Excerpt: ...se to a request for reasonable accommodation by an employee or app licant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perfo rm his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the fai...

Excerpt: ...al sought by this Motion is $76,866. The Song -Beverly Consumer Warranty Act pr ovides remedies for consumers that have purchased, among other consumer goods, new vehicles. Remedies include the right to recover “damages and other legal and equitable relief.” (Civ. Code, §1794, subd. (a).) Further, any buyer that prevails in an action brought under the Act shall recover “attorney's fees based on actual time expended, determined by the court...

Excerpt: ...er prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” To determine the appropriate fee award under Civil Code section 1794, the...

Excerpt: ...t to C.C.P. § 177.5; (4) imposing an issue sanction against Defendants L anham, Cutler, and Riley ordering that the fact that they breached their fiduciary duties shall be taken as established in the action; and (5) subjecting Defendants to other monetary or nonmonetary sanctions as the Court deems appropriate. The Motion is m ade pursuant to Code of Civil Procedure sections 1209, 1211, 177.5, 583.150, 2023.030 as well as Evidence Code sections...

Excerpt: ...hich was denied the next day on 7/25/2023 without any argument. After a two day jury trial on 7/25/2023 and 7/26/2023, Judgment was entered in favor of Plaintiff and against Defendant in the amount of $23,168.23. On 8/2/2023 Defendant filed a Motion to Stay Execution of the Judgment, which was denied on 12/7/2023. That motion was unopposed. 8/7/2023 Plaintiff filed a Memorandum of Costs in the amount of $724.60. 8/10/2023 Plaintiff filed this ...

Excerpt: ...(names): ARMSTRONG GARDEN CENTERS, INC.” Defendant contends that the second count of Plaintiff's First Cause of Action for Premises Liability is not drawn and filed in conformity with California law and should be stricken under Code of Civil Procedure section 436 because no facts are alleged with respect to actual or constructive noti ce of the allegedly dangerous cement walkway, or that injury on the walkway was probable, and no facts are all...

Excerpt: ...imination in violation of the Fair Employment and Housing Act (“FEHA”) (Govt. C ode § 12940(a)) is without merit because Plaintiff was not constructively discharged and therefore, cannot make out a prima facie cause of action. ISSUE NO. 2: The first cause of action for pregnancy discrimination in violation of FEHA is without merit b ecause Plaintiff was not subjected to any adverse employment action and therefore, cannot make out a prima fa...

Excerpt: ...led and refused to participate in mediat ion such that the parties are bound to submit this dispute to binding arbitration pursuant to the terms of the arbitration agreement. A petition to compel arbitration “shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions, except that not less than 10 days' notice of the date set for the hearing Page 5 of 29 on the petition shall be given....

Excerpt: ...ernatively, Defendants request that the Court strike all allegations i n the Complaint where Plaintiff claims that his service dog was taken from him through an illegal seizure, and specifically where Plaintiff alleges the following: (1) “Due to race and disability, H.I.P.A. right violation, conspires false allegation of ani mal cruelty, illegal seizure of certified service dog for mental/emotional support,” (2) “conspires with OC Animal ...

Excerpt: ...ligence in making the motion after discovery of the default. [Cita tion.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420, internal quotations omitted.) Whether the moving party has successfully carried this burden is a question entrusted to the discretion of the trial court and its ruling will not be disturbed in the abs ence of a demonstrated abuse of that discretion. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.) Initially, ...

Excerpt: ...ed and the automatic stay in effect before SB 365 took effect, SB 365 is not retroactive in nature, and the FAA preempts SB 365. Plaintiff Club Speed, LLC (“Plaintiff”) argues that SB 365 is procedural in nature and may be applied to existing litigation without any concerns regarding retrospectivity, the K1 Defendants ar e seeking to circumvent the Legislative intent of preventing delays caused by frivolous appeals, and, to the extent any sta...

Excerpt: ...tiff made a reasonable investigation of the condit ion at issue before proceeding with his work before the concealed hazard exception will apply, and there is no evidence of either requirement. Lastly, Defendant contends that new case law shows that there is no duty to warn when a hazard is open and obvio us, particularly when there are alternatives which could have been undertaken. Code of Civil Procedure section 1008(a) provides: “When an app...

Excerpt: ...conferred and agree on the need for a protective order; that Plaintiff provided a draft protective order and Kuhns indicated that it would stipulate to its entry, but Plaintiff has been unable to obtain Defendant Carlos Alcala's participation and signature on the proposed protective order, and that Plain tiff has also refused to seek assistance from the Court such that Kuhns has filed this motion. No opposition has been filed. Initially, the Co...

Excerpt: ...emises Liability Cause of Action. It contends that Plainti
¯ targets the Wallace Firm because it represented Casa Nicolina LP, Plainti
¯s former landlord, in litigation and prelitigation related to a successful unlawful detainer action against Plainti
¯; that all of Plainti
¯s allegations against Page 16 of 63 the Wallace Firm arise from its communications related to the termination of Plainti
¯s tenancy in preparation for the unlawful de...

Excerpt: ...njamin's indemnity, contribution, and declaratory relief causes of action. VCG also contends that these defects cannot be cured as none of VCG's vehicles were involved in the alleged incident although VCG had trucks parked on the street where there was an accident. VCG additionally contends that it satisÞed the meet and confer requirements of Code of Civil Procedure section 430.41. Code of Civil Procedure section 430.41, subdivision (a) requires...

Excerpt: ... through twenty-Þrst, and the twenty-third through twenty-Þfth defenses fail to refer to the cause of action they are intended to answer and thus fail to comply with Code of Civil Procedure section 431.30(g); that all 25 defenses fail to name or identify what defense is being pled and so fail to comply with Code of Civil Procedure section 430.20(b), and are uncertain; that all 25 defenses fail to state any facts that constitute a defense and on...

Excerpt: ...nd “First Cause of Action – Common Count,” her “Second Cause of Action – Fraud,” and her Fourth Cause of Action;” and that all three of Plainti
¯s causes of action against the Wallace Þrm arise from protected activity related to prelitigation and litigation of two unlawful detainer actions where the Wallace Þrm represented Plainti
¯s landlord, including giving 60-day notice, statements made during the proceedings themselves, a...

Excerpt: ...ROG, No. 17.1 regarding RFA, Nos. 15 and 16 are neither complete nor straightforward as required by Code of Civil Procedure section 2030.220; that Defendant has only provided objections based on privilege and no substantive response; that the objections based on attorney-client privilege and the attorney work product doctrine do not provide an adequate description of documents claimed to be privileged such that Plainti
¯ can evaluate the merits ...

Excerpt: ...n that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 849- 850). A plainti
¯ has met his or her burden of showing there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. (CCP §437c(p)(1)). Once the plainti
¯ has met that burden, the b...

Excerpt: ...tion 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 in the papers, except the evidence t...

Excerpt: ...Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 977-978.) “An arbitration agreement must be in writing to be valid and enforceable. [Citation.]” (Id. at p. 978.) Page 52 of 63 “Under ‘both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.' [Citation].” (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396, emphasis in original.) The court is to dete...

Excerpt: ... section 583.210 and 583.250. Moving Defendants contend that the summons and complaint has not been served upon any of the Moving Defendants within three years after this action was commenced as required by Code of Civil Procedure section 583.210(a) such that dismissal is mandatory and jurisdictional. More speciÞcally, Moving Defendants assert that the this case was Þled on June 17, 2019; that the statutory 3-year deadline is June 17, 2022; tha...

Excerpt: ...und of lack of jurisdiction of the court over him or her.” “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plainti
¯ to prove … the facts requisite to an e
¯ective service.” [Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (internal quotes omitted); see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.] Therefore, even though defendant is the moving par...

Excerpt: ...action for (1) breach of equipment Þnance agreement; (2) recovery of possession of personal property; (3) breach of guaranty; and (4) indebtedness, and that they defended this case until on May 16, 2023, Plainti
¯ voluntarily dismissed its Complaint against Defendants. Defendants contend that they are the prevailing party under Code of Civil Procedure section 1032, regardless of whether the action is voluntarily dismissed with or without prejud...

Excerpt: ...Inßiction of Emotional Distress. In OCSC Case No. 23-01321684, styled Lucy Pham Le v. Jin Xiong Liu, et al., Ms. Le asserts a single cause of action for Partition. Both cases are directed at disputes regarding the same property located at 12232 Circula Panorama, Santa Ana, CA. Pursuant to CCP §430.10(c), a defendant may bring a special demurrer to a pleading on the basis “[t]here is another action pending between the same parties on the same ...

Excerpt: ... each cause of action is uncertain and fails to state facts su
¯icient to support a cause of action. The Court notes that the instant demurrer and motion to strike were Þled on 07/25/23 by the A. Nathan Dawood Defendants, prior to the Þling of the FAC on 09/15/23, but it appears that the counsel for the parties met and conferred concerning deÞciencies to the FAC on 07/19/23 by phone, prior to the Þling of the instant demurrer and motion to s...

Excerpt: ...nti
¯ made a reasonable investigation of the condition at issue before proceeding with his work before the concealed hazard exception will apply, and there is no evidence of either requirement. Lastly, Defendant contends that new case law shows that there is no duty to warn when a hazard is open and obvious, particularly when there are alternatives which could have been undertaken. Code of Civil Procedure section 1008(a) provides: “When an app...

Excerpt: ...action for negligence, count two of the Þrst cause of action for liability under Civil Code section 846, and the second cause of action for general negligence are without merit as Plainti
¯ intends to Þle an Amended Complaint to remove these causes of action. Still, these causes of action are in the operative Complaint and the court will address them below. I. THE MOTION IS GRANTED AS TO COUNT ONE OF THE FIRST CAUSE OF ACTION AND THE SECOND CA...

Excerpt: ...hat it “will comply in part and produce the following documents in its possession, custody or control: [list of documents].” Plainti
¯ contends these responses are deÞcient because (1) no privilege log was provided for withheld documents and (2) the responses are not code compliant as they do not state that GM has conducted a diligent search for responsive documents. In opposition, GM contends that it has already produced responsive documen...

Excerpt: ... a valid and enforceable arbitration agreement found in Section M(2); that the arbitration provision in the home warranty service plan subjects all of Plainti
¯s' claims to an arbitrator, including on issues related to the applicability or arbitrability of the contract, including any disputes over payments; and that the arbitration provision explicitly delegates all questions of arbitrability to the arbitrator such that questions of whether the ...

Excerpt: ... upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading." In this instance, Defendant Westport Construction Inc. seeks to strike out the prayer for consequential damages in Plaintiff's Complaint, arguing that the subject contract, which is attached to the FAC contains a waiver of consequential damages (see Secti...

Excerpt: ...e of Summons filed on June 14, 2023, by Cross-complainants reflects service of the summons and Cross-complaint on Wonderland Nevada's registered agent for service of process on May 31, 2023, which is over the three-year maximum time limitation from the filing of the Cross-complaint on November 14, 2019, for the service of summons and complaint under Code of Civil Procedure secton 583.210(a). Wonderland Nevada also contends that none of the condit...

Excerpt: ...(1) conversion and (2) unjust enrichment. l. SECOND, THIRD, AND FOURTH CAUSES OF ACTION IN THE COMPLAINT Defendant/cross-complainant moves for summary adjudication as to the second cause of action for meal period violations, third cause of action for rest period violations, and fourth cause of achon for pay stub violations in the operative Complaint. As established in the first, second, and third issues presented in Defendant/crosscomplainant's s...

Excerpt: ... amount is based on the lodestar value totaling $999,200, and a requested adjustment of the lodestar through the imposition of a multiplier of 1.25. plaintiff/Cross-Defendant Jae Pak ("Pak") contends that the motion should be denied outright in its entirety, or alternatively, that the hours claimed should be apportioned and that the Court should award no more than 500 hours, or 25% of the total hours claimed for the employment FEHA harassment cla...

Excerpt: ...e S 452(d).) This action was filed by Plaintiff Cottons Investment Group, LLC against SCE for fire damage caused to Plaintiff's commercial property. Plaintiff alleges that SCE started the fire that caused the damage. In a separate action against Rancho Mesa, Plaintiff alleges that Rancho Mesa, acting as an insurance broker, failed to properly procure the property insurance policy requested. (RJN, Ex. A, 7, 17- 18.) SCE's Cross-complaint asserts c...

Excerpt: ...iscovery has not been completed and cannot be completed on the newly added parties before the current trial date of 01/29/24. Plaintiff also contends that additional factors favor a contnuance including the following: the proximity of the current trial date; no prior requests for a contnuance made by any party; no reasonable alternative solution to ensure judicial economy; prejudice to Plaintiff if it is not allowed this continuance and an Page 8...

Excerpt: ...the original Complaint on the same grounds asserted here. The Court held that the Complaint failed to allege any alter ego theory of liability against Abboud and that the fifth and sixth causes of action failed because the allegations showed nothing more than the failure to perform a contractual obligation. (ROA 29.) Plaintiff was granted 20 days leave to amend and timely filed the FAC on August 30, 2023. (ROA 33.) Defendants now raise the same a...

Excerpt: ... Code of Civil Procedure section 430.41, subdivision (a) requires that prior to filing a demurrer, "the demurring party .... meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer ... ." Similarly, prior to filing a motion to strike, "the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike ... ." (Code Civ. P...

Excerpt: ...ducate for failure to state facts suffcient to state a cause of action. Rossmoor contends that it was not until more than 20 years after the alleged abuse occurred, and that because it did not exist or have employees in 1980, Plaintiff has failed to state any claim against it and the demurrer should be sustained without leave to amend. Plaintiff contends that Rossmoor existed at the time of the abuse; that it was established in 1962 at 4161 Green...

Excerpt: ...d/or adjudication, Defendant presents these three issues: 1. Plaintiffs first, second, third, fourth and thirteenth causes of achon on agreement #1, cannot be collected against defendant Racheal Soriano as plaintiff cannot establish that defendant Racheal Soriano is responsible for this debt under an alter ego theory of liability, as the debt belongs to the corporation, and there is no evidence of fraud or other existence or incorporation of the ...

Excerpt: ...LD and BETTY J. LITTLEFIELD, as Trustees of the Richard W and Betty J. Littlefield Trust of 1996. Procedural History of Case: On 12/1/21 Plaintiffs filed this achon for declaratory relief seeking a declaration that the Page 6 of 17 forged promissory note and deed of trust were valid and enforceable against Defendants. On 2/8/22, Defendants answered and filed a cross-complaint for quiet title and cancellation of the forged promissory note and deed...

Excerpt: ...of default); Page 12 of 28 4. Paragraph 2.h in its entirety (re willful and fraudulent actions); 5. Paragraph 2.i. in fts entirety (re willful and fraudulent actions); 5. Paragraph 2.3. in its entirety (regarding alleged concealment of Right to Redemption); 7. Paragraph 2.k. in its entirety (regarding redemption period); 8. Paragraph 2.1. in its entirety (regarding willful and fraudulent actions); 9. Paragraph 2.m. in its entirety (re redemption ...

Excerpt: ...ories, Set Two ("SPROG 2"), Nos. 71, 72, 75, 76, 79, 80, 83- 87 within 10 days of the hearing on the motion, and imposing $1,635 against Plaintiff. Pacific Expressway contends that Plaintiff served untimely responses to FROG 2 and SPROG 2 such that objections are waived, and that Plaintiff failed to answer the entirety of FROG 2, No. 17.1. Pacific Expressway also contends that it sent a meet and confer to Plaintiff's counsel before filing the ins...

Excerpt: ...or transferring Plaintiff based on the email chain produced in Exhibit D. In opposition, Defendant argues that the Motion is procedurally deficient and Newman is an apex witness not subject to deposition pursuant to Page 10 of 28 the holding in Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282. "[W]e hold that when a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, ...

Excerpt: ...er burden of showing there is no defense to a cause of action if they have proved each element of that cause of action. (ld., S 437c(p)(1).) The burden then shifts to the defendant to raise a triable issue of one or more material facts as to the cause of action or a defense thereto by setting forth specific facts showing that a triable issue of material fact exists. (Ibid.) Plaintiff's undisputed evidence establishes that on December 14, 2017, Ha...

Excerpt: ...16 of 42 than 50 percent of the votes in the association, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment." (Civ. Code, S 4275(a).) The Court may grant the petition if it finds all of the following: "(1) The petitioner has given not less t...

Excerpt: ...suant to FEHA against United Parcel Service General Services Co., (3) retaliation pursuant to FEHA against United Parcel Service General Services Co., (4) wrongful failure to promote in violation of public policy against United Parcel Service General Services Co., (5) retaliation pursuant to Labor Code section 1102.5 against United Parcel Service General Services Co., and (5) failure to prevent discrimination and retaliation against United Parcel...

Excerpt: ...tion in TPG's Second Amended Complaint. 5th Cause of Acton As to the 5th Cause of Action for Intentional Interference with Contract, Defendants advance two arguments. As to the first argument, Defendants contend that they did not intend to induce a breach of the Joint Venture Agreement ("JVA"). In particular, Defendants contend that they did not have sufficient knowledge of the terms of the contract and rely on Winchester Mystery House, LLC v. Gl...

Excerpt: ... another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause Page 13 of 42 unnecessary delay." Such "actions or tactics" include the filing and service of a complaint. (CCP under this statute "frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP S128.5(b)(2).) under CCP S 128.7(b), an attorney signing or filing a motion certifies...

Excerpt: ... actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." Such "actions or tactics" include the filing and service of a complaint. Page 10 of 42 (CCP Under this statute "friwlous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP Under CCP S 128.7(b), an attorney signing or filing a motion certifies "that to the best of the person's knowledge,...