Excerpt: ...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 inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a ple...

Excerpt: ... cause of action and is therefore not a proper demurring party. Relevant Facts from the Complaint In January of 2021, Plaintiff was hired by J.D. Packaging and she reported to her supervisor Defendant Orozco. (Compl., ¶8) Plaintiff's husband worked for the same company but at a different warehouse. (Id.) Orozco sexually harassed her. Throughout the work day, Orozco would find ways to brush up against Ms. Rodriguez. When he would do so he would t...

Excerpt: ...duty there can be no breach and no negligence.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267). The instant Complaint arises from Defendants' alleged representation of Plaintiff's now deceased mother, Marcia Kay Schweitzer. (¶5-¶10 of SAC). An attorney-client relationship is not alleged to have existed between Plaintiff and Defendants. “As a general rule, an attorney has no professional obligation to nonclients and thus cannot be held ...

Excerpt: ...lement & Mutual Release Agreement, Ex. 1 to Cross-Complaint, page 4, section 7 stating that San Bernardino County Superior Court shall retain jurisdiction over enforcement of the Agreement 4. The Settlement and Mutual Release Agreement, Ex.2 to the FACC wherein Judge Bryan F. Foster of the San Bernardino Superior Court has already retained jurisdiction and made a ruling regarding the Settlement Agreement. II. Merits Cross-defendants assert that t...

Excerpt: ...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 inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of de...

Excerpt: ...des: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” B. Prevailing Party Plaintiff accepted Defendant's sett...

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: ...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: ...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: ...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: ...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: ...�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 of service of any revised settlement agreement and supplemental papers on the LWDA. 1. Other than the Munoz matter, are there any matters, whether individual, class or PAGA, pending or in the pre-filing LWDA stage, that could be affected by approval of this settlement? 2. Please provide a copy of Plaintiff's pre-filing letter to the LWDA. 3. Counsel represents that there are 100 aggrieved employees at issue. When was this figure accurate? The ...

Excerpt: ...es that a successful action for liability of consumer reporting agency is entitled to recover “reasonable attorney's fees as determined by the court.” Plaintiffs were the prevailing parties and are entitled to recover reasonable attorney fees and costs. Lodestar Calculation: “Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of c...

Excerpt: ...a)(1), “[t]he court may… in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars…” “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of...

Excerpt: ...nd county, or city, or a corporation doing business in the latter, shall be, on motion of either party, transferred for trial to a county, or city and county . . . other than that in which the plaintiff is situated, if the plaintiff is a city ... and other than that in which the defendant resides, or is doing business, or is situated.” [emphasis added] This venue transfer statute applies to cross-complaints. (Metro. Transit Sys. v. Superior Ct....

Excerpt: ...court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all. . . .” Defendant National Life Insurance Company has noticed the deposition...

Excerpt: ...quires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A protective order may include directions that the deposition not be taken at all. (Code Civ. Proc., § 2025.420(b)(1).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins....

Excerpt: ...at “that ‘a cause of action for malicious prosecution accrues upon entry of judgment in the underlying action…” (Id. at 1356). Unlike the factual circumstances in Pasternack, it is undisputed that judgment was entered in the underlying action, in favor of Plaintiff herein, with respect to the claims which form the basis of this Complaint. (See Reply: 3:24-4:2 and 5:18-20 [ROA No. 1612]). Per the Complaint in this action, Plaintiff is alle...

Excerpt: ... 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. (Code Civ. Proc. § 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 o...

Excerpt: ... of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) On March 25, 2020, Plaintiff presented to Dr. Michael Fitzpatrick with complaints of frequent shoulder dislocations over the last 15 years. She indicated to Dr. Fitzpatrick it was very difficult for her to raise her children with her shoulder disloc...

Excerpt: ...ainant Mohsen Ahmadi, and against Mohsen Ahmadi's Second Amended Cross-Complaint for Cancellation of Trust Deed. The Motion is DENIED in its entirety. In order to move for summary adjudication, the moving party must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Sa...

Excerpt: ...peting requests have been made. The timeline of this Motion, as relevant to the issue of sanctions, is as follows: Per Counsel for Plaintiff, Supplemental Responses were served on November 1, 2021. (¶8 of Arnold Declaration and Exhibit E to Notice of Lodgment). A review of the Exhibit demonstrates these responses were served electronically. (Id.). Applying the 45-day deadline included in C.C.P. §2031.310(c), along with the two court-day extensi...

Excerpt: ...er is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The California Constitution recognizes an individual's right to privacy in their medical and mental health records. Cal. Constitution Article 1, Section 1. “'“A person's medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and prote...

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...