Excerpt: ...�It is well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) 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.4th 1395, 1404-05.) A demurrer is l...

Excerpt: ...of the amended complaint … on grounds that could have been raised by demurrer to the earlier version of the complaint….” This demurrer, however, is the first demurrer filed by Defendant Todd Spitzer. Further, Plaintiff previously agreed to amend his complaint in response to Defendant's efforts to meet and confer in anticipation of filing a demurrer. The Court declines to overrule the demurrer on this basis. Second Cause of Action for Violat...

Excerpt: ...tion of pharmaceutical drug rebates. Briefly stated, Ensign, acting as an agent and fiduciary for the Client Facilities, entered into the contract with Empirian. Under the terms of this agreement, Empirian would negotiate rebates with drug manufacturers, deduct its commission from the rebates received, and remit what remained to Ensign, which in turn would forward the money to the Client Facilities. The parties' relationship soured, and litigatio...

Excerpt: ...well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) First Cause of Action for Breach of Fiduciary Duty of Loyalty: Code Civ. Proc., § 430.10 (g) provides that “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” “ If pla...

Excerpt: ...f Action; Newfront as to the Third, Fourth, Fifth, Ninth and Tenth Causes of Action; and, M. Tsai as to the First, Second, Sixth, Seventh, Eighth, Ninth and Tenth Causes of Action. “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inf...

Excerpt: ...bers of Wilson Choe's Advisory Team are directly responsible for any harm to Moving Cross-Defendants. (Cross-Compl. ¶¶ 48-51.) California law recognizes only two basic types of indemnity: express indemnity and equitable indemnity. [Citation.]” (Prince v. Pac. Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) The elements of a cause of action for indemnity are: (1) a showing of fault on the part of the indemnitor; and (2) resulting damages to the...

Excerpt: ...e court in which the action is brought. (Code Civ. Proc., § 484.010.) To obtain an RTAO, the plaintiff has the burden of proving: (1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particu...

Excerpt: ...h of Contract With respect to the first cause of action, Cross-Complainants allege that their subcontract with Cross-Defendant included a provision requiring Cross-Defendant to indemnify and hold harmless Cross-Complainants from claims, liabilities, etc. arising out of Cross-Defendant's work. (CC, at ¶¶ 17-18.) Cross-Complainants further allege that Cross-Defendant's contract with Aerotek led to an insurance claim being filed against Cross-Comp...

Excerpt: ...ration is improper, as a demurrer only addresses defects appearing on the face of the pleading, or from matters outside the pleading of which judicial notice has been properly requested. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Accordingly, there is no need to consider RP's declaration, nor moving party's (MP's) evidentiary objections thereto. Meet and confer: The moving papers each include a declaration by MP attorney attesting to a telephon...

Excerpt: ... in part as set forth below. In light of the ruling on the demurrer, Defendants' motion to strike paragraph 68 is denied as moot. Pursuant to Code of Civil Procedure section 436, the Court may: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. “The grounds for a mot...

Excerpt: ... any revised papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration simply asserting that the issues have been resolved. As to the Settlement Agreement: 1. Notice to the LWDA w...

Excerpt: ... entry of judgment, or 180 days after entry of judgment, whichever is first. Here, there has been no judgment or dismissal. None of the cases cited are directly on point. The parties did not reference any provision in their settlement agreement regarding the timing of the fee motion. Civil Code section 1794, subdivision (d) provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as pa...

Excerpt: ...ists, but the method is not defined within the statute or contract, courts will weight various factors to reach a “reasonable” amount to award as fees – commonly referred to as the lodestar. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. Courts begin with an independent review of the evidence to determine the reasonableness of the hours actually spent litigating the matter and to assess whether there was padding, over-staffing, d...

Excerpt: ...er the gross settlement amount should be increased to render the settlement fair, adequate and reasonable. Although the settlement agreement contains an escalator clause, there is no indication as to whether the escalator clause has been triggered. Since the Administrator has not disclosed the date that remailed notice packets were sent out, it is not clear whether the deadline to opt out, object in writing, or dispute workweeks has passed. Moreo...

Excerpt: ...f any revised papers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration or brief that simply asserts the issues have been resolved. Counsel must disclose whether there are any other pending class action, individual, or PAGA lawsuits, wheth...

Excerpt: ...r details to support this statement. Defendant has not laid the foundation that Dr. Klein is an expert as to the standard of care and treatment for cryotherapy. (Evid. Code, § 720; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525; Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467; McAlpine v. Norman (2020) 51 Cal.App.5th 933, 940-941.) Plaintiff's second and eighth evidentiary objections to Dr. Klein's declaration are sustai...

Excerpt: ...er possession and is thus able to comply with the Court's Order.” (1/10/22 OSC re: Contempt, Attchd. Avetoom Affdt. ¶¶ 27-30.) The record discloses that this is false. On 11/30/20—i.e., more than a year before Avetoom sought the presently pending OSC re: contempt, filed the charging affidavit in support of this OSC, and obtained the OSC—Fridman filed a document titled in part, “notice of compliance,” within which she repeatedly explai...

Excerpt: ...aption to the conditionally lodged under sealed documents, refer to California Rule of Court 2.551(b)(3), which is the procedure for a party not intending to file a motion or application to seal a record. However, it does not appear that Plaintiff complied with Rule 2.551(b)(3)(B), which requires a party that does not intend to request to have the records sealed to give written notice to the party that produced the records that the records and th...

Excerpt: ...s pursuant to Corporations Code sections 1601(a) and 1602, and made proper shareholder and director inspection demands to Plaintiff/Cross-Defendant Jae Pak, M.D. (“Pak”), the only other shareholder and director of NHI, on November 29, 2021; December 3, 2021; and December 8, 2021, but that Pak refused these demands. Rassman also contends that Pak's reliance on Tritek Telecom, Inc. v. Sup. Ct. (2009) 169 Cal.App.4th 1385 is misplaced as it does...

Excerpt: ...The Court DENIES Defendants' Request for Judicial Notice (ROA 89) and Supplemental Request for Judicial Notice (ROA 104) because they are not necessary or relevant to the Court's decision in this matter. As such, Plaintiff's evidentiary objections (ROA 96) to Defendants' Request for Judicial Notice are MOOT. The Court GRANTS all of Defendants' Objections (ROA 106) to the Anbari Declaration. The Merits. To compel arbitration under either the CAA o...

Excerpt: ...e proceeding. (Code Civ. Proc. §473(a)(1); Hulsey v. Koehler (1990) 218 Cal.App.3f 1150, 1159.) Similarly, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading, including answers. (Code Civ. Proc. §576.) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings ...

Excerpt: ...k Matsushige, with Darin W. Barber, in his capacity as Executor of the Estate of Kirk Matsushige, deceased. (See ROA 114.) As such, this motion is directed to the First Amended Complaint and all Plaintiffs named therein. Dr. Pham contends that there is no triable issue of material fact as to the following issues: (1) the medical care and treatment rendered by Dr. Pham to patient, Debbie Matsushige (the “patient” or “Ms. Matsushige”), comp...

Excerpt: ...aint alleges that Grace Coleman had a history of driving under the influence: three months prior to this accident she was arrested for driving under the influence of alcohol, and around the same time she was involved in a single-vehicle, hit- and-run accident where she struck a parked vehicle, allegedly while intoxicated. In each case, Grace Coleman was driving the same vehicle with the permission of her parents. The complaint also alleges that h...

Excerpt: ...a business tenant at the Property, while Defendants are the owners and/or managers of the Property. Plaintiff was physically assaulted one afternoon by a transient individual who allegedly lived on the Property. The transient began by hitting Plaintiff and his co-workers' vehicle' with a metal bar, at which time Plaintiff confronted the individual initially, but then retreated back to his office to call the police. While on the phone with police,...

Excerpt: ...t of pleadings to resolve cases on their merits. (IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal. App. 3d 451, 461.) Because the policy favoring amendment is so strong, “It is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would chan...