Excerpt: ...closure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “Fraud may be pled specifically and general and conclusory allegations do not suffice. (Id. at p. 645.) To survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the represen...

Excerpt: ... Kolodny is the former attorney of plaintiffs Kimberly Jones and 150 Newport Center Drive, LLC (collectively, “Plaintiffs”), and that Barnes & Thornburg is his law firm. Defendants argue Plaintiffs have waived the attorney-client privileged based on Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142. However, Chicago Title does not support a finding of waiver here. Unlike the attorney in Chicago Title, Kolodny and his law fir...

Excerpt: ...igation and possible criminal proceedings. A court may stay discovery involving civil defendants facing possible criminal prosecution involving the same facts as the civil action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688-690.) Defendants Ulices Rangel and Keren Jemima Zuniga (“Moving Defendants”) show that, they have been, and are, subject to a criminal investigation, the basis of which relates to plaintiff. (Declaration...

Excerpt: ...at the latter should procure additional or different insurance coverage.” (Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, 927.) “The rule changes, however, when-but only when- one of the following three things happens: (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided (as in Free, Desai and Nacsa), (b) there is a request or inquiry by the insured for a particular type or extent of coverage (as...

Excerpt: ... 6310 (Issue Nos. 1 to 3), Third Cause of Action for Violation of Ralph Act in Violation of Civil Code § 51.7 (Issue Nos. 4 to 6), Fourth Cause of Action for Interference in Violation of California Family Right Act (Issue Nos. 7 to 11), Fifth Cause of Action for Violation of Labor Code § 1102.5 (Issue Nos. 12 to 14), Sixth Cause of Action for Discrimination in Violation of FEHA (Issue Nos. 15 to 19), Seventh Cause of Action for Retaliation in V...

Excerpt: ...lton and nonparty Lisa Helton's Claim of Exemption is GRANTED in part. Evidentiary Objections: Plaintiff's Objections to the Declaration of Kim Helton are overruled. Plaintiff's Objections to the Declaration of Joey P. Moore are sustained as to Nos. 1, 4, 5 and 6, but overruled as to Nos. 2 and 3. Plaintiff's Applications: Plaintiff Case, Ibrahim & Clauss, LLP (“Plaintiff”) applies, pursuant to Code of Civil Procedure section 483.010, for a r...

Excerpt: ...n Center (ROA 99) 8. Golden Care dba Empress Rehabilitation Center (ROA 101) County Villa Belmont Heights Healthcare Center (ROA 100) The subpoenas may be divided into 2 categories: 1. Subpoenas to prior or current employers (Motions 1, 2, 4, 5, 6, 8, 9); and 2. Subpoenas to medical providers (Motions 3, 7) MOTIONS 1, 2, 4, 5, 6, 8, 9: Plaintiff moves to quash deposition subpoenas to past or current employers: Telecare Corporation; St. Francis Me...

Excerpt: ...nt to Civil Code section 1793.2(a)(3). (FAC ¶¶ 97, 98.) Defendant cites no authority which requires further identification of the repair facility, literature or replacement parts at issue. 5th COA: The Demurrer to the Fifth COA (Breach of the Implied Warranty of Merchantability) is SUSTAINED with leave to amend, on the basis the claim is barred by the applicable statute of limitations and Plaintiffs have insufficiently alleged tolling. The four...

Excerpt: ... by defendant, and (4) damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) To the extent that Rodarte alleges a breach of contract based on her standing as a third- party beneficiary of a contract between Spectrum, on the one hand, and Aliso Villas and/or Accell, on the other hand, the COA fails because the first and second elements are not adequately alleged. To the extent Rodarte alleges a breach of contract based on her standing as a dir...

Excerpt: ...Defendant's arguments in support of this demurrer are persuasive on the record presented. Uncertainty: Defendant contends the FAC is uncertain, ambiguous and unintelligible because Plaintiff fails to identify the location of the road easement specifically at-issue and identify which portions need to be repaired and/or allege if Defendant is a beneficiary of the B-2 easement and which portions of the road she travels which would require her contri...

Excerpt: ...oncerns those RFAs, within 14 days after service of notice of this order. Plaintiff Miguel Cuevas (“Plaintiff”) moves for an order compelling Defendant Jae Yon Han (“Defendant”) to provide further responses to RFA Nos. 1, 2, 3, 4, and 5, and to Form Interrogatory 17.1 (collectively “subject requests”), and imposing monetary sanctions of $4,588.00 against Defendant and her counsel. Defendant opposes the motion on the grounds that her r...

Excerpt: ...f certain documents. The Court declines to award costs of proof of Requests for Admission, Set One, Nos. 2 through 6. Plaintiff does not establish that he proved the truth of the matters asserted in each of these requests. (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 521.) Costs of proof are recoverable only where the moving party actually proves, by introducing evidence, the matters that are the subject of the requ...

Excerpt: ... Complaint Pursuant to Code of Civil Procedure section 425.16 as to the first and eighth causes of action. The Court DENIES the motion as to the second through seventh causes of action. Defendant's Oversized Memorandum: Initially, the Court notes defendant has filed a memorandum that is seven pages over the 15-page limit, without permission from the Court. (California Rules of Court, Rule 3.1113(d).) Accordingly, the Court considers only the firs...

Excerpt: ...y imposition of personal jurisdiction.” (Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710.) The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 Cal.App.3d 1222, 1232.) Here, Plaintiff argues the Majestic Defendants purposefully directed their actions to California because they assumed liabilit...

Excerpt: ...Equipment being purchased whether new or used; and Issue 2: Defendant Ordway Corporation dba Print & Finishing Solutions had a duty (contractual obligation) to disclose to Plaintiff Pars Publishing Corp. dba Grapheex pursuant to the Equipment Purchase Agreement dated November 17, 2014 the condition and all prior usage of the Equipment being purchased whether new or used; and Issue 3: Plaintiff Pars Publishing Corp. dba Grapheex is entitled to res...

Excerpt: ...the requested information is relevant and not overbroad. (2) Plaintiff Jeffery Baker's Motion to Compel Further Responses to Special Interrogatories, Set 1 (Nos. 30, 33, 34, 35) is GRANTED in part; DENIED in part.  Special Interrogatory No. 30 – GRANT. Defendant has failed to justify its objection that the interrogatory is “unduly burdensome.” To the extent Defendant intended to invoke CCP § 2030.220, it failed to do so.  Special Int...

Excerpt: ...on 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court GRANTS Plaintiff's request for judicial notice of Exhibits A through C pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal...

Excerpt: ...e entered into on April 22, 2019 between Premier, Trust, Inc. (“Plaintiff”) and Mary Fike, erroneously sued as Mary Campbell, individually and as Trustee of the Mary Campbell Revocable Family Trust and Marital Sub-Trust of the Hugh R. Campbell Revocable Family Trust (“FIKE”). (See Decl. of Allinger, ¶19, Exh. 6.) The Settlement Agreement contains the following provisions: “5. Modification. This Agreement may not be amended, canceled, r...

Excerpt: ...quest for Judicial Notice as to the Stipulation and Order Regarding Trial Continuance and Discovery Management, signed February 10, 2020 (“Stipulation and Order”), pursuant to Evidence Code section 452(d). As an initial matter, the Court finds it is unclear from the Stipulation and Order whether the parties ever agreed to have a discovery referee rule on a discovery motion pursuant to Civil Code section 3295 as the Declaration of Sam L. McDer...

Excerpt: ...5.) As to the 4 th COA (Wrongful Death), this cause of action is sufficiently pled. Although Plaintiff does not identify the specific cause of death, the SAC nonetheless alleges that “DEFENDANTS' negligence and carelessness as described herein above” was the direct and proximate cause of Decedent's death. (See Para. 42 of SAC.) This is sufficient to allege causation for purposes of demurrer and Defendant cites no legal authority that this cau...

Excerpt: ...result, Plaintiff agreed to draft a Second Amended Complaint (“SAC”), which would cure the issues raised in the Demurrer. On 9-1-2020, the Court continued the Demurrer to 10-20-2020. On 10-8-2020, counsel for Moving Defendants filed a Second Supplemental Declaration indicating counsel for the parties agreed plaintiff would have until 9-12-2020, to submit to defense counsel the proposed SAC, and that as of 10-8-2020, plaintiff's counsel had re...

Excerpt: ...defendant's breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1178.) To allege the existence of a contract, the pleading must show “a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) Moreover, the complainant must allege its performance as a condition predi...

Excerpt: ...ross- Complainant, Richard Mellen 5. Defendant, Dean Lasso DBA Artistile's Motion to Tax Costs of Plaintiff, Paul Anthony (1) Off Calendar – no hearing will be held. Plaintiff, Paul Anthony's Motion for Attorney Fees is Continued to 11-3-2020, Dept. C11, at 2 pm. Plaintiff, Paul Anthony (“plaintiff” or “Anthony”) seeks an order awarding costs and attorney fees in the total amount of $627,634.50 against Defendant, Dean Lasso DBA Artistil...

Excerpt: ...de section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but not the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Motion: In Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4 th 919, 923, the Court explained, “[i]f a purported assignment necessary to the chain by which the foreclosing entity claims that pow...

Excerpt: ...dent may be granted where it is shown he or she lacks knowledge or involvement in the litigation, and such deposition is being sought prior to plaintiff's exhaustion of less intrusive means of discovery. Such “high level” (or “apex”) depositions “raise a tremendous potential for discovery abuse and harassment.” (Liberty Mut. Ins. Co. v. Sup.Ct. (Frysinger) (1992) 10 Cal.App.4th 1282, 1287-1288 [analogizing to federal cases and citing ...

Excerpt: .... The Court notes the FAA “applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2]. Here, there is no FAA language in the contract, and no showing the contract at issue involves interstate commerce.] Defendants bear the burden to establish a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal...

Excerpt: ... & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) It is undisputed there is no contract between Tesla and HOI. Therefore, although HOI fashions its First Cause of Action as one for implied indemnity, it is actually a claim for equitable indemnity. Equitable indemnity applies only among defendants who are jointly and severally liable to the plaintiff. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 719.) Further, with limited...

Excerpt: ...th 1148, 1154.) Primary assumption of the risk applies when, due to the nature of the activity and the relationship of plaintiff and defendant to that activity, defendant's ordinary duty of care is negated; i.e., defendant owes no duty to protect plaintiff from the particular risk of harm that caused the injury. (Knight v. Jewett, supra, 3 Cal.4th at 314-315.) The general legal duty owed between coparticipants in sporting and similar recreational...

Excerpt: ... 2 is OVERRULED and Objection Nos. 3-9 are SUSTAINED. Plaintiff's Evidentiary Objections: The Court declines to rule on Plaintiff's objections to Defendants' evidence as they are not material to the disposition of the motion. Burden of Proof: A “party moving for summary judgment [or adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. A...

Excerpt: ...facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e); and to the Sixth COA (Sexual Harassment) against the District fails to state facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e). Defendant's demurrer is sustained with 20 days leave to amend in its entirety. (2) To the extent the Motion to Strike is not rendered MOOT, it is granted wit...

Excerpt: ...e exclusive means of doing so is pursuant to Code of Civil Procedure section 1286 et seq. Petitioner argues that her cause of action does not fall within Code of Civil Procedure section 1286 because her arguments concern the pre-arbitration process and were not addressed in arbitration. Specifically, Petitioner points to Respondent's failure to follow the procedures set forth in Public Safety Officers Procedural Bill of Rights Act (POBRA), specif...

Excerpt: ...nd out via an application on their individual smart phones, and recording the time employees clocked in and out as well as the employee's physical location at the time he or she clocked in and out. (Cross-Complaint, ¶ 11.) The Cross-Complaint also alleges cross-complainant paid cross-defendant according to the hours and time each recorded in the time recording system, but cross-complainant discovered cross-defendants had falsified their daily ti...

Excerpt: ... of the existence of these documents, the Court declines to take notice of the truth of the contents contained therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Initially, the notice of motion does not request or mention the removal of Gann as a director for cause under Corporations Code sections 5227(a) and 12363. Rather, this specific request is first made i...

Excerpt: ...nlarge the issues in the litigation; and (4) the reasons for intervention outweigh any opposition by the parties presently in the action. [Citation.]” (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) Proper Procedure: Proposed Intervenors timely filed their motion and submitted their proposed pleading in accordance with Code of Civil Procedure section 387(c). Proposed Intervenors properly seek to file an Answer in Intervent...

Excerpt: ...r dismissal of the action upon completion of Defendants obligations thereunder; Defendants would pay Plaintiff the total amount of $170k in monthly installments of $5k, starting on 3-15-2020 and on each 15th day of each month thereafter until 3-15-22; and In the event Defendants failed to perform their obligations under the MOU, it would constitute a material breach; that Defendants would have a 45-day cure period of any material breach; and if D...

Excerpt: ... alleged contract, or even identify the parties to the contract. However, the essential terms of the contact are adequately alleged, i.e., Plaintiff agreed to lend Defendant $300,000 and Defendants promised to repay the $300,000 with interest. The parties to the contact are identified as Plaintiff, as the lender, and Defendants, as the borrowers. While Defendants also contend it is unclear who spoke with Plaintiff to discuss the terms of the cont...

Excerpt: ...n is against all cross-defendants. Code of Civil Procedure section 430.10(f) provides a defendant may demur on the ground the pleading is uncertain. “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.) Demurrers for uncertainty “are granted only if...

Excerpt: ...st, second, third, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth COAs for failure to state fact sufficient to state a cause of action. The Court overrules the demurrer to the first, second, third, fifth, sixth, seventh, eighth, tenth, eleventh, and twelfth COAs based on uncertainty. Plaintiff's objections to the August 8, 2019, Bill of Sale attached as Exhibit A to the Declaration of Anya J. Goldstein are SUSTAINED. (1) DEMURRER TO ...

Excerpt: ...Shah (“Plaintiff”)'s Motion to Compel Defendant S&S Restaurant Venture, LLC (“S&S” or “Defendant”)'s Further Response to Request for Production of Documents, Set One (“RPD), pertain to RPD Nos. 3-7, 9-11, and 17- 19. Plaintiff contends Defendant has not produced the responsive documents and thus, should be ordered to provide further responses. Defendant, however, represents that a verified Amended Reponses to the subject discovery r...

Excerpt: ...ies, Set One, No. 1, and Request for Production, Set One, Nos. 5, 9, 11, 12, 45, 15, 16 and 17, without objection, within 10 days. Monetary sanctions in the amount of $1,220.00 are imposed against Plaintiff and his counsel, payable within 30 days. The notices of the motions were timely given on 2-3-2020, within the time agreed upon by counsel. (See Motion, Grandy Decl., ¶ 10, Exh. J.) The motions are also accompanied separate statements and a de...

Excerpt: ...nell Great Lakes, LLC (“Great Lakes”) (collectively “defendants”) and judicially notices Exhibit 1 pursuant to Evidence Code section 452(d), Exhibits 2 through 8 pursuant to Evidence Code sections 452(c), (d) and (h), and Exhibits 9 and 10 pursuant to Evidence Section 452 (d) and (h). The Court SUSTAINS defendants' objection to the Declaration of John Risso. The Court OVERRULES Plaintiff, Maria Angelica Alvarez's objections to the Declara...

Excerpt: ...Code section 11350(a).” On 4-16-20, Defendants filed supplemental papers. Defendants concede that HGH is not an “anabolic steroid” and not specifically listed as a “controlled substance” under 21 U.S.C. §§ 802(41)(C) or 812(c) Schedule 3. Nor does HGH require a prescription pursuant to Health & Safety Code § 11350(a). However, in their supplemental brief, Defendants cite new authority – 21 U.S.C. § 333(e) – which indicates it is...

Excerpt: ...th COA is GRANTED. With respect to the Fourth, Seventh and Eighth COAs the Motion is GRANTED, on the sole basis Plaintiff conceded there are no triable issues as to these claims. (Notice of Errata (ROA No. 112)). As to the First COA (Retaliation), Defendants failed to negate Plaintiffs' prima facie claim for retaliation in violation of FEHA. Defendants challenged Plaintiff's claim to the extent it relied on advocacy for Cheryl McElwain; however, ...

Excerpt: ...ises for employment positions and available properties to both in and out of state individuals; and is a Delaware corporation with its principal place of business in Addison, Texas. (See Cassidy Decl., ¶ 3.) In Opposition, Plaintiffs do not present any legal argument as to the applicability of the FAA to any arbitration agreement. However, Defendant did not present any evidence that the work performed by each Plaintiff involved interstate commer...

Excerpt: ...(“Defendant” or “ProActive”) paid Oscar and/or Rita, either on a W2, K1, or 1099, during any year wherein Oscar directly competed with Plaintiff while acting as its employee and agent. ProActive objected to these interrogatories on the grounds of, among other things, the right of privacy of Oscar and Rita. “The right of privacy is an “ ‘ “inalienable right” ' secured by article I, section 1 of the California Constitution. [Citat...

Excerpt: ... Motion for Summary Adjudication is DENIED as to first, fourth, sixth, ninth, and tenth causes of action. The Motion for Summary Adjudication is GRANTED as to the seventh, and eighth causes of action. As an initial matter, the Court notes that plaintiff's opposing separate statement fails to comply with Code of Civil Procedure section 437c(b)(3), which requires each material fact the opposing party contends is disputed be followed by reference to...

Excerpt: ...this action, as requested by Defendants. (Evid. Code, § 452(d).) Sur-Reply and Response thereto: Plaintiff's “Sur-Reply” and Defendants' Response thereto are filed without first obtaining leave from the Court. Moreover, they essentially reiterates the arguments made in the moving and opposing papers, in addition to arguing facts outside the pleading. Thus, they are disregarded and not considered. Meet and Confer: The Declaration of Gregory J...

Excerpt: ...es not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) The Court GRANTS Plaintiff's request for judicial notice of Exhibits 2, 4, and 5 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The ...

Excerpt: ...at judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213.) Here, defendants do not present new or different facts or circumstances; instead they argue...

Excerpt: ...oid. Defendant also contends plaintiff has not shown Defendant was properly served with the Initial Statement of Damages such that the default is void. Defendant further contends plaintiff's death necessarily changed the nature of the Complaint which requires that Dr. Hajj be allowed to respond, and that the court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those pled in the Complaint. Under C...