Excerpt: ...on, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” Intervention is mandatory (as of right) or permissive. Here, Makena is moving for a permissive intervention. Permissive intervention applies where: (1) the intervenor has a direct interest in the litigation; (2) intervention will not enlarge the issues raised by the...

Excerpt: ... occur prior to filing the demurrer. Both parties ask the court to take judicial notice of documents relating to the parties' arbitration before the American Arbitration Association (“AAA”). The requests for judicial notice are important because under Code of Civil Procedure §430.30(a), on demurrer, the court may only consider matters appearing on the face of the pleading, or from any judicially noticeable information. It is notable that, wh...

Excerpt: ...tract claims and only by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876. Other noncontract claims joined in the action are disregarded: “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” Civ. Code § 1717(b) & (c); Santisas v. Goodin (1998) 17 Cal.4th 599, 615; see also Civ...

Excerpt: ..., “[f]acts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410; WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151 (“Because only factual allegations are considered on demurrer, we must disregard any ‘contentions, deductions or conclusions of fact or law alleged....'”).) Here, Plaintiff makes conclusory allegations that Plaintiff i...

Excerpt: ... the NIB to real party in interest Cummings Industries, Inc. dba North American Crane Company (“NACC”). Factual Timeline On 04/27/18, the NIB was issued by OCSD, and it required bids to be submitted by 05/29/18. (AR 128.) According to paragraph 3.1 of the NIB, OCSD reserved “the right to reject any or all Bids, waive any or all irregularities and accept or reject any portion of each individual Bid.” (AR 135.) While “[a]ny missing bid re...

Excerpt: ...(CA. LAB. CODE § 510) FAILS AS A MATTER OF LAW (Undisputed Material Facts (“UMF”) 1 to 138) The elements of a cause of action for failure to pay overtime are: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (2) plaintiff was not paid and/or paid less than the overtime rate for some or all of the overtime hours worked; (4) the amount of overtime pay owed. CAC contends that this cause of action has no merit bec...

Excerpt: ...ge the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. Every element must be pled specifically. Ibid. Moving defendants contend that the cause of action fails to meet this standard, and they are correct. The first cause of action all...

Excerpt: ...ndant's outrageous conduct. Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. at p. 229. To avoid a demurrer, the plaintiff must allege with great specificity the acts that he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. Vasquez v. Franklin Ma...

Excerpt: ...udication shall be granted only if it “completely deposes of …an affirmative defense.” Code Civ. Proc. § 437c(f)(1). Plaintiff therefore has the burden of disproving each of the challenged affirmative defenses. This is a different burden than plaintiff would bear if she was moving for summary judgment or adjudication on her own complaint or cause of action. Issue 1 – relating to the second affirmative defense. The second affirmative defe...

Excerpt: ... (f). However, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d). Additionally, the court observes that the font used by defendants in the moving and reply brief may run afoul of the font requirements of California Rules of Court 2.104 and 2.105. The parties are urged to review the California Rules of Court and observe all formatting conventions. Because defendant...

Excerpt: ...on the lodestar, which is the amount of time reasonably spent and the reasonable hourly compensation of each attorney. Meister v. Regents of the University of California (1998) 67 Cal.App.4 th 437, 449; Chodos v. Borman (2014) 227 Cal.App.4 th 76, 91-92 There is no challenge to the propriety of the hourly rates – which are $300/hr for pre- dismissal work and $330-360/hr for work on the appeal for Attorney Couch and $330 for work done by Appeal ...

Excerpt: ...art, and SUSTAINED without leave to amend, in part. The demur to the First through Sixth, Ninth and Tenth causes o f a c ti o n i s OV E R R U LED . Th e de mu r t o the S ev en t h an d Ei g h th c a u ses o f a c ti o n is S U S T A IN ED without leave to amend. Defendants' request that the Court take Judicial Notice of the documents attached as Exhibit 1 to the Declaration of David Refice is GRANTED. (Evid. Code §§ 452(c) and 452(h).) To the...

Excerpt: ...as established that he has complied with the fee requirement under Rule 9.40(e). (Polin Dec., ¶ 13 and Exh. A.) Thus, the unopposed application to appear pro hac vice is GRANTED. Moving parties to give notice. 2. Motion for Protective Order by Defendants Casa Capri, LLC, Casa Capri Recovery Center, LLC, Zackary Irani, Melissa Holmes Goodmon and Jeremy Broderick: Defendants Casa Capri, LLC; Casa Capri Recovery Center, LLC; Zackary Irani; Melissa ...

Excerpt: ...mplainant must allege: (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to defraud, 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal. App. 4th 153, 157 (finding, for allegations against corporation, Plaintiff must allege authority to speak for corporation).) The heightened pleading standard requires “‘pleading facts [th...

Excerpt: ...bution and Indemnity; Third Cause of Action for Declaratory Relief against ERC; and Fourth Cause of Action for Express Indemnity alleged against ERC is also DENIED. ERC's evidentiary objections to evidence submitted by Avico are OVERRULED. Avico's objections to evidence submitted by ERC are also OVERRULED. Express Indemnity Cause of Action: ERC has submitted evidence to show that plaintiff California Military Defendant, owner of Building 7 on the...

Excerpt: ... Claim for Punitive Damages in Plaintiffs' Third Amended Complaint: 5. Demurrer of Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Plaintiff's Third Amended Complaint: 6. Motion by Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Strike Portions of Plaintiff's Third Amended Complaint: Before the court are three demurrers and three motions to strike, all attacking pla...

Excerpt: ...lity must bepresent before a court can refuse to enforce an arbitration provision based on unconscionability. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83, 114. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power; substantive unconscionability focuses on overly harsh or one-sided results. Sonic- Calabasis A., Inc. v. Moreno I (2013) 57 Cal.4 th 1109, 1133 The burden of p...

Excerpt: ...the cutoff date provided under Code of Civil Procedure §2024.020, (2) compelling plaintiffs to comply with their statements of compliance in response to requests for production of documents (“RPD's”), (3) compelling plaintiffs to permit an inspection of Hilz's computer by Continental's forensics expert or appointing a digital forensics expert to conduct that inspection, and (4) compelling further responses to Continental's RPD's, Set Two. Th...

Excerpt: ...) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). Defendant's answer to form interrogatory 12.1 is: (a-d) Objection. Vague, ambiguous, and uncertain. Invasion of privacy. Violation of attorney client privilege and attorney work product doctrine. Burdenso...

Excerpt: ....D. for Terminating Sanctions for Failure to Obey Discovery Orders: Defendant Lam Dang, MD (“Dang”) moves the court for an order for terminating sanctions by striking plaintiff David Struble's (“Plaintiff”) complaint, or, alternatively, for issue and evidentiary sanctions for willful failure to provide timely verified responses to written discovery pursuant to the court's November 21, 2019 order. Dang also seeks $1,560 in monetary sanctio...

Excerpt: ... the insurer directed or authorized the agent to perform the tortious acts, or it ratifies acts it did not originally authorize.” (R & B Auto Center, Inc. v. Farmers Grp., Inc. (2006) 140 Cal.App.4th 327, 344; Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 518-523.) Further, in California, only licensed life insurance agents are authorized to transact life insurance business. (Cal Ins. Code §§ 32(a); 1622(a)....

Excerpt: ...d their sureties, Michael B. Martin, Scott Hook, and Eric Mooney, is GRANTED. The motion is brought under Code of Civil Procedure §996.440, which states as follows: (a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action. (b) The motion shall not be made until after entry of the final judgment in the action or proceeding in which the b...

Excerpt: ...erd Industries v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4 th 1568, 1588 A motion for leave to complete discovery closer to trial must be accompanied by a meet/confer declaration. [CCP §2024.050(a)] One of the factors to be considered by the court in making its discretionary ruling is “[t]he diligence or lack of diligence of the party seeking discovery or the hearing of the motion, and the reasons that discovery was not completed or...

Excerpt: ...e only if the matter is reasonably beyond dispute. Post v. Prati (1979) 90 Cal.App.3d 626, 633, 153. Furthermore, matters subject to judicial notice have the same requirement of relevancy as any evidence sought to be introduced at trial. People v. Rowland (1992) 4 Cal.4 th 238, 268, n6; Evid. C. 350. The party making the request for judicial notice must also supply the court will sufficient information and source material to enable the court to d...

Excerpt: ...r money had and received and the second issue relates to the claim for punitive damages in the sixth cause of action for fraud. The motion is moot with respect to the first issue, because plaintiff dismissed the fifth cause of action for money had and received on January 2, 2020. With regard to the second issue, defendants contend that the claim for punitive damages fails because the gravamen of plaintiff's claim is really for breach of contract ...

Excerpt: ...use of action is for legal malpractice. “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal.4th 739, 749–750 (1998). Here, the all...

Excerpt: ... court case, Horner v. Bank of New York Mellon, Case No. 8:16-cv-00557-CJC-DFM (USDC C.D. Cal.), and the other recorded in connection with this case. At any time after recording of a lis pendens, any party affected by it may apply “to the court in which the action is pending to expunge the notice.” Code Civ. Proc. §405.30. The person filing the lis pendens has the burden of proof to show that the lis pendens should not be expunged. Code Civ....

Excerpt: ..., the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.' [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, fn. omitted.) Protected activity: ...

Excerpt: ...� 1102.5, violation of Labor Code § 6301, failure to authorize and provide meal and rest breaks, and wrongful termination in violation of public policy, respectively. Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means condu...

Excerpt: ... M.S. On 9-25-19, plaintiff served a notice for Brualt's deposition on 10-7-19. The notice was sent with a letter asking for alternative dates if 10-7-19 was not available for either Brualt or counsel. On 10-2-19, defendant served an objection to the deposition notice. On 10-8-19, plaintiff's counsel emailed defense counsel and asked that the parties discuss an expert deposition schedule. Defense counsel responded by stating that counsel expected...

Excerpt: ... manner. Each party shall select and appoint one arbitrator. The two arbitrators so appointed shall select and appoint a third arbitrator. The decision in writing of any two of the arbitrators so appointed shall be binding and conclusive as to both parties to this Agreement. Should either party to this Agreement fail to appoint an arbitrator as required by this paragraph within fifteen (15) days after receiving written notice from the other party...

Excerpt: ...n of the United States and constitution of California, and any other financial privacy laws. Responding Party further objects to this interrogatory on the grounds that it is vague, ambiguous, burdensome, oppressive, not complete in and of itself, calls for the preparation of a compilation, and not reasonably calculated to lead to the discovery of admissible evidence. Kuhar's burden on this Motion is to justify any objection or failure to fully an...

Excerpt: ...ndant to make one payment of $1500 in November 2017, fifteen monthly payments of $3000 starting on 12/01/18, and one final payment of $1492.61 on or before 03/01/19. If defendant made late payments, plaintiff was authorized to collect a $100 late fee per payment. Defendant initially performed and then breached beginning in February 2018, thus damaging plaintiff in the amount of $39,255.70 plus interest from 01/05/18, late fees, and attorney's fee...

Excerpt: ...Supplemental Jurisdiction statute, 28 USC § 1367. Under subdivision (a) of Code Civ. Proc. § 1008, any party affected by an order made upon application by the Court “may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior ...

Excerpt: ...nt to defraud, i.e., to induce reliance, (4) justifiable reliance, and (5) resulting damage. Robinson Helicopter, Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990. In Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, the court stated: “Every element of the cause of action for fraud must be alleged with sufficient specificity to allow the defendant to understand fully the nature of the charge made. (Citation omitted.)” Id. a...

Excerpt: ...m they inadvertently admitted 5 RFAs that would be used to assert a statute of limitations defense. A party will be permitted to withdraw or amend an admission only if the court finds:  The admission resulted from “mistake, inadvertence or excusable neglect;” and  No substantial prejudice from the requesting party will result from allowing the admission to be withdrawn or amended CCP §2033.300; New Albertsons, Inc. v. Superior Court (2...

Excerpt: ...Trial by Plaintiff David Scallon: Plaintiff's motion for new trial is also DENIED. To begin with, in order to warrant a new trial, any error or irregularity must be prejudicial. “If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion.” Bristow v. Ferguson, 121 Cal.App.3d 823, 826 (1981). Plaintiff fails to show how any single error or irregularity he identifies in his motion...

Excerpt: ...ainer judgment was never ruled upon by the Court of Appeal, or any other court. In general, void judgments, as opposed to merely erroneous ones, are subject to collateral attack at any time, and do not have res judicata effect. Moffat v. Moffat, 27 Cal.3d 645, 654 (1980). However, if the validity of the judgment claimed to be void has been litigated and determined, that determination is res judicata as to any subsequent proceeding attacking it. G...

Excerpt: ...rranty of Habitability and Fifth Cause of Action for Constructive Eviction is OVERRULED. The demurrer to the Fourth Cause of Action for Nuisance is SUSTAINED with 20 days leave to amend. Breach of Implied Warranty of Habitability: The elements of the cause of action for breach of the implied warranty of habitability are: (i) a material defective condition affecting habitability of the premises; (ii) notice to the landlord within a reasonable time...

Excerpt: ... for the submission of falsified evidence by their attorney, Omar J. Yassin; (2) Disqualify Yassin as Defendants' counsel; and (3) Compel on-site inspection is DENIED. Defendants Pacific Los Alisos, LLC; Elaine Voechting; and Ben Lopez's Evidentiary Objection to “Statement of Manjula Sridhar” is SUSTAINED. Discovery sanctions against Defendants: Plaintiffs seek to impose discovery sanctions against Defendants for: (1) producing an allegedly f...

Excerpt: ...otion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1165. An act in furtherance of a person's right of petition or free speech under the United States or Ca...

Excerpt: ...dicial review of an arbitration award is extremely limited. Singerlewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 615. An arbitrator's decision is not reviewable for errors of fact or law, regardless of whether such error appears on the face of the award and causes substantial injustice to the parties. Id. at pp. 615-616. Parties who enter into arbitration agreements are presumed to know the arbitrator's decision will be final and binding. Id. a...

Excerpt: ...roduction of three categories of documents:  all documents and records pertaining to plaintiff's application for employment, employment, and separation from employment, including employment applications, resumes, letters of reference, interview notes, background checks, offers of employment, employment agreements, personnel file, performance evaluations, documents pertaining to performance, documents pertaining to discipline, incident reports,...

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: ..., 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: ...ng. Whether Northridge lacks standing to sue is not relevant at this stage in the proceedings. WKS is free to raise that defense on an appropriate pleading challenge, on a motion for summary judgment, or at trial. And even if Northridge lacks standing to sue, it may be that Lundin does have standing to sue. Denying Lundin leave to amend might prejudice him by depriving him of the right to raise a potentially valid claim, defense, or legal theory ...

Excerpt: ...xpert discovery. Defendants also move for an order granting them leave to augment their expert witness designation by including Ross Nathan, M.D. As to the first request, the court may, upon motion by any party, “grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Code Civ. Proc. § 2024.050(a). In exercisi...

Excerpt: ...rth below, the court GRANTS the motion for summary adjudication as to Issue 2 and the 2 nd cause of action, and as to Issue 4 and the 5 thcause of action. The motion for summary adjudication is DENIED as to all other issues and causes of action. The motion for summary judgment is DENIED. Issue 1 1st COA: Violation of Labor Code 432.7 Whether the 1 st COA has no merit because Plaintiff cannot establish that Servite considered any record of arrest ...

Excerpt: ...ial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” The requirements of California Code of Civil Procedure Section 36(a) are satisfied here. Plaintiff's counsel David M. Medby has submitted a declaration in which he states that Plaintiff is 86 years old. (Declaration of David M. Medby (“Medby Decl.”), ¶ 4.) Medby's declarat...

Excerpt: ... – (3) provide as follows: “(b) ‘Vexatious litigant' means a person who does any of the following:” “(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial...

Excerpt: ... and default judgment under CCP § 473(b) which provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b) requires that the motion be filed within a reasonable time not exceeding six months after the judgment, dismissal or...

Excerpt: ... 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. Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803. The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271. In the fir...

Excerpt: ...erning defendants' alleged failure to properly assess and accommodate his special needs is to show that defendants had adequate notice that a dangerous environment could be created at school. As the United States Supreme Court stated in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), Section 1415(l)'s exhaustion requirement “hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education” or “FAPE,”...

Excerpt: ... evidence to consider the actual amounts it paid for product liability coverage and correct its tentative statement of decision. Under subdivision (a) of CRC 3.1590, after a trial of fact lasting more than one day, the court must announce its tentative decision by an oral statement or written statement filed with the clerk. This tentative decision does not constitute a judgment and is not binding on the court. CRC 3.1590(a). The court may enter a...

Excerpt: ...orneys' fees that may be awarded. Subdivision (a) of CCP section 1030 provides that, “[w]hen 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 awarded in the action or special proceeding.” Subdivision (b)...

Excerpt: ...t forth below. A. Burden of Proof On a petition to compel arbitration, the only question before the trial court is whether it should specifically enforce the arbitration agreement. In making this preliminary determination, the trial court must follow the procedure outlined by the California Supreme Court in Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414. When a petition to compel arbitration is filed and acco...

Excerpt: ... at the cafe, plaintiff was caused by this vertical deviation to fall. Plaintiff claims that this was a dangerous condition that caused him to suffer injuries as a result. Defendants' argument is that the step had been painted bright yellow prior to the accident, and that plaintiff himself had testified that, had he seen the yellow marking, he would have been physically capable of stepping up and entering the bathroom. (See Def.'s Ex. B at 42:7-1...

Excerpt: ... that Rolen has rendered to the Board. For the following reasons, the motion is granted in part and denied in part. Evidentiary objections: Objections numbers 3, 6, 7, 8, 9, 11, and 12 to the Declaration of Nina Boyd are sustained, and the remainder are overruled. Objections numbers 15, 17, and 18 to the Declaration of Jeffrey Riel are sustained, and the remainder are overruled. The objections to the Declaration of John Bedell and Mike Matsuda ar...

Excerpt: ...nds that the action, which was filed on 11-28-18, is untimely under the one-year limitations period in Code Civ. Proc. § 340.5. Section 340.5 provides in relevant part: In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasona...

Excerpt: ...is applies to any of the “standard” privileges enumerated in the Evidence Code, including the privilege claimed here, the attorney-client privilege set forth in Evidence Code. 950, et seq. Courts cannot create exceptions to statutory privileges beyond those provided by the statute. University of Southern Calif. v. Sup.Ct. (Comeau) (1996) 45 Cal. App. 4th 1283, 1290. Information within the scope of certain of the above privileges including the...

Excerpt: ...Cotton, Ltd., 75 Cal. App. 4th 486, 496 (1999) (“terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party”); Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967, 992 (2009) (“A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows...

Excerpt: ...sicians Assistant Specialists-California Inc. dba PASCal, seeks leave of court to file a Cross-Complaint against Plaintiff Kristin Wagner and Kultured Medicine Corp. (CCP 426.50; 428.10.) The proposed Cross-Complaint alleges 5 causes of action for: 1. Intentional Interference with Third Party Contract 2. Negligent Interference with Third Party Contract 3. Intentional Interference with Economic Advantage 4. Negligent Interference with Economic Adv...

Excerpt: ...Private Property alleged in Plaintiff Paul Winkler's Second Amended Complaint (“SAC”) is SUSTAINED without leave to amend. In its prior ruling sustaining Defendant's demurrer to the First Amended Complaint, the court granted Plaintiff “one final chance” to file an amended complaint. The ruling specifically stated that “[t]he amended complaint must state facts supporting each cause of action and facts that show absolute judicial immunity...

Excerpt: ...the court is considering a transfer of the case to the family law division for a determination of the annulment issue. For example, the Complaint raises the following questions that are unique to the family law division – (i) whether the marriage should be annulled as illegal and void, from its inception, on the ground of bigamy under Family Code 2201 (a); (ii) whether the action was properly served on the wife prior to her death; (iii) whether...

Excerpt: ...ng defendant's Answer. Generally, severe sanctions like terminating sanctions for failure to comply with a court order are allowed only where the failure is willful. R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 496 (1999) (“terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party”); Doppes v. Bentley Motors, Inc....

Excerpt: ...e Relief Compel Arbitration” alleged in plaintiffs Complaint is OVERRULED in part, and SUSTAINED with leave to amend in part. Defendant's demurrer to the first, second and third causes of action is OVERRULED. The demurrer to the fourth cause of action is SUSTAINED with leave to amend. First, second and third causes of action for Declaratory Relief: In Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, the court stated tha...

Excerpt: ...tiff's Further Responses to Special Interrogatories, Set One, and Request for Monetary Sanctions in the Amount of $1655.00: 4. Motion by Defendant WKS Restaurant Corporation for an Order to Compel Plaintiff's Further Responses to Request for Production of Documents, Set One, and Request for Monetary Sanctions in the Amount of $1510.00: No. 1. Motion for Leave to Amend by Leonard H. Lundin: Cross-Defendant Leonard H. Lundin seeks leave of court to...

Excerpt: ...sidering all of the parties' papers, including their supplemental briefs, the court issues the following tentative ruling: Defendants' Petition to Compel Arbitration and Stay Litigation On 11/13/18, Plaintiff Kenneth B. Blye filed his Complaint alleging 15 causes of action against the following named Defendants: 1. Cresa Management LLC (CM) 2. Cresa Partners of Orange County LP (CPOC) 3. Cresa Partners-West Inc. (CPW) 4. Jeff A. Manley 5. Wayne L...

Excerpt: ...al or emotional injury'; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” Britt v. Sup. Ct., 20 Cal.3d 844, 864 (1978). And even where information is directly relevant to the plaintiff's claim, any compelled di...

Excerpt: ...r hearing on 6/27/19. In support of that motion, Servite filed the declaration of its former president Peter Bowen. Servite moves to seal paragraph 29 of the Bowen declaration because it contains confidential information regarding its former employee Larry Toner, who is not a party to this action. Disclosure of that information would invade Toner's third- party privacy rights in the details of his personnel file and his former employment. The cou...

Excerpt: ...Defendants South Coast Behavioral Health Inc., Charles A. McPhail, and Abdull Khan move to compel arbitration of this dispute and to stay this action pending resolution of the arbitration. (CCP 1280, et seq.; 9 USC § 4, et seq. the Federal Arbitration Act [FAA].) Co-Defendants South Coast Behavioral Health LLC and South Coast Behavioral Health Guesthouse Inc. also join in the motion. The court DENIES the motion as to all three Defendants, for th...

Excerpt: ...NED in part and OVERRULED in part. First Cause of Action for Breach of Contract The court sustained with leave to amend Defendants' prior demurrer to the breach of contract cause of action as to defendants Secure Channels and Proximity finding that California courts do not recognize a theory of vicarious liability of an entity for the acts and omission of an individual, so-called “reverse piercing.” Postal Instant Press, Inc. v. Kaswa Corp. (...

Excerpt: ...rers are OVERRULED. As a preliminary matter, CCP 430.41(b) is inapplicable here as no demurrer was previously sustained in this action. The prior motion to dismiss was brought under the FRCP, not CCP. First Cause of Action – Unfair Competition The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Defendants contend that the Ye...

Excerpt: ...by Defendant Horner On 5/9/19, Defendant Horner filed a bankruptcy petition, which triggers an automatic stay. So the question arises whether the court may rule on the two motions below. Here, Plaintiffs had already obtained a judgment for possession and writ of possession prior to Defendant's bankruptcy filing. So prior to the bankruptcy filing, it had already been established, as a matter of law, that Defendant had no legal or equitable right t...

Excerpt: ...(AR 135-136.) In a prior writ proceeding, this court found that the alleged false statements had been obtained in violation of Petitioner's POBRA rights, so that the allegations of dishonesty against him could not be sustained and could not form the basis of his termination. The court remanded the case to the City Council to reconsider the appropriate penalty, based exclusively on Petitioner's violations of departmental policy, and excluding any ...

Excerpt: ...ded by statute. (Gov't Code § 815(a).) City further argues that the liability of a public entity for injury caused by the dangerous condition of public properly is exclusively governed by Government Code Section 835, which Plaintiff has already alleged in her first cause of action for premises liability. City correctly argues that Plaintiff's premises liability cause of action alleges liability based on the dangerous condition of public property...

Excerpt: ...ust be accepted as true for the purpose of ruling on the demurrer. 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. Day v. Sharp (1975) 50 Cal.3d 904, 914, and Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1...

Excerpt: ...gation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.” In addition, CCP 393.3 (a) provides: “(a) Except as provided in subdivision (b), if, after hearing...

Excerpt: ...d by the doctrine of res judicata because they are related to the conservatorship action for which she was the conservator. Generally, res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal....

Excerpt: ...es line 3 as to Onofre Valencia; (9) Page 4, Prayer for Damages line 3 as to Mireya Valencia. Plaintiffs do not oppose the motion to strike as to defendant Margarita R. Ramirez who was not present at the time of the accident. Accordingly, the motion to strike as to Margarita R. Ramirez is GRANTED. The motion to strike as to defendant Carlos Ramirez is DENIED. Civil Code § 3294(a) provides for punitive damages “[i]n an action for breach of an o...

Excerpt: ...ge County Assessment Appeals Board (“AAB”). Even though a dismissal has yet to be entered, the ruling is not interlocutory, because no further judicial action is required by the court to render a final determination between plaintiff and AAB. City of Carlsbad v. Scholtz, 1 Cal.App.5th 294, 299 (2016)(citing Dana Point Safe Harbor Collective v. Sup. Ct., 51 Cal.4th 1, 5 (2010)). Plaintiff has filed a Notice of Appeal, and thus, a stay is requi...

Excerpt: ...lemental expert witness list on 3/26/19, but Plaintiff does not want Yates to be limited to giving rebuttal testimony. In the alternative, Plaintiff Williams asks the court for leave to augment his expert witness list to belatedly designate Joseph Yates as an expert witness. (CCP 2034.610; 2034.620.) The court DENIES the motion for the reasons set forth below. Statement of Facts Defendant MICHAEL KEITH MAGNELL represents that he has always made i...

Excerpt: ...cause of action for breach of the implied warranty of habitability is a contractual cause of action. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928-929. Plaintiffs do not dispute that the breach of implied warranty of habitability cause of action is a contractual cause of action, but contend that paragraph 20 of the FAC sufficiently evidences a contractual agreement. Paragraph 20 of the FAC alleges: “On or about October of 2016 . . . new ...

Excerpt: ...ing the verdict and appears to be irrelevant here. The court GRANTS the motion for the reasons set forth below. A. Surprise and Newly Discovered Evidence In his motion, Plaintiff makes a prima facie showing that he was surprised at trial because although Defendant had admitted liability during discovery, on the first day of trial she suddenly recanted and contested liability. (CCP 657 (3).) Plaintiff also argues that this constituted newly discov...

Excerpt: ...ate a cause of action citing Ferraro v. Camarlinghi (2008) 161 Cal.App.4 th 509, 528 [02/07/19 Minute Order] In denying the Motion to Strike, the court indicated: “Ferraro says it all. A general demurrer should have been filed. There is no basis for granting a motion to strike.” The court did not “invite” County to file a demurrer. And, the court couldn't invite a Demurrer if it had wanted to as it was already too late to file one after t...

Excerpt: ...dant breached its duty of care to the plaintiff by failing to use reasonable care in caring for him, failing to use reasonable care in the selection and maintenance of its staff, and failing to ensure the competency of its staff, thereby causing or contributing to the incident. (Complaint, ¶ 32.) Moving hospital submits the expert declaration of Alan C. Wittgrove, M.D., who is a board-certified surgeon and attests that he reviewed all of the rel...

Excerpt: ...e not in the format required by California Rule of Court 3.1354(b). The objections are in narrative form and are not consecutively numbered. The court disregards them. Merits: In order to shift the burden on summary adjudication, the cross- defendants must show “that one or more elements of the cause[s] of action…cannot be established, or that there is a complete defense to the cause[s] of action.” See Code Civ. Proc. §437c(p)(2). The moti...

Excerpt: ... for 12/14/18. Defendants Pacific Los Alisos, LLC; Elaine Voechting; and Ben Lopez contend that Lakin and Shaver are current employees of defendant Pacific Los Alisos, LLC and therefore represented by counsel for Pacific Los Alisos, LLC. Lakin is a service technician and Shaver is the assistant community director of the subject property. Defendants further contend that upon notification from Lakin and Shaver as to the receipt of the deposition su...

Excerpt: ...sponse to these requests Defendant responded by stating that: “After a reasonable and diligent search, Defendant is unable to comply with the request as it is informed and believes that it no longer has documents responsive to this request because they were no longer in existence at the time the original discovery request was made.” Pursuant to California Code of Civil Procedure § 2031.230, a representation of inability to comply shall “sp...

Excerpt: ... Murphy & King, P.C. (“M&K”) are DENIED in part. The first subpoena was issued on 11/12/18 and sought a deposition on 12/11/18 on three topics: A. Design and specification information for each variation of an implant bridge made and sold by Nobel or Nobel Biocare Procera LLC from inception to December 1998 and between May 2002 and January 2013 B. Design, manufacture, and sale of the implant bridges or their predecessors pursuant to six patent...

Excerpt: ...o the individual Defendants Elia and Amirali Ibrahim in this case. But it was unclear whether the automatic stay also applied to the Ibra Family Trust, IBRA Farms Restaurants Inc., and IBRA Automation Systems. This was partly because the two debtors had declared certain assets in their bankruptcy schedules, but the Trustee had not yet had an opportunity to determine whether the stay should also apply to those entities. It was also unclear whether...

Excerpt: ...munities, Inc., and Lana Hammers motion for an order (1) staying this action until after the court issues a ruling on Defendants' Petition to Compel Arbitration; and (2) compelling plaintiff Linus Shelton, in and through his son and successor-in-interest, Lawrence Shelton, to submit his claims to binding arbitration is GRANTED. CCP § 1281.2 provides in pertinent part: “On petition of a party to an arbitration agreement alleging the existence o...

Excerpt: ...he parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “A writing signed by the parties” is interpreted to mean that the settlement ...

Excerpt: ...nds for revocation of the agreement. Here the court finds there is an agreement to arbitrate. There has been no waiver of the right to arbitrate by defendant. No authority is cited or located saying the court is authorized to rule on whether plaintiff has waived the right to assert defenses to arbitration by demanding it. If it does, it finds that defendant's evidence does not show by clear and convincing evidence that plaintiff intended to waive...

Excerpt: ...legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dis...

Excerpt: ...ty. Second, the Complaint fails to plead any facts alleging that Plaintiff filed a government tort claim prior to filing the Complaint. State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 (“We conclude that failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.”) Lastly, Plaintiff's false ...

Excerpt: ...urrer to plaintiff V & S's first and second causes of action have been withdrawn and are therefore MOOT. Defendant SMMC's demurrer to plaintiff V & S's third cause of action for fraud is MOOT as SMMC is not a party named in this cause of action. Defendant Suheimat's demurrer to the third cause of action for fraud is sustained. The elements of a cause of action for fraud are: (1) a misrepresentation (false representation, concealment, or nondisclo...

Excerpt: ...n the moving party, Defendant Vandegrift, to show not only that (a) venue is proper in Los Angeles County, but also that (b) venue is improper in Orange County under any applicable theory. (Weil & Brown, California Practice Guide, (The Rutter Group) at ¶ 3:573; 3:575; La Mirada Community Hospital v. Superior Court (1967) 249 Cal.App.2d 39, 42; Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal.App.3d 1201, 1203.) B. General Venue Rule -- CCP...

Excerpt: ... resolving the objections raised by the motion to strike. (B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” Defendants have not filed a meet and confer declaration and therefore failed to comply with section 435.5. The court continues the motion filed by Defendants Prospect/Orange LLC and Williams R...