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