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: ...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: ...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: ...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...

Excerpt: ... or "Splice Members") to arbitrate all claims and disputes, including each cause of action asserted in the Complaint filed in this action, in the arbitration pending before JAMS, captioned Maher v. Splice Agency LLC, et al., JAMS Case No. 5100000379 ("Maher Arbitration"); 2. an order, pursuant to California Code of Civil Procedure section 1281.4 and the Federal Arbitration Act, g USC S 3, dismissing this action or, alternatively, issuing a stay p...

Excerpt: ...ng papers due on April 7, 2023, opposition papers due on April 14, 2023, and reply papers due on April 1 g, 2023. (April 5, 2023 Minute Order, ROA 114.) The Court notes that while the moving papers were served on April 7, 2023, they were filed late on April 10, 2023. Nevertheless, the Court will consider the moving papers. Moving Defendants argue that on October 6, 2022, Plaintiff filed an amended complaint without proper notice to Moving Defenda...

Excerpt: ...heir individual, derivative, or assignee capacities. This is confusing, especially considering Plaintiff has also pled that, "Marshall Properties assigned all of its tort and other claims and choices of action alleged herein to Huzyak, with the exception of its derivative claims for breach of fiduciary duty as alleged herein." Second Amended Complaint'l. Plaintiff Huzak is identified as a Plaintiff in each of the seven causes of action pled in th...

Excerpt: ...re not otherwise affiliated with Stor-lt Self Storage-Costa Mesa, Inc. In ruling on a demurrer to a complaint, the court must accept as true all allegations of fact contained in the complaint. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Thompson v Ioane (2017) 11 Cal.App.5th 1180, Ilgo.) Here, the FAC alleges that plaintiff "rented a self-storage space from defendants STOR-IT SELF STORAGE-COSTA MESA, INC.; LION COMPANIES, INC...

Excerpt: ...tor's award. If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., § 1286.) A court shall vacate an arbitration award if it determines any of the following: (1) the award was procured ...

Excerpt: ...s and Exhibits A thereto.) As a result of this service, responses were due on or before June 20, 2022. (C.C.P. §2031.260(a) and C.C.P. §1013(a)). Although not required, Counsel for Defendant attempted to meet and confer with Plaintiffs; however, no responses to these attempts were recieved. (¶5-¶7 of Beck Declarations.) Per Counsel for Defendant, as of the date of these motions, Plaintiffs failed to provide verified responses to the reference...

Excerpt: ...express purpose of harassing plaintiff and violating his rights. Punitive damages are appropriate.” 2. Page 9, Paragraph 57, lines 22-25 which read, “Under the holdings of GD Searle & Co. v. Superior Court (1975) these acts amount to oppression as they caused plaintiff to suffer cruel and unjust hardship. RECON's conduct constitutes malice in fact as it was willful, intentional, and done in reckless disregard of its possible results, which re...

Excerpt: ...5715 (the “First UD Action”), pursuant to Code of Civil Procedure section 918.5. Defendants assert that under Code of Civil Procedure section 918.5, the Court has discretion to stay of enforcement of a judgment where the ostensible judgment creditor is subject to a claim by the ostensible judgment debtor in another pending action; that Plaintiff, Kowen Lai (“Plaintiff” or “Lai”) is subject to a concurrent judgment in favor of Defendan...

Excerpt: ...aintiff also moves for an order compelling Eden to furnish responses to Plaintiff's Demand for Production and Inspection of Documents, Set One and requiring Eden and its counsel to pay monetary sanctions in the amount of $560 to Plaintiff for this motion. Eden's counsel has filed a substantively identical declaration providing that the court should not award sanctions against it because they have diligently attempted to locate someone associated ...

Excerpt: ...e responses to Form Interrogatories – Employment (Set 1), Nos. 208.1, 212.4(b)-(d), and 212.5(b)-(e) provided by Plaintiff, Ghazala Khan (“Plaintiff”) are incomplete; that no objections are asserted; that Defendant attempted to meet and confer but Plaintiff's counsel refused to properly meet and confer and failed to provided verified further responses; and that the Court should impose monetary sanctions in the amount of $4,140 against Plain...

Excerpt: ...titioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement…that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Here, the parties dispute both the existence of an arbitration agreement an...

Excerpt: ...eement 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 shall be follow...

Excerpt: ... willfully and intentionally; Paragraph 44, lines 24-26; Paragraph 46, lines 6-8; Paragraph 48, line 16; Paragraph 49, lines 26-28; Paragraph 50, line 1 of the SAC, the word abhorrent; Paragraph 55, lines 27-28-1; Paragraph 62, lines 12-14, the word willfully; Paragraph 67, lines 22-25; Paragraph 98, lines 24-25, the word intentional; Paragraph log, lines 1-3, the phrases "reckless disregard" and "willful refusal"; and Plaintiffs' prayer for puni...

Excerpt: .... Plaintiff cites to Code Civ. Proc. 52023.0300) and (c) as enabling authority for issue and evidentiary sanctions. Pursuant to code Civ. Proc. 520230.030(b): "The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any par...

Excerpt: ...fth causes of action for fraudulent inducement by concealment and intentional misrepresentation in conformance with the recent controlling decision, Dhital v. Nissan North America, Inc., (2022) 84 Cal .App.5th 828, which holds that under California law, the economic loss rule does not bar a plaintiff's fraudulent inducement claims and that such claims fall within the exception to the economic loss rule. Plaintiff also argues that Dhita\ held that...

Excerpt: ...iv. Proc. 5430.10(2)). Initially, all papers opposing a motion "shall be filed with the court and a copy served on each party at least nine court days" before the hearing. (Code Civ. Proc. 51005(b).) The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal .App.4th 1, 20 ["Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and h...

Excerpt: ... three Defendants also move to strike Plaintiff's request for punitive damages on the ground that the FAC does not assert any factual allegations of malice, oppression, or fraud to support such an award. Meet and Confer The parties adequately met and conferred prior to the filing of these Demurrers and Motions to Strike. Uncerta inty Demurrers for uncertainty "are granted only if the pleading is so incomprehensible that a defendant cannot reasona...

Excerpt: ...deral Arbitration Act ("FAA"); that the Retail Installment Sale Contract ("RISC") contains a valid and enforceable Arbitration Provision; that while Nissan is not a signatory to the RISC, it has standing to enforce the Arbitration Provision pursuant to the doctrine of equitable estoppel under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-499, as Plaintiff's claims are all based on alleged defects and nonconformities with the Subject Vehi...

Excerpt: ...tion for Constructive Discharge "An employer is considered to have discharged an employee when 'the employer's conduct effectively forces an employee to resign. Although the employee may say, 'I quit,' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will."' (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal .App.4th 1156, 1166 [citing Turner v. Anheuser-Busch, Inc. (1994) 7 cal.4th ...

Excerpt: ...Plaintiff Thu Y Tran ("Plaintiff") moves for leave to file a Fourth Amended Complaint pursuant to Code of Civil Procedure sections 473 and 576. Plaintiff contends that she seeks to amend the complaint to allege two (2) new causes of action for Specific Performance of the Contract and for Promissory Fraud which was not included in the prior amended complaint, and which are based on the same exact nucleus of facts, as well as a claim for punitive d...

Excerpt: ...moves for an order compelling Wonderland to provide within 15 calendar days of the court's ruling: verified responses to all of Colvin's discovery requests, and documents in response to Colvin's Requests for Production of Documents, Set One ("RFP 1"), Nos. 1 through 49. Further, Colvin moves for an order for an award of monetary sanctions against Wonderland and its attorney of record, jointly and severally, in the amount of $15,000 for each motio...

Excerpt: ...Rules of Court, rule 3.1113, subd. (d).) (Cal. Importantly, memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper." (Cal. Rules of Court, rule 3.1113, subd. (g). ) trial court has broad discretion to accept or reject late-filed papers." (Rancho Mirage Country Club Homeowners Assn. v. Haze/baker (2016) 2 Cal.App.5th 252, 262; Mackey v. Board of Trustees of California State Univ...

Excerpt: ... of the State of California, and that as a result, under the express terms of Proposition 213, codified as Civil Code section 3333.4, Plaintiff is not entitled to recover non-economic damages in this matter. Defendant contends that Plaintiff cannot meet the burden of producing evidence to dispute material facts. Plaintiff asserts that Defendant is seeking to eliminate just one aspect of compensatory damages, but that a party cannot obtain summary...

Excerpt: ...of hearing; • The specific order or judgment sought; • The grounds on which the motion is made; and • The documents or evidence relied upon. [CCP S 1010] Additionally, pursuant to Ca Rules of Court, Rule 3.1350(b), "If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically ...

Excerpt: ...istake." [Code Civ. Proc. 338(d).) Where a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time- barred, he or she must specifically plead facts which, if proved, would support the theory. [Mills v. Forestex co. (2003) 108 cal.App.4th 625, 641 (Mills).] "A close cousin of the discovery rule is the 'well accepted principle . ....

Excerpt: ...moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a ca...

Excerpt: ...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 . . . .” As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc. § 430.41(a)(1).) “If, upon review of ...

Excerpt: ...effrey A. Swedo and Gordan Rees Scully Mansukhani, LLP for each of the four motions, as well as awarding sanctions in the amount of $250, jointly and severally, against Anaheim Hills and its counsel of record, Jeffrey A. Swedo and Gordan Rees Scully Mansukhani, LLP, for failing to meet and confer under Code of Civil Procedure sections 2023.010(i) and 2023.050(a)(3), for each of the four motions. Plaintiff contends that the responses to the discov...

Excerpt: ...t Cause of Action for Age Discrimination Pursuant to Government Code section 12940(a)(1), it is unlawful “to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment” because of...

Excerpt: ... of Documents; that Ho has redacted Ho 045 based on attorney-client privilege but that such assertion of the privilege is impossible as it is a communication with Plaintiff; that Ho has redacted Ho 050, and Ho 051 based on privacy and third party privacy rights, but fails to state how third party privacy rights are affected. Plaintiff also contends that monetary sanctions are warranted for Ho's unmeritorious objections, failure to produce essenti...

Excerpt: ... Yelp review is protected as it is an act in furtherance of her right of petition or free speech in connection with a public as “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest under Code of Civil Procedure section 425.16(e)(3); that it is well-settled that website accessible to the public are public forums for the purposes of the anti-SLAPP statute; an...

Excerpt: ...ile a motion compelling further answers to a request for production of documents, if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310.) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code C...

Excerpt: ...ction for sound testing and measurement of the air conditioners located at 408 Balboa Rd. in Newport Beach, and awarding monetary sanctions against Defendants and their counsel in the amount of $4,500 for the misuse of the discovery process. These motions were originally heard on January 19, 2023. As to the first motion, the Court's tentative ruling vacated the motion to compel the deposition of Starr as she was dismissed, without prejudice, from...

Excerpt: ...te Doctrine and no exceptions apply; (2) the First Cause of Action for Negligence is without merit because there is no triable issue of material fact that Defendant owed no duty to Plaintiff because the condition was open and obvious; (3) the First Cause of Action for Negligence is without merit because there is no triable issue of fact that Plaintiff can produce no admissible evidence that Defendant's conduct was a breach of the standard of care...

Excerpt: ...ing punitive damage allegations at paragraph 65, 13:20-23; at paragraph 70, 14:25-28; at paragraph 75, 16:11-14; at paragraph 81, 17:5-8; and the prayer for relief, at 17:7, 19:2-5, 19:7-10, 19:12-15. The SCM Defendants assert that they are owners of a hotel in Pismo Beach, and that the Seventh and Eighth Causes of Action for Negligence and Premises Liability fail to state facts sufficient to state a cause of action because they did not owe Plain...

Excerpt: ... unlike Civil Code section 52, does not permit liability against both direct actors and those who are allegedly vicariously liable because Civil Code section 52(b) permits liability for those who “aids, incites, or conspires” in a violation of the act but Civil Code section 52.1 does not provide similar language. Defendant KUHNS does not contest liability under Civil Code section 51 or 51.7. Civil Code section 52.1 states, in pertinent part, ...

Excerpt: ...ction because he is not a licensed contractor and (2) there is no privity of contract between Plaintiff and Defendant John Waldrop. “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.) Importantly...

Excerpt: ...inued the hearing specifically indicating in its minute order, “The briefing on the Demurrer is not continued. All briefing is due as if the Demurrer is being heard on 01/26/2023.” (ROA 53.) Plaintiff filed an Opposition on 2/15/2023, which is untimely and not considered. (ROA 60. ) Plaintiff's failure to timely oppose the demurrer can be treated as an implied concession to the merits of the same. [Herzberg v. County of Plumas (2005) 133 Cal....

Excerpt: ...anted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written 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 party making the application shall state by affidavit what application was made b...

Excerpt: ...s for Production, Set Two, Nos. 23-33, and awarding monetary sanctions in the amount of $8,445. Plaintiff asserts that Guadarrama's deadline to comply with the Discovery Order was August 1, 2022, but that more than two months has passed and Guadarrama has neither provided the discovery, nor paid the monetary sanctions to Plaintiff, warranting issue and evidentiary sanctions. Plaintiff also contends that the requested information goes to the heart...

Excerpt: ...at the instant action involves two consolidated complaints and claims among numerous parties, all of which depend on the existence of a valid, enforceable contract between just two of the parties: Honarkar and Defendant/Plaintiff, The Picerne Group (“TPG”). Honarkar requests that trial be bifurcated with his Complaint, consisting of a single declaratory relief cause of action, and the issue of the existence and formation of a contract proceed...