Excerpt: ...ecovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) An exception to the Privette doctrine was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. "[A1 hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained con...

Excerpt: ...l.) It is unclear from the Complaint how Defendant made harmful or offensive contact with Plaintiff's person. The demurrer to the first cause of action is thus SUSTAINED with 20 days leave to amend. Third Cause of Acton — IIED: Plaintiff fails to plead extreme and outrageous conduct directed at Plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) The allegations that Defendant fa...

Excerpt: ...obable, 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...

Excerpt: ...d a series of Case Management Conferences were held and on 10/28/22, the case was set for a Court Trial on 4/15/24. All discovery and motions, including experts, are therefore tied to the new trial date of 4/15/24. Noor Must Serve Proper Verifications The "verification" used by Noor appears to be a form used by counsel to cover several types of litigation and documents where the user just has to check the boxes. For example, the form has a place ...

Excerpt: ... was given only to file a FAC against Tara Materials, Inc. (ROA 90) At the 2/2/23 hearing on the Motion to Quash, the matter was fully briefed, oral argument held, and the matter submitted. The Court then issued a final order quashing service based on a lack of personal jurisdiction over Mr. Twite as asserted in the Motion. This second action against Mr. Twite on the same claim is barred by res judicata. Direct estoppel arises when there is a sec...

Excerpt: ...ent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Civ. Proc. Code S 2030.220.) For moving to compel further responses (in relevant part): "(a...

Excerpt: ...gligence. As OCSSA is a public entity, liability for negligence must be authorized by statute. (Branch v. State of Cal. ex. rel. Department of Transportation (1984) 159 Cal.App.3d 340, 343; Gov. Code S 815.) Plaintiff's complaint alleges three statutory bases for OCSSA's liability—Government Code sections 815.2, 815.4, and vicarious liability for the acts or omissions of its employee or independent contractor under sections 815.2 and 815.4, and...

Excerpt: ...ppearing 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 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 c...

Excerpt: ...e 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 court." (Smith v. Adventist Health Sys./W. (2010) 182 Cal. App. 4th 729, 749.) Symple asserts that it is likely to succeed on its two causes of action for Misappropriation of Trade Secrets and Unfair Competition. under the California ...

Excerpt: ...rly 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 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...

Excerpt: ...nc. v. Cnty. of San Mateo (1995) 12 Cal. 4th 1110, 1117—18; Prue v. Brady Co./san Diego (2015) 242 Cal. App. 4th 1357, 1384-85.) The court finds the Complaint fails to state suffcient facts to constitute Plaintiff's three current causes of action ("COA") under the Song- Beverly Act ("Act") as the vehicle in question (used 2018 Chevrolet Camaro with VIN: IGIFB3DX4J0131584 ("Vehicle")) was purchased used. The Act applies only to purchases of new ...

Excerpt: ...ence may be drawn from various sources, but the evidence relied upon must "speak to the court's concern whether the person in question is able to meaningfully take part in the proceedings." [Citation.] California law adopts a broad view of relevance, and a state court of appeal has emphasized a trial judge's "duty...to clearly bring out the facts." ' " (ld.) "The role of the guardian ad litem is to protect the incompetent person's rights in the a...

Excerpt: ... of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Bara', supra, 1 Cal.5th at 396.) The ...

Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...

Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...

Excerpt: ....) Plaintiffs' 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.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...

Excerpt: ...clude “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a cont...

Excerpt: ...f California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Here, the causes of action pled against Cross- Defendant are not so unclear as to render them indecipherable. Accordingly, the demurrer based on uncertainty is OVERRRULED. First Cause of Action - Negligence Cross-Defendant again contends the negligence cause of action is barred by the Economic Loss Rule, as this action is purely a contractual dispute. The economic loss rule ordinarily prevents...

Excerpt: ...raw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' 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.) “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (G...

Excerpt: .... U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.) The court's sole function on a motion for summary judgment is issue-finding, not issue- determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (c...

Excerpt: ...es agreeing to produce (“Motion 2” below); (3) Plaintiff's Motion to Compel Further Responses to Requests for Admission (“RFAs”) Set One, for RFA 14 and to deem the RFAs admitted (“Motion 3” below); (4) Plaintiff's Motion to Compel Further Responses to Special Interrogatories (“SROGs”) Set One, for SROG Nos. 1-6, 21-24, 30-31, 33, 36, and 37-41 (“Motion 4” below); and (5) Plaintiff's Motion to Compel Further Responses to Form ...

Excerpt: ...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 ruling on a demurrer. (Day v. Sharp (1975) 5...

Excerpt: ... of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a fav...

Excerpt: ...a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.”  (Bara...

Excerpt: ... Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson's demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson. The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert th...