Excerpt: ...Plaintiff's unit, as such defendants knew Plaintiff was suffering yet failed to relocate her, failed to timely and properly treat, failed to abate the bed bug infestation, in acting in this manner Defendant intended to cause or at the very least with reckless disregard of the high probability that plaintiff would suffer emotional distress.” (Paragraph 130, page 22, lines 18-23). These allegations satisfy the requirement that Plaintiff allege De...

Excerpt: ...ender if that person authorized the order or is otherwise bound by it under the law of agency. (b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially...

Excerpt: ...��Attorney Rader”). Attorney Rader is attorney of record for Plaintiff Abernethy. Attorney Rader is not attorney of record for the Law Offices of Hagendorf & Abernethy (the “Partnership”), Rader has been filing papers on behalf of the Partnership since 08/2019. Standing. A complaining party who files a Motion to Disqualify is required to have standing.” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352.) Where a Motion for Disqualification ...

Excerpt: ... of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) The elements of a cause of action for breach of contract are: (i) the existence of a contract; (ii) the plaintiff's performance or excuse for nonperformance; (iii) the defendant's breach; and (iv) damage to the plaintiff resulting from the breach. (Oasis West Realty, LLC v....

Excerpt: ... prevailing party must be (1) incurred by that party, whether or not paid; (2) ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation'; and (3) reasonable in amount.” Charton v. Harkey (2016) 247 Cal.App.4th 730, 739. Item No. 1—Filing and Motion Fees: $6,706.08. Plaintiff agreed to reduce the costs by $124.00. Code Civ. Proc., § 1033.5 (a) (1) provides that Filing, motion, and...

Excerpt: ...uash. Plaintiff also argues that Defendant did not meet and confer prior to filing this motion. While a motion to enforce a subpoena over a consumer's objections requires prior meet and confer efforts, it does not appear that a consumer's motion to quash does. (Code Civ. Proc. § 1985.3(g).) The subpoena seeks the following two categories of documents from Citibank and Financial Partners Credit Union: 1) Any and all documents, inclusive of cashed...

Excerpt: ...tes “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Standing: Plaintiffs filed objection to ...

Excerpt: ... waived its right to compel arbitration. Significant delay alone does not constitute waiver and waiver will only be found when the moving party has taken substantial advantage of the judicial process or engaged in bad faith. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 3760377; Khalatian v. Prime Time Shuttle , Inc. (2015) 237 Cal.App.4 th 651. Although there has been some delay in bringing this motion, there is no evid...

Excerpt: ...all “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” CRC 3.1350, subdivision (d)(3) requires that a Separate Statement of Undisputed Material Facts be in a two-column format that states each undisputed material fact in the first column, followed by the evidence that establishes those undisputed facts in that same column. Citation to that supporting evidence must include reference to the exh...

Excerpt: ...Cal.3d 311, 318.) A Demurrer may be based on, among other grounds, failure to state sufficient facts to constitute a cause of action, uncertainty, and misjoinder. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) The examination of the complaint is “guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it doe...

Excerpt: ...en a reasonable time to correct the deficiency, and [4] resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297. Although Plaintiff alleged that she complained about the bed bugs, she failed to allege that Defendant was given a reasonable time to correct the problem. The pleading should be amended to complete these allegations. Sixth Cause of Action for Battery. “The essential elements of a cause of action ...

Excerpt: ...moving papers purport to be on behalf of PDSRET and Artz as trustee of PDSRET, the Court will consider the papers to be filed and arguments made by Artz as Trustee of PDSRET. This Court exercises its discretion to consider this motion, though filed more than 60 days of service of the operative complaint (the “FAC”). (Code Civ. Proc., § 425.16, subd. (f).) Code of Civil Procedure Section 425.16 provides in relevant part: “A cause of action ...

Excerpt: ...d gives statement to an insurance carrier “'for the sole purpose of defending' against claims, are protected by the attorney-client privilege. The fact that litigation was only a threat on the horizon and that attorneys had not yet been selected to try to avert or meet that threat does not convert the purpose of the transmission. To hold otherwise might merely encourage insurance companies to bring in their attorneys at early stages in the clai...

Excerpt: ...y valid claim entitling plaintiff to relief, 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. Hence, under a general demurrer, plaintiff's complaint must fail to state a valid cause of action for the demurrer to be sustained. A Demurrer for uncertainty, ho...

Excerpt: ... is unnecessary for the court to examine the defendant's opposing evidence, and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.) Once the plaintiff has met its initial 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 ...

Excerpt: ...0. The responses do not set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (Code Civ. Proc., § 2031.230.) As to the remaining RFPs, Defendants contend that Plaintiff's motion to compel further responses to her RFPs should be denied because (1) Plaintiff has already received these documents from Dr. Mitchell; (2) any documen...

Excerpt: ...e substanda r subdivision. (1) In appointing a receiver, the court sha l been afforded a reasonable opportunity to correct the c violation. [¶] ... [¶] ... “(11) The prevailing party in an action pursuant to this reasonable attorney's fees and court costs as may be f i Another provision that applies is Health and Safety Co d that, once the trial court “finds that a building is in a c o endangers the health and safety of residents,” it sha...

Excerpt: ...e, according to the exhibits attached to the Petition of (1) a list of the names and addresses of each m (2) the name and address of Adelanto's manag e (3) Adelanto's federal, state, and local income t a fiscal years, (4) Adelanto's operating agreement, (5) Adelanto's articles of incorporation, (6) Adelanto's financial statements, and (7) Adelanto's books and records as they relate current and past four fiscal years. (Amended Petition, Ex. 1 at p...

Excerpt: ...(2017) 12 Cal.App.5th 1043, 1051. Fair Trial: “To overcome the validity of an administrative decision, a petitioner must show the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion.” Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463. In order to resolve Petitioner's contention that the administrative hearing did not afford due process, the ...

Excerpt: ...des parties with expansive discover y contrary court order, a civil litigant's right to discovery Court (2017) 3 Cal.5th 531, 551.) “[A]ny party may o b matter, not privileged, that is relevant to the subject m action ... if the matter either is itself admissible in evid calculated to lead to the discovery of admissible evide n 2017.010; see Davies v. Superior Court (1984) 36 Cal. limited to admissible evidence”].) The statutory phras e than ...

Excerpt: ... show their burden that there are any triable issues of material fact. At Common Law, Plaintiffs Did Not Have Right To View: “[U]nder California law, a landowner has no right to an unobstructed view over adjoining property . . . . ‘As a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right. [Citations.] Such a right may be created by private parties through the gran...

Excerpt: ... question of law. (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.) “A valid . . . contract must be enforced according to its terms.” (Kalai v. Gray(2003) 109 Cal.App.4th 768, 777.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code § 1638.) “The whole of a contract is to be taken together, so as to give effect to every part, if reason...

Excerpt: ...gment, the prevailing party shall be entitled to recover all attorney fees, and all other fees and all costs incurred in such proceeding or action.” In this case, Plaintiffs' claims are based on allegations that during the couple's marriage, Defendant Stephen had wrongfully converted Plaintiff Wendy's separate property into community property. Plaintiff attacked the distribution of assets upon dissolution, and by extension, the Judgment of Diss...

Excerpt: ...) 43 Cal.3d 833, 841-842; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014, 1017.) Plaintiff's Complaint alleges that while a resident of Defendants' facility, Decedent, “an eighty-five-year-old Oxygen-Dependent woman with a colostomy bag, suffered preventable hypoxemia and hypotension that was left untreated, unaddressed, and allowed to worsen by Defendants” during Decedent's approximately eleven days' residency in the facility. (Comp...

Excerpt: ...Davidson (2007) 147 Cal.App.4 th 461, 472-473); Obj. no. 5 to ¶11 (page/line 5:14-19) is sustained on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472-473); and Obj. no. 7 to ¶13 (page/line 5:25-6:10) is sustained only as to the statements at page/line 5:25-6:3 on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472- 473). The remainder of the evidentiary objections are overruled. Defendant H2O's evidentiar...