Excerpt: ...nd fixing the amount of attorney's fees to which they are entitled as the party prevailing on the contract in this action. The motion also requests that the monetary sanctions under CCP §128.5 awarded by the Referee, be extended to the entire proceeding from the date of the filing of the Petition for Alternative Writ to the final proceedings re fees and costs, in addition to those the Court has awarded per the recommendations of the Referee for ...

Excerpt: ...angerous condition on the floor of the store at the time of the incident. Second, that Plaintiffs are unable to prove that a dangerous condition on the floor of the store caused their fall. The Court notes that Plaintiff Allen Franz has been dismissed from this lawsuit without prejudice, because said Plaintiff passed away after filing the lawsuit, and no steps were taken under Code of Civil Procedure §377.31 to substitute in a successor plaintif...

Excerpt: ... the present motion, as well as $21,646 in expert witness fees. Plaintiff seeks the award pursuant to Civil Code §3426.4. Defendants oppose the motion, not because they do not believe Plaintiff is entitled to fees under Civil Code §3426.4, but because the amounts sought by Plaintiff are unreasonable. Under Civil Code §3426.4, where there is “willful and malicious misappropriation…the Court may award reasonable attorney's fees and costs to ...

Excerpt: ...ting of the pecuniary loss suffered by the heirs. [Citations.]' [Citation.]” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. Defendants argue that Plaintiff's wrongful death claim fails because Plaintiff has not pleaded a causal link between the decedent, Bertil Osbeck's (“Decedent”), injury and his death. Defendants contend that because wrongful death claims are statutory in nature, specificity in the pleadings is required...

Excerpt: ...iability fails as a matter of law because it is expressly preempted by federal law, including by not limited to, 21 U.S.C. § 360k(a) 3. Plaintiffs' failure to warn claims fail because they are barred by the Learned Intermediary Doctrine. A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit; i.e., that, as to each cause of action, one or more e...

Excerpt: ...dered on its own merits. CRC 3.1332(c). Rule 3.1332(c)-(d) states the factors the Court should consider in evaluating whether good cause exists. Here, Defendants seek a trial continuance due to the sudden and departure of all but one member of defense counsel's litigation team. The departure of these attorneys has caused an extreme burden on the sole remaining member of Defendants' litigation team. Pursuant to the Declaration of Daniel Watts, Ste...

Excerpt: ..., Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. If the moving party meets his or her burden of demonstrating “good cause,” the burden shifts to responding party to justify any objections made to the document production. See, Kirkland v. Superior Court(2002) 95 Cal.App.4th 92, 98. Plaintiff contends that these disputed requests all generally relate to records concerning the perpetrator student at issue, Cameron, wh...

Excerpt: ...al date has been set and that discovery is ongoing. (Nassiri Decl. at ¶ 6.) Shapiro represents that she now believes she suffered property damage caused by Puroclean's negligence. This belief is based upon “recent” information obtained from her expert, a licensed general building contractor, who completed his professional estimate and opinion in late Nov. 2018. Accordingly, Shapiro seeks to add a second cause of action for General Negligence...

Excerpt: ... is made in good faith, the Court must determine whether “the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.” Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1984) 38 Cal.3d 488, 499. In making such a determination, the Court considers the following factors: (1) a rough approximation of plaintiffs' total recovery and the settlor's prop...

Excerpt: ...n notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” The Court heard the motion for summary judgment on February 7, 2019, and took it under submission. In so doing, the Court invited the parties to file supplemental briefing, limited to five pages, which addressed specif...

Excerpt: .... v. Superior Court (2008) 159 Cal. App. 4th 273, 286 (citing Cal. Civ. Proc. Code § 367). Standing is a threshold issue. Id. The Third Amended Complaint contains 3 causes of action. They are: Breach of promissory note; money lent; and complaint to set aside fraudulent transfer. In order to establish a contract, Plaintiff must establish that she is either a party to the contract or that she has standing for some other reason. Pursuant to the Not...

Excerpt: ... motion. At the hearing on this motion the parties submitted to the tentative ruling and that tentative became the final ruling of the Court. Prior to the hearing, at 12:29 p.m. on 11/8/18, the Saldivar Defendants filed their cross- complaint. Ms. Rodriguez contends the Cross-Complaint is untimely because it was prematurely filed. However, Ms. Rodriguez fails to assert any prejudice that she has incurred as a result of the prematurely filed cross...

Excerpt: ...d Defendant with Oppositions to the motion for judgment on the pleadings and motion to strike. But the Court notes that Plaintiff has not filed the Oppositions with the Court. On or about 5/13/2019, the Court received courtesy copies of Plaintiff's Oppositions which were read and considered. Whether A Non-Attorney May Represent Estate Defendant Hospital argues that a person may not practice law in California without a license (Bus. & Prof. Code 6...

Excerpt: ... numbered copy of the amended pleading, the motion itself does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). While counsel submits a declaration under subdivision (b), and that declaration states the effect of the amendment, it does not state why the amendment is necessary and proper. Neither does it identify when the facts giving rise to the amendment were discovered nor the reason for...

Excerpt: ... it is unopposed. “A plaintiff … has met his or her burden of showing that 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 the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Pro...

Excerpt: ...ud because there is no triable issue that Nationstar made a false statement that Plaintiff relied upon, and Plaintiff has no damages. Further, Nationstar does not owe Plaintiff a fiduciary duty; (2) Plaintiff cannot prevail on his cause of action for violation of the Fair Debt Collection Practices Act because he released Nationstar of all liability as to these claims in a prior settlement agreement, he has failed to allege any actionable conduct,...

Excerpt: ...e Court to sustain their demurrers to the Sixth Cause of Action for violation of 42 U.S.C. §1983, the Seventh Cause of Action for tortious interference with contract, the Eighth Cause of Action for quiet title, the Tenth Cause of Action for intentional infliction of emotional distress, the Eleventh Cause of Action for negligent infliction of emotional distress, and the Twelfth Cause of Action for declaratory relief. On 01/24/19, the Court sustai...

Excerpt: ...on exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the employer may show the employee does not possess evidence needed to support a prima facie case and also cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, present evidence conclusively negating an element of the ...

Excerpt: ...“if it determines that an agreement to arbitrate the controversy exists, unless it determines that” certain circumstances are present, such as waiver of the right to arbitrate, or the presence of third parties in the lawsuit. The petition is to allege “the existence of a written agreement to arbitrate the controversy,” and also that the other party “refuses to arbitrate such controversy.” In addition, pursuant to California Rule of Co...

Excerpt: ... but not limited to any sewer studies, environmental impact reports, drainage studies, site plans, bridge/culvert designs, grading/utility plans, wetland impacts, tentative maps, and landscaping plans.” Plaintiff argues that the documents requested by Request No. 7 are relevant because the issue of entitlements and permits is part of one of the contracts, Auburn Modification Memorandum, at issue in this lawsuit. Specifically, Plaintiff contends...

Excerpt: ...e court is required to take judicial notice. See, CCP § 437(a). Specific facts, not a mere restatement of law, must be pled to support such a prayer for punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. The facts contained in the FACC are nothing more than generalities and legal conclusions. T...

Excerpt: ...o the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following: (1) The text of the request, interrogatory, question, or inspection demand; (2) The text of each response, answer, or objection, and any further responses or answers; (3) A s...

Excerpt: ...ision which appears on pages 3 and 4 of the Terms and Conditions of the contract states in its entirety: “Arbitration of Disputes. Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be resolved by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association and judgment upon any award rendered by the arbitrator(s) may be entered in any c...

Excerpt: ...e motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Defendants argue that allowing the amendment will not pr...

Excerpt: ...to quiet title must be verified and must include: (1) a description of the property including both its legal description and its street address or common designation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverse claims as against which a determination is sought; (4) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of ...