Excerpt: ...tion. (CIV-140) However, moving party herein is St. Judge Medical Group, not St. Judge Medical Center. As such, it is unclear if moving party has complied with CCP 5430.41. However, given there is no objection to the meet and confer, this appears to be an error, and the Court will proceed to the merits. This case involves Defendants' alleged negligence in the care and treatment of Plaintiff CATHERINE TAFOLLA while giving birth to decedent GIANNA ...

Excerpt: ... action and allegations of personnel management alone are insufficient to state a cause of action. Defendants cite to Janken v. GM Hughes Elec. (1996) 46 Cal.App.5th 55, 54-65 as legal authority. In Opposition, Plaintiff contends that the Court previously found a viable claim could be pleaded based on Plaintiff's protected status alleged; that the SAC pleads that Plaintiff went on medical leave on 4/23/2020, returned, and then Defendant LEANO's c...

Excerpt: ...parent LinkedIn filed is judicially noticeable. Moreover, a LinkedIn profile that Plaintiff pulled from the interest does not appear to a matter that is reasonably beyond dispute and therefore judicially noticeable. (Evid. Code, SS 451-453; Tenet Healthsystem Inc. v. Blue Cross of California (2015) 245 Cal.App.4th 821, 835.) Likewise, even the court took judicial notice of the dtNument, the truth of the statements contained in the document and th...

Excerpt: ... for electronic filing or service" in the sum of $2,659.00 on the grounds that the amount is excessive and does not reflect the actual cost of filing fees or service on Defendant; and (3) Item Number 16, "Other" in the sum of $3,951.90 on the grounds that there is no itemization or explanation of the amount. Defendant also moves to reduce: (1) Item Number 5, "Service of process" from sum of $3,347.83 to $300 on the grounds that the amount is exce...

Excerpt: ...ngBeverly Act, and there are no facts that would support a demand for punitive damages. Specificity Fraud generally must be pleaded in the complaint specifically. General and conclusory allegations are not sufficient. Page 8 of 39 (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) However, a lower level of specificity is required in cases involving nondisclosure. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal....

Excerpt: ...notice, a party to the action or an offcer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with ft, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the n...

Excerpt: ...thstanding that the First Cause of Acton is brought only against Lockett & Horwitz. Defendants move for an order striking the follow-ng portions of Plaintiff's Complaint: 1. The entre Complaint; 2. The entire First Cause of Action; 3. The entire Second Cause of Acton; 4. Paragraphs 11; 12; 18; 21-24; 35, lines 7-8; 39, lines 15-16; 40, lines 20-23; 42, lines 4-11; 58; 59, lines 14-15; 50; 64-70; Prayer, Paragraphs 4 and 4. Defendants argue that t...

Excerpt: ...rth, Fifth, Sixth, Seventh, and Eighth Causes of Action of Plaintiff's Second Amended Complaint based on the following issues: • Issue 1. Plaintiff Has Not Produced, And Cannot In The Future Produce, Evidence Of Exposure To Indoor Mold Or Asbestos That Exceeds Outdoor Mold Or Asbestos Sufficient To Support Any Cause Of Acton • Issue 2. Plaintiff Has Not Produced, And Cannot In The Future Produce, Evidence Of Exposure To Levels Of Mold Or Asbe...

Excerpt: ...e words "willfully and intentionally"); Paragraph 44, line 27 (the word "willful"); Paragraph 50, line 9 (the word "abhorrent"); Paragraph 62, line 25 (the word "willfully"); Paragraph 98, line 20 (the word "intentional"); Paragraph 109, lines 4 (the words "reckless and willful"); Paragraph 127, lines 16-17 (the phrase, "Because they did not act at all to maintain the Tree, it cannot be said that Anaheim Hills orthe Anaheim Hills Board acted in f...

Excerpt: ...sponses to interrogatories waives any objection to the requested discovery. (Code Civ. Proc., S 2030.290, subd. The party propounding the interrogatories may move for an order compelling responses to the discovery. (Code Civ. Proc., S 2030.290, subd. (bj.) "Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45—day time limit, and the propounding party does not have to demonstrate either good cause or t...

Excerpt: ...ed, Inc. ("KI"), based on theories of agency and estoppel. Agency Page 49 of 51 With regard to the agency theory, the Outlier Defendants argue that Plaintiff has clearly alleged agency in paragraph 11 of the FAC and that no other facts are specifically alleged against them. They argue that because the only facts Plaintiff has alleged to include the Outlier Defendants are the allegations of agency, those allegations cannot be ignored— they eithe...

Excerpt: ... Indemnity; (4) Breach of Contract; (5) Declaratory Relief Re: Duty to Indemnify; (6) Declaratory Relief Re: Duty to Defend; and (7) Declaratory Relief Re: Failure to Maintain Insurance as follows, pursuant to the Notice of Motion: 1. CRH's First Cause of Action for Equitable Indemnity and Second Cause of Acton for Contribution fail because there is no evidence that Winnelson had independent fault for the subject incident. 2. CRH's Third Cause of...

Excerpt: ...d every allegation set forth in the First Amended Complaint pursuant to Code of Civil Prmædure, section 431.30, subdivision (d)." (See ROA 53, Answer.) Defendant's Answer also alleges one defense: "[t]he Complaint fails to state facts sufficient to constitute a cause of action against the Defendant." (Ibid.) The operative First Amended Complaint contains one cause of action: violations of the California Constitution Article l, SS 7 and 19. The F...

Excerpt: ...yer at the time of her termination or the alleged retaliation against her and thus, not liable as to the first, second, third, and fifth causes of action; and (3) AVIM is not liable to Plaintiff because AVIM was no longer a party to the contract at the time of the alleged breach and thus the fourth cause of action fails. The motion and moving papers were filed on 7/27/2023. (AVIM/CFPH-Cl's MSA; ROA 67, 58, 69, 70). Defendant Compassion-First Pet ...

Excerpt: ...on February 1, 2021, Cross-complainants signed a "Voluntary Mutual Agreement to Arbitrate Claims" whereby Cross-complainants agreed to arbitrate employment related claims, and that Cross-complainants' claims for age discrimination, failure to effect reasonable accommodation, breach of partly oral and Page 4 of 23 partly implied contract, and associational discrimination alleged in their Cross-complaint fall within the scope of the Arbitration Agr...

Excerpt: ...tion." Defendants contend that abatement is a matter of right when final judgment in the first acton would bar the second action under the doctrine of res judicata or have a preclusive effect on a material issue. Leaving aside that the statute expressly specifies that the argument is to be made by demurrer or answer (thereby severely limiting the material that the court can consider), Defendants do not meet the requirements for a mandatory plea i...

Excerpt: ...e same cause of action." Defendants contend that abatement is a matter of right when final judgment in the first action would bar the second action under the doctrine of res judicata or have a preclusive effect on a material issue. Leaving aside that the statute expressly specifies that the argument is to be made by demurrer or answer (thereby severely limiting the material that the court can consider), Defendants do not meet the requirements for...

Excerpt: ... Code section 17980.7(c). "If any building is maintained in a manner that violates any provisions of this part, the building standards published in the State Building Standards Cuie relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part, or any provision in a local ordinance that is similar to a provision in this part, and the violations are so extensive and of such a nature that the ...

Excerpt: ...v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343—344 for the proposition that: " 'Generally, after an amended pleading has filed, courts will disregard the original pleading. [Citation.] [91 However, an exception to this rule is found where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a ...

Excerpt: ...m Requests for Admission, Set One propounded on Defendant/Cross-Defendant John Andraos Admi
©ed, plus $860 in sanc
Ÿons, and (4) Mo
Ÿon to Deem Requests for Admission, Set One propounded on Defendant/Cross-Defendant Golden Foods Admi
©ed, LLC plus $860 in sanc
Ÿons. Neither Defendant/Cross-Defendant John Andraos nor Defendant/Cross-Defendant Golden Foods, LLC opposed the Mo
Ÿons. Mo
Ÿons to Compel Responses to Form Interrogatories Pursuant...

Excerpt: ...ron Allen to Request for Admission, Set Two, Nos. 28-35 plus $19,875 in sanctions, ROA 56; (4) Motion to Compel Further Responses by Plaintiff Byron Allen to Form Interrogatories, Set Two, No. 17.1 plus $19,875 in sanctions, ROA 65. The court notes that the replies request $9,875 in sanctions. The parties agree that the meet and confer efforts were sufficient and that the Motions were timely filed based on the parties Page 11 of 13 agreements dur...

Excerpt: ...cessarily timed barred and not that it may be time-barred. In Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, the court explained that: "A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Citation omitted) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; i...

Excerpt: ...a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists." (Code Civ. Proc., S 1281.2.) Pursuant to Code of Civil Procedure section 1281.6: "If the arbitration agreement provides a method of appointing an arbitrator, that method sh...

Excerpt: ...arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute. (b) Determination of applicability—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and t...

Excerpt: ...ed at a default prove-up hearing; or, in the alternative (b) a fourth order compelling Hyundai to comply with the Court's March 18, 2021, April 22, 2022, and April 6, 2023 Orders and for prospective sanctions of $1000 per day for each day that Hyundai does not comply. Plaintiff brings this Motion is made pursuant to California Code of Civil Procedure Sections 128(a)(4) and 2023.030(d)(1) & (4). Code Civ. Proc. provides, "Every court shall have th...

Excerpt: ... been quoted verbatim. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under mtxlern discovery procedures." (Khouryv. Maly...

Excerpt: ... $27,810.47. The Motion is GRANTED as to the stipulated costs in the amount of $27,810.47. Otherwise, the Motion is DENIED. A. The Motion is Timely The motion for fees "must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case." (Cal. Rules of Court, rule 3.1702, subd. (b).) Pursuant to California Rules of Court, rule 8.104(a...

Excerpt: ...ker List which constitutes trade secrets. Sprout is not represented by counsel, and the motion is unopposed. "A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment." (Code Civ. Proc. S 437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action, one or more affrmatve d...

Excerpt: ...and her counsel of record in the sum of $1,078. Defendant Tran also moves for an order deeming the truth of all matters specified in Request for Admissions, Set Two, Nos. 29 through 42, and awarding monetary sanctions against Plaintiff and her counsel of record in the sum of $1,078. Defendant Tran contends that the foregoing discovery was served on Plaintiff and that Plaintiff did not serve responses, necessitating these motions to compel and sup...

Excerpt: ... within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (CINIe Civ. Proc., S 473(b).) Because this Motion was filed more than six months after the dismissal, secton 473(b) does not apply. Aside from the authority set forth in section 473(b), every court has the power to "amend and control its process and orders so as to make them conform to law and justice." (Code Civ. Proc., S 1...

Excerpt: ...atories General (Set One), all within 10 calendar days of the hearing of the motion, as well as for an order awarding monetary sanctions Page 19 of 40 in the amount of $ 2,963.15 against Horizon and its counsel of record, Fred Hayes and Rogers, MacLeith & Stolp, LLP, jointly and severally, for each of the two motions, as well as monetary sanctions in the same amount against Besnos and his counsel of record for one of the motions. Plaintiff Beznos...

Excerpt: ...ntends that there is no merit to the Second Cause of Acton for Violation of Civil Code section 1793.2(b) because the undisputed facts show no single visit lasted longer than 30 days as required under Civil Code secton 1793.2(b); that Plaintiff has failed to provide any evidence, and no evidence exists, that any visit lasted longer than 30 days or that any repair to the subject vehicle was not initiated promptly; and that Plaintiff has failed to p...

Excerpt: ...ff contends that he is an elderly 81-year-old senior, and is in fear of his body and life from Defendants and their potential physical, violent threats and retaliation against him and his property for this lawsuit, the FBI investigation, and the criminal indictment filing in the United States District Court. Plaintiff also contends that requiring Plaintiff to submit to separate depositions in the civil and criminal actions would subject Plaintiff...

Excerpt: ...n v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343— 344 for the proposition that: " 'Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [Y] However, an exception to this rule is found where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is m...

Excerpt: ...turer under the doctrine of equitable estop#l. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr.3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement. W...

Excerpt: ...er under the doctrine of equitable estoppel. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District in Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr. 3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement....

Excerpt: ...alleges that he was Defendants' employee and therefore was not required to hold a valid contractor's license to recover under the contract. Plaintiff claims that he is an employee pursuant to Labor Code section 2750.5, which “provides in relevant part that a person performing an activity requiring a contractors' license “shall hold a valid contractors' license as a condition of having independent contractor status.” (Fillmore v. Irvine (198...

Excerpt: ...e FAA provides that a “written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) “The ‘principal purpose' of th...

Excerpt: ... and severally pay monetary sanctions in the amount of $2,963.15. Plaintiff also moves for an order deeming admitted Plaintiff's Requests for Admission, Set One to Horizon and an order that Horizon and its counsel of record Fred Hayes and Rogers, MacLeith & Stolp, LLP jointly and severally pay monetary sanctions in the amount of $2,963.15. Lastly, Plaintiff moves for an order deeming admitted Plaintiff's Requests for Admission, Set One to Defenda...

Excerpt: ...y the unlawful detainer action pending the outcome of this Unlimited Action. (ROA 86, 89.) After oral argument, the Court permitted the parties to file simultaneous briefs regarding authority and justification for an undertaking and the amount of an undertaking. Said briefs were due no later than 08/24/2023, with no reply to be filed. (Ibid.) In his supplemental brief, Campbell contends that there is no statute that authorizes an undertaking or b...

Excerpt: ...very v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59-60.) “If a party to a civil action asks the court to compel arbitration of [a] pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exists.' [Citations] ‘Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by ...

Excerpt: ...May 25, 2022, C4 revived its corporate status, but that since that time, Counsel has mistakenly proceeded as though the Answer filed by C4 was active in this case. C4 contends that Plaintiff failed to request a prove-up hearing relating to the default, and that Counsel was reminded of the default when Plaintiff's counsel presented his Statement of the Case in August 2023. C4 asserts that the Court may relieve a party from default under Code of Ci...

Excerpt: ...ration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (Code Civ. Proc., § 1281.2.) “The trial court may resolve motions to compel arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance ...

Excerpt: ...ntained in a sales contract between the dealer and purchaser could be enforceable against the manufacturer under the doctrine of equitable estoppel. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr. 3d 82 (June 26, 2023) disagreed with the reasoning in...

Excerpt: ...ffing, LLC's counsel, Rick Martin of Angel City Law, who has since withdrawn as counsel, for his frivolous conduct, gamesmanship, and unnecessary delays, which includes compensation for all the expenses Plaintiff has incurred that are attributable to his conduct, including the cost of bringing the instant motion and any other expenses attendant upon the delay of the deposition. Plaintiff asserts that Plaintiff planned to file her motion for summa...

Excerpt: ...m between the parties. Defendant argues that it is a public entity HMO operating under a joint powers agreement between Riverside and San Bernardino Counties and this action must be transferred, under Code of Civil Procedure section 394(a), to San Bernardino County because Plaintiff's complaint expressly alleges that the negligence of Defendant caused Plaintiff legal injury and damages. Alternatively, Defendant contends the action should be trans...

Excerpt: ...oint employer; that Plaintiff was misclassified as exempt; and that Plaintiff was not reimbursed for business expenses incurred for Defendants' benefit. (Issues 21-23.) Defendants Line Drive Trucking, Inc. (“Line Drive”) and Mark Ward (“M. Ward”) (together, “Defendants”) filed an opposition. Defendant Man Staffing, LLC (“Man Staffing”) has not filed an opposition. Plaintiff contends that the motion concerns three (3) primary issue...

Excerpt: ...ion of $89 based on an overstated amount, for a total amount of $23,376. Krain contends that a $500 hourly rate for her counsel, Joshua Koltun (“Koltun”), is reasonable and within the range for experienced media attorneys in California based upon his experience and specialty in media/First Amendment issues, and that $500 per hour was the charged rate in this case. Krain also argues that the hours for which Defendant seeks an award are reasona...

Excerpt: ... conclusory and lack any facts sufficient to support an alter ego theory of liability. “To recover on an alter ego theory, a plaintiff need not use the words “alter ego,” but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) “The allegation that a corporation is the alter ego of the individual st...

Excerpt: ...tiff, Ahmad Tukhi was then pending. (ROA 127.) On 07/06/23, Attorney Peacock's Motion to be Relieved as Counsel was granted with counsel ordered to resubmit a proposed order with the required information. (ROA 146.) On 07/07/23, a proposed order was resubmitted. (See ROA 147.) Said order has now been signed by the Court. The order relieving Attorney Peacock as counsel of record for Plaintiff is effective upon counsel filing proof of service of a ...

Excerpt: ...nvironment “To establish a prima facie case of a hostile work environment, [Plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Da...

Excerpt: ...torm's discovery responses reflect it cannot establish the requisite element of damages for each of its claims as a matter of law.” Synoptek contends that summary judgment must be granted in its favor because the causes of action of Plaintiff/Cross-Defendant Burstorm, Inc. (“Burstorm”) are barred by the integration clause in the User Access Agreement and that an alleged oral modification of the parties' integrated, written agreement is with...

Excerpt: ...nterest added to the judgment against Defendants as follows: Candace Yang: • The Nursery and Frank Berry to Candace Yang, on the principal sum of $16,551.88, the total interest to be added as of August 10, 2023, will be $947.77; • Frank Berry to Candace Yang, on the principal sum of $5000, the total interest to be added as of August 10, 2023, will be $286.30; • The Nursery to Candace Yang, on the principal sum of $15,000, the total interest...

Excerpt: ...te-filed opposition. The Court considers the late-filed opposition, and reply filed in response thereto. Plaintiff contends that both actions involve complex issues of title and fraud, that adjudicating those complex issues in the summary proceedings of the UD Action infringes on Campbell's due process rights, and that because Brooks' right to possession of the property depends on the outcome of Campbell's Unlimited Action, Campbell seeks to cons...

Excerpt: ... within a reasonable time, but no later than: (i) two years after entry of a default judgment against it; or (ii) 180 days after service on it of a written notice that the default or default judgment has been entered, whichever earlier. (CCP §473.5(a).) The motion must also be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or ine...

Excerpt: ...t Plaintiff on November 3, 2022. (ROA 48.) Plaintiff's Motion for Reconsideration was denied on February 16, 2023. (ROA 56.) Defendants seek an award of attorney fees based on the lodestar with a 1.5 multiplier. Defendants contend the requested multiplier is reasonable because this was a contingency case that involved significant legal and political issues. As an initial matter, the Court notes that on February 21, 2023, Plaintiff filed a Notice ...

Excerpt: ...r that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth ...

Excerpt: ...y in violation of California Vehicle Code section 21954(b); that Defendant, thus, could be charged with vehicular manslaughter in violation of Penal Code section 192(c)(2), driving as an unlicensed driver in violation of Penal Code section 12500(a), and failing to exercise due care for the safety of a pedestrian upon a roadway in violation of California Vehicle Code section 21954(b); that there is no statute of limitations for vehicular manslaugh...

Excerpt: ... eighth causes of action. The court already ruled in favor of Defendants on these causes of action and therefore the Motion for Summary Adjudication is MOOT as to the first, second, third, fourth, sixth, seventh, and eighth causes of action. On January 19, 2023, the court denied summary adjudication as to the fifth cause of action for violation of Government Code section 12940(n). Thus, only one cause of action remains: Plaintiff's fifth cause of...

Excerpt: ...d on “Promissory Fraud” has no merit pursuant to Code of Civil Procedure Section 437c(f)(1). The cause of action (1) is for an illegal object; and/or (2) there is no triable issue of material fact as to the element of “intent not to perform.” • The 2nd Cause of Action for “Declaratory and Injunctive Relief” has no merit pursuant to Code of Civil Procedure Section 437c(f)(1) . The cause of action is for an illegal object in that is s...

Excerpt: ...inst it, Will-Work contends that the Complaint fails to allege any facts regarding Will-Work. In opposition, Plaintiff contends that it seeks to hold Will-Work liable under a theory of agency, aiding and abetting, conspiracy or joint venture as alleged in Paragraphs 11 and 15-18 of the Complaint. (Oppn. at 2:28-4:14.) Under these theories, Will-Work could potentially be held liable for the acts of other Defendants. CCP §425.10(a)(1) provides a C...

Excerpt: ... prohibiting/limiting discovery as follows: (1) Plaintiff is protected from disclosing any and all current and future employers from any further request made by or on behalf of the Defendant, its agents, or attorneys; (2) No further subpoenas should be issued regarding employers of Plaintiff; (3) Defendant should be precluded from requesting further information related to Plaintiff's previous, current or future employers. As an initial matter, th...

Excerpt: ...g of this Demurrer and Motion to Strike. Request for Judicial Notice Defendant requests judicial notice of an April 28, 2021 Order Appointing Expert filed in Juvenile Case No. 21DP0344, In re the Matter of: Mia Phan, of the Orange County Superior Court. The Request for Judicial Notice is GRANTED. (Evid. Code, § 452(d).) Merits Though the Complaint does not expressly name the causes of action asserted, Plaintiff alleges that Defendant was neglige...

Excerpt: ...l Procedure section 338(b) for this permanent private nuisance, and that no private nuisance existed based on testimony from Matthew Cosylion, the Code Enforcement Supervisor for the City of Newport Beach, who stated there was no violation of any Newport Beach Municipal Code (“NBMC”) ordinance. Defendants also argue that there is no triable issue of fact as to Plaintiff's Second Cause of Action for Violation of Newport Beach Municipal Code se...

Excerpt: ...l to state facts sufficient to support a claim for punitive damages against Cross-Defendants as required by Civil Code section 3294, as the alleged acts by Cross-Defendants amount to a neighbor dispute but does not meet the standard of conduct necessary for punitive damages, and thus, should be stricken. Cross-Complainants contend that the motion should be denied as the conduct enumerated in the Cross-Complaint is despicable, with willful and con...

Excerpt: ... sexually abused and harassed by defendant J.M., who was one of her teachers at Tustin High School. (Compl. ¶¶11, 27.) TUSD contends that Plaintiff fails to allege facts sufficient to constitute a cause of action against TUSD because Plaintiff fails to allege any facts demonstrating that TUSD had prior notice of J.M.'s previous misconduct. (Dem. at 5:7-9.) Rather, according to TUSD, the Complaint lacks particularity and is instead based on boil...

Excerpt: ...“MOC”) here was filed 2/21/2023 and seeks $119,014.12 in costs. Under CRC 3.1700(a)(1), a prevailing party who claims costs must serve and file a MOC: “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under [C.C.P. § 664.5] or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first” plus additional time bas...

Excerpt: ...ch individual identified in Special Interrogatory No. 10.” Defendant objected to both of the above interrogatories on the grounds that the interrogatories seek information protected by the right to privacy, HIPAA and CMIA. Defendant also objected on the grounds that the interrogatories seek documents which are not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Legal Standard “[A] civil litigant's right...

Excerpt: ...d signed the verification attesting: “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” (Code Civ. Proc., §§ 2015.5 and 2031.250.) Next, Defendant is ORDERED to produce the documents that it stated would comply in part and produce certain documents in its responses to the Request for Production. Defendant stated that it would produce documents in response to Request for Pro...

Excerpt: ... March 6, 2023, including exhibits therein, from the trial record. The Shenzhen Defendants also seek an order imposing monetary and terminating sanctions. The Shenzhen Defendants contend that Plaintiffs' prior counsel inappropriately obtained financial records pursuant to a subpoena for business records on JP Morgan Chase Bank, after the Shenzhen Defendants objected to written discovery seeking financial records, and despite Plaintiffs' counsel's...

Excerpt: ...ornia Rules of Court, rule 2.112(3) and (4), and does not identify against which of the defendants each cause of action is brought, and alleges different theories of negligence against each defendant under the Fifth Cause of Action for Negligence. BP America also contends that punitive damages is not available as a form of damages in negligence actions. BP America additionally contends that the First Cause of Action for Assault and Second Cause o...

Excerpt: ... defendant entity (Creative Outdoor Distributor USA, Inc. (“COD”)) has convened a special committee to review Plaintiff's allegations of wrongdoing. Per Tang, the action should be stayed while the special committee investigates the allegations. The First Amended Complaint alleges that Plaintiff initially notified the Board of the wrongdoing alleged herein on 9/14/22, by way of letter. The letter demanded the Board take immediate remedial acti...

Excerpt: ...030. The Property Defendants assert that based on Plaintiff's discovery responses and deposition testimony, Plaintiff has been residing out of the State of California in Nevada since August 2020, and that there is a reasonable possibility that Property Defendants will obtain judgment in this action because JBCC, Bristol Retail, and Athena had no actual or constructive knowledge of the alleged dangerous condition of sandbags being placed at the en...

Excerpt: ...iolations; Plaintiff cannot establish a First Amendment retaliation claim because he failed to provide evidence that he engaged in any speech activities or that the speech was a matter of public concern; and Plaintiff cannot establish a First Amendment retaliation claim because he suffered no adverse action; 2. ISSUE NO. 2: the second cause of action under Government Code sections 3502 and 3506 has no merit because the Public Employment Relations...

Excerpt: ...rty who filed the pleading subject to the motion to strike and must file and serve with a motion to strike a declaration concerning the meet and confer, pursuant to Code of Civil Procedure section 435.5. Here, Defendant has filed no declaration showing that the required meet and confer in person or by telephone occurred. Further, Plaintiff's counsel's declaration demonstrates that her attempts to meet and confer regarding this Motion to Strike we...

Excerpt: ...any ultimate facts sufficient to support an alter ego theory of liability. Plaintiff argues that the ultimate facts regarding alter ego liability alleged in the TAC are sufficient to support all causes of action against Defendant and that Defendant has failed to address the partnership, employment, and independent contractor theories of liability, thereby conceding the same. The Court previously sustained Defendant's demurrer to the SAC on the gr...

Excerpt: ...er shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc. § 430.60.) In addition, “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint . . ., or to specified causes or action . . . .” (California Rules of Court, rule 3.1320.) Here, the demurrer does not set forth each g...

Excerpt: ...barred by the contractual statute of limitations. Defendants contend that the employment agreement signed by Plaintiff states that he must bring a complaint within the time prescribed by law or six months from the date of the event forming the basis of the lawsuit, whichever expires first; Plaintiff's complaint was filed on May 26, 2020, over two years after his employment was terminated on May 24, 2018; courts routinely enforce such contractual ...

Excerpt: ...dequately alleged breach and causation. A negligence action requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512.) “The existence of a duty is a question of ...

Excerpt: ... abandonment of the claims to which the moving party objected. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Accordingly, the court may construe Plaintiffs' failure to oppose the Motion to Strike as an abandonment of any opposition to the issues raised in the moving papers. (Ibid.) On the merits, the court agrees that punitive damages have not been sufficiently alleged against Defendant Monarch Home Maintenance & Inspection. Becaus...

Excerpt: ...hrough 15. Third, Defendant Tran moves for an order deeming the truth of all matters specified in Amended Request for Admissions, Set One. As to each of the three motions, Defendant Tran also moves for an order awarding monetary sanctions against Plaintiff and her counsel of record in the sum of $1,133. Defendant Tran asserts that Plaintiff served responses to the discovery at issue but did not include Plaintiff's signed verifications although th...

Excerpt: ..., i.e., 60 days after the Court's December 5, 2022 Order and Plaintiff's Notice of Entry of that Order; that Defendant's anti-SLAPP motion was frivolous as any reasonable attorney would know that Defendant could not meet her burden on the first prong; that Defendant's counsel knew or should have known that the anti-SLAPP motion lacked legal merit; and that Defendant's counsel relied exclusively on Birkner v. Lam (2007) 156 Cal.App.4th 275, which ...

Excerpt: ...revailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717(a).) "Prevailing party" means "the party who recovered a greater relief in the action on the contract." (ld., S 1717(b)(1).) A court has wide discretion in determining what constitutes reasonable...

Excerpt: ...s on the moving party to demonstrate both: (1) relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. super. ct. (1997) 53 cal.App.4th 1113, 1117.) Specifically, the moving party can also show good cause ...

Excerpt: ...rch 12, 2023, that Plaintiff would appear in-person, but that three days before the deposition on April 18, 2023, Plaintiff's counsel demanded that the deposition take place via remote videoconference due to the distance. Defendant also contends that at no time prior to the date of the deposition set for April 21, 2023, did Plaintiff's counsel serve objections to the deposition notice. Defendant additionally asserts that when Defendant's counsel ...

Excerpt: ...to the tort action for deceit, are (1) misrepresentation (false representation, concealment or non-disclosure); (2) knowledge of falsity (or "scienter"); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102, 1110.) The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed...

Excerpt: ...ies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]' [Citations.]" (Real Estate Analytics, LLC v. Val/as (2008) 160 Cal.App.4th 463, 472.) "To obtain specific performance, a plaintiff must... provCe] the elements of a standard breach of contract." (Darbun Enterprises, Inc. v. San Fe...

Excerpt: ...ute a cause of action for breach of contract against Defendants, as there is no allegation that Plaintiff ever attempted to purchase the Property or that Defendant prevented Plaintiff from purchasing the Property. Defendants also argue that the breach was due to the fact that Plaintiff moved someone into the Property in violation of the Residential Lease Agreement, and that Plaintiff has failed to qualify for the purchase of the Property, and is ...

Excerpt: ...or an order compelling Defendant to serve full and complete, objection- free responses to Plaintiff's Requests for Production, Set One, and awarding monetary sanctions in the sum of $828 against Defendant. Plaintiff contends that it served Defendant with Form Interrogatories, Set One and Requests for Production, Set One, and that Defendant's responses were due on December 2, 2022, but that prior to filing the present motions, no responses were re...

Excerpt: ...on for Violation of California's Unfair Competition Law Defendant seeks judgment on the pleadings as to Plaintiff's ninth cause of action for violation of California's Unfair Competition Law. In his ninth cause of action, Plaintiff alleges that Defendant violated Business and Professions Code sections 17531 and 17535. Business and Professions Code section 17531 states: "It is unlawful for any person, firm, or corporation, in any newspaper, magazi...

Excerpt: ... Cause-DOI, Proof of Service Civil and DS 367 Officers Statement by mail on the DMV on 03/08/2023 (ROA g), and the Court set the Petition for 05/18/2023. On 03/13/2023, the Court granted Petitioner's Ex Parte Application for Stay of Suspension and Issuance of Alternative, staying the suspension of Petitioner's driving privileges to 05/18/2023, scheduled the Petition for 05/18/2023, provided that "Ca]ll briefing is per code", and ordered the "cler...

Excerpt: ..."dangerous condition of public property under Government Code section 835; and (3) the City was not on notice of the alleged dangerous condition. Design Immunity Government Code 830.6 states: "Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or i...

Excerpt: ...iable 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) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him." Such a cross-complaint may be filed at any time before the cour...

Excerpt: ...l Distress and Fourth Cause of Action for Negligent Infliction of Emotional Distress fail to state facts sufficient to constitute causes of action. Plaintiff contends that Cruz failed to comply with the statutory requirements that defendant meet and confer at least 5 days before filing a demurrer and file a meet and confer declaration prior to filing its demurrer, as defense counsel states it attempted to communicate through email but Plaintiff's...

Excerpt: ...ges defects on the face of the complaint, it can refer to matters outside the pleading only if those matters are subject to judicial notice. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal .App.4th 821, 833 ["We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken."]•) The elements of a leg...

Excerpt: ...el Kluchin ("Kluchin") and Deba Shyam ("Shyam") should be stricken or disregarded, in their entirety, because they assert, and are premised upon, factual claims that directly contradict an interrogatory response of their employer, Defendant, Continuum Analytics, Inc. ("Continuum"). Specifically, TPG argues that Continuum's interrogatory response, verified by Shyam, to TPG's special interrogatory asking continuum to "DESCRIBE IN DETAIL the involve...

Excerpt: ...d not adequately met and conferred and continued this matter with an order to the parties to meet and confer and file a joint statement of any remaining issues. The joint statement was filed on April 21, 2023. (ROA 176.) The joint statement states that the parties met and conferred telephonically and were unable to reach an agreement on any of the issues raised. The Court finds that the meet and confer requirement has now been satisfied and will ...

Excerpt: ... cites to Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, in which the court held that notice was ineffective where the notice did not identify the specific interrogatories at issue, cite any authority for the motion, state what was deficient about the responses, and failed to identify the papers upon which it was to be based. (ld. at p. 138.) Here, Plaintiff's Notice of Motion specifically identifies Request Nos. 15 and...

Excerpt: ...ed in the Complaint is for breach of contract. No argument has been made regarding Plaintiff's breach of contract claim. Further, the breach of contract claim is asserted against "All Defendants, Except GM." (Compl. at 7:2-3.) The motion is DENIED as to the Second Cause of Action. Fifth and Sixth Causes of Action for Breach of Implied Warranty and Breach of Express Warran ty The fifth cause of action for breach of implied warranty and sixth cause...

Excerpt: ...n and Fourth Cause of Action fail to state facts sufficient to constitute a cause of action and are uncertain. Specifically, they contend that the Second Cause of Action is based on conclusory allegations, alleges a neighbor dispute, fails to state facts which support extreme and outrageous, and fails to allege facts showing that or how Cross-Defendants intended to cause Cross-complainants severe emotional distress. Cross-Defendants argue the Fou...