Excerpt: ...ng the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” There was substantial evidence to support the verdict, including, but not limited to, Plaintiff's significant knee injury and the resulting blood clot which lead not only to a life-threatening pulmonary embolism but a permanent condition identified as post-...

Excerpt: ...on of the conspiracy, (2) a wrongful act done in the furtherance of the conspiracy, and (3) the resulting damage to the plaintiff. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-11.) Plaintiff's allegations fail to establish any underlying tort committed by Defendants. Accordingly, the demurrer is sustained as to this cause of action. Second Cause of Action for Fraud. The elements of a claim for fraud are: (a) a m...

Excerpt: ...y be exercised to permit the amendment of pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If the motion to amend is timely made, and there is no showing of prejudice, then it is error to deprive a party of a meritorious cause of action or a meritorious defense. (See Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Although KBSGI may have had some information about cross-defendants since 2015, KBSGI made its motion withi...

Excerpt: ...ued the subpoena should be limited to those areas. Defendants adequately addressed this concern by causing the subpoena to be withdrawn and issuing an amended subpoena limited to the body parts for which Plaintiff is claiming injury. Thus, the motion to quash is moot as to this issue. Second, Plaintiff requested that the subpoena be limited to 10 years prior to the subject accident. The subpoena originally did not contain any temporal limitation....

Excerpt: ...is the Trustee's Deed Upon Sale, which was recorded on 5/10/18. In the foreclosure sale, The Leasure Trust #21091, GR Development Inc., as Trustee was purchaser the property. “The doctrine of the ‘bona fide purchaser' can be generally described as follows: The purchaser or encumbrancer who pays valuable consideration for his interest in real property in good faith and who records his interest, receives his interest free and clear of all prior...

Excerpt: ... by some form of contract, express or implied, formal or informal.'” Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732. Plaintiffs fail to allege an attorney-client relationship. Second Cause of Action for Breach of Fiduciary Duty against Clemmer: “The creation of a fiduciary obligation or duty must, at a minimum, arise from facts demonstrating the formation of a confidential relationship. None are present here. ‘A fid...

Excerpt: ... herself, and one signed by Plaintiff's counsel. Plaintiff's declaration, however, was signed outside of California. In fact, Plaintiff submitted two declarations. On 6/18/2018, Plaintiff filed a declaration, in which Plaintiff stated: “I declare under penalty of perjury that the foregoing is true and correct. This declaration was executed on June 18, 2018 in Seattle, WA.” On 6/29/2018, Plaintiff filed another declaration, in which Plaintiff ...

Excerpt: ...formed a medical procedure without the plaintiff's consent OR the plaintiff consented to one medical procedure, but the defendant performed a substantially different medical procedure; 2) The plaintiff was harmed; and 3) The defendant's conduct was a substantial factor in causing plaintiff's harm. Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269. Here, the Complaint alleges that the Defendant, Dr. Moniak,...

Excerpt: ...e to a plaintiff who proves abuse of a “person residing in this state, 65 years of age or older.” (Id. at 404; Welf. & Inst. Code, § 15610.27.) The Act defines abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering or deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering. (Id., Welf. &...

Excerpt: ...rth Causes of Action are duplicative. The cross-complaint failed to allege the required elements. There must be an actual existing economic relationship as opposed to mere speculation. Third Cause of Action for Breach of Contract: Cross-complainant failed to allege a term of the contract that Vogel breached. The contract was not set out verbatim or attached to the pleading. “'To state a cause of action for breach of contract, a party must plead...

Excerpt: ...ce; and (e) resulting damage.'” Engalla v.Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . . ‘Thus ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.'. . . This particularity requirement necessitates pleading factswhich show how...

Excerpt: ...rt may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading....' (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. . . . The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. . . .'” Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, ...

Excerpt: ...n in violation of Government Code section 12940(h), respectively. Defendants Cybertech Lighting, Inc., Imran Parekh, and Rizwan Parekh Plaintiff alleges that he was the employee of Defendants Delta Sportswear, Inc., Cybertech Lighting, Inc., Imran Parekh, and Rizwan Parekh. (FAC, ¶ 2.) The FAC asserts the first and second causes of action for wrongful termination against all Defendants. (See FAC, ¶¶ 9-12; 13-16.) Defendants' submitted evidence...

Excerpt: ...27, 933, fn. 15), no balancing is required here because Defendants base their motion solely on the contention that the parties' agreement contains a mandatory forum selection clause, and that contention has no merit. The parties here entered into a Demand Promissory Note and Loan and Security Agreement on or around 09/09/2013. (Kanamouie Decl. ¶ 3, Ex. A.) Section 21 of that agreement provides for mandatory forum selection of only Borrower-initi...

Excerpt: ...while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552 “[W]henever discovery of facially private information is sought, the party seeking discovery must demonstrate a ‘compelling state interest' or ‘compelling need.'” W...

Excerpt: ...he defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Judgment of Dissolution between Plaintiff Wendy Sawyer and Defendant Stephen Sawyer includes the following release: Except as otherwise provided for in this Agreement, each party releases, holds harmless and indemnifies the other from any and all demands, attorney fees, costs, expenses, l...

Excerpt: ...ls, arbitral finality is a core component of the parties' agreement to submit to arbitration.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10.) Generally, courts cannot review arbitration awards for errors of fact or law, even when those errors appear on the face of the award or cause substantial injustice to the parties. (Id. at 6, 28.) The California Arbitration Act (Code Civ. Proc., § 1280 et seq.) provides limited grounds for judicial ...

Excerpt: ...ruth of the facts alleged. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.) First Cause of Action (ADA...

Excerpt: ...ting to accounts held by Igor Reverditto. Because Plaintiff fails to allege any cause of action against Defendant, Defendant cannot reasonably be compelled to respond to the pleading. Civ. Proc. Code § 430.10 (e) and (f). Accordingly, the Demurrer is sustained. Because this is the first challenge to the legal sufficiency of Plaintiff's Complaint, leave to amend will be granted. Defendant to give notice. ...

Excerpt: ...ond, the Motion did not include a declaration detailing which records the subpoena was seeking or any attempt to meet and confer between Plaintiff and Defendants. Third, the motion did not include a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (See Cal. Rules of Ct., Rule 3.1345(a)(5).) An Amended Motion to Quash was subsequently filed on 5/...

Excerpt: ...ent (1%) of the full cash value of such property.... [¶] (b) The limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any indebtedness approved by the voters prior to the time this section becomes effective.” In Pacific Southwest Realty Co. v. County of Los Angeles(1991) 1 Cal.4th 155, the California Supreme Court described Proposition 13 and its rel...

Excerpt: ...layed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. . . . [C]onclusory allegations will not withstand demurrer.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Once prope...

Excerpt: ... percent (1%) of the full cash value of such property.... [¶] (b) The limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any indebtedness approved by the voters prior to the time this section becomes effective.” In Pacific Southwest Realty Co. v. County of Los Angeles(1991) 1 Cal.4th 155, the California Supreme Court described Proposition 13 and it...

Excerpt: ...n the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the sepa...

Excerpt: ...cial security number to guarantee a lease with Plaintiff. Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” The law favors a trial on the merits, and doubts in applying Code Civ. Proc. § 473 are resolved in favor of the party seeking relief from default. Iott v. Franklin (1988) 206 Cal....

Excerpt: .... A); (2) this case involves claims covered by that agreement (see Monson Decl. ¶ 6, Ex. A; Compl.); and (3) Plaintiff has refused to arbitrate (Shaffer Decl. ¶¶ 13-18). (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Further, Defendant attaches the written agreement to arbitrate to the petition. (Cal. Rules of Court, Rule 3.1330.) Plaintiff fails to meet his burden to prove by a preponderance of eviden...

Excerpt: ...§§ 2025.420(h), 2030.090(b), 2031.060(b), and 2033.080(b).) “The burden is on the party seeking the protective order to show good cause” for the order sought. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d 807, 819.) To establish good cause, the moving party must provide “a factual exposition of a reasonable ground for the sought order.�...

Excerpt: ...he indemnitor; and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135.) Here, the FACC fails to plead any facts to support any fault on the part of Cross-Defendant. Cross-Defendant's demurrer to the third cause of action for Declaratory Relief is overruled. The elements of a cause of action for dec...

Excerpt: ...within 60 days after the filing of the Notice of Intent. Green v. Laibco, LLC (2011) 192 Cal.App.4 th 441, 447. Objections to Evidence: Plaintiff objected to Defendant's Affidavit in Support of Motion for New Trial. Nos. 1 to 4: Overruled. No. 5: Sustained. Defendant failed to show that these exhibits were offered and/or admitted in evidence at trial. Exhibit 4: Important Memo to Office Staff (9/25/14) and Exhibit 5: E-mail between counsel (2/21/...

Excerpt: ...ce, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp.(2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' Stueve B...

Excerpt: ...t of any award against him. Pursuant to CCP 2031.310 (h), the Court denies sanctions because it would be unjust under the circumstances. Defendant to give notice. ...

Excerpt: ...ings or other appropriate proceedings.'” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Cross-Defendant will have the opportunity to test the viability of the amended pleading on demurrer. Prejudice: “It is well established that ‘California courts ‘have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization...

Excerpt: ...equires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc., § 2025.420(h). “The burden is on the party seeking the protective order to show good cause” for the order sought. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.Ap...

Excerpt: ...he alleged arbitration agreement on behalf of the resident where, as here, the arbitration agreement has been signed by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173; Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6.) Defendants have not met this burden. “ ‘[A]gency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agenc...

Excerpt: ...el is disfavored for public policy reasons and permitted only in very limited circumstances. (Spectra-Physics (1988) 198 Cal.App.3d 1487, 1494.) The court adopted the three-part test for determining the propriety of a deposition of opposing counsel. “The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information soug...

Excerpt: ... claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights…it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” “[T]he offset provided for in section 877 assures that a plaintiff will not be enriched unjustly by a double recovery, collecting p...

Excerpt: ... section 1987.1(a) provides that: “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 reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an...

Excerpt: ...her that evidence was sufficient to prove the claims or defenses asserted by the opposing party and now embodied in the jury's verdict. (See Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) A motion for JNOV “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Dept. of Veteran Affairs (2001) 25 Cal.4th 62, 68.) C...

Excerpt: ...g any cause of action, it must be alleged as an element of the plaintiff's cause of action. (State of California v. Superior Court (2004) 32 Cal. 4th 1234, 1239-40.) Plaintiff's Complaint does not allege facts demonstrating compliance with the claims presentation requirements. (See Compl., section 9.) A public entity cannot be held liable for common law negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 977.)...

Excerpt: ...ties to the dispute did not accept the terms offered for alternative dispute resolution. (3) Preliminary or temporary injunctive relief is necessary.” None of these alternatives occurred. Pursuant to Civ. Code § 5940 (a), the parties could enter into a written stipulation to extend the time to complete the ADR. This option is still open to the parties. Plaintiff HOA failed to satisfy one of three available alternatives in other to gain access ...

Excerpt: ...sed Stephen Sawyer harm. (ROA 647.) The provision at issue states: Except as otherwise provided for in this Agreement, each party releases, holds harmless and indemnifies the other from any and all demands, attorney fees, costs, expenses, liabilities, actions or causes of action of any kind or nature based on, arising out of, or in connection with any matter, fact or thing occurring or accruing before the date of the execution of this Agreement ....

Excerpt: ...ed. “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer.” United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505. Condition Precedent: In order the statute of limitation to begin to run, the contract provided for certain conditions to have occurred first. Defendant Bradley was to...

Excerpt: ...es that he paid for the performance bond at issue. The court disregards this new allegation as a sham pleading. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491; State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) The remaining allegations do not support a claim for violation of Business and Professions Code Section 17200. The sole allegation of misconduct against defendant Sureties is that D...

Excerpt: ... rather than restricting it to the technical niceties depending upon pleading and procedure.” (Greenspan v. Ladt, LLC. (2010) 185 Cal.App.4th 1413, 1445; see also First Western Bank and Trust Co. v. Bookasta (1968) 267 Cal. App. 2d 910, 915-16 [reversing order sustaining demurrer for purported failure to adequately allege alter ego].) Here, the FAC alleges that Garza is the CEO and President of Horizon and maintains a beneficial and financial i...

Excerpt: ...ses were due on 9/23/17. Plaintiff did not and has not served responses. (McConnell Decl.; ¶¶ 3, 5-5.) As a result, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well any objections to the interrogatories and requests for production. Plaintiff shall provide responses, without objections, to Special Interrogatories, Set Two; Requests for Production of Documents, Set Two; Supplemental In...

Excerpt: ...irrelevant, false, or improper matter inserted in any pleading.” A motion to strike may be used to strike punitive damages allegations in a complaint lacking factual foundation. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive damages are available in actions “for breach of an obligation not arising from contract.” (See Civ. Code, § 3294(a).) To plead a claim to recover punitive damages, a plaintiff...

Excerpt: ...r natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Code Civ. Proc., §§ 2025.420(h), 2030.090(b), 2031.060(b), and 2033.080(b). “The burden is on the party seeking the protective order to show good cause” for the order sought. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d ...

Excerpt: ...laintiffs did not meet their burden of showing why an enhancement is appropriate. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. See also, Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822. On its face, this case does not appear to be unusual in its complexity. Nor does it appear any enhancement is due for risk of loss or delay in payment as these factors have already been included in consideration of the ...

Excerpt: ...requests telephone calls and text messages, and shall produce the subject records to Plaintiff's counsel by April 18, 2018. Plaintiff did not demonstrate the required good cause showing for instant messages, social media postings, or other electronic or social media communications. The records are not to be shown or disclosed to anyone but the litigants and counsel (including agents and employees) and are to be used only for purposes of this liti...

Excerpt: ...ter or claim being released hereunder, then the moving party shall pay all reasonable attorney's fees and costs of the other party to defense such action” (emphasis added). The court finds that the terms “endorse” and “action,” identified above in boldface, may be ambiguous as a matter of law. (Civ. Code, § 1638.) At least ten (10) court days before the continued hearing, Defendant Stephen D. Sawyer shall file a supplemental brief of n...