Excerpt: ...f action on the grounds that the claim is untimely because it was brought beyond the four-year statute of limitations set forth in Civil Code §1791.1, subdivision (c) and Commercial Code §2725. Civil Code section 1791.1, subdivision (c), provides, “The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer go...

Excerpt: ...ss (“IIED”) is alleged against Does 1-15. Ron Jackson was identified as Doe 1 by Doe Amendment filed on 6/16/21. The FAC alleges at paragraph 10 that Jackson was an employee of OCDE working as an aide at Harbor Learning Center, where he engaged in physical and emotional abuse of Plaintiff. The FAC alleges that Does 1-15 engaged in physical abuse of Plaintiff including withholding his lunch, grabbing and throwing Plaintiff, grabbing Plaintiff ...

Excerpt: ...he recovery of damages and other legal and equitable relief.” Given the broad reference to “any obligation under this chapter,” a claim may be stated in connection with any provision of Civil Code §1793.2. Thus, this initial argument fails. Thereafter, Defendant demurs, asserting the claims are insufficiently specific. As noted by Defendant, statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Cou...

Excerpt: ...n, count, or defense. Specifications in a notice must be numbered consecutively.” Here the Notice of Motion states that Defendants “move the Court for an Order striking prayer for punitive damages and exemplary/punitive damages statement” from Plaintiff's Complaint.” (Notice, 2:1-3.) Therefore, the Notice does not comply with Rule 3.1322. Merits: Civil Code § 3294(a) provides for punitive damages: “In an action for breach of an obligat...

Excerpt: ...sponses were not ready and he had a trial beginning on June 1 and an appellate brief due on June 11, which would prevent him from completing the responses until July. Plaintiff refused the request for an additional extension. On 5/21/21, Defendant served objections-only responses to the written discovery. After Plaintiff's counsel sent a meet and confer letter, Defendant's counsel agreed to supplement the responses by 7/2/21. However, the supplem...

Excerpt: ...atory by any of the following: ¶ (1) An answer containing the information sought to be discovered. ¶ (2) An exercise of the party's option to produce writings. ¶ (3) An objection to the particular interrogatory.” If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. ...

Excerpt: ...ers 1-16 and 18, 20, 22, and 23 is GRANTED, in part, and DENIED, in part. Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examinatio...

Excerpt: ...ment, and on denial of the motion may have the validity of the judgment reviewed upon an appeal from the order denying the motion. (Luckenbach v. Laer, 190 Cal. 395, 398 [212 P. 918] ...; 3 Witkin, Cal. Procedure (1954) p. 2177.)” (Ryerson v. Riverside Cement Co. (1968) 266 Cal.App.2d 789, 795, 72 Cal.Rptr. 595.) “[O]ne whose rights or interests are injuriously affected by any appealable order made in an action to which he is not a party, [ma...

Excerpt: ...hile Defendant identifies witnesses, it has not offered addresses or telephone numbers, for all individuals identified, as requested. While Defendant indicates it “has identified all known witnesses and provided all known contact information,” Plaintiff is correct in asserting entitlement to a response which complies with C.C.P. §2030.220. To the extend Defendant has provided all information in its possession, it should so state and, to the ...

Excerpt: ... an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plai...

Excerpt: ...tentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 2...

Excerpt: ...udicial notice has been taken.” (Id.) “[I]f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly sustained[.]” (Boxer v. City of Beverly Hills (2016) 246 Cal. App. 4th 1212, 1225.) “Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint.'” (Redfearn, 20 Cal. App. 5th at 996.) “[L]eave to amen...

Excerpt: ...esponding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221). Given Defendant does not address its objections, the Court finds the majority of the objections have been abandoned; however, it is worth noting Defendant asserted both the “attorney-client privilege” and the “attorney work-product” privilege in response to each of these...

Excerpt: ... in concert with Defendants, from placing eGumball back on the MATCH list pending a hearing on a Preliminary Injunction. MATCH is an acronym for Member Alert to Control High-Risk Merchants; it is a compliance program run by MasterCard that provides acquirers the ability to review certain merchant risk information before entering into a merchant agreement. (Scofield Decl., ¶ 13.) Here, Visa was investigating two pharmaceutical websites that were ...

Excerpt: ...presentation: The elements of a claim for fraud based on an affirmative representation are (1) a false representation of material facts, (2) knowledge of falsity, (3) intent to defraud, (4) actual and justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a cause of action for fraud based on concealment are: (1) the defendant concealed or suppressed a material fact, (2) the defendant was under...

Excerpt: ...him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which ...

Excerpt: ... of written discovery requests to plaintiff specially tailored towards discovering plaintiff's background and basic contentions in this action. (Declaration of Cary Mullen ¶ 2; Exhibit A.) Plaintiff served unverified responses on May 14, 2021. (Mullen Decl. ¶ 3; Exhibit B.) Between June 24 and 25, 2021, KMA's counsel met and conferred with plaintiff's counsel articulating the deficiencies in plaintiff's discovery responses including plaintiff's...

Excerpt: ...er, depression, anxiety, fatigue, loss of energy, poor concentration, decreased appetite, excessive worry, muscle aches, irritable mood, hopelessness, tearfulness, restlessness, loss of pleasure in daily activities, excessive guilt, sleeping too much, and thoughts of dying, for treatment of Jodie Arizona Elliott for the period of March 15, 2019 to August 15, 2021, from the following medical providers: William On Woo, M.D.; Mayra Noema Torres, LMF...

Excerpt: ...party.” The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481. “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction wer...

Excerpt: ...vance. On a motion to compel arbitration, the trial court must first determine whether “an agreement to arbitrate the controversy exists.” (Code Civ. Proc. § 1281.2) “When presented with a petition to compel arbitration, the initial issue before the [trial] court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) “Because the existence of an agreement is a statutory prerequisite to gr...

Excerpt: ... Article XVII, section 1 of the CC&Rs provides: “ENFORCEMENT. The Association, or any owner, shall have the right to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by the provisions of this Declaration or any amendment thereto, including the right to prevent the violation of any such restrictions, conditions, covenants, or reservations and the right to recover damag...

Excerpt: ...ed Material Facts (“UMFs”). In support of her motion, Plaintiff presents evidence of the following facts:  On or about 4-6-1999, Alan Bramlett opened a “Roth IRA” account with Defendant Vanguard Group, Inc. (UMF 2)  On or about 4-9-1999, Alan Bramlett designated Anthea L. Bramlett as his 100% beneficiary on the Roth IRA account. (UMFs 3-7)  On or about 4-14-1999, Alan Bramlett opened a traditional IRA account with Defendant. (UMF...

Excerpt: ...f it determines that an agreement to arbitrate the controversy exists, unless it determines that: ¶ (a) The right to compel arbitration has been waived by the petitioner; or ¶ (b) Grounds exist for rescission of the agreement. ¶ (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibil...

Excerpt: ...Section 1941.1 defines an uninhabitable dwelling. However, Civil Code section 1940 demonstrates a legislative intent to exclude hotels from the definition of a dwelling under that section. Moreover, Plaintiff has not cited any legal authority holding that a violation of section 1941.1 gives rise to a private cause of action. Similarly, Plaintiff has failed to show that a violation of Health and Safety Code section 17920.3 gives rise to a private ...

Excerpt: ....4th 656, 661-665.) Applicable privileges include the privilege for publications made in a judicial proceeding under Civil Code section 47(b). (Ibid.) Here, the fifth cause of action in the FACC is based on Cross-Defendant “asserting frivolous claims that Cross-Complainants do not have rights to continue occupying, using and maintaining the decks and gangways…” (FACC ¶ 52.) The alleged publication includes sending “written demands to Cro...

Excerpt: ...or he has suffered only economic losses.” (Robinson Helicopter, Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 [internal quotations and citations omitted].) Economic loss consists of “damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits – without any claim of personal injury or damages to other property ....” (Id. [internal quotations and citations omitted].) “The econ...

Excerpt: ...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 determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2...

Excerpt: ...rds and time sheets. Request no. 4 seeks documents relating to business related travel expenses and/or mileage reimbursements to Andrade. Code of Civil Procedure section 2031.210(a) states: “(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspe...

Excerpt: ... moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. A proof of service must be filed with the court clerk at least 5 court day...

Excerpt: ...(ROA 66) because they are not in the form required by CRC, Rule 3.1354. Rather than object to specific evidence, Defendant offers objections to each of Plaintiff's responses to the Undisputed Material Facts. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8, finding the trial court did not abuse its discretion when it refused to rule on objections which did not comply with CRC 3.1354). Defendant's “Undisputed” Material...

Excerpt: ...nses to those requests within 15 days of this order. The motion is DENIED as to RFAs 10-14, 34 and 36. Both parties' requests for sanctions are DENIED. As a preliminary matter, the Court notes that Plaintiff's separate statement fails to comply with CRC, Rule 3.1345(c). The RFAs responses in question each incorporate Defendant's response to RFA 1. Plaintiff did not include that response in the separate statement. Rule 3.1345(c) requires that the ...

Excerpt: ...t to a subpoena served on February 19, 2021. Bowermaster moves pursuant to Code of Civil Procedure section 1987.1 and 2025.480. Code of Civil Procedure section 1987.1 states, in part, “(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonab...

Excerpt: ...d access. (Id. at ¶ 5.) The easement has been subject to litigation between Defendant Yee and the prior property owners, resulting in Stipulated Judgments in 2003 and 2013. (Id. at ¶¶ 5-9.) After learning of the prior stipulated judgments, Plaintiff approached Defendant in an attempt to avoid any litigation related to the easement. (Complaint ¶ 10.) Defendant responded by stating, through counsel, a number of objections to the proposed housin...

Excerpt: ...r proof of service in the future or risk the motion being denied for lack of proper service. In this instance, an Opposition was filed. Thus, the Court will address the merits. Plaintiff's Reply was filed 3 court days late. The Court will consider the Reply in its discretion. Moreover, both parties failed to comply with California Rules of Court, Rule 3.1110(f)(4), which provides: “Electronic exhibits must meet the requirements in rule 2.256(b)...

Excerpt: ... Objections to Plaintiff's Expert's Declaration Nos. 1, 2, 4, 5, and 6, are SUSTAINED and Nos. 3 and 7 are OVERRULED. Plaintiff failed to comply with California Rules of Court, Rule 3.1110(f)(4), which provides: “Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmar...

Excerpt: ...dge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.” ' ” (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 974.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “This particularity requirement necessitates pleading facts which show how,...

Excerpt: ...e paragraph and must state whether it applies to the entire complaint, cross- complaint, or answer, or to specified causes of action or defenses.” Rule 3.1320(c) provides, “A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005 and, if service is by electronic means, in accordance with the requirements of Code of Civ...

Excerpt: ...e a cause of action. Cross-Defendant's counsel filed a declaration attempting to show compliance with Code Civ. Proc. § 430.41. (Declaration of Neil M. Katsuyama.) Code Civ. Proc. § 430.41 states: “(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be ...

Excerpt: ...as met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code of Civil Proce...

Excerpt: ...arbitrate the instant action is CONTINUED to September 10, 2021. At the prior hearing, the Court requested additional briefing on the issue of whether the failure to comply with the requirements of Code of Civil Procedure section 1295 in the subject Arbitration Agreement renders it unenforceable. Although both parties have provided supplemental briefing as requested by the court, neither party has addressed Hedges v. Carrigan (2004) 117 Cal.App.4...

Excerpt: ...s now moot. The Court considers the late Opposition. Special Interrogatory No. 51 states: “Please list all Technical Service Bulletins applicable to the SUBJECT VEHICLE, including previously issued technical service bulletins that have been superseded.” In response, Defendant relies on Code of Civil Procedure § 2030.230 and identifies documents from which a response may be ascertained. Plaintiff does not explain in the moving papers or Separ...

Excerpt: ... Regional Center of Orange County (“RCOC”) to provide caregiver staff for an adult day care program at Integrity House. Integrity House is operated by Defendant Alliance of Abilities (“Alliance”), which provides day program services under contract with RCOC. Alliance did not directly employ Plaintiff at Integrity House, where she was assigned to work for about two years. Rather, Plaintiff's employer was Maxim, which paid her and provided ...

Excerpt: ...' leave to amend. A demurrer can only be used to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) “The California Supreme Court has consistently held that a plaintiff is required only to set forth the essential facts ...

Excerpt: ...ended complaint identifying Advance OC as Doe 2. Plaintiff's application was granted on 4/22/21 and the SAC was filed on 5/5/21. Defendant contends that Plaintiff did not comply with Civil Procedure section 474 by serving Defendant with a notice that it was being served as a fictitious defendant. However, this defect does not appear on the face of the pleading and can be remedied by Plaintiff. Plaintiff fails to allege that Advance OC caused or c...

Excerpt: ...Corp 6. Motion to Compel Response to Requests for Admissions filed by Plaintiff Balboa Capital Corp 7. Motion to Compel Production filed by Plaintiff Balboa Capital Corp 8. Motion to Compel Production filed by Plaintiff Balboa Capital Corp MOTION NO. 1 Balboa Capital Corporation's motion to compel defendant Maman L. Ali, an individual, to provide further verified responses to Balboa's Form Interrogatories, Set No. One, is GRANTED. Code of Civil P...

Excerpt: ...ong-Beverly Consumer Warranty Act – Breach of Express & Implied Warranty” against the manufacturer, Hyundai Motor America. The dealer, Westlake Imports, is not a party to this action. Defendant contends this case is subject to arbitration based on the following language from the Retail Installment Sale Contract (“Contract”) between Plaintiff and the third-party dealer: “ARBITRATION PROVISION PLEASE REVIEW – AFFECTS YOUR LEGAL RIGHTS 1...

Excerpt: ...ate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: ¶ (a) The right to compel arbitration has been waived by the petitioner; or ¶ (b) Grounds exist for rescission of the agreement. ¶ (c) A party to the arbitration agreement ...

Excerpt: ...f. A party seeking leave to amend a pleading already at issue must seek leave of court by way of noticed motion.  CCP §473(a)(1).  The moving party must include the proposed amended pleading with the moving papers and specify, by page, paragraph and line number, the allegations proposed to be deleted and added.  In addition, the moving party must file a separate declaration which specifies: “(1) the effect of the amendment; (2) why the a...

Excerpt: ...laims alleged against PPII and addressed in the parties' papers. 1st cause of action for Conversion. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of ...

Excerpt: ...claimed is superior to the creditor's lien on the property: . . . [¶] (b) Where personal property has been levied upon under a writ of attachment, a writ of execution, a prejudgment or postjudgment writ of possession, or a writ of sale.” Section 720.310, subdivision (a) provides in pertinent part that: “either the creditor or the third person may petition the court for a hearing to determine the validity of the third-party claim and the prop...

Excerpt: ...ttorney in order to “chill” Defendant's ability to assert employment rights and Labor Code violations. CCP § 425.16(b) states: “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court det...

Excerpt: ..., Navagio, Adelanto Properties B, Adelanto Properties C and Cure Farms NDLS MOTION 1: Demurrer Cross-Defendant, Briggs & Alexander, APLC demurs to the fourth (Equitable Indemnity), fifth (Contribution), and sixth (declaratory relief) cause of action on the grounds that they fail to state sufficient facts and are uncertain. 1. Meet and confer Cross-Defendant's counsel filed a declaration attempting to show compliance with Code Civ. Proc. § 430.41...

Excerpt: ...les Wortham, by and through his Successor in Interest, Rose Wortham to arbitrate the instant action pursuant to the Arbitration Agreement executed on June 8, 2020 is DENIED. Code of Civil Procedure section 1295 applies to contracts for medical services which contain a provision for arbitration of any dispute as to professional negligence of a health care provider. Specifically, subdivision (b) of section 1295 requires that:“Immediately before t...

Excerpt: ...mark titles that identify the exhibit number or letter and briefly describe the exhibit.” The parties must comply with this requirement in the future. 2. Civ. Code Civ. Proc. § 664.6 Code Civ. Proc. § 664.6(a) states: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter ju...

Excerpt: ...ertinent part: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part ther...

Excerpt: ...necessarily confusing but the Court, nevertheless, reached the merits of the demurrer. The demurrer is OVERRULED as to the 1st, 2nd, 8th and 9th causes of action and SUSTAINED with leave to amend as to the 3rd-7th causes of action. Plaintiff has 15 days in which to amend the 3rd-7th causes of action. Defendant's Request for Judicial Notice is GRANTED in its entirety. Defendant demurs to the entire FAC on the ground that Plaintiff is collaterally ...

Excerpt: ...rt: “A foreign corporation subject to the provisions of Chapter 21 (commencing with Section 2100) which transacts intrastate business without complying with Section 2105 shall not maintain any action or proceeding upon any intrastate business so transacted in any court of this state, commenced prior to compliance with Section 2105, until it has complied with the provisions thereof and has paid to the Secretary of State a penalty of two hundred ...

Excerpt: ...d to serve timely responses, Defendant filed a motion to compel which was granted on 1/21/21. Plaintiff served verified responses on 1/21/21. Defendant seeks further responses to form interrogatories 2.1, 2.2, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 6.7, 8.4, 8.5, 9.1, 12.1, 12.2, 12.3, 12.6, 14.1, 14.2, 17.1, 50.1, 50.2. Code of Civil Procedure section 2030.220 states: “(a) Each answer in a response to interrogatories shall be as comp...

Excerpt: ...ortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made befor...

Excerpt: ...urrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis supplied.) Defendant attempted to meet and confer via email and Plaintiff responded indicating disagreement. Defendant did not attempt to ca...

Excerpt: ...tion is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability. (Nealy v...

Excerpt: ... to file written objections to Defendant's points and authorities in support of the demurrer. Plaintiff's objections are overruled. Motion No. 1 – Demurrer 2nd COA – Negligent Failure to Report Child Abuse: The complaint alleges that Plaintiff, a disabled minor, suffered abuse at Harbor Learning Center, which is operated by OCDE. Plaintiff alleges Defendant Christa Paul was Vice Principal and Defendant Dave Penaflor was Plaintiff's teacher at...

Excerpt: ...laintiffs to the following identical Requests: (1) “All tax return YOU filed with the Internal Revenue Services from 2016 to the present.” (2) “All tax return YOU filed with the California Franchise Tax Board from 2016 to the present.” Entity Plaintiffs object to these Requests on the grounds of taxpayer privilege. “There is no recognized federal or state constitutional right to maintain the privacy of tax returns. [Citations.] Californ...

Excerpt: ...Defendant Brandon Burkhart. Mackenzie Alston is/was the wife of Kenneth Alston, one of the owners of Route Four and a defendant in the consolidated case, Burkhart v. Route Four LLC, et al., Case No. 2020- 01130231. According to the papers filed in support of the motion, in September 2020, Kenneth Alston witnessed his wife receive a call from a “Brandon Burkhart” on her phone. Burkhart is a defendant in this action and the plaintiff in the con...

Excerpt: ...r pro hac vice as counsel for Defendants Toyota Motor Sales, U.S.A., Inc., Toyota Motor Manufacturing Kentucky, Inc., Toyota Motor Corporation, Toyota Motor Engineering & Manufacturing North America, Inc. and Tustin Toyota is GRANTED. II. Motions to Quash Plaintiffs move to quash eight subpoenas. The subpoenas are directed to four companies: Bunim-Murray Productions, Inc.; MTV Networks Enterprises, Inc.; Viacom International Studios, Inc. and W G...

Excerpt: ...employment was terminated due to poor work performance and Plaintiff improperly prescribing medications. MOVING PARTY'S CONTENTIONS (ROA 26): This is a wrongful termination lawsuit in which Defendant contends Plaintiff, a medical assistant, was improperly writing prescriptions to herself and a client. Plaintiff has propounded excessive written discovery to the two Defendants in the relatively simply employment lawsuit, including a total of 502 wr...

Excerpt: ...electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” The parties must comply with this requirement in the future. Defendant filed an Opposition that violated California Rules of Court, Rule 3.1113 (d), which provides: “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 ...

Excerpt: ...DENIED, in part. Code of Civil Procedure section 2030.300, subdivision (a) provides: “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the req...

Excerpt: ...030.300, subdivision (a) provides: “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequa...

Excerpt: ...first page a reference to the Register of Actions number of the related document. This Rule does not apply to documents filed for trial. For proceedings in civil law and motion, as defined in California Rules of Court, rule 3.1103, the first page of the document shall reference the Register of Actions number of the related Notice of Motion on all electronically filed Motion, Opposition, Reply, and supporting papers. The Register of Actions number...

Excerpt: ...“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the dep...

Excerpt: ...any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings...

Excerpt: ... Bonita Canyon HOA and reported the injury. On 8/28/17, Plaintiff's father emailed Defendant Progressive, Bonita Canyon's management company, reporting the injury and sending pictures of the same. On 8/29/17, Defendants directed E&C Mystic Cleaning and Janitorial Services Inc. to pick up the debris that was dislodged when the bench broke and fell. Defendants did not attempt to preserve those pieces. Defendants also photographed the area on that d...

Excerpt: ...ract cause of action states that “to the effect that the Court is inclined to sustain the demurrer on the First Cause of Action (the sustenance of which Plaintiff is willing to submit upon) Plaintiff asks it to maintain the Breach of Contract cause of action . . .” (Opp., 10:27-11:2.) Therefore, Plaintiff concedes that the breach of implied warranty of habitability cause of action is not viable. Accordingly, the demurrer to the first cause of...

Excerpt: ...press or implied contract where the total amount of such claim is a fixed or "readily ascertainable" amount not less than $500. (§ 483.010, subd. (a).) Before an attachment order is issued, the court must find all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant has established "the probable validity" of the claim upon which the attachment is based; (3) the atta...

Excerpt: ...the Memorandum of Points and Authorities (“P&As”) only addresses two out of the four causes of action that are alleged against Bowermaster in the operative First Amended Complaint (“FAC”). Specifically, the FAC alleges four causes of action against Bowermaster: (i) the First Cause of action for Breach of Contract, (ii) the Second Cause of Action for Breach of the Duty of Good Faith and Fair Dealing, (iii) the Third Cause of Action for Pro...

Excerpt: ...ranted Defendant Andrade's application for an order under Code of Civil Procedure section 877.6 determining the settlement between Defendant Andrade and Plaintiff to be in good faith. DLI contends it cannot be vicariously liable for Plaintiff's first cause of action based on the negligence of DLI's employee Edwin Andrade because Plaintiff has dismissed Defendant Andrade with prejudice pursuant to a settlement. In Mayhugh v. County of Orange (1983...

Excerpt: ...M.D. (“Dr. Meyer”) pursuant to CCP section 425.13 and Civil Code section 3294, and to assert causes of action for Fraudulent/False Promise, Concealment, and Intentional Misrepresentation against said Defendants pursuant to CCP sections 473 and 576. As an initial matter, Long Beach Memorial's Opposition fails to comply with CRC, Rule 3.1113(f) as the memorandum exceeds 10 pages but does not include a table contents or table of authorities. Pla...

Excerpt: ... which Defendants agreed to make Plaintiffs whole for the $2.5 million in investment losses, in exchange for Plaintiffs' agreement to temporarily forbear from enforcing their rights and remedies regarding the amounts owed and collateral pledged under the written agreement. Plaintiffs allege Defendants have breached the agreement by failing to pay the $2.5 million due. Defendants contend that a promise to “make Plaintiffs whole” is not suffici...

Excerpt: ...ts and authorities states: “The Court should compel B&A to produce unredacted copies of all of the documents listed on the third privilege log and other responsive documents B&A or Plaintiffs may have withheld.” (Motion 8:18-20.) Defendants have shown that on February 1, 2021, Plaintiffs produced a third privilege log titled “Final Privileged Index of Documents” which lists 13 categories of documents withheld by Plaintiffs on the grounds ...

Excerpt: ...]ll previous deadlines remain.” Mrs. Saati moves for reconsideration of the order to the extent it provides that all previous deadlines are to remain. Mrs. Saati moves for reconsideration pursuant to Code of Civil Procedure section 473, subdivision (b). However, a motion for reconsideration must be made under section 1008. Section 1008, subdivision (a) provides: “When an application for an order has been made to a judge or a court an refused ...

Excerpt: ...yment was terminated because he failed to prepare timely and accurate notes, notes in a timely status; was occasionally tardy; received complaints from three patients, including one who asked to have him removed from her treatment; and made inappropriate comments at an active shooter training. Defendant seeks summary judgment or, in the alternative, summary adjudication of issues on the theory that Plaintiff's military service was not a substanti...

Excerpt: ...13(d) because it exceeded 15 pages. Despite this clear violation, the Court considered the Opposition. The Court GRANTS the Request for Judicial Notice acknowledging that the documents exist but not the facts asserted therein. Plaintiffs also submitted evidence in support of their Reply. As a general rule, this is improper. (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537-38.) The Court considered the evidence submitted on reply, which is wit...

Excerpt: ...n in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [¶] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown theref...

Excerpt: ...attorney affidavit of fault,” in which event, relief is mandatory; or • Declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. (The Rutter Group, CIVP, 5:290.) For discretionary relief, “the moving party's evidence must preponderate as to the claimed mistake, surprise, inadvertence or excusable neglect, and the moving party must show due diligence in seeking...

Excerpt: ...ding 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 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, sta...

Excerpt: ...f a cause of action for fraud based on concealment are: (1) the defendant concealed or suppressed a material fact, (2) the defendant was under a duty to disclose the fact to the plaintiff, (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4)the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) resulting damage....

Excerpt: ...Legal Remedies Act) on that ground that each fails to state facts sufficient to constitute a cause of action. Defendant also demurs to the 5th (Breach of the Implied Warranty of Merchantability), 6th and 7th causes of action on the ground that each is barred by the applicable statute of limitations. Third Cause of Action for Violation of Song-Beverly Act § 1793.2(a)(3). Defendant demurs to the 3rd cause of action on the ground that it fails to s...

Excerpt: ...ays leave to amend. Demurrer as to Richard D. Moore (“Richard”), individually: The demurrer of Cross-Defendants to Cross-Complainant's entire SACC on the grounds that there is a defect or misjoinder of party for Richard, individually, is MOOT. On March 25, 2021, Cross-Defendant Richard, as an individual was dismissed from the Cross-Complaint. (Opp., 2:12-14; ROA 147.) Demurrer to the Tenth, Eleventh and Twelfth causes of action: Cross-Defenda...

Excerpt: ...t entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. … [¶] … [¶]  (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at...

Excerpt: ...otal award of $13,306.13. 1. Basis for Fees When authorized by contract, statute or law, reasonable attorney fees are “allowable costs.” (Code Civ. Proc. § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1027.) The Song–Beverly Consumer Warranty Act states: “If the b...

Excerpt: ...aw, the Court ordered Ingate to retain new counsel within 60 days. As of 4/6/21, new counsel has not appeared on behalf of Ingate. On 4/1/21, Ingate attempted to file a substitution of attorney, which was rejected by the Clerk due to Plaintiff's failure to complete the substitution form. If Ingate has retained counsel, counsel shall make an appearance on Ingate's behalf at the OSC Re: Dismissal. Motion No. 1 – Demurrer to Second Amended Complai...

Excerpt: ...Horizon Health & Sub-Acute, LLC, defined as “Facility” for purposes of the agreement. The agreement provides at sections 1.1, 1.2, and 1.3 that any dispute between the parties to the contract, including disputes as to medical malpractice, provision of medical services, or provision of services or health care, including alleged violations of the Elder Abuse and Dependent Adult Civil Protection Act, will be determined by submission to arbitrati...

Excerpt: ...Sakaguchi motion to compel as to Steven Wang); and · April 22, 2021 (Pearhead motion to compel as to Derek Luh). Additionally, the following discovery motions are set to be heard: · June 17, 2021 (Pearhead motion for protective order re third-party subpoena to Janover LLC); · July 8, 2021 (Steven Wang's Motion for Terminating and Other Sanctions, and/or To Compel Compliance with The Court's August 6, 2020 Discovery Order); and · July 8, 2021 ...

Excerpt: ...Co. (2008) 168 Cal. App. 4th 165, 181.) Plaintiff alleges that she suffered severe injuries as a result of the accident. On July 13, 2020, Plaintiff served a demand for physical examination of Plaintiff. (Bui Decl., ¶ 2, Ex. A.) The notice stated that the physical examination would take place on August 17, 2020. (Id.) Plaintiff did not serve any objections to the demand and failed to appear at the examination. (Bui Decl., ¶ 3, Ex. B.) Plaintiff...

Excerpt: ...r information regarding Request for Admission No. 2. Plaintiff agreed to provide Code compliant responses to Form Interrogatories 6.4, 6.6, 6.7, 9.1, 9.2, 12.1, 13.1, and 17.1 for information regarding RFAs 1, 3, 4, 5, 6, 7, 8, 9, and 10. Moving party's supplemental declaration filed on 3-23-21 indicates the plaintiff has not provided proper supplemental responses to form interrogs 6.7, 9.1, and 9.2. The court will hear argument on these items. M...

Excerpt: ...nd seeks to recover from Fernandez and the school district, Fullerton Joint Union High School District, on a single claim of negligence. Defendants move for summary judgment on two grounds: (1) assumption of risk; and (2) waiver. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .”  Aguilar v. Atlantic Richfield Co. (20...

Excerpt: ... counsel states that Defendant was served with the summons and complaint on 8/12/20. This demurrer was not filed until 12/14/20, more than 30 days later. However, Defendant's counsel explains that on 8/20/20, Plaintiff's former counsel agreed that an amended complaint would be filed. (Eberhardt Decl. ¶ 4, Ex. B.) On 9/28/20, Plaintiff's counsel reiterated that an amended complaint would be filed soon. (Id. at ¶ 6.) However, Plaintiff retained n...

Excerpt: ...hai Grinberg is DENIED. Code of Civil Procedure section 415.10 states in part, “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” Code of Civil Procedure section 415.20(b) provides for substituted service on an individual: “If a copy of the summons and complaint cannot with reasonable dil...

Excerpt: ...r information regarding Request for Admission No. 2. Plaintiff agreed to provide Code compliant responses to Form Interrogatories 6.4, 6.6, 6.7, 9.1, 9.2, 12.1, 13.1, and 17.1 for information regarding RFAs 1, 3, 4, 5, 6, 7, 8, 9, and 10. Therefore, assuming Plaintiff provided responses as agreed, the motion is MOOT. Moving defendant has not filed any additional report indicating that Plaintiff has not complied. MOTION 2. Defendant seeks an order...