Excerpt: ...1320(j).) Defendant Fountain Valley Regional Hospital and Medical Center (Defendant Hospital ) demurs to the 1st Cause of Action for Elder Abuse of the First Amended Complaint (FAC) filed by Plaintiff Maria Guadalupe Torres. Standard for Demurrer In ruling on a demurrer, a court must accept as true all allegations of fact contained in the compla int. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of...

Excerpt: ...e § 430.10(e) and (f).) “To state a cause of action for breach of contract, a party must plead the existen ce of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body o f the complaint or a copy of the written agreement must be attached and incorpo...

Excerpt: ...Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the second cause o f action for negligent infliction of emotional distress on the grounds the cause of action is uncertain and does not plead facts sufficient to state a cause of action. To plead negligent infliction of emotional distress (“NIED”), Plaintiffs must plead 1) the defendant was negligent, 2) the Plaintiff suffered serious emotional distress, and 3) Defendant's negl...

Excerpt: ...the defendant's breach and resulting damage.” (Harris v. Rudin, R ichman & Appel (1999) 74 Cal.App.4th 299, 307.) Per the complaint, the parties entered into a Reseller Agreement on January 1, 2019 (Comp. ¶10 & Exhibit 1), which was amended on August 26, 2019 (Comp. ¶17 & Exhibit 1 -A) and again on November 4, 2021 (Com p. ¶18 & Exhibit 1 -B). The complaint includes several allegations of alleged breaches. (Comp. ¶¶39 -49.) Defendant, in t...

Excerpt: ... to state facts sufficient to constitute the claims. UPCOMING EV ENTS: Status Conference – May 14, 2024 FACTS/OVERVIEW: This is a putative class action for alleged violations of California's consumer protection laws. On May 30, 2019, Plaintiffs Joe Maldonado, Alfredo Mendez, J. Peter Tuma, Jonabette Michelle Tuma, and R oberto Mateos Salmeron, individually and on behalf of all others similarly situated (“Plaintiffs”), filed a Complaint aga...

Excerpt: ... Summary Adjudication of Issues. The motion concerns the follo wing three issues: • No. 1: Whether Defendant ROSAURA DE KUYPER (“Defendant”) breached her fiduciary duties to Plaintiff. • No. 2: Whether Defendant breached her duty of loyalty to Plaintiff. • No. 3: Whether there is no merit to Defendant's third affirma tive defense for failure to mitigate. “‘The elements of a claim for breach of fiduciary duty are (1) the existence ...

Excerpt: ...o v. Owens -Corning Fiberglas C orp. (1971) 22 Cal.App.3d 116, 124 -125 [property right required]; Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 67 [lodger has no property right]; see also Compl. Ex. A [hotel receipt].) On the other hand, defendants have not shown plaintiff can not assert a public nuisance. Plaintiff adequately “alleges facts showing special injury to himself in person . . . of a character different in kind from that ...

Excerpt: ...excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) The FAC sufficiently alleges the elements of a breach of contract claim. The demurrer to the first cause of action is OVERRULED. Second, Third and Fourth Cause of A ction - Breach of Oral Contract: Commercial Code section 2201(1) states: “Except as otherwise provided i...

Excerpt: ...rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 5 38 (Weitzman).) The term “qui tam” comes from the Latin expression “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means, “'who pursues this action on our Lord the King's behalf as well as his own'.” (Ibid.) The Insurance Fraud s Prevention Act (IFPA) was enacted in 1993 to combat workers' compensation fraud. (People ex rel. State ...

Excerpt: ...ed Complaint (“TAC”). The BT Defendants' main arguments for each cause of action is that they owed no duty to the decedent, they did not provide alcohol at the event, they did not have constructive knowledge that alcohol was being served at the event, they were not present at the event, and they did not manage or supervise the event. The court disagrees with the BT Defendants that, at this pleading stage, the court can determine that the BT D...

Excerpt: ...thin 10 days after service upon the party of written notice of entry of the order.” (Code Civ. Proc., § 1008, subd. (a).) Defendant gave written notice of the court's ruling on defendant's motion for summary judgment on 7 -14 -23. (ROA No. 127.) The instant Motion was filed on 8 -14 -23, more than 10 days after Defen dant gave notice of the court's ruling. (ROA No. 148.) Even if the court were to find the motion timely, the court no longer h...

Excerpt: ...les of Court, rule 3.1345(a)(7).) Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, inc...

Excerpt: ...t for 4/8/24. The Petition appears to have been prompted by the prior c ourt's ruling on a motion for judgment on the pleadings as to the Third Amended Complaint (“TAC”), a ruling issued on 12/1/23. The court granted the motion as to the second cause of action for negligence, finding that Plaintiffs failed to comply with Code of Civil Procedure section 425.15 and stating the following: “Code of Civil Procedure section 425.15 applies becaus...

Excerpt: ...he court did not consider this document. Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie show...

Excerpt: ... is taxed in the total amount of $41,089.46, as further discussed b e l ow. Pl aintiff's remaining costs in the total amount of $115,732.31 are granted against defendant Regents only. Plaintiff's 998 offer Plaintiff's Code of Civil Procedure section 998 (section 998) offer to compromise (998 offer) served on Regents on 8/18/17 was valid and effective. The fact that plaintiff obtained a more favorable judgment than his 998 offer is prima facie evi...

Excerpt: ...urden to show any challenged cause of action has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 -851 [same].) Defendant has “the burden to show that it [is] entitled to judgment with respect to all theories of liability asserted by ” plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717; accord Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [m...

Excerpt: ...efendants' expert witness Carl Mellinger (ROA 334) are OVERRULED. Plaintiff's objections to the declaration of Defendants' expert witness Harvey Kreitenberg (ROA 335) are OVERRULED. Plaintiff's objections to the declaration of Defendant Freitas (ROA 336) are OVERRULED. Defendants' objections to the declaratio n of Plaintiff Chang (ROA 344) are SUSTAINED as to objection no. 10 (hearsay) and OVERRULED as to the remaining objections. Defendants' obj...

Excerpt: ...ove for an order compelling the deponent's attendance and testimony at deposition. The motion must be accompanied by a declaration under Code of Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Code of Civil Procedure section 2025.410, subdivision (b) provides in part that any deposition taken after the service of a written objec...

Excerpt: ...aud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Punitive damages cannot be pled in conclusory ...

Excerpt: ...in civil actions.'” (Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 737 –738.) Specifically, in a ctions to enforce the governing documents of a common interest development such as covenants, conditions and restrictions ("CC&Rs"), Civil Code section 5975, subdivision (c) provides that “the prevailing party shall be awarded reasonable attorney's fees and costs.” Code of Civil Procedure section 1032, subdivision (b), ...

Excerpt: ... Complaint filed by Plaintiff JOSE MARTINEZ -DURAN (“Plaintiff” ). The Alternative Motion for Summary Adjudication of Issues is therefore MOOT. The Complaint contains 10 causes of action related to alleged discrimination and unpaid wages by Defendant, Plaintiff's former employer. After showing that Plaintiff faile d to comply with multiple court orders concerning discovery and finding that Plaintiff was not likely to comply with the discove...

Excerpt: ...se to a request for reasonable accommodation by an employee or app licant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perfo rm his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the fai...

Excerpt: ... defendants filed the instant motion for reconsider ation which is largely the same as the papers filed on 10/18/23. Defective Service of Motion The Proof of Service attached to the motion fails to comply with CCP § 1013b. The proof of service for the motion does not list the electronic service address of the person making the electronic service. Instead, only the business physical address and not the email or electronic service address is pro...

Excerpt: ...ot state the three declarations were served on the LWDA. Was the Orde r Granting Preliminary Approval (ROA 114) served on the LWDA? See ROA 125. Plaintiff must file a proof of service reflecting service of the declarations and the Order Granting Preliminary Approval on the LWDA. 2. How many class members are there? The Is las Declaration (ROA 128, ¶ 13) states there are 1,360 class members. The motion (ROA 127) states in one place there are 1,...

Excerpt: ...e of damages is required for default judgment]; see also ROA No. 356 –Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 108, fn. 15.) Even if plaintiff had complied with the for egoing requirements, the request for default judgment would still be denied because the operative first amended complaint (FAC)...

Excerpt: ...1. All demurrers to the first amended complaint based on Civil Procedure Code section 583.210 are overruled; 2. Lake's demurrer to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 is overruled; 3. Diamond PEO, BZ Resources, VL Best PEO aka VL PEO, and Skyhigh PEO's demurrers to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 are sustained without leave to amend; 4. Lake's demurrer to the first amended ...

Excerpt: ...l be withheld or augmented as provided in this section…[¶] (c)(1) If an off er made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer…(2)(A) In determining whe ther the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer c...

Excerpt: ... fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The reasonable hourly rate is that prevailing in the community for similar work. The lodesta r figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fe...

Excerpt: ... hearing on March 7, 2024. [ROA ## 69 & 70.] The Non- Attorney Defendants also filed a special motion to strike (antiSLAPP) to the complaint, which is set for hearing on April 18, 2024. Plaintiff filed a first amended complaint on February 14, 2024. [ROA # 98.] The court's ruling analyzes th e interplay and effect of all of these filings by the parties. Under California Code of Civil Procedure section 472: (a) A party may amend its pleading o...

Excerpt: ... the doctrine of issue preclusion, and failure to state suff icient facts. Statute of Limitations A demurrer on limitations grounds will not lie where the action may be, but is not necessarily barred: it must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily b arred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). Under California law, the statute of limitations for a fraud claim is three year...

Excerpt: ...ewise time -barred as they arise from the same contract. Defendant co ntends that Plaintiffs' counsel wrote to Defendant on October 1, 2018, outlining the claims they had against Defendant, but that the Complaint in this action was not filed until October 14, 2022, 13 days beyond the four -year statute of limitations imposed by Code of Civil Procedure section 337(a). Plaintiff has not filed an opposition. “A party may move for summary judgmen...

Excerpt: ...an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception. It is undisputed that Plaintiff was hired by Defendant to perform housekeep ing work at the subject property and that Plaintiff was a self- employed independent contractor (UMF 3, 7). In the course of completing that work, Plai...

Excerpt: ...ted protective order to the court. If the parties fa il to timely do so, the court will impose a protective order limiting the use of responses to the interrogatories in which a confidentiality/privacy right is claimed to this litigation and requiring that such information be surrendered or destroyed at the conclusion of this litigation. Upon entry of the protective order, Defendant John Marcin is ordered to serve complete, non- evasive further ...

Excerpt: ...alif. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) Defendant's separate statement fails to comply with Calif. Rules of Court, rule 3.1350(b). Rather than deny the motion outright (CCP 437c(b)(1); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875), the court el ects to treat defendant's motion as one for summary judgment only. Defendants fails to meet their initial burden to show the e...

Excerpt: ...earing shall name as respondents all parties to the arbitration, and othe rs bound by the award (Civ. Proc. Code, § 1285), and must set forth the grounds on which the request is made. (Civ. Proc. Code, § 1285.8). The petition must also set forth the substance of the arbitration agreement or have a copy attached, name the arbitra t o r, and set forth or have attached a copy of the award and the arbitrator's written opinion, if any. (Civ. Pro...

Excerpt: ...party may give notice that he or she will not appear at a law and motion hearing and submi t the matter without an appearance unless the court orders otherwise. The Court must rule on the motion as if the party had appeared.” The Court ORDERS Plaintiff's counsel to appear at the hearing on February 29, 2024. Plaintiff's counsel contends that counsel failed to appear at the May 11, 2023 order to show cause hearing where the instant action was or...

Excerpt: ...der Code of Civil Procedure section 1032. However, Defendants also seek to recover expert witness fees under Code of Civil Procedure section 998. Plaintiff contends Defendants' Code of Civil Procedure section 998 offers were unreasonable. Defendants served a 998 offer of $5,000 on 9/28/20 and a s econd 998 offer of $25,000 on 12/6/21. The second offer was served after Defendants' expert Dr. Kiester conducted an examination of Plaintiff and prepar...

Excerpt: ...(Bohrer v. County of San Diego (1980) 104 Cal.App.3d 15 5, 164 [“[a]bsent a special statute, there is no authority for the court to take judicial notice … from a governmental document to establish the cause of death”].) Defendant's Reply Separate Statement (ROA 315) is not authorized and was not considered. (Na zir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) 1st cause of action: elder abuse / neglect. Moving party has not met...

Excerpt: ...hysical and mental condition. (ROA 491, Exs. 1 -4.) Riemann here asserts that because Plaintiff had obtained trial continuances and a temporary stay on certain discovery based on neurosurgeries performed in 2022 and her subsequent recuperation requirements, these subpoenas were justified and appropriate. However, the records sought are plainly confidential records subject to substantial privacy protections. Where privacy rights are at issue in ...

Excerpt: ... to Civ. Proc. Code § 2031.310. As to relevance of d ocuments, “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the dis...

Excerpt: ...y must contain an answer with the information sought, an exercise of th e party's option to produce writings, or an objection. Each response must be “complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be ans wered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220 subd. (b).) If a tim...

Excerpt: ...�lessee,” and Norm Reeves Honda Superstore is identified as “les sor (dealer).” Below that, in a separate area, it states that, “‘Lessor' refers to the Lessor (‘Dealer') named above and Assignee,” which is identified as “Honda Lease Trust.” Pertinent here, paragraph 15 on the first page of the agreement states that “p arties agree that any unresolved disputes shall be submitted to arbitration in accordance with the Arbitrat...

Excerpt: ...Page 7 of 23 an individual, under Code of Civil Procedure section 187. Defendants contend that Mr. D'Al essio is the owner, sole member, manager, president, and alter ego of NHV and VMG; that there is a unity of ownership; that Mr. D'Alessio refers to them interchangeably with himself; that NHV and VMG have not adhered to corporate formalities for years and have been suspended multiple times during this litigation; that Mr. D'Alessio testified h...

Excerpt: ...discovery and disobeying a court order are misuses of the discovery process. (C CP § 2023.010(d) and (g).) Here, Plaintiff failed to provide further responses, produce the component parts, and pay the sanctions within 30 days as ordered by this Court. Plaintiff argues that it has since complied with the 11 -9 -23 order, however, the dec laration does not contest that Plaintiff failed to comply within the 30 days required by the order. Thus, Plai...

Excerpt: ...rees. CITA provides for “[a]ctual damages, attorney's fees, and costs, and any equitable relief that the court deems appropriate.” (Civ. Code § 1798.93(c)(5), emphasis added.) Thus, the remedies are not all in the hands of the Court. Second, MCM argues that there is no right to a jury trial on this statutory claim because the gist of the relief is equitable, as opposed to at law, comparing it to the unfair competition law and the false a...

Excerpt: ...plemental Declaration, are sealed. [ROA # 958 -967] St atement of Law “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.) “A record must not be filed under seal without a court orde r. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. ...

Excerpt: ...nwarranted or the required specification of those docume nts is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) With respect to interrogatories, the burden of showing good cause does not exist. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220 -221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure...

Excerpt: ...ections. (Jenkins Decl. ¶ 4, Ex. B.) Defen dant initiated the meet and confer process on 11/01/2023 and demanded further responses and responsive documents by Friday, 11/10/2023. (Jenkins Decl. ¶ 5, Ex. C.) One day before that deadline, Plaintiff asked for a 30 -day extension to respond. (Jenkins De cl. ¶ 6, Ex. D.) Defendant compromised by offering an extension to Monday 11/13/2023 —effectively a one- court- day extension. (Jenkins Decl. ¶...

Excerpt: ...tiff filed a separate statement in support of its reply. There is no provision in CCP se ction 437c for a reply separate statement. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) The Court declines to consider Plaintiff's reply separate statement. Plaintiff's objections to Role's Declaration are overruled. Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings dete...

Excerpt: ...t are legitimately in dispute and pertinent to the di sposition of the summary judgment motion. (Reid v. Google, Inc.  (2010) 50 Cal.4th 512, 532 -533; accord, Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 20 -21.) Standard for Summary Judgment “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties ' pleadings in order to determine whether, despite their allegations, t...