Excerpt: ...3, Defendants improperly moved to strike the Second Cause of Action for Negligence/ Negligence Per Se. The court is inclined to overrule the Demurrer to this cause of action. First Cause of Action for Elder Abuse and Neglect: Decedent was elder and a resident at Defendants' skilled nursing facility. Defendants were entrusted with the care and custodian care of decedent. Defendants willfully and recklessly breached their duties to decedent so that...

Excerpt: ... policy of the law is to have every litigated case tried on its merits. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. Id. at 695. In such situations, very slight evidence will be required to justify a court in setting aside the default. (Id.) Moreover, beca...

Excerpt: ...how unlikely 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...

Excerpt: ...ntiff Dena L. Lowry. For the following reasons, the court is inclined to overrule the demurrer. A demurrer challenges the 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 issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true fo...

Excerpt: ...ury. (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983). Further, the statement of undisputed facts does not show that plaintiff cannot show “breach, causation, and damages.” The central issue is whether Defendants met their burden to show that Plaintiff cannot show they could have obtained a more favorable result but for Defendant's acts or omissions. “[...

Excerpt: ...rate statement of undisputed material facts.” (Cal. Rules of Ct., Rule 3.1350(b); see also Code Civ. Proc., § 1010.) The question whether a defendant breached a duty, however, is generally a question of fact for the jury (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983). A party moving for summary adjudication bears an initial burden of production to make a...

Excerpt: ...to the complaint, beyond the dec relief claims, should have been made by motion. On 10/8/20, the court sustained with leave to amend the Demurrer to the Second Cause of Action, which consisted of two declaratory relief causes of action. On 10/19/20, the Third Amended Cross-Complaint was filed. The causes of action were (1) Breach of Contract- Rescission and (2) Unfair Competition. Motion to Strike: “Following an order sustaining a demurrer or a...

Excerpt: ...ke available the corporate and financial records of CEATS. Pursuant to C.C.P. § 529, Plaintiff is required to post a bond or undertaking of $10,000.00 within fifteen (15) days. The court grants Plaintiff's Request for Judicial Notice. Plaintiff's Objection to Evidence: Declaration of Katlyn Matsuda: Nos. 1 & 2: Overruled. Declaration of Daniel Gallagher: Sustained for failure to execute declaration. Declaration of Mark Coate: No. 1 to 7: Overrul...

Excerpt: ...disparaged. The elements of a cause of action for slander of title are: “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) “The main thrust of the cause of action is protection from injury to the salability of property [citations], which is ordinarily indicated by ...

Excerpt: ...endant has made a threshold showing that the challenged cause of action arose from the defendant's protected activity. . . . If the defendant fails to satisfy this burden, then the special motion to strike must be denied. . . . If the trial court finds that such a showing has been made, then the court must decide whether the plaintiff has demonstrated a probability of prevailing on the challenged cause of action.” Copenbarger v. Morris Cerullo ...

Excerpt: ...ormance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, decla...

Excerpt: ...this lawsuit; this lawsuit involves Plaintiff Bona Terra Energy, LLC and Defendant DFV Holdings LLC, both of whom are parties to two Development Services Agreements (DSAs). The forum selection clause in the PSA provides: This Agreement and all amendments hereof and waivers and consents hereunder shall be governed by the Law of the State of Delaware, without regard to the conflicts of law principles that would result in the application of any Law ...

Excerpt: ...egligence (i.e., medical malpractice). “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Expert testimony is also required to demonstrate...

Excerpt: ...ip in need of capital to finance business expenses. (Compl., ¶ 18.) Defendants convinced Plaintiffs to enter into lease agreements by using misleading Lease Proposals and then, once Plaintiffs were locked into an agreement, adding extra “rent” and other charges. (Compl.¸¶¶ 3-6.) The Lease Proposals identified the material terms of the agreement, such as the lease duration, a description of the equipment at issue, the estimated total cost ...

Excerpt: ...agreement exists covering the claims in this action. Specifically, the parties agree that: (1) the matter should be arbitrated; (2) the arbitrator should be the Honorable Diane Wayne (Ret.); (3) the arbitration shall make final determinations regarding discovery and pleadings; and (4) Defendants will pay the cost of arbitration. (See Opp. at 2:4-8; Defs.' Prop. Order.) The sole remaining issue is which set of procedural and discovery rules will a...

Excerpt: ...o's refusal to return excess insurance funds constitutes an unfair business practice. Those insurance funds were to be used for no other purpose than the repair of the Property. (SACC ¶ 35.) The repairs were never completed, and Wells Fargo's refusal to return those excess funds, in part, prevented Kirton from further repairing her Property. (See SACC ¶ 16) Plaintiff also sufficiently alleges standing. “[U]nder the UCL, standing extends to �...

Excerpt: ...iability. The opposition filed to this OSC only says that, perhaps, a portion of the money loaned by plaintiff to Tri-Emerald (a debt documented by notes from Tri-Emerald and guarantees from the other defendants) may have ended up with Lend Plus. It is still not clear what Lend Plus did that makes it liable to plaintiff. The court's purpose in setting this OSC was partially to determine whether Lend Plus was derivatively liable based on an unlawf...

Excerpt: ...1,200 in monetary sanctions. Despite several meet and confer letters from Defendant's counsel, Plaintiffs have failed to respond and have failed to pay the monetary sanctions. The Court is inclined to find that it would be premature and improper to impose terminating sanctions at this time, for three reasons. First, as a rule, it is a violation of due process and an abuse of discretion for the trial court to impose terminating sanctions as punish...

Excerpt: ... the Request for Production of Documents, Set One, and agreed to produce supplemental documents pursuant to a protective order. (Livedalen Decl., ¶ 5, Ex. C.) Plaintiff does not dispute that Defendant served Supplemental Responses to Plaintiff's Request for Production of Documents, Set One on 04/12/19, but contends that the motion is not moot because several of the Supplemental Responses are still deficient. To the extent, Plaintiff contends the...

Excerpt: ...wers Admitted as to Brenda Watson 9. Motion to Deem Answers Admitted as to Chase Knight 10. Motion to Deem Answers Admitted as to Georgina Knight Motion to Compel Responses from Plaintiff Chase Knight to Form Interrogatories, Set Two: Failure to timely respond to interrogatories results in a waiver of any objections to the requests. CCP §§ 2030.290(a). If a party to whom interrogatories were directed fails to serve a timely response, the propou...

Excerpt: ...es that defendants were aware of clearly material information contained in the preliminary title report for the property and the home inspection report, and not only failed to disclose said information to plaintiffs, but pressured plaintiffs to follow through with the purchase. 1st COA – Fraudulent Concealment The title report is alleged to have shown the existence of a Code Enforcement action against the property as well as a lis pendens. Firs...

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Excerpt: ...aintiff to compel Defendant to provide verified responses, without objection to Request for Production of Documents, Set One. Defendant does not dispute that the aforementioned discovery requests were properly served via mail on him on 02/22/19. To date, Defendant has not served any responses to the Form Interrogatories, Set One; or the Request for Admissions, Set One. Defendant has thus waived any objections to the Form Interrogatories and the R...

Excerpt: ...g held in 11/17 and 03/18. Plaintiff has failed to comply with the provisions of California Rules of Court Rule 3.1324(a)(2) and (3) which requires that Plaintiffs state by page, paragraph, and line number what allegations in the previous pleading are proposed to be deleted or what allegations are proposed to be added. Accordingly, the court is inclined to deny the motion without prejudice. ...

Excerpt: ...rt agrees that the first and second causes of action are deficient. Plaintiff alleges the breach of a written contract without quoting the terms of the agreement verbatim or attaching a copy. And his second cause of action for fraud is alleged with insufficient specificity. Plaintiff may file an amended complaint within 20 days. The motion to strike is mooted by this ruling. ...

Excerpt: ...the borrower's financial situation and explore options for the borrower to avoid foreclosure,” or 30 days after satisfying due diligence requirements to attempt to contact the borrower. Civil Code § 2923.5(a)(1)(A), (a)(2), (g). Civil Code § 2923.5(e) also requires at least one written communication: (e)(1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone numbe...

Excerpt: ... It alleges that defendant Robert James Medina contends that he is the owner of the mobile home based on a purported bill of sale that he obtained by defrauding Blick. (Complaint, ¶¶ 11 and 13.) It alleges that, in 6-16, plaintiff found out about the purported bill of sale to Medina and that he had registered his alleged ownership of the mobile home and paid the 2016 registration fee. (Complaint, ¶ 14.) The verified complaint seeks the followi...

Excerpt: ..., the burden of proof is on the plaintiff to show that service was proper. Bolkiah v. Superior Court, 74 Cal. App. 4th 984, 991 (1999) (“once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.”) Here, Defendant has filed a declaration in which he attests that contrary to the Proof of Service filed by Plainti...

Excerpt: ...ault, who, for understandable reasons, could not address the case until recently. In light of the public policy in favor of hearing matters on their merits, the court errs on the side of granting the motion. ...

Excerpt: ...tion. ...

Excerpt: ...upporting all of the elements of promissory fraud have not been alleged. Counsel for plaintiffs is advised that there is no need to repeat the allegations in the challenged pleading in the opposition verbatim, let alone in single-space text. The first amended complaint is in the Court's filings and the Court has access to it when ruling on the demurrer. 2. Demurrer to Plaintiff Darcy Pascual's 1st Amended Complaint The Court is inclined to sustai...

Excerpt: ... employer, Christiansen Amusements. Thus, the first deposition notice compelling Mr. Hahn individually to testify designated a 12/12/18 deposition date. Mr. Hahn failed to appear on this date, and the court is inclined to order that he appear within 20 days at a date, time, and place that is mutually agreeable to the parties. However, given the context provided in the opposition, the court is not inclined to award any monetary sanctions against M...

Excerpt: ...ation as to why the new defendants have not been served and why they have not appeared in the case 5 months after they were named, the court will consider vacating the trial date. The court is hesitant to set a new trial date because the “new” defendants should have a say in when the trial will be. ...

Excerpt: ...oth willful and malicious. The court notes that there is no binding authority interpreting the language of Section 7952. However, to the extent that malice in this context is to be construed in accordance with Civil Code §3294, plaintiff's allegations fail to make out despicable conduct. ...

Excerpt: ...stated therein, any contract can be modified. See Civ. Code §1698; see also Vella v. Hudgins, 151 Cal.App.3d 515, 519 (1984)(“It is axiomatic that the parties to an agreement may modify it.”). Plaintiff alleges that it sent an amendment to the agreement, and that defendant accepted that amendment. As to the Second and Third Causes of Action for quantum meruit and unjust enrichment, these are quasi-contractual theories that do not rely on the...

Excerpt: ...ege log within 10 calendar days. Subject to those objections, Plaintiff states that he has produced the write-up, but Defendants insist that he has not produced the workup. It is difficult for Defendants to prove a negative, so the burden was on Plaintiff to provide the court with a copy of the allegedly responsive document, along with proof that it was previously produced. Without a copy of the document, the court is unable to confirm Plaintiff'...

Excerpt: ...on was set for 12/11/18. The Irvine Company did not appear for the deposition and did not object to the deposition subpoena. The court is not persuaded by The Irvine Company's contention that the deposition subpoena for the deposition of its PMK was served in violation of California Rules of Professional Conduct, Rule 2-100(A). The unpublished Ninth Circuit opinion, SEC v. ACI Investors Protective Ass'n (9th Cir. Oct. 22, 1996, No. 95-56644) 1996...

Excerpt: ...refore the authority cited by Plaintiff do not apply. Lastly with regards to Plaintiff's request that “clarification from the Court regarding what disciplinary steps has to be taken to ensure that this type of conduct is not condoned. There must be consequences,” the Court is not authorized to give legal advice. Plaintiff should seek the advice of counsel if further steps are wanted. OSC re: Dismissal Case Management Conference ...

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Excerpt: ...oc. §340.6. Plaintiff has not alleged any facts to show that his claims were tolled under Code of Civil Procedure §340.6(a)(1)-(4). Defendant's demurrer to the Second Cause of Action for Breach of Fiduciary Duty is OVERRULED. Plaintiff has sufficiently alleged that Defendant breached his fiduciary duty by failing to provide Plaintiff with the Proof of Service showing service on Linda Rogers. Rules of Professional Conduct, Rule 3-700(D)(1). Plai...

Excerpt: ... would be pretty cool. The court is inclined to GRANT Defendants' motion to compel. The court is inclined to order Plaintiff to serve responsive documents after service of notice of this ruling. Defendants make a prima facie showing that they propounded discovery on 12/26/17 and that on 1/30/18 Plaintiff agreed to produce documents responsive to RFP's 1-6 and 8-22, but has yet to produce any documents. Defendants argue that Plaintiff refused to p...

Excerpt: ...e individual defendant and corporation such that it would promote an injustice to recognize the corporate form. It is insufficient to merely allege that the individual defendant owns all of the corporate stock and manages the corporate affairs. See Leek v. Cooper, 194 Cal.App.4th 399, 415 (2011). Here, plaintiff alleges, in essence, that Mr. Wang owns and controls defendant AXP and uses it to carry on his business. (FAC, ¶3.) Given that this is ...

Excerpt: ... file their proposed 2AXC, but must redraft their proposed amended pleading to squarely address the defects noted below. A 1st COA: Breach of Contract The court is inclined to OVERRULE the demurrer to the 1st COA. KCR now attaches as Ex. A a copy of the Merger Agreement and the Affidavit of Debt Disclosure. KCR alleges that Fiesler breached the agreement by failing to fully disclose all payroll, tax, and vendor liabilities, so that KCR was forced...

Excerpt: ...serves the right to make any such further provision, at the time of final judgment in the action, for assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper pursuant to CCP 386.6.(a). The court deems plaintiffs Lee's Sandwiches, International, Inc. and LQNN, Inc.'s Application for Writ of Possession moot in light of the Court's ruling on defendant David K. Tran's motion for an order of discharge of...

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Excerpt: ... set forth clearly in the response. Dynamic moves to compel a further response pursuant to CCP 2033.290. Aramexx's response to the RFA is an unequivocal denial. There is really nothing left to compel. If Dynamic is successful, after trial, it can move for costs in having to prove the “denial.” Aramexx's denial of the genuineness of the document does not preclude Dynamic's discovery into how Aramexx will prove its liquidated damages, or whethe...

Excerpt: ...ce. So assuming service by mail, Defendant should have filed and served his moving papers by 6/8/18. But Defendant did not file his motion until 6/18/18 and did not attach any proof of service to his motion. In Opposition, Plaintiff argues that he was not served until 6/20/18 and asks the court to consult Defendant's proof of service. But the copy of the motion imaged in the court computer does not appear to include any proof of service. Regardle...

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Excerpt: ... out for service (12/11/17), that the case was this close to settlement (2/26/18), and that counsel had not served defendant because they thought the case had been settled (3/26/18). At the March 26 th hearing, counsel wanted a continuance to “clear things up,” including setting aside a dismissal in another case. The court allowed plaintiff until May 7 th to get this case back on track. The court has had no indication that the case is moving ...

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