Excerpt: ...be able to use the dispute resolution results to rebut that presumption. As for the assignment issue, plaintiff was the sole person listed on the purchase agreement and the sole borrower on the loan. As such he was the sole “buyer” under the Song Beverly Act. Had plaintiff defaulted on his loan payments, he alone would have been liable to the lender for any money owed and the vehicle, as collateral on the loan, could be repossessed regardless...

Excerpt: ...of the Tech-Bilt factors, and the court cannot reach a determination without such evidence. The court also finds that for purposes of this motion only, that Proof Positive's evidence as to its proportionate liability to plaintiff is lacking. Arguments that Proof Positive is not a mandated reporter may be precluded by application of the doctrine of estoppel, based upon its written representations to plaintiff's parents that it is a mandated report...

Excerpt: ...rty's attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep't of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC...

Excerpt: ... Chris Pappas, Mark Serventi, and Ralph Nudo (collectively, the “Lessees”) allege that Cross-Defendants published false, “libelous statements” about the Lessees to Lessor in an email dated December 5, 2015. (FACC at ¶¶ 53-36, Exh. 5.) Lessees further allege that, as a result of the publication of those “libelous statements,” Lessor was induced to breach a “right of first refusal” provision in the lease agreement between him and ...

Excerpt: ... application, claiming it was mailed to the wrong address. Plaintiff was directed to mail the application to the New York office. (SAC, ¶ 5.) Plaintiff alleges that the document returning the application was not on formal government paper and does not include a signature or date. (SAC, ¶ 5.) Plaintiff mailed the application to the New York office as directed, but it was returned. Plaintiff was directed to mail the application to the Sheffield o...

Excerpt: ...on will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “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 th...

Excerpt: ... it appears that he received the Demurrer and has waived the improper service. Farrar v. McCormick (1972) 25 Cal. App. 3d 701, 705. As for the Reply, the Court has no way of knowing if it was actually served via e-mail, or to what address it was sent. The Court hereby admonishes Plaintiff to follow the proper statutory procedures for proofs of service in the future. Additionally, the Court also notes that Plaintiff's meet and confer statement is ...

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: ...se of action for breach of contract, seeks the same damages and is therefore improper, citing Careau & Co. v. Security Pacific Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371. Careau held that a breach of the implied covenant involves something beyond breach of the contractual duty itself and involves unfair dealing rather than mistaken judgment. Id. at p. 1394. It stated that the allegations “must show that the conduct of the defendant, whether o...

Excerpt: ...p.4th 280, 291.) Unlike the tort of inducing breach of contract, interference with contractual relations does not require proof of a breach; it only requires proof of interference. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.) Further, it is not necessary that the defendant's conduct be wrongful apart from the interference with the contract itself. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26...

Excerpt: ..., or the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing to carry out their custodial obligations.” (Covenant Care Inc. v. Superior Court (2004) 32 Cal.4 th 771, 783.) Defendant GHC argues that the claim for elder abuse and neglect fails as a matter of law because all of the supporting allegations go to providing negligent medical care, not t...

Excerpt: ...of deed of trust recorded on 4-13-16. (Exhibit 3.) 4. Substitution of trustee recorded on 6-12-17. (Exhibit 4.) 5. Notice of default recorded on 6-12-17. (Exhibit 5.) 6. Notice of trustee's sale recorded on 2-20-18. (Exhibit 6.) 7. Trustee's deed upon sale recorded on 4-16-18. (Exhibit 7.) 8. The court's minute order of 2-21-19. (Exhibit 8.) GRANTED as to all. First and second causes of action for breach of contract and breach of the implied cove...

Excerpt: ...ird Cause of Action for products liability. Evidentiary Objections The defendant's evidentiary objections to the declaration of Nadia Bayazid is SUSTAINED as to Nos. 1, 2, and 3, and OVERRULED as to Nos. 4 and 5. Request for Judicial Notice The defendant's Request to take Judicial Notice of Exhibits 1 and 2 is GRANTED. The defendant's Request to take Judicial Notice of certain unpublished federal District Court opinions (Exhibits 3, 4, and 5) is ...

Excerpt: ... Memo in Support at p. 1-2.) Plaintiff's request appears to be procedurally improper under CRC 2.551 (b)(3). However, on December 7, 2018 this court signed a Stipulated Protective Order regarding documents that either side could designate as “confidential”. In light of this prior stipulation and Servite's non- Opposition, the court will attempt to address the procedural defects without prejudicing the parties and without prejudicing the confi...

Excerpt: ... whether it has specific jurisdiction over Danielson. To establish specific jurisdiction, Aviana was required to show that 1) Danielson purposefully established contacts with California and 2) the claims here arise and are related to California-related claims. Aviana has done so. The evidence establishes that although Danielson lived in Illinois, he worked for Aviana, a California company, as an employee. He reported to Hansen and Ishikawa, both ...

Excerpt: ...e necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar...

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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...