Excerpt: ... theory of liability. (South Bay Chevrolet v. Gen. Motors Acceptance Corp. (1999) 72 Cal.App.4th 861.) Plaintiff alleges that Tesla has committed unfair and unlawful business practices in refusing to provide Plaintiff with all of the data that has been gathered by the Vehicle's onboard diagnostic and data gathering equipment upon Plaintiff's request. (Compl., ¶¶ 41-43.) Plaintiff concedes that she does not assert a claim under the fraudulent pr...

Excerpt: ...ial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific facts showing a triable issue exists. (Aguilar, 25 Cal.4th at 849.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conf...

Excerpt: ...g requirements of California Rules of Court, Rule 2.108(1). The standard governing motions for summary judgment is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an ...

Excerpt: ...(Code Civ. Proc., § 437c (q)). Probate Code section 16061.7 provides that “A trustee shall serve a notification by the trustee as described in this section in the following events: (1) When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of ...

Excerpt: ...ate facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 641.) The elements for a claim for promissory fraud are: (i) misrepresentation; (ii) knowledge of falsity; (iii) intent to induce reliance; (iv) actual and justifiable reliance to Plaintiff's detriment; and (v) damages as a result. (Id., at p. 638.) Here, Plaintiff fails to allege detrimental r...

Excerpt: ...e case. Even if there was, Defendant showed a legitimate, nondiscriminatory reason for the termination. (UMF 1 to 26). DENIED. There were triable issues of Nos. 16, 21, 24 & 25. There is a factual dispute whether Plaintiff was terminated, because of poor performance or assisting wife due to her illness. Arguable, Defendants terminated Plaintiff as a result of “distraction.” Issue No. 2: The Second Cause of Action for Failure to Reasonably Acc...

Excerpt: ...rse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (Code Civ. Proc., § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Id.) Plaintiff Hagendorf amended his Complain...

Excerpt: ...false representations. Cote is awarded attorney's fees and costs in the total amount of $1,710.00. Code of Civil Procedure section 425.16 provides: “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 cou...

Excerpt: ...se of action. See Kraner v. Halsey (1889) 82 Cal. 209, 212. Current case law takes a different approach. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The failure to plead the dates of the tort does not require that the Demurrer be sustained. St...

Excerpt: ...n Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321. “The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.'” ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020. Reasonable Billing Rate: “The reasonable hourly rate is that prevailing in the community for similar work.” PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. “The tr...

Excerpt: ... fatal to his breach of contract cause of action.” Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402. “The elements of a cause of action for breach of contract are: ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.'” Coles v. Glaser (2016) 2 Cal.App.5th 384, 391. Plaintiff has alleged facts to set forth the elements of br...

Excerpt: ...tion that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; (6) the existence of collusion, fraud or tortious conduct aimed to injure the interests of nonsettling defendants. (Tech-Bilt, 38 Cal.3d at 499-500.) The settlement must be assessed based on the information available at the time of settlement. (Id. at 499.) By defin...

Excerpt: ...ss-Complainants did not seek leave to file a cross-complaint against moving Cross-Defendant Paul Copenbarger. Copenbarger provides evidence that the only cross- claims discussed at the August 2019 status conference were indemnity claims against NHV, VMG, and D'Alessio. (Alston Decl. ¶ 2.) Nevertheless, the court's minute order does not limit leave to amend to only those cross-claims discussed. Although Cross-Complainant Artz was no longer party ...

Excerpt: ...of Costs on 12/6/2019. Defendants originally attempted to file the motion on 12/26/2019, which would have been timely (taking into account the extra 5 days granted for service by mail). But the clerk rejected that filing because counsel's name did not match the name originally on file for defense counsel. Defendants then filed a Notice of Firm Name Change on 12/30/2019 and filed this motion the same day. (Muench Dec.) Defendants' counsel addresse...

Excerpt: ... action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.'” Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968. Causation: “On causation, the plaintiff must establish ‘it is more probable than not the neg...

Excerpt: ...6) 48 Cal.App.4th 976, 978–79.) Each case presents its own facts and circumstances, but the court will usually consider the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or compl...

Excerpt: ...as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc. § 36.5.) The attorney's declaration can consist entirely of hearsay and conclusions. (Fox v. Sup.Ct. (Metalclad Insulation LLC) (2018) 21 Cal.App.5th 529, 534.) Thus, the objections are overruled. Code Civ. Proc. § 36(a), permits a party who is over 70 years of age to petition the court for trial preference, which the court must grant if it makes both of the following f...

Excerpt: ... (Aguilar).) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, ...

Excerpt: ...substantial compliance with the response obligations set forth in 2030.210-2030.240. Further, Defendant has made a showing that the failure to respond was due to mistake, inadvertence, and excusable neglect arising from the health issues of former counsel, Concolino. (See Decl., ¶¶ 1-8; Crumpton Decl., ¶¶ 1-6.) Motion No. 2: The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock A...

Excerpt: ...ces as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” There are two types of cross-complaints: compulsory cross-complaints and permissive cross-complaints. A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 426.30.) A cross-...

Excerpt: ... Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877; Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 794.) The issue is whether these facts constitute a prima facie case or defense as a matter of law. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 C...

Excerpt: ...ely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (See Day v. Sharp (1975) 50 Cal.3d 904, 914...

Excerpt: ...isted in Plaintiff's Notice of Motion is denied without prejudice to Plaintiff refiling timely separate motions to quash each subpoena and paying resultant filing fees. Plaintiff's motion concerns a subpoena duces tecum (“Subpoena”) issued by counsel for Stater Bros. on October 9, 2019, and served on deponent Hoag Hospital Irvine - Records. (Ng Decl., Ex. 2.) The Subpoena requests: “[a]ny and all medical records, charts, files, doctors' not...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If ...

Excerpt: ...f, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) ...