Excerpt: ... § 437c(a).) Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1).) The requirement that there be “no triable issue of material fact” means that summary judgment can be granted only where the essential facts are either conceded or beyond dispute. If there is one, single material fact in dispute, the motion must be d...

Excerpt: ... not supported by substantial evidence; and/or 2. The first affirmative defense of contributory negligence has no merit because the element of causation is not supported by substantial evidence. Plaintiff's Request for Judicial Notice Plaintiff requests that the Court judicially notice page 41 of the 2018 California Driver Handbook published by the California Department of Motor Vehicles which is attached as Exhibit L to Plaintiff's Evidence in S...

Excerpt: ...tates, in relevant part, as follows: “A new trial is a re-examination of an issue or fact in the same court after a . . . decision by a . . . court.” A right to a new trial is purely statutory and must be based on grounds set forth in CCP § 657. Plaintiff's notice of intent to move for new trial indicates the following as grounds upon which her motion is based: 1. CCP § 657(1) – Irregularity in the proceedings of the court, jury or advers...

Excerpt: ....) However, the motion was not filed until January 13, 2021. The 60-day deadline is mandatory. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 320- 321.) Failure to file a timely motion forecloses any further relief. Further, the plaintiff failed to engage in a meaningful meet and confer as outlined in defendant's opposition, and on that ground the motion could also be denied. Merits Even if the motion had been timely and could be heard on the ...

Excerpt: ...opy of the findings and order, decision, or award of the appeals board with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity therewith…” The Court lacks jurisdiction to grant Petitioners' request under the foregoing, because Petitioners are requesting different relief from that provided for in the Workers Compensation award. Specifically, the award was made against only Respondent...

Excerpt: ...Services, Inc. and Suzanne Smith MOTION NO. 1, DEMURRER: Defendants Avis Plumbing, Heating & Air Conditioning, Inc., Craig A. Smith, Suzanne Smith, Avis Home Solutions, Inc. AMC Marketing Services, Inc., Smitty, LLC, CAS, LLC and Epic Home Services and Water Solutions (collectively referred to herein as “Defendants”) demur to the Eighth (Conversion) and Ninth (Retaliation in Violation of the Fair Employment and Housing Act) Causes of Action. ...

Excerpt: ...by plaintiff Hye Jin Yang is SUSTAINED with 20 days leave to amend. Fifth Cause of Action for Fraud: The elements of fraud are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Kaldenbach v. Mut. of Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 850.) The elements of a c...

Excerpt: ...nd costs in Plaintiff's favor against Defendant Phiton Nguyen. The present action is based on the transfer of a 50% interest in real property from Defendant Phiton Nguyen to his brother, Defendant Vu Nguyen, which occurred approximately ten days after the prior judgment in Plaintiff's favor. Plaintiff alleges the transfer was an attempt to fraudulently avoid the judgment of attorneys' fees in her favor against Phiton Nguyen. The first cause of ac...

Excerpt: ...how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (See Day v. Sharp (1975) 50 Cal.3d...

Excerpt: ...ntiff Dena L. Lowry. For the following reasons, the court is inclined to overrule the demurrer. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true fo...

Excerpt: ....” She was simply the Good Samaritan who found the plaintiff minor (a “Lower”) drowning and saved her. The plaintiff speculates that because Jimenez was substantially older than the other HSC counsellors at the public pool that day, and because someone made the decision to allow the “Lowers” to swim in the main pool as the kiddie pool was closed, it was most likely her. But speculation is not a basis on which to find a triable issue of ...

Excerpt: ...n Mataele, for: (1) Fraud; (2) Intentional tort – violation of California Labor Code § 970; (3) Conversion; (4) Accounting; (5) Common counts; and (6) Intentional infliction of emotional distress. FTRS Family Partnership No. 1 then filed a cross-complaint against plaintiff Hays for the following: 1. Breach of contract – lease 2. Breach of contract – other 3. Fraudulent misrepresentation This is a fraud case in which plaintiff, a photograph...

Excerpt: ...icine, LLC (“Olympia”) and Bernice Natalie Mucius-Penha (“Dr. Penha”) (collectively “Cross- Complainants)'s Second Amended Cross-Complaint (“SACC”) on the ground that the third cause of action for forgery fails to state facts sufficient to constitute a cause of action and it is uncertain. Specifically, Cross-Defendant contends that forgery is not a civil cause of action under California law. However, the SACC alleges adequate facts ...

Excerpt: ...efendants' Demurrer to the fraud claim for lack pf specificity. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California, (2016) 245 Cal.App.4...

Excerpt: ...ovide correct/itemized pay stubs, (6) waiting time penalties, (7) failure to reimburse expenses, (8) violation of Business and Professions Code section 17200, (9) retaliation/wrongful termination in violation of public policy, (10) failure to produce personnel file, (11) failure to produce payroll records, and (12) failure to produce instruments signed by employee during employment. On 5/29/19, DTS answered the complaint and also filed a cross-co...

Excerpt: ... 2003, Saba and Grantham formed a joint venture with 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 ...

Excerpt: ...endants' evidentiary objections to the declaration of Christine Barker, because they are not material to the disposition of the motion. For the reasons explained, below, the Court denies the motion on two grounds. The Motion is Untimely First, the Court finds the motion is untimely as to the Association because it was not brought within 60 days of service of the cross-complaint. (Code Civ. Proc., § 425.16, subd. (f).) The proof of service attach...

Excerpt: ...3(d). Neither party objected to the over-length memorandum. Accordingly, the Court exercises its discretion to consider the memorandums in their entirety. In addition, Plaintiff's separate statement did not address issue numbers 3 or 4. Because Defendant supports issues 3 and 4 with the same set of facts, which Plaintiff responded to all 59 material facts in Defendant's separate statement in support of Defendant's motion for summary judgment, and...

Excerpt: ... Knowledgeable (“PMK”) to be deposed in accordance with Code of Civil Procedure section 2025.230. Plaintiff further moves this Court for an order awarding monetary sanctions in the amount of $2,860.00 against Defendant and its counsel of record, Erskine Law Group. APC, pursuant to Code of Civil Procedure, sections, and 2025.450, subdivision (g)(1), for Defendant's willful and unjustified failure to comply with the relevant code sections of th...

Excerpt: .../Overview: The complaint in this action was filed on 3/7/19 by plaintiff Allstate Insurance Company against defendant Invensys Climate Controls America, for: (1) negligence; (2) breach of implied warranty; and (3) products liability. This is a subrogation action. Plaintiff alleges that defendant's water valve was defective, causing flooding and water damage to plaintiff's insured's home. On 6/19/19, plaintiff filed a Doe Amendment, naming Roberts...

Excerpt: ...tered on 12/4/20 is denied. As the document filed on 12/4/20 is a notice of entry of judgment, the court understands this motion to be directed at the judgment entered on 10/29/20. The judgments at issue were entered for different defendants but both were entered after Defendants' demurrers to Plaintiff's third amended complaint were sustained without leave to amend. Prior to entry of judgment, Plaintiff unsuccessfully moved to vacate the orders ...

Excerpt: .... The court is inclined to grant the Motion. The court overrules all of Plaintiffs' untimely evidentiary objections as improper and without merit. "When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be award...

Excerpt: ... (3) Reasonable Value. Defendant 5 Star filed its answer on 07/08/19. An attachment application was granted on 12/09/20. Defendant's motion for leave to file a cross-complaint was granted on 01/06/21, and Defendant filed a cross-complaint against Plaintiff the same date, alleging causes of action for: (1) Declaratory Relief; and (2) Negligent Misrepresentation, alleging that Plaintiff improperly denied discounts that Defendant should have receive...

Excerpt: ...on contends, “From the date of Order until now, the Parties have not been able to participate in arbitration (per the Order) due to Defendants' failure to pay for the arbitration fees (‘Fee'), despite Defendants being the moving party to compel arbitration. Accordingly, Defendants have effectively waived their right to arbitration, and now, Plaintiff submits this Petition to respectfully request this Court to reinstate the matter back to tria...

Excerpt: ...'s option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Procedure section 2030.270, subdivision (a), explains, “The party pr...