Excerpt: ...vidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.) If the employer's moving papers satisfy the initial burden, the burden shifts to the employee to “demonstrate a triable issue ...

Excerpt: ...Amended Complaint (the “FAC”), based on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”). Kia argues that under Rodriguez, Plaintiff's claims in COAs 1-5 are barred, because the subject vehicle was purchased as a used car from a retail seller unaffiliated with the manufacturer, and thus does not qualify as a “new motor vehicle” under the relevant portions of the Song- Beverly Consumer Warranty Ac...

Excerpt: ..., Plaintiff argues that Moving Party is liable pursuant to Education Code §44808, which imposes liability on school districts where they have “undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school- sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” (Cal...

Excerpt: ...tivity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  Prong 1: Protected activity   A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence...

Excerpt: ...hat they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1...

Excerpt: ...torney Roofian and his client Tylor Johnson between 2017 and the present relating to plaintiff's investment in a cannabis company through Yellowstone Holdings 2020 and Johnson's direction to Roofian regarding transfer of funds received on behalf of plaintiff to third parties. Roofian has asserted the attorney-client privilege in response to all RFPS and produced a privilege log. Attorney-Client Privilege A confidential communication between clien...

Excerpt: ...nt to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of ...

Excerpt: ...filed on 2/17/22 by Plaintiff Luis Alvarez (“Plaintiff”). Motion 1 – the MSJ/MSAI The MSJ/MSAI is GRANTED IN PART. As a preliminary matter, the Regents' papers contains multiple defects. The Motion's MPAs and Reply brief both substantially exceed the page limit under C.R.C. 3.1113(d), and also fail to comply with C.R.C 2.108(1) and (4). While the violation on the moving papers could be attributed to oversight, the same is not true for the r...

Excerpt: ...s DENIED. AGA is ordered to file and serve an answer to the TAC within 10 days. Demurrer A claim for intentional infliction of emotional distress must plead the following elements: “(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 plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of ...

Excerpt: ...5/19/22 is also ordered to be terminated. The court notes Plaintiff has put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of her request for a PI. Plaintiff failed to cite to any code section that permits the court to grant a PI, and Plaintiff only cited to two cases, neither of which involves a foreclosure action. There are multiple possibilities for requesting a PI under Civ. Proc. Code § 525,...

Excerpt: ...that ruling based on CCP sections 128(a)(8) and 663a. That filing was 70 days after notice had been served on the MSJ and it was originally set for hearing on 11/4/21. On 9/24/21 MP served the instant motion for sanctions, giving plaintiff more than 21 days “safe harbor” to withdraw the Motion to Vacate prior to the then hearing date. Subsequently, the Court, on its own motion continued that hearing to 1/27/22. On that date the Motion to Vaca...

Excerpt: ...bpoenas filed on 7/10/20 by Plaintiffs (“Motion 5”); and 5) two Motions to Compel filed on 9/25/20 by Plaintiffs, as to five sets of discovery (“Motion 6 and Motion 7”). Motion 1-Motion for Summary Judgment/SA Motion 1 is GRANTED. In the legal malpractice context, the elements of causation and damage are particularly closely linked. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 591.) The pl...

Excerpt: ...efendant's property on 10-22-20 in the amount of about $1,313,182; and (2) awarding defendant its attorneys' fees of $10,625.00. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 388-389 and Civil Code §§ 8422, 8430, 8488. Under Lambert v. Superior Court, supra, 228 Cal.App.3d 383, a property owner may bring a motion to remove an unjustified mechanic's lien without waiting for trial on the action to foreclose the lien. The inquiry made on su...

Excerpt: ...ional non-privileged responsive documents located on Mr. Pittman's computers and agreed that if Mr. Pittman produced additional responsive documents, he would sit for another deposition session limited to the topics affected by the supplemental production. (Supp'l Ledingham Decl. at ¶ 13 and Exhibit J thereto.) Nonetheless, Bryan Industrial maintains its request for a Court order compelling Mr. Pittman's deposition and document production based ...

Excerpt: ...he existence of the contract, the plaintiff's performance or excuse for failure to perform, defendants' breach and damage to plaintiff resulting therefrom. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031) The complaint must allege the ultimate facts necessary to state an actionable cause of action, and it is insufficient to simply plead the evidence by which he hopes to prove such ultimate facts. (Careau & Co....

Excerpt: ...le, 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. Grant (19...

Excerpt: ...Court (2010) 186 Cal.App.4th 414, 426 [C.C.P. § 998 offer made while motion to quash pending]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 214 [anti-SLAPP motion made while motion to quash pending].) As Carlyle had a Motion to Quash pending when its other filings occurred, those filings did not constitute a general appearance here. On the merits, Plaintiff Plutos Sama Holdings, Inc. (“Plaintiff”) has failed to meet its burden on this...

Excerpt: ...the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) A plaintiff moving for summary judgment must prove each element of the cause of action. (Id. at p. 853) A plaintiff meets his burden of showing there is no defense to a cause of action by proving each element of...

Excerpt: ...ory allegations are contradicted by the prior allegations that this reference was a mere scrivener's error on the part of the cross- defendants. Furthermore, there are no allegations to show that either agreement failed to embody “the real agreement” agreement between the parties. The timeliness issue will be quickly addressed. Both parties agree that the limitations period for a cause of action for reformation is 3 years. Moving cross-defend...

Excerpt: ...t”), together once annually for four years between 1/2019 and 1/2022 in Denver, Colorado. (FAC ¶11) Outdoor Retailer + Snow Show is defined in the Agreement as the “Event”, “an annual winter industry trade show that takes place each winter in the Colorado Convention Center in Denver, Colorado”. The obligations of the parties under the contract are defined in sections 1 and 2 of the Agreement and relate to conducting an in person event ...

Excerpt: ...tion, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy...

Excerpt: ...a business tenant at the Property, while Defendants are the owners and/or managers of the Property. Plaintiff was physically assaulted one afternoon by a transient individual who allegedly lived on the Property. The transient began by hitting Plaintiff and his co-workers' vehicle' with a metal bar, at which time Plaintiff confronted the individual initially, but then retreated back to his office to call the police. While on the phone with police,...

Excerpt: ...monstrating the claim at issue is a commercial claim for money based upon an express contract for a fixed or readily ascertainable amount not less than $500, secured by personal property; the probable validity of its claim, that attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based and that the amount to be secured by attachment is greater than zero. (CCP§§ 483.010, 484.090 (a).) Wells has es...

Excerpt: ...ch alleges in its entirety: Upon information and belief, AT&T's long lines network became obsolete and AT&T ceased operation of the network, and use of the Olinda Site as a microwave radio relay station or for any purpose, in the 1990s, more than two years prior to its Quitclaim Deed to ATL in 2000. By the terms of the Grant of Easements, the easements reverted to Plaintiff upon AT&T's cessation of use of the easements for their intended use, or ...

Excerpt: ...cie case of discrimination must include circumstances suggesting that the employer acted with a discriminatory motive. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) But the FAC here has presented only conclusory assertions about discriminatory animus which do not suffice to support the claim. Nor is the “adverse employment action” upon which he bases his claim clearly articulated. Facts in support of...