Excerpt: ...s are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with S...

Excerpt: ... party has met its initial burden of proof. Thatcher v. Lucky Stores, Inc. (2000) 79 CA4th 1081, 1085- 1086. These MSJ are essentially identical with the exception of the specifically named defendant and minor fact differences. Defendants have also admitted by way of failure to respond to sets one of Requests for Admission, that they are alter egos of one another. Boss Decls., Exs. C and E. As such, this ruling applies equally to both of the MSJs...

Excerpt: ...n the merits.” “The trial court's discretion in ruling on a motion to withdraw ... must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.) On the ...

Excerpt: ... § 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (See also, C.C.P. § 576.) A court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which d...

Excerpt: ...: Defendants 33 Degrees, Allen and Hamontree demur to all five causes of action in the Complaint on the ground of insufficiently plead facts to support these causes of action, whereas defendant Source Connect only demurs to the 2 nd and 3 rd causes of action on that ground. First Cause of Action – Breach of Contract The Complaint sufficiently alleges the existence of written purchase orders (Complaint, ¶¶ 8-9, 26). With respect to the perform...

Excerpt: ...d and response were at issue. (C.R.C. 3.1345(b)(1).) And although the discovery cut-off is now imminent, that is due at least in part to Plaintiff's complete refusal to appear for the subject IMEs. The Court will thus schedule an imminent date for each, but will consider a brief trial continuance if necessary to allow for same. On the merits, MPs are correct that they at least arguably can each demand a separate IME under C.C.P. § 2032.220. But ...

Excerpt: ...in error, if in fact the order made was that intended to be made.... ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?' ”...

Excerpt: ...Court has no jurisdiction to hold out-of-state residents in contempt of court or issue other sanctions. Such must be pursued in the witnesses' resident states under their own law. True, there are published cases in which disputes between the parties regarding out of state depositions were litigated in the California action. See International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1370, 1371 (compelling documents held by p...

Excerpt: ... rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is commenced by the filing of an affidavit showing the facts satisfying these four requirements (the “charging allegations”). (Code Civ. Proc. § 1211, 2nd para.) The affidavit frames the issues to be tr...

Excerpt: ...ction 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored informa...

Excerpt: ...g (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (L...

Excerpt: ...leading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, 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 r...

Excerpt: ...igin or identity. (See UMF 2, 3, 12, 13, 15 to 17, 21 and Moving Exhibit 3, p. 122-29.) The information that was relayed second-hand to plaintiff concerning the Irish teacher at the church event, “sometime in 2018” is insufficient as a matter of law to establish a hostile work environment. (See UMF 19-20, Moving Ex. 3, p. 120 to 124, 129 and Opp. Exhibit 124.) In addition, this alleged incident does not appear to be identified within the Comp...

Excerpt: ... claim of interference would not be proper because the father is a living person who is free to dispose of such interests of his alone, inter vivos. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1057) (“as in other cases involving recovery for loss of expectancies ... there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator ... if there h...

Excerpt: ...430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” Civ. Proc. Code § 430.20(a)-(b). “Numerous defenses were purportedly raised by defendants' allegations of affirmative defense. Most of these allegations fail to state a defense even when lib...

Excerpt: ... seems sound: Plaintiff alleges facing retaliation at work, after obtaining the 2014 judgment, which found discrimination by the City's officers against plaintiff (based on the plaintiff's race). The hiring of the new police chief in 2017 following the apparent completion of the appeals process in 2017, would be relevant to the City's attempt to remediate the discrimination in the workplace. This can be relevant to the claims of failure to preven...

Excerpt: ...700; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the part...

Excerpt: ... fully comply with CRC Rule 3.1324 in either form or substance. The Court nonetheless chooses to exercise its discretion to address the Motion on the merits. Civil Procedure Code § 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (See also, C.C.P. § 576.) A court's discretion will usually be exercised liberally to ...

Excerpt: ...ph that provides for arbitration must either be stated verbatim in the 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 resolve...

Excerpt: .... The Complaint of plaintiff Heather Devon (“Plaintiff”) alleges a single cause of action for negligence, based upon alleged medical negligence. The elements of a medical negligence cause of action are: 1. duty of professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; 2. a breach of that duty; 3. a proximate causal connection between negligent conduct and resulting injury; and...

Excerpt: ...(See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment shall be granted if all the papers submitted show that there is ...

Excerpt: ...20. (See ROA 119.) Defendants subsequently filed a Notice of Withdrawal as to the filing (see ROA 122), but the clerk's office rejected all attempts to fine any revised Amended Answer The Court will thus grant the motion as to the unverified 10/15/20 filing, but also grant 10 days leave to amend, to allow the Defendants to file a Verified Amended Answer to the SAC. The Court is not at this time addressing the issues Plaintiff has raised in the un...

Excerpt: ...The facts as alleged in COA 1 of the FAC, as to all of these moving parties, involve a failure to perform professional duties. Each of the identified nurses allegedly failed to comply with the operative care plan and applicable standard of care, by failing to properly turn Plaintiff every two hours and to adequately inspect his skin, to conduct a structured risk assessment as to his skin, to ensure he received adequate nutrition, and to ensure he...

Excerpt: ...oss-Complaint (“FACC”) is almost identical to the original Cross-Complaint, the same issues with the original pleading continue to exist in the FACC, which call for ruling in favor of CD. 1) Demurrer CD Demurrer is SUSTAINED with leave to file a Second Amended Cross-Complaint within 10-days. Again, the Courts notes that TDH filed a FACC that is essentially the exact same pleading as its initial Cross-Complaint. Most importantly, despite many ...

Excerpt: ...The Court grants the motion pursuant to equity and the theories of equitable estoppel. Initially, the Brons' family mediated and began arbitrating their claims against the moving Defendants, giving effect to the mediation and arbitration provisions in the contract documents. The minor plaintiffs joined the process with the parents. The lawsuit is about the same underlying events, the same alleged wrongs, the same alleged conditions and problems a...

Excerpt: ...ntial element of the Defendant's acceptance. The Court would like the parties to evaluate the application of the California UCC in the future. Division 2 sets forth the principles on contract formation for commercial parties, assuming that the body of law applies. (See Defendant's cited case, C9 Ventures v. SVC- West, L.P. (2012) 202 Cal.App.4th 1483, 1504 (discussing the UCC); and see Cal. Comm. Code § 2206, 2204, 2201.) Applying a reasonable c...

Excerpt: ...at supplemental responses would be provided. ROA ## 107 and 109. The Court also required Plaintiff to file copies of the FROGS and all of NHI's responses with the Court for its review. On 12/04/20, Plaintiff filed Amended Separate Statements in support of the motion to compel SPROGS. Plaintiff did not file anything in relation to the motion to compel FROGS and did not specify that he continued to have any issue with those FROGS. As there is nothi...

Excerpt: ...ecognizes and appreciates the statutorily required separate statements laying out the issues, this Court also requires copies of the actual documents to ensure that they state what parties say they state. Plaintiff is ordered to file and serve a supplemental declaration with copies of the requests and all responses received no later than 11/30/20. If Nautilus should serve further verified responses to the requests at issue, as it apparently previ...

Excerpt: ...n the grounds that it fails to comply with Utah Corporations Code section 16-10a-740(3)(b)'s requirements that a derivative complaint must be verified and must allege with particularity the written demand upon the corporation to take action. (Utah Corp. Code § 16-10a-740(3)(b).) Evans contends that only Subsections (3)(a) and 3(b)(ii) are substantive, and thus applicable in this California action, and that Subsection (3)(b)(i) is merely procedur...

Excerpt: ...record does support specific jurisdiction over the Defendants. While Defendant Liu claims she has not engaged in any business dealings in the State of California at any time (see Liu Decl ¶ 9) Plaintiff shows that Defendant Liu is the CEO and CFO of a California corporation (Power Energy), as reported to the California Secretary of State. The business address for the Defendant, within the corporate records, is in Dana Point, California. This see...

Excerpt: ... answer.” CCP § 464(a). “Leave to amend a complaint is entrusted to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.” Bd. of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154. “Absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.” [Emphasis added.] Id. “The ba...

Excerpt: ...emurrer lists, among others, the causes of action Life Vessel is demurring to as the “Third Cause of Action for Willful Misconduct,” as well as to the “Fifth Cause of Action for Negligence Per Se,” neither of which exist. The third cause of action in the SAC is for “Abuse/Neglect Of Dependent Adult,” and while the “Negligence Per Se” cause of action was previously demurred to by Life Vessel, which was sustained without leave to am...

Excerpt: ...nd the entire client files of attorney Keith C. Ciceron regarding his representation of each of the Defendants. The subject deposition subpoena does not appear to exclude any aspect of Mr. Ciceron's representation, communications or documents from its requested scope, and instead seems purposefully tailored to leave no stone unturned regarding every aspect of Mr. Ciceron's representation. Plaintiffs assert that they are entitled to unfettered tes...

Excerpt: ...vor until the carry-back note was satisfied. On 03/10/16, defendant breached their agreement by causing a grant deed to be recorded against the property in her favor. On 04/27/16, defendant further breached the agreement by encumbering the subject property with a $390,000.00 note from East West Back, secured by a deed of trust. Plaintiff filed suit for breach of contract, fraud, rescission, financial elder abuse, and quiet title. On 12/21/17, def...

Excerpt: ...default against that party.” CCP § 2023.030(d). Misuses of the discovery process that appear relevant to the present matter are: “. . . (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. . . . (g) Disobeying a court order to provide discovery. . .” CCP § 2023.010. Regarding sanctions for failure to obey a court order and respond ...

Excerpt: ...iscretionary decisions about child abuse allegations. (See Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1285 [immunity applies even to decisions in which worker abuses discretion, including decisions based on woefully inadequate information, “no matter how horrible the outcome”], and Gov. Code § 820.2 [“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission ...

Excerpt: ...criteria used in determining whether an item is privileged may be helpful. 2. If some type of privilege log was prepared by the contract attorney, was a copy given to the defendants to ensure that privileged items were not missed? If it was provided, what items do Defendants contend were missed? Did Defendants notify the District Attorneys' Office of any inadequacy? 3. Did Ms. Ernby or anyone else at the District Attorneys' Office inadvertently r...

Excerpt: .../23/19, Plaintiff leased Property to Defendants, with lease beginning 04/27/19 and running through 04/30/20. Third Amended Complaint (“TAC”) ¶ 7-8; Cross- Complaint (“CC”) ¶ 4. A copy of the lease was not attached to the TAC or the CC, but it was attached to both the First Amended Complaint and the Second Amended Complaint at Exhibit 1, and will be referenced to as “Contract.” An addendum to the lease states, “Tenant may, at tenan...

Excerpt: ...rt must expressly find facts that establish the following: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. ...

Excerpt: ...C Project. Complaint ¶ 21. On 05/30/14, the Iron Workers Union (“IWU”) gave the Orange County District Attorney (“OCDA”) evidence of allegedly forged documents including apprenticeship documents related to the OC Project. MTSE Opp., Cipolletti Decl., Ex. F, ¶ 6; and Ex. G at p. 7. In October 2014, in connection with the Riverside County Regional Medical Center Nursing and Allied Health Education Building (“RCRMC”) project, Chuck Wal...

Excerpt: ...t has not tendered his medical condition in the case to support the inquiry into this generally-protected area of privacy. (See Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1149) ("A defendant… does not tender his or her medical condition by simply denying the plaintiff's allegations regarding the same."). Compare Evid Code § 996 (the privilege for communications between physicians and patients, does not exist if the patient's medical...

Excerpt: ...t (“Agreement”), entered into by the parties on or about 03/10/17, for the sale of Plaintiff's assets to Defendants. Quimby Decl., Ex. 1. The Agreement contains the following mediation prerequisite clause: “18. MEDIATION OF DISPUTES: Except as reasonably necessary for a party to seek equitable relief from a court, such as an injunction or other expedited relief (write of attachment, specific performance, appointment of a receiver or similar...

Excerpt: ...e Demurrers assert many of the same arguments, and are discussed collectively below. Both Demurrers asserted that there was another action pending between essentially the same parties based on overlapping claims. However, as the two cases have since been consolidated, those arguments are now moot. Similarly, the Demurrers argued about TN's standing to assert its claims in the FAC, because TN's claimed rights under the Ground Lease are the subject...

Excerpt: ...0.020(b), and 2031.020(b).) The purpose of the initial hold on discovery is to allow litigants time to find their counsel and orient to the lawsuit. (See Civ. Proc Before Trial ¶ 8:441 Rutter Group 2020; Waters v. Superior Court of Los Angeles County (1962) 58 Cal.2d 885, 892; California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 23.) It appears that that purpose was still being fulfilled here when the discovery was sent. (...

Excerpt: ...n, as the Motion argues. (See CCP § 392; Sims v. Mains (1933) 131 Cal.App. 307, 311 ("That the action is transitory in its form is the only conclusion that can be reached upon an inspection of the complaint. It is directed only to the recovery of personal property or its value."); see Complaint ¶22; see Campbell v. Nichols (1959) 167 Cal.App.2d 329, 331; Peterson v. Sherman (1945) 68 Cal.App.2d 706, 712.) The main relief requested in the Compla...

Excerpt: ...tion is GRANTED on the ordinary negligence claims based on the liability waiver, the negligence per se claim based on Huntington Beach Municipal Code § 13.080.130, the breach of contract claims, and the alter ego/piercing the corporate veil as to Defendant Allred. The TOTN Defendants' Request for Judicial Notice is GRANTED. Legal Standard for MSJ/MSA: A motion for summary judgment “shall be granted if all the papers submitted show that there i...

Excerpt: ... to be served upon plaintiff a Notice of Deposition for Mr. Pettit, which included a request to produce fifteen (15) categories of documents. In response thereto, plaintiff asserted a number of “boilerplate” objections, coupled with an indication that it would produce whatever “non-privileged documents” it has in its possession. The deposition then went forward on 02/04/20. During that deposition, the deponent was unable to provide substa...

Excerpt: ..., Unfair, or Fraudulent Business Acts and Practices Business & Professions Code §§ 17200, et seq., but denies the Motion as to the second and third causes of action for Breach of Contract. Leave is given to file an amended complaint within 15-days of the hearing. “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation omitted.] The court must assume...

Excerpt: ... (Griffith v. Department of Public Works, 141 Cal.App.2d 376, 296 P.2d 838.) The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. (Alphonzo E. Bell Corp. v. Bell View Oil Syndicate, 46 Cal.App.2d 684, 116 P.2d 786; Chavez v. Times Mirror Company, 185 Cal. 20, 195 P. 666.) Thus, a pleading vali...

Excerpt: ...arties, counsel, and their agents are also directed not to disseminate the third parties' contact information, and to keep it confidential, except for disclosures as needed in the course of investigation and pursuit of this litigation. (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1259; Williams v. Superior Court (2017) 3 Cal.5th 531, 559, n10.) Defendant is awarded a reduced monetary sanction of $2,900 payable by Plaintiff within 60...

Excerpt: ...) Therefore, the court may properly consider the merits of this matter. Request for Judicial Notice: Pursuant to Evidence Code § 452(d)(1), the court may take judicial notice of records of “any court of this state.” However, while the court may “judicially notice a variety of matters, only relevant material may be noticed.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569.) Further, the court may take judicial notice of court re...

Excerpt: ...t all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436. Further, “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is n...

Excerpt: ... seeking damages, costs, and attorney fees remains. When a money judgment is satisfied in full, the judgment creditor must file with the court an acknowledgement of the satisfaction of the judgment. (§ 724.030.) The judgment debtor may serve a demand on the judgment creditor to comply with this requirement, and if the judgment creditor fails to do so within 15 days after receipt of the demand, the judgment debtor may file a noticed motion with t...

Excerpt: ...Defendants' employees address, telephone number, social security number, driver's license, employment history, education, references or professional and technical qualifications may be disclosed at this time. Plaintiffs' request for monetary sanctions is DENIED since the motion was not brought in bad faith and defendants' position was substantially justified. Defendants objected to all categories of documents sought in the subpoena on the followi...

Excerpt: ...-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross- complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) assert...

Excerpt: ...a used vehicle. (See Civil Code §§ 2981.9, 2982(a)(1)(L), (r), 2982.2(a)(1)(B) and Editor's Notes in West's Code Annotation; see Vehicle Code § 11713.21(b).) These statutes appear to be interrelated and create statutory rights and obligations in connection with the purchase and sale of the used vehicle. Appellate courts have applied § 1632's translation requirement to the seller duties within the Automobile Sales Finance Act. (See, e.g., Reye...

Excerpt: ...mages, for a total judgment amount of $192,730.00. The court may determine the proper amount of credits/offsets from a pre-trial settlement in a post-judgment motion. In general, when a pretrial settlement does not differentiate between economic and noneconomic losses, the court must determine the amount of the settlement attributable to each type of loss, because only the amount attributable to the joint responsibility for economic damages may b...

Excerpt: ...hout further leave to amend. The TAC asserts that Traub provided nursing care to Plaintiff during a single shift on 5/31/17 (TAC ¶¶ 26-32), while Abraham provided nursing care to Plaintiff during two overnight shifts between 6/1/17 and 6/3/17 (TAC at ¶¶ 40-50). Host and TNAA are identified as their respective employers. (TAC ¶¶ 6, 7, 35, 36, 55, 56.) The facts as alleged in COA 1, as to both Traub and Abraham, involve a failure to perform p...

Excerpt: ...aluation. She was seen, evaluated, placed on a fetal monitoring device, and eventually sent home with early signs of pre-labor. On 07/12/18, in the morning hours, plaintiff returned to the defendant hospital with unresolved complaints of nausea, vomiting, headaches and elevated blood pressure. Fetal monitoring strips confirmed the presence of contractions. Plaintiff was again sent home … only to return a few hours later with growing concern. Th...

Excerpt: ...t CFC breached, as the damages awarded on the interference claim were based on unpaid commissions wrongfully withheld by CFC. However, the interference claim was based on Plaintiff's contract with third party Interush. (See ROA 249, at p. 46 [“TruYou Health claims that CFC and/or Richard Fischler intentionally interfered with the contract between TruYou and Interush…].) In contrast, the contract claim against CFC was based on the 2015 Commiss...

Excerpt: ...emurrer to the evidence). Thus, the Court does not act as a factfinder, which means the following is true: (1) the evidence supporting the verdict is presumed true, and (2) all conflicting evidence is disregarded, and (3) every legitimate inference that may be drawn to support the verdict is indulged in favor of the verdict and the party in whose favor it was given. A JNOV motion must be denied if there is any substantial evidence, or reasonable ...

Excerpt: ...ho would be most competent to testify” to its financial condition. (Civ. Code § 3295(c).) Beyond the foregoing, no pretrial discovery by plaintiff is permitted without a court order; and such order can be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. Code § 3295(c); Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565.) Typically, to obtain suc...

Excerpt: ...ely or improbable, 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 ...

Excerpt: ...l meet and confer in compliance with §430.41(a). Defendant to give notice. 1st COA: Demurrers are sustained. The nature of the relation between the mobilehome owner and the park owner, or the prospective homeowner and the park owner, is one of landlord tenant, or landlord and prospective tenant. (See Civ. Code § 798.2, .4, .8, .9; Cacho v. Boudreau (2007) 40 Cal.4th 341, 349; Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 249-51....

Excerpt: ...ny (not Teresa) initiated a contractual arbitration with JAMS pursuant Para 20.1 of the Future Fins LLC Operating Agreement. The only signatories to that operating agreement, and thus the contractual arbitration provision, were Odyssey and Wesrae. Nevertheless, Tony joined as a claimant, and named Vincent, Skaist/SYCR, Marinescu, Wesrae and Vincent's ex-wife. Vincent and Westrae filed a counter-claim in arbitration, while Skaist and SYCR declined...

Excerpt: ...ission Hospital Medical Center (“Mission”); (2) Manor Care of Fountain Valley (Manor”); (3) Memorial Care Saddleback Memorial Medical Center (“Saddleback”); (4) Orange Coast Memorial Medical Center (“OCMMC”); and (5) Hector Ramirez, M.D. For Nos. 1-4, Defendants issued separate subpoenas for: (a) Medical Records; (b) Radiology Records; and (c) Billing Records, for a total of 13 subpoenas at issue here. Both motions reflect that effo...

Excerpt: ... §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or unnecessary. Benach v. County of Los Angeles (2007) 149 Cal.App.4 th 836, 856. If the party seeking to tax costs makes a proper objection to an item in the cost bill (as determined after the trial court reviews the submissions), the burden then shifts back to...

Excerpt: ...l., Neglig., ¶5 and 6 and ¶ PremL-1 and 2.) “If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the [owner/lessor…/one who controls the property] does not have to warn others about the dangerous condition. However, the [owner/lessor/…/one who controls the property] still must use reasonable care to protect against the risk of harm if it is foreseeable that the condition may ...

Excerpt: ...ficient to constitute a cause of action (CCP § 430.10(e)) and they are each uncertain, ambiguous, and unintelligible (CCP § 430.10(f)). A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. 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 allegati...

Excerpt: ...e explained…”); accord Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302.) Under CCP § 340.5, a shorter one-year statute of limitations applies to bring an action for injury against a health care provider based on professional negligence. In laymen's terms, a plaintiff discovers a cause of action when he reasonably should suspect that “someone has done something wrong' to him [citation], ‘wrong' being used, not in any technical sense, bu...

Excerpt: ...ractices made unlawful by Gov't Code § 12940. Gov't Code §§ 12920 and 12930(f). Gov't Code § 12940, among other things, prohibits an employer from refusing to hire or employ an employee on the basis of “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military an...

Excerpt: ...l for evaluation. She was seen and discharged home. Three days later, plaintiff returned to the defendant hospital with unresolved complaints of nausea, vomiting, headaches and elevated blood pressure. Fetal monitoring strips confirmed the presence of contractions. Plaintiff was again sent home. She returned later that evening, and was differentially diagnosed as experiencing deep variable decelerations with the baby displaying an agonal heart ra...

Excerpt: ... promise,” in order to recover tort damages); Aas v. Superior Court (2000) 24 Cal.4th 627, 632; KB Home v. Superior Court (2003) 112 Cal.App.4th 1076, 1088 (“whether the economic loss rule applies depends on whether property damage… has occurred rather than on the possible gravity of damages that have not yet occurred”).) With regarding to misrepresentation theories, “[i]n California, fraud must be pled specifically; general and conclus...

Excerpt: ...ould have known of the alleged misconduct. (See CACI 426, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591, and Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Here, the only allegations as to Group are cursory and conclusory. (See FAC at ¶¶ 11, 26 and 49-52.) No facts are alleged to state how or why Group was allegedly negligent in hiring, supervising or retaining Dr. Trivedi. The D...

Excerpt: ... (See Civ. Code § 3345 and Compl. ¶ 50 and Prayer ¶5.) The arbitration provision eliminates the Plaintiffs' statutory right to claim attorney fees under the Elder Abuse Act. (See Welf. & inst. Code § 15657.5; see Compl. at Prayer ¶ 7, praying for attorney fees).) But an arbitration agreement “may not limit statutorily imposed remedies such as punitive damages and attorney fees….” (Armendariz v. Foundation Health Psychcare Services, Inc...

Excerpt: ...itioned on future developments.” The statute provides a nonexclusive list of types of payments potentially subject to an assignment order, including wages, rents, commissions, and royalties. Greenbaum v. Islamic Republic of Iran, 782 F.Supp.2d 893, 895 (C.D. Cal. 2008). As explained in the Legislative history: “Section 708.510 provides a new procedure for reaching certain forms of property that cannot be reached by levy under a writ of execut...

Excerpt: ...r Court (1989) 215 Cal. App. 3d 155, 158 (citation omitted).) Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal. App. 3d 1045, 1048; Cal. Prac. Guide, Civil Procedure Before Trial (The Rutter Group) § 6:644.) It is preferable to permit the amendment and then attack its validity in a subsequent d...

Excerpt: ...r as it was served by Plaintiff herself, Defendants appear to have received the responses and did not make an issue of the improper proof of service in their reply. This motion was filed and served after the date of service of Plaintiffs responses and is based on CCP §2030.290, which would have been proper if no responses had been served. As responses were served before the present motion was filed, the present motion is moot as argued. If Defen...

Excerpt: ... the alternative, for summary adjudication on each cause of action, based solely on the primary assumption of risk doctrine. Primary assumption of the risk arises when a plaintiff voluntarily participates in a sport or “other activities involving an inherent risk of injury [ ] where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658, inter...

Excerpt: ...e, surprise, or excusable neglect. CCP § 473(b); .” Dominquez v. Butte Cty., 241 Cal. App. 2d 164, 167 (Ct. App. 1966). In certain instances, the six-month time limit may be “extended” if the default was entered through extrinsic fraud or extrinsic mistake. Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App. 4th 1294, 1300-01; Kulchar v. Kulchar (1969) 1 Cal. 3d 467, 471-72. In the present matter, as Defendants did not file their Motion unt...

Excerpt: ...rst, Plaintiff's cause of action for breach of the partnership agreement as pleaded in the operative complaint never sought as damages the value of Plaintiff's partnership interest, but only for unpaid lost profits. Second, none of the causes of action dismissed sought dissolution of the partnership. On 04/10/19, plaintiff voluntarily dismissed in open court all fourteen (14) causes of action asserted by him in his complaint filed 08/15/17 – sa...

Excerpt: ...ysical deficiency in the property itself. (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 130–132.) There must also be a causal relationship to the third party conduct that injured the plaintiff, and a feature of the public property that “increased or intensified” the danger from that third party conduct. (Id.) Liability may not be based on the mere failure to provide a warning sign or traffic signal. (Gov. Code §§ 830.4,...

Excerpt: ...s extent there is no request to enter a judgment that differs from the verdict. In fact, that finding is not being challenged. Motion For Leave to Amend to Add Claim for Dissolution of Partnership– DENIED Just after the reading of the verdict, counsel for plaintiff made an oral motion in court for dissolution and/or leave to amend the operative complaint. In denying this motion, the Court is not finding that that Plaintiff is barred from seekin...

Excerpt: ...ment, a moving defendant must “present evidence that would require such a trier of fact not to find any underlying material fact more likely than not….” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, emphasis added.) The court must ‘consider all of the evidence and all of “the inferences reasonably drawn therefrom…. and must view such evidence….in the light most favorable to the opposing party.” (Id. at 843, 844-45...

Excerpt: ...of the relationship between attorney and the client that precludes continued representation. The Motion of Attorney Greer to be relieved from representing Plaintiff Darling therefore is properly GRANTED. (See Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014, “To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw. In the case at bar, the court granted appellants' motio...

Excerpt: ...for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4 th 1260, 1276- 1277; in accord, Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4 th 1414, 1420. Neither relevance nor admissibility are the test. Maldonado v. Superior Court (2002) 94 Cal.App.4 th 1390, 1397. As it relates to personal matters, though, some limits apply. See Calif. Const. Art. 1,...

Excerpt: ...each 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 plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. . . . (c) As used in this section, the following definitions shall apply: . . . (2) “Oppression” means despicable conduct that subjects a person...

Excerpt: ...that a landlord merely failed to repair defective conditions is insufficient to support a punitive damages claim. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 299-300.) Nor are facts alleged to support the claim that LL's conduct reflected oppression, fraud, or malice. A claim for punitive damages must be supported by specific factual allegations: conclusory characterization of conduct as “intentional, willful and fraudulent” is...

Excerpt: ...sanctions imposed against plaintiff in the amount sought of $1,750.00. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central Calif...

Excerpt: ...erified responses must be addressed in a motion to compel further responses, which must be accompanied by a separate statement. (See CRC 3.1345(a)(1).) To the extent that the Motion attempts to seek relief under §2033.290, it is denied without prejudice to a proper motion to compel further responses which complies with CRC 3.1345 and all related requirements. To the extent that this motion seeks relief under C.C.P. § 2033.280, it is now moot, e...

Excerpt: ...efendants' fact Nos. 3, 5, 8, 10, 11, 15, 17, 20, 22, and 23. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. “On a defendant's motion for summary judgment, the defendant's burden is...

Excerpt: ...ant's conversion by a wrongful act or disposition of property rights; and (3) damages. Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4 th 1395, 1404-1405; Ananda Church of Self- Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4 th 1273, 1281. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has a...

Excerpt: ...the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations omitted.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations omitted.)” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any rea...

Excerpt: ...expenses and costs to the examinee for travel to the place of examination. Here, good cause is shown. Defendants may reasonably request that the IME be conducted by a physician within a reasonable distance of the venue for trial, to ensure access to the examining physician for trial and to control costs for such physician's attendance. Plaintiff has not shown that any undue burden will result if the requested relief is granted. Citations to worke...

Excerpt: ...where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658, internal citation omitted; see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1152, 1155-1159.) However, the doctrine of primary assumption of the risk “does not grant unbridled legal immunity to all defendants.” (Campbell v. Dery...

Excerpt: ...not given leave to amend their 2 nd cause of action for Fraud – False Promise and 4 th cause of action for Civil Conspiracy, as these were entirely new causes of action that were added to the FAC without prior permission of the Court, which is not permitted. Harris v. Wachovia Mortg., FSB (2010) 185 Cal. App. 4th 1018, 1022-23. The 1 st and 3 rd causes of action are based in fraud. “In California, fraud must be pled specifically; general and ...

Excerpt: ...e with all statutory requirements will be expected. On the merits, the motion asserts that the late fees claimed in the Complaint are void and unenforceable as a matter of law, based on Civil Code §1671 and cases applying that statute. However, unless another statute applies or the contract is a consumer contract or lease, under §1671(b) a liquidated damages provision is presumed valid, and the burden is on the party claiming contra to establis...

Excerpt: ...that absent an intent to injure the plaintiff, ‘malice' requires more than a ‘willful and conscious' disregard of the plaintiffs' interests. The additional component of ‘despicable conduct' must be found.” (College Hospital Inc., 8 Cal.4th 704, 725; see Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332, review filed (Aug. 9, 2019).) “'[D]espicable conduct' is conduct that is “‘so vile, base, contemptible, miserabl...

Excerpt: ... support the issuance of a preliminary injunction. O'Connell v. Superior Ct. (2006) 141 Cal.App.4th 1452, 1481 “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” White v. Davis (2003) 30 Cal.4 th 528, 554 Has Jones shown she will prevail on any of her COAs? No Jones does not dispute that she owes the HOA money. In fact, one...

Excerpt: ...et and confer declaration, but no comparable requirement exists for a motion to quash. (C.C.P. § 1985.3(g).) On the merits, as the subpoena seeks financial records and information, privacy rights are at issue. (See Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481 [“there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account i...