Excerpt: ...Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the second cause o f action for negligent infliction of emotional distress on the grounds the cause of action is uncertain and does not plead facts sufficient to state a cause of action. To plead negligent infliction of emotional distress (“NIED”), Plaintiffs must plead 1) the defendant was negligent, 2) the Plaintiff suffered serious emotional distress, and 3) Defendant's negl...

Excerpt: ...second and third causes of action (each a “COA”) in the Complaint. But the supporting Separate Statement presents evidence only for those 2 issues. (See ROA 168.) The Motion as presented thus fails to support the request for summary judgment. The alternative request for summary adjudication on Issues 2 and 3 fail here, because Plaintiffs have presented adequate evidence in their Opposition to defeat the Motion. Plaintiffs have shown a clear r...

Excerpt: ...ems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).) Regarding punitive damages under Civ. Code § 3294: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plainti
¯, in addition to the actual damages, may recover damages f...

Excerpt: ...50(d). However, again, Plainti
¯ did not make an issue of this in the reply brief, and the court may consider the merits of a case absent a proper separate statement when the case involves a single simple issue” with minimal evidentiary support, such as here. (Gilbertson v. Osman (1986) 185 Cal. App. 3d 308, 316.) The court will proceed on the merits, but cautions defense counsel to comply with code requirements in the future. “(p) For purpo...

Excerpt: ... contract. Under Code of Civil Procedure section 1032, attorney's fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).) As set forth in the Statement of Decision (“SD”), the Court found against the Defendants on two claims: Sexual Assault (First Cause of Action) and Sexual Battery pursuant to Civil Code section 1708.5 (Second Cause of Action). In plainti
¯s' closing brief, Tina ...

Excerpt: ...robable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (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. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Gran...

Excerpt: ...f contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Fifth Cause of Action: Intentional Inßiction of Emotional Distress (“IIED”) To state a claim for IIED, a plainti
¯ must allege "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plainti
¯'s su
¯ering severe or extreme emotion...

Excerpt: ...s in a complaint.” (Rakestraw v. Cal. Physicians Service (2000) 81 Cal.App.4th 39, 42.) Plainti
¯s well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Third Cause of Action: Breach of Implied Warranty Defendants argue that the third cause of action for breach of implied warranty must fail because...

Excerpt: ...28, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAAs scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of pr...

Excerpt: ...to June 30, 2023, as well as identiÞcation of each category of patients' responsible parties. Defendant requests a protective order as to these requests, citing privacy concerns for the residents at issue. “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circum...

Excerpt: ...v. Code §§ 1717 and 5975(c). (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th 761, 773.) While fees are recoverable, they must be reasonable incurred and are subject to the lodestar method for determination of the proper sum. (PLCM Grp. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) Although there was apparently a contractual agreement between Plainti
¯s and their counsel for a $250/hr. billing rate, Plainti
¯s' counsel in...

Excerpt: ...which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities su
¯icient service literature and replacement parts to e
¯ect repairs during the express warranty period.” Civ. Code § 1793.2(A)(3). Plainti
¯ largely just parrots the language in the code, without making any actual factual allegations regarding what authorized service and repair facilities Plainti
¯ presented to ...

Excerpt: ... ruling. For COAS 1, 2 and 4, each asserts a variation of a negligence claim. Under the Tort Claims Act all governmental tort liability is based on statute, so those COAS must be pleaded with particularity: "to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiff has not...

Excerpt: ...ntions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) Defendant demurs to the second cause of action for violation of Civil Code S 52.1, which states, in part: "(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of...

Excerpt: ...urden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a 'summaryjudgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts t...

Excerpt: ...d Motion to Strike Dr. Raney is correct that the complaint is uncertain. (Code Civ. Proc., S 430.10(f).) The caption of the complaint lists causes of achon for Wrongful Death and Survival Acton, Medical Negligence, and Medical Malpractice. However, the body of the complaint contains causes of action (Counts I-III) for Negligence-Medical Malpractice, Negligence- Medical Malpractice, and Negligence/Medical Malpractice/Respondeat Superior/Agency. Mo...

Excerpt: ...ates: "If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including...

Excerpt: ... two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior cou...

Excerpt: ...nst plaintiff Yneges based on a rejected Civ. Proc. Code S 998 offer Defendant served on Yneges on 08/19/21. This is the only 998 offer presented into evidence on this motion. Civ. Proc. Code S 998 in relevant part states: "(c)(l) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from t...

Excerpt: ...e petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2005) 132 Cal.App.4t...

Excerpt: ...ourt will exercise its discretion to consider the opposition, but admonishes Plaintiff to abide by court rules for all future filings. Plaintiff does not dispute the Federal Arbitration Act (FAA, 9 U.S.C. S 1, et seq.) applies here. Under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Managemen...

Excerpt: ...staffng agency, entered into a Managed Services Agreement ("MSA") with PSG, a national temporary staffing agency. According to the MSA, World operated "as a marketing and client services agent of PSG for all temporary staffng business generated by the assignment of laborers from an Agency location." Pursuant to the MSA, World would perform certain activites for laborers working at Client Companies and PSG would perform other activities, including...

Excerpt: ...y be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It is not an abuse of discretion to sustain a demurrer without leave to amend if there is no reasonable possibility that the defect can be cured by amendment. (See Jenkins v. County of Orange (1989) 212 Cal.App.3d 278.) As a preliminary matter, Defend...

Excerpt: ...us XM Radio Inc. (9th Cir. 2014) 771 F. 3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FDA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 235.) "The party seeking arbitration bears the burden of proving the existence of an arb...

Excerpt: ...o mistake, inadvertence, and/or surprise, and due to no prejudice be suffered by plaintiff from the relief sought." (Motion at 3:4-7.) CCP 5473(b) states in pertinent part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this reli...