties who enter into arbitration agreements are presumed to know the arbitrator's decision will be final and binding. Id. a...

Excerpt: ...ndar cannot accommodate eight unscheduled motions on its August 29, 2019 law and motion calendar. Accordingly, as the court did with Defendant's prior similar motion, see 07/18/19 Order, the court will construe Defendant's motion as a motion to compel compliance with its subpoena to one of the nine subpoenas, i.e., the subpoena to US Healthworks Medical Center. Defendant's motion to compel compliance with the eight other subpoenas listed in Defen...

Excerpt: ...y on 4/6/18 when she was involved in an accident. Defendant John Roe was the first officer on the scene following the accident. While Roe was investigating the accident, he sexually assaulted the Plaintiff, groping her breasts and buttocks. It is alleged that Defendant CHP negligently hired, trained, and supervised Roe, and that it was aware of prior incidents by Roe sexually assaulting women in the course and scope of his job as a patrol officer...

Excerpt: ... barred by the doctrine of primary assumption of risk. 3. Plaintiff's First Cause of Action is meritless as Plaintiff cannot establish all of the essential elements of this cause of action, specifically the element of the existence of a dangerous condition of public property. 4. Plaintiff's First Cause of Action is meritless as Plaintiff cannot establish all of the essential elements of this cause of action, specifically the element of the Distri...

Excerpt: ...ian has prescribed a stair-lift device, which MP is informed and believes costs about $15,000.00. (Id.) MP does not have the means to purchase the chair lift without assistance. (Id.) MP also has numerous health issues which are significant based on her age. These include hearing loss, memory impairment, numbness in extremity, back pain, joint swelling, knee problems, leg pain, lower back pain, hypertension, arthritis, anemia, and shortness of br...

Excerpt: ...ract, (2) fraud, and (3) accounting. On October 3, 2018, the court granted defendant's motion to compel arbitration and ordered the parties to meet and confer in an effort to agree on an arbitrator. On November 13, 2018, the court appointed the Hon. Mary Fingal Schulte (Ret.) as the arbitrator over the subject controversy, pursuant to the parties' stipulation. An ADR review hearing is currently scheduled at the same time as the hearing on this ma...

Excerpt: ...ith Robert E. Zuckerman to develop residential units on the property. Zuckerman formed San Jacinto Z, LLC (“SJZ”) to handle the development. In Dec. 2003, SJZ acquired the property from Saba and Grantham, which led to a series of lawsuits. Attorneys Saba and Grantham agreed to provide SJZ with legal services to resolve title and lien issues concerning SJZ's property. According to Saba, in July 2005 he and Grantham withdrew from their represen...

Excerpt: ...be established or there is a complete defense. (Code Civ. Proc., § 437c(a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Code Civ. Proc., § 437c(p)(2); Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) In the context of medical malpractice, “[w]hen a defendant moves for summary ju...

Excerpt: ...ermissively used, entrusted, or maintained the Yukon. (UMF 13.) Further, Plaintiff acknowledges that direct liability is not an issue in this case. An offshoot of the doctrine of respondeat superior is the so-called “going and coming rule.” Under this rule, the employment relationship is suspended from the time employees leave their jobs until they return, on the theory that during normal commutes, employees are not rendering services directl...

Excerpt: ...learly allege facts regarding Defendants' conduct that would support a claim for punitive damages. For example, Plaintiff alleges Defendants, knowing risks existed to Plaintiff, “denied or withheld services to LEONARDI” which would have protected him. See FAC ¶32. However, the FAC does not alleges what services were denied or withheld that would have protected him from the harm he allegedly suffered. Similarly, while Plaintiff alleges Defend...

Excerpt: ...et and confer declaration, but no comparable requirement exists for a motion to quash. (C.C.P. § 1985.3(g).) On the merits, as the subpoena seeks financial records and information, privacy rights are at issue. (See Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481 [“there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account i...

Excerpt: ...of Defendant's Motion for Summary Judgment contain confidential information, much of which is protected by Government Code § 6254, which is an overriding interest that will be prejudiced if the requested relief is not granted, and which overcomes the right of public access to the records and supports sealing the records. (CRC 2.550(d)(1)-(3).) The court further finds that the sealing of these records is narrowly tailored and that no less restric...

Excerpt: ...papers with the Court on August 6th but there is no proof of service of those documents. The Court is therefore continuing the hearing of the Motion with the following directions to counsel. Failure to adhere to these directions may result in the Court's denial of this Motion without prejudice. The hearing is CONTINUED to September 30, 2019 at 2:00 pm in this department. By Friday August 30, attorney Greer shall send (or re-send) to Mr. Darling c...

Excerpt: ... 1 to 12: Overruled. Pretext: “Once an employer has offered a legitimate, nondiscriminatory reason for the adverse employment action, a ‘plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.'” Moore v. Regents of Univer...

Excerpt: ...and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Defendant has met his initial burden on the cause of action for professional negligence through the declaration of Amandeep Bhalla, M.D., which establishes that Defendant's care and treatment of Plaintiff was within the requisite st...

Excerpt: ... and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaint...

Excerpt: ... penalized for invoking their Fifth Amendment right against self-incrimination. (See Pacers, Inc. v. Super. Ct. (1984) 162 Cal.App.3d 686, 689.) A stay, however, is not mandated or even presumptively required. (See, e.g., Avant! Corp. v. Super. Ct. (2007) 79 Cal.App.4th 876, 884.) Here, Defendant Carlson wholly failed to meet her burden to show any parallel criminal proceeding. To the extent Defendant's motion is based on the possibility of a cri...

Excerpt: ... 570 hours, a reasonable rate for which would be $500 per hour. That makes a subtotal of $285,000. To this, the court add a 33% multiplier of $94,050. Plaintiff's counsel persevered through the death of his client, a defense verdict on the first trial, an appeal, and the loss of witnesses and evidence over many years. The total award is thus $379,050, which reflects an objectively reasonable award for the work in this case. (See PLCM Group v. Dre...

Excerpt: ...l fails to state facts sufficient to constitute this cause of action. It still fails “‘to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property'”].) (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) At best and putting aside contrary allegations, the SAC alleges defendants intentionally left their gate open. (See SAC ¶¶ 30- 37...

Excerpt: ... Casualty Co. (1987) 189 Cal. App. 3d 1102, 1110.) The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact an...

Excerpt: ...ution or the recording of an assignment of the deed of trust, “that gap does not alter the legal fact that the deed of trust and the right to foreclose [is], as a matter of law, transferred along with the note”. (Yudhai v. IMPAC Funding Corp.(2016) 1 Cal.App.5th 1252, 1260 n.6.) In addition, an assignment of a deed of trust does not have to be recorded. (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122; see also Haynes v. EMC Mort...

Excerpt: ...dren and families are known to cross and/or play.” These allegations adequately plead despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1213.) Defendant shall give notice. ...

Excerpt: ...vided no evidence that its Board of Directors compli (Id.) Article VI required that plans and specifications s h location be submitted to and approved in writing by th e Decl., ¶ 5, Ex. 2, Art. VI.) The court also found that Pl a law and that the interim harm from the issuance or no n burdens Plaintiff and Defendant equally. (ROA No. 44, 4 The Association has now complied with CC&R Article V I H-I.) The Association has also submitted evidence th...

Excerpt: ...cational Nurses from October 18, 2014 to March 31, 2017. Plaintiff's Motion for Summary Adjudication of Issues is denied in part as to Issue No. 1, in that Labor Code §514 exempts defendants from California's overtime requirements for Registered Nurses from January 1, 2015 to the present, and for Licensed Vocational Nurses from April 1, 2017 to the present, and is granted in part as to Issue No. 1 in that Labor Code §514 does not exempt defenda...

Excerpt: ...ious order as well as what new or different facts, circumstances or law are claimed to be shown. Plaintiffs' Notice of Motion also fails to comply with CRC Rule 3.110 and state the grounds on which this motion is brought. Putting aside the technicalities of a motion for reconsideration, there is still ample justification for the sanctions award. Plaintiffs now contend that defendant Arther Masaoka was in jail from March to June 2019. But the subj...

Excerpt: ...4 to be considered at the same time as Defendant Ford's motion to tax costs. Evidentiary Objections I. Plaintiffs' Objections Plaintiffs have filed six objections to the Declaration of Daniell K. Newman. Objection No. 1 is SUSTAINED on relevance, foundation and hearsay grounds and OVERRULED on all other grounds. The Court has not considered Exhibit 1 to the Newman Declaration in ruling upon this motion. Objections No. 2-6 are OVERRULED. II. Ford'...

Excerpt: ...s the prevailing party. The Logans did not dispute this finding. Statutory Right to Attorney Fees: Civ. Code, § 5975 (c) provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Under Civ. Code, § 1717, attorney fees are also recoverable. The Logans did not dispute that attorney fees were recoverable. Lodestar Calculation of Attorney Fees: Civ. Code, § 5975 (c)...

Excerpt: ...n person or by telephone”].) As the meet and confer declarations by defendants Abhari and Menke appear sufficient, the court exercises its discretion to rule on the merits of all the motions. The demurrers by defendants Mahdavi, Abhari, Rahgoshay, and Menke, to plaintiff's first amended complaint are sustained, with leave to amend, based on failure to state facts sufficient to constitute a cause of action and uncertainty. (CCP 430.10(e), (f).) ...

Excerpt: ...trictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty sho...

Excerpt: ... failed to exhaust administrative remedies as to Supercuts. Evidentiary Issues I. Defendants' Request for Judicial Notice Defendants seek judicial notice of Plaintiffs' LWDA letters. (RJN, Exs. A-B.) The basis for this request is CCP § 452(c), which permits judicial notice of “official acts” of a government agency. While Plaintiffs' letters to the LWDA may no doubt found in the LWDA's files, they are not “acts” of the LWDA. However, as P...

Excerpt: ...hts ‘only by judicial process, of who has the right to possession, orderly procedure a require that the actual possession shall not be disturbe process.'” Spinks v. Equity Residential Briarwood Apar t 1004, 1038. Plaintiff has adequately alleged that Defe n Second Cause of Action for Intentional infliction o to allege Intentional Infliction of Emotional Distress, D e outrageously. ‘Conduct to be outrageous must be so e x that usually tolera...

Excerpt: ...endant argues that the first six causes of action – Intentional Misrepresentati o Misrepresentation of Fact, Violation of Corporations Code § 25401, Violation of P e NIED.— are time-barred. The first two causes of action are for misrepresentation, to which a three year st a Civ. Proc. § 338(d).) For the third cause of action for violation of Corporations C o limitations is “five years after the act or transaction constituting the violatio...

Excerpt: ...omplaint was untimely when filed on 05/10/19 (albeit by one day). Additionally, Plaintiff argues that the Cross-Complaint is inconsistent with Khalili's previous contention that Plaintiff is not the successor-in-interest to the decedent, Tony Steed. At the outset, the Court presumes that Plaintiff seeks to strike the entirety of the Cross-Complaint because Plaintiff has not, in the notice of motion, “quoted in full [any] portions” of the Cros...

Excerpt: ...larly, Objection No. 2 to the Declaration of Michael Overturf is SUSTAINED, for lack of foundation. Mr. Melendes offers insufficient foundation to testify to the conduct of all Maranatha employees, at the Del Amo Project site: While Mr. Melendes declares he is the “individual principally involved on behalf of Maranatha….regarding the Del Amo Motorsports project,” as noted by Plaintiff, he does not declare that he managed the work performed,...

Excerpt: ...event involves an additional egregious component— ‘oppression, fraud, or malice.' (Civ.Code, § 3294, subd. (a).)” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712. “[T]he Legislature has made it more difficult for plaintiffs to plead and prove such claims,” (id. at p. 712) including by amending section 3294 in 1987 “by increasing the plaintiff's burden of proving punitive damages at trial to ‘clear and convincing ...

Excerpt: ...ual statements within the review, and the defendant failed to take down the entire review when asked to do so. First prong It appears the subject matter meets the first prong of the anti- SLAPP test: the submitting of a Yelp review is clearly in furtherance of a party's First Amendment right. (Code Civ. Proc., § 425.16, subd. (b)(1).) Second Prong The critical issue appears to be whether the plaintiff—a for- profit, post-secondary school—is ...

Excerpt: ...lel criminal proceeding should be made 'in light of the particular circumstances and competing interests involved in the case.' This means the decisionmaker should consider 'the extent to which the defendant's fifth amendment rights are implicated.' In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and ...

Excerpt: ...nt History This action was commenced on 07/19/18. Discovery ensued. On 11/29/18, defendant tendered to plaintiffs checks totaling just over $122,000.00. According to defendant, these checks were intended to cover all of the claims in the case except meal and rest breaks. See Pinedo Decl Para 3-4, 10. The cover letter accompanying the checks confirmed as much: “the totals for each [check] represent the full amount of back wages … [defendant] B...

Excerpt: ....4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimon...

Excerpt: ...im has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. I...

Excerpt: ...ter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 C...

Excerpt: ...., goods sold, work done, etc., and (3) nonpayment.'” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460. To state a cause of action for money had and received, Plaintiff must allege Defendants “are indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.'” Id. “Th[e] common count [of money had and received] is available in a great variety of situations and lie...

Excerpt: ...wife, Martha Ward, must be added as a defendant, and has agreed to do so. Therefore, any demurrers based upon her status as an indispensable party are MOOT. Further, the Court finds the demurrers to the First and Section Causes of Action based on the Statute of Frauds to be procedurally improper. “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any por...

Excerpt: ... of action for breach of fiduciary duty without leave to amend. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) The inten...

Excerpt: ... action is for breach of fiduciary duty and is brought by individual Plaintiffs Michael Alladawi and Nour Khedraki against moving Defendants John Warren and Barbara Milbert and several Co-Defendants. The moving Defendants contend that this cause of action is defective because there are no facts showing that they owed a fiduciary duty to these Plaintiffs or that they breached one. Before a person can be charged with a fiduciary obligation, he or s...

Excerpt: ... attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Ca...

Excerpt: ... Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the su...

Excerpt: ...nts relating thereto). Pursuant to CCP §§ 435 and 436, a party may move for an order striking from a pleading “any irrelevant, false or improper matter” or “any part of any pleading not drawn in conformity” with laws, rules or orders. The motion is to be used sparingly, not as a line item veto. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683. Defendant contends that the prayer for punitive damages is improper and not draw...

Excerpt: ...juries. Plaintiffs filed their complaint against Defendant Elizabeth Hernandez on 8/28/18, alleging causes of action for: (1) Negligence; and (2) Loss of Consortium. On 12/28/18, Plaintiffs amended their complaint to name Vanessa Reece Hernandez as DOE Defendant 1. Plaintiffs filed a First Amended Complaint on 5/16/19 against Defendant Elizabeth Hernandez, alleging causes of action for: (1) Negligence; and (2) Loss of Consortium. The FAC is the o...

Excerpt: ...t he was sexually harassed and molested by defendant Bruce, a former teacher who was employed by defendant AUHSD, during 2009-2011 while plaintiff was a middle school student. Both defendants have answered. On 1/10/19, the court granted defendant AUHSD's motion for summary adjudication as to the 3 rd C/A for sexual harassment. On 3/13/19, the court denied without prejudice plaintiff's motion for leave to file an amended complaint to substitute as...

Excerpt: ... on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. In this regard the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff ….” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, “[t]aking judicial notice of a document is not the same as accepting the truth of its contents or acce...

Excerpt: ... the arbitration clause is unenforceable, because of the conflict of interest that existed between defendants and Dr. Howard. Plaintiff does not contend the arbitration provision itself is invalid. Therefore, the preliminary issue is to determine who decides, the arbitrator or the court, whether the engagement agreements are valid and enforceable. Jurisdiction and Arbitrability: “The issue of who should decide arbitrability turns on what the pa...

Excerpt: ...nfidential mediations materials and any documents and evidence derived from such materials, including but not limited to, the Association's Confidential Mediation Brief, Enforcement Mediation Brief and attached exhibits, which were identified and marked as Exhibit 27 to Rennert's 2018 deposition transcript, Rennert's Mediation Brief and attached exhibits, the Memorandum of Understanding between the Association and Rennert, and the transcripts of ...

Excerpt: ...aper may not be rejected for filing on the ground it was untimely submitted for filing, the court, in its discretion, may refuse to consider a late filed paper. (California Rules of Court (“CRC”), Rule 3.1300(d).) The opposition papers were filed and served two days late. The opposition papers were due by 7-23-19, but were filed and served on 7-25-19. The trial court has broad discretion under California Rules of Court, Rule 3.1300(d) to refu...

Excerpt: ...have 15 days leave to amend. Specific to a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the c...

Excerpt: ...of Civil Code §§ 51.9 and 52, which are part of California's Unruh Act. As indicated in the Court's prior ruling on the demurrer to the original complaint, even if the Court were to rule that a public school is a “business establishment” subject to the Unruh Act, the Complaint does not allege a “business, service, or professional relationship” sufficient to establish a claim under Section 51.9. Section 51.9 provides that “A person is ...

Excerpt: ...he punitive damages alleged as to both causes of action. For the reasons set forth below, the Demurrer is OVERRULED and the Motion to Strike is DENIED. Michael is ordered to answer the FAXC within ten days. The Court grants Michael's unopposed Request for Judicial Notice of court documents pursuant to Evidence Code §452(d). 1. Breach of Fiduciary Duty and Punitive Damages Mark's FAXC alleges that Michael breached fiduciary duties owed to him by ...

Excerpt: ...rule, and (3) the lack of any duty owed by Defendants. The Sham Pleading Doctrine: Under the sham pleading doctrine, a plaintiff may not avoid a subsequent demurrer or summary judgment by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts that prove the pleaded facts false, without explanation. (Womack v. Lovell (2015) 237 Cal.App.4th 772, 787; McClain v. Octagon...

Excerpt: ...st, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538. (Emphasis added). Adequate Allegations: “Whether a party i...

Excerpt: ..., FSB (2010) 185 Cal.App.4th 1018, 1023; accord Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The SAC also fails to state facts sufficient to constitute this cause of action. It fails to allege “conduct that is so outrageous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does it allege “emotional distress of s...

Excerpt: ...v. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851; see also Def. SSUF ¶¶ 24, 29, 33, 37.) But plaintiff met his shifted burden to show triable issues of material fact. (See Aguilar, supra, 25 Cal.4th at pp. 849-850; Code Civ. Proc., § 437c, subd. (p)(1); see also Pl. SSUF ¶¶ 24, 29, 33, 37.) Issue #2, General Negligence. By challenging this claim as duplicative of the professional negligence cl...

Excerpt: ...f material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437...

Excerpt: ...atement five (5) court days prior to the hearing. Public Policy: “The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief . . . .” Lasalle v. Vogel(2019) 36 Cal.App.5th 127, 134. (Emphasis original). C.C.P. § 473 (b) provides that “The court may, upon any terms as may be just, relieve a party or his or her legal represen...

Excerpt: ...lose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892; see Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 86 & 90 (Claim for punitive sufficiently pled by alleging individual was intoxicated, zigzagging in and out of traffic at a speed of more than 65 miles per hour in a 35 mile per hour zone in an area densely populated with pedestrians.); Peterson v. Superior Court (1982) 31...

Excerpt: ...32 et seq. Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. Code Civ. Proc. § 1032(b). The Court finds that Moorefield is the prevailing party on Simon's Cross-Complaint. There is no dispute Moorefield was dismissed from the Cross-Complaint by Simon. The plain language of Code Civ. Proc., § 1032 applies: “'Prevailing party' includes…a defendant in whose favor a dismissal...

Excerpt: ...ture. The amount is explained in the Memorandum of Costs, and includes an IME, record review, and trial testimony. Defendant's showing is sufficient and the motion to tax costs is denied. The prevailing party in any civil action is entitled to recover costs as a matter of right. CCP §1032. To claim those costs, the prevailing party must file and serve a memorandum of costs within 15 days from the date the clerk (or any party) mails out notice of...

Excerpt: ...ll have 15 days leave to amend. Second Cause of Action for Breach of Contract The elements for a breach of contract are: (i) the existence of a contract; (ii) plaintiff's performance or excuse for nonperformance; (iii) defendant's breach; and (iv) resulting damage to plaintiff. (See First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a...

Excerpt: ...e are not described. 2. There is insufficient information to evaluate whether there were substantial common questions for class certification. The alleged non-compliant policies are not described (see above) nor is the manner of defendant's allegedly illegal conduct described. 3. The class release appears to be extremely broad, releasing claims that go beyond those alleged in this case. While the named plaintiff may freely release her own claims,...

Excerpt: ...2019, trial in the matter had been set for November 4, 2019. Accordingly, leave of court is required to bring a Cross-Complaint against third parties Tony Cedeno and Century 21 Peak. (Code Civ. Proc., §§ 428.5(b) and (c).) Leave of court is not required for Defendants/Cross- Complainants to file the Cross-Complaint against Plaintiff. Defendants/Cross-Complainants filed the Cross-Complaint at the same time they filed their Answer to Plaintiff's ...