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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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. ...