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: ...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: ...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: ...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: ...-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: ...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: ...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: ...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: ... §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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... (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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 ...