Excerpt: ... and 10th causes of action alleged and on the issue of punitive damages as follows:  Issue No. 1: Plaintiff cannot maintain a claim against Defendants in his first cause of action for discrimination in violation of the Fair Employment and Housing Act (“FEHA”) because Plaintiff cannot establish a prima facie case of disability discrimination because Plaintiff cannot establish that he suffered from a disability.  Issue No. 2: Plaintiff ca...

Excerpt: ...rtificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration: “1. That the attorney has reviewed the facts of the case, consulted with at least one mental health practitioner who the attorney reasonably believes is knowledgeable of the relevant facts and issues involved in t...

Excerpt: ... reports and orders of administrative agencies.”]) Demurrer Initially, the court notes that the requirements of CCP § 430.41 have not been satisfied, as Defendants have not submitted a declaration stating that meet and confer efforts occurred in person or by telephone. Nonetheless, rather than take the demurrer off calendar, the court, in its discretion, will rule as follows. Defendants' demurrer is based on the grounds that Plaintiff failed t...

Excerpt: ...t must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) The specificity requirement...

Excerpt: ...t and conferred regarding the issues raised by the motions. FORM INTERROGATORIES Defendant claims that Plaintiff provided responses “in a strange draft format without identifying the case or responding party, without signature by an attorney despite containing objections, and also in an electronic only Word document.” Defendant requests that responses be provided with an attorney signature and via hard copy or PDF to prevent unintended modifi...

Excerpt: ...bit A to the Declaration of Daniel R. Paluch. The Court GRANTS judicial notice of Exhibit A pursuant to Evidence Code section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but the court does not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Merits. Defendant YGRENE contends Plaintiff's ...

Excerpt: ...factors: • the amount paid in settlement • a rough approximation of plaintiff's total recovery and the settlor's proportionate liability • a recognition that the settlor should pay less in settlement than if found liable after a trial • the allocation of settlement proceeds among plaintiffs • the settlor's financial condition and insurance policy limits, if any • evidence of any collusion, fraud, or tortious conduct between the settlo...

Excerpt: ...lows: “The proper venue for any proceeding at law or in equity shall be Maricopa County, Arizona. The parties hereto hereby waive any right to object to venue in Maricopa County, Arizona.” Plaintiff argues that Paragraph 18 is unenforceable under Labor Code § 925, which states, in relevant part, as follows: “(a) An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree t...

Excerpt: ... Action for Products Liability-Negligent Failure to Warn; Sixth Cause of Action for Breach of Implied Warranty of Merchantability for a Particular Purpose; Seventh Cause of Action for Breach of Warranty; and Ninth Cause of Action for Breach of Contract. Plaintiffs' Late Opposing Papers All opposition papers to a motion for summary adjudication must be served on the moving party and filed with the court at least 14 days before the date set for hea...

Excerpt: ...ntiffs claim that FFIC improperly denied coverage related to business loss resulting from the COVID-19 pandemic and governmental orders shuttering businesses. Plaintiffs claim the insurance broker, Bizlinks, was negligent in failing to obtain proper insurance. The FAC states that the “novel coronavirus is mainly spread through airborne droplets containing the SARS-CoV-2 virus that … physically alter and damage the air, including the air withi...

Excerpt: ... levying officer “property in defendant's possession.” (Application 1.d.(1).) Such property consists of “tangible personal property in the debtor's control or possession, which includes chattel paper, instruments, negotiable documents and certain types of securities.” (Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1108-1109.) Upon filing of the complaint, or at any time thereafter, a plaintiff may apply fo...

Excerpt: ...he dangerous condition; and (4) the entity either created the condition, or had actual notice or constructive notice of its existence, and there was sufficient time before the injury for it to have taken remedial action.” (People ex rel. Dep't of Transportation v. Superior Ct. (1992) 5 Cal.App.4th 1480, 1484–1485 [citing Gov. Code § 835; Dominguez v. Solano Irrigation Dist. (1991) 228 Cal.App.3d 1098, 1102].) The City first argues that the s...

Excerpt: ...ction 51 et seq. under either of two grounds asserted: (1) a predicate violation of the American with Disabilities Act, 42 U.S.C. § 12181, et seq. (the “ADA”); and (2) an alleged intentional discrimination against disabled persons in the provision of facilities and services. As to the first ground, Defendant contends that the Complaint fails to allege any “nexus” between the alleged barriers encountered on the Website and the alleged con...

Excerpt: ... tracking the prevalence of the TIPM (Totally Integrated Power Module), Engine, and Transmission Defects plaguing Plaintiffs' vehicle, establishing that FCA previously knew of said defects but nevertheless refused to repurchase the vehicle. Plaintiffs claim the responses consist of pure, boilerplate objections and utterly non- responsive statements and that FCA has failed to provide any e-mails and other electronically stored information or searc...

Excerpt: ...20; February 22, 2021; and March 16, 2021, without substantial justification despite Lone Oak's efforts to meet and confer in good faith; that Z-Wang cancelled the agreed-upon depositions for February 22, 2021 and March 16, 2021, at the last minute, and that Z-Wang's high blood pressure is an insufficient excuse to avoid deposition as he is in possession of information important to the issues in the lawsuit. Lone Oak also contends that monetary s...

Excerpt: ...ormerly known as California Creationz, Inc. Notwithstanding Plaintiff's failure to comply with the meet and confer requirements under Code of Civil Procedures sections 435.5 (motion to strike) and 439 (motion for judgment on the pleadings), the merits are discussed below. Plaintiff argues that California Creationz, Inc. was suspended, its name was taken by a third party, and now a California corporation under certificate number C4710227. Plaintif...

Excerpt: ... and improper matters inserted in Plaintiff's First Amended Complaint, and failing to comply with prior court ruling. • Paragraph 8, lines 25 to 26 “(which is evidence of pre-determination that she was going to be terminated/placed on the re-employment list)” as irrelevant, false, and improper matters inserted in Plaintiff's First Amended Complaint, and failing to comply with prior court ruling. The District's Request for Judicial Notice Th...

Excerpt: ... provides, in part, as follows: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the ...

Excerpt: ...ent West, LLC (which shows it's status is “suspended”) pursuant to Evidence Code section 452(c). The Court GRANTS Plaintiff's request for judicial notice of Exhibits 2 through 10 (A-1's Articles of Incorporation, A-1's Statement of Information, and MARIETTA'S Certificate of Organization, and Annual Registrations for MARIETTA for 2016-2021 only for the existence of these documents and their legal effect. but the court does not take judicial no...

Excerpt: ...tion, are barred by the two-year statute of limitations for breach of contract, and are uncertain, vague, and ambiguous. Defendants also contend that the second cause of action for Fraud is not pled with the requisite specificity as it fails to allege the specific representations made by Defendants to Plaintiff, whether they were made orally or in writing, and where they were made, as well as fails to allege any facts showing that Plaintiff relie...

Excerpt: ...Application was filed on June 29, 2021 and served by certified mail, return receipt requested. (See Application, Campo Decl., ¶¶ 6 and 7, Exh. A.) The Clerk of the Court filed and served notice that a Motion for Determination of Good Faith Settlement has been set for 9/9/21. (See ROA 58.) Defendant, Cross-Complainant, and Cross-Defendant Yuna Joo (“JOO”) filed her Opposition to the Application on August 26, 2021. JOO contends that her Oppos...

Excerpt: ...cause of action for fraud is three years. The cause of action is not deemed accrued “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (CCP § 338(d); (Kline v. Rutner (2001) 87 Cal.App.4th 1369, 1373.) Section 338(d) effectively codifies the delayed discovery rule in connection with actions for fraud. (Britton v. Girardi (2015) 235 Cal.App.4th 721, 733-734.) “The courts interpret discovery in thi...

Excerpt: .... The FAC alleges that AmGUARD improperly denied coverage under its “all-risk” policy for alleged lost business income caused by the pandemic and related orders. The FAC alleges the following causes of action: 1. Breach of the implied covenant of good faith and fair dealing (against AmGUARD) 2. Breach of contract (against AmGUARD) 3. Negligence (against Western) The policies providing coverage from 3/30/19 to 3/30/20 and 3/30/20 to 3/30/21 ar...

Excerpt: ...tion 17200. Plaintiff dismissed the third cause of action for negligent infliction of emotional distress on 5/25/21. No future events are currently scheduled. The Complaint seeks punitive damages, which Plaintiff acknowledges is improper. She now seeks leave of court to file an amended FAC to claim punitive damages against a medical professional. The motion must be supported by affidavits stating facts sufficient to support a finding that there i...

Excerpt: ...ntend that Plaintiff's responses to Form Interrogatories, Set One (“FROG”), Nos. 9.2 and 17.1 relating to Requests for Admission (“RFA”) Nos. 1-3, 8-21, 73-86, 93-96, 98, and 103-104 are incomplete, evasive, and severely deficient. Specifically, they contend that responses to FROG No. 9.2 and FROG 17.1(d) relating to RFA Nos. 1-3, 8- 21, 73-86, 93-96, and 103-104 improperly refer the Ghaneian Defendants to almost 17,000 pages of documents...

Excerpt: ...deposition of the three parties and of third-party witness Kimberly Nordstrom have not yet occurred and a dispute concerning scheduling of the depositions exists; and (3) the parties are faced with a discovery cut-off date of July 8, 2021 and a motion cut-off date of July 23, 2021 in light of the August 9, 2021 trial date. In Opposition, Plaintiff contends there is no good cause for a continuance of the trial date because all four depositions hav...

Excerpt: ...uiz Declaration filed as of the date of the hearing on this Motion. Initially, proofs of services herein were filed on May 7, 2020 indicating the summons, complaint, and statement of damages were served on Defendants United States Karate Organization, Inc. and Joseph Anthony Pagliuso, Jr. [See ROAs, 8, 9] The filing of a proof of service creates a rebuttable presumption that the service was proper. [Floveyor Internat., Ltd. v. Superior Court (199...

Excerpt: ...m for negligent misrepresentation as the Complaint fails to allege a misrepresentation and does not set forth facts demonstrating reasonable reliance or proximate causation of harm. Gates further contends that Plaintiff claims contractual damages which is recoverable through the other causes of action such that the cause of action is deficient, redundant and improper. Plaintiff Mindi Miller (“Plaintiff”) contends that the negligent misreprese...

Excerpt: ...sed in Plaintiff's Complaint. Plaintiff filed a verified complaint on 11/15/16 against Defendants relating to a residential foreclosure. Plaintiff alleges the following causes of action: 1. Breach of loan modification; 2. Breach of the implied covenant of good faith and fair dealing; 3. Violation of Civil Code section 2923.6; 4. Violation of Civil Code section 2923.7; 5. Violation of Civil Code section 2924.10; 6. Negligence; and 7. Unfair Busine...

Excerpt: ... Defendant, by signing an arbitration agreement on February 11, 2019 (the “Agreement”), which encompasses all of Plaintiff's claims in this lawsuit. Defendant also contends that the Federal Arbitration Act (“FAA”) governs the Agreement and that both the FAA and California law require arbitration of Plaintiff's claims as the Agreement is enforceable, and that neither the narrow carve out permitting Defendant to file an action in court for ...

Excerpt: ...f in a Kaiser Permanente parking lot causing her severe harm. The motion seeks summary judgment, or alternatively, summary adjudication as to the following issues: 1. The cause of action for negligence has no merit because Bourgoyne acted outside the scope of his employment, and therefore, respondeat superior is not applicable. 2. The cause of action for negligent hiring, supervision, and/or retention of employee has no merit because there is no ...

Excerpt: ... 1990s. In March 2020, he suffered disabilities and medical issues. Defendant knew of his issues since he had suffered other workplace injuries since mid-2017. Defendant stated it was laying him off in March 2020 because of the alleged slowdown caused by the pandemic. He was permanently terminated in September 2020. There was no slowdown and Defendant remained busy. The pandemic was a pretext to lay him off. When he was laid off, he was the secon...

Excerpt: ... pursuant to Code of Civil Procedure sections 1987.2 and 2023.010. Pursuant to C.C.P. §1987.1(a), upon motion by a party to an action, a Court “may make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.” Additionally, “the court may make any other order as may be appropriate to protect the person from unreasonable o...

Excerpt: ...otion brought under this provision shall: (1) “set forth specific facts showing good cause justifying the production for inspection of any document…described in the deposition notice;” and (2) “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition …by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” Per CCP �...

Excerpt: ...ivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” As cited by Defendant, in Jabro v. S...

Excerpt: ... within the time granted him by the Court pursuant to its February 3, 2021 Minute Order. Whether the FAC Was Timely Filed. On February 3, 2021, the Court granted NATIONSTAR'S motion for judgment on the pleadings with 20-days leave to amend. (See 2/3/21 M.O., ROA 84.) NATIONSTAR contends that Plaintiff's deadline to file the FAC was February 24, 2021 based on the Court's February 3, 2021 Order. In Opposition, Plaintiff contends it had until March ...

Excerpt: ...on. Moving Defendants contend that the first cause of action does not allege facts showing an inadequate remedy at law, and that specific performance is not allowed where remedies at law, such as monetary damages, are available. They also contend that the fourth cause of action is not pleaded with the requisite specificity as to any misrepresentation and resulting damages. Plaintiffs Alex Paleo (“Paleo”) and Ivan Valdez (“Valdez”) (collec...

Excerpt: ...ging allegations for DOEs 1-30, should Plaintiffs discover they need to add another party as a DOE. (Jenkins Decl. ¶9; Exhibit "7"). Pursuant to CCP §473(a)(1), this Court may, “in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” Additionally, pursuant to CCP §576, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be p...

Excerpt: ... Services Agreement” (Complaint, Exh. A). Within 90 days after Defendant placed underwriters as potential, permanent employees with Plaintiff, they left for a competing company. Plaintiff claims Defendant knew the competitor was soliciting certain employees to work for it prior to Defendant placing them with Plaintiff and was substantially certain they would leave Plaintiff to work for the competing company. Meet and Confer: Defense counsel spo...

Excerpt: ...; Neal Decl. ¶ 10.) Paragraph 18 of the Agreement states as follows: The proper venue for any proceeding at law or in equity shall be Maricopa County, Arizona. The parties hereto hereby waive any right to object to venue in Maricopa County, Arizona. “A defendant may enforce a forum-selection clause by bringing a motion pursuant to sections 410.30 and 418.10, the statutes governing forum non conveniens motions, because they are the ones which g...

Excerpt: ...ter, on 3-19-2021, a default judgment was entered as to Defendants HB Auto AC, Inc., and Christopher Ramirez in the amount of $31,750 (ROA 35). Pursuant to CCP §473(b), this Court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” However, “It is the ...

Excerpt: ...ction for Money Had and Received, Fifth Cause of Action for Unjust Enrichment (misnumbered the fourth cause of action in the Complaint), Sixth Cause of Action for Accounting (misnumbered the fifth cause of action), and Seventh Cause of Action for Set Aside of Fraudulent Transfer Under the Uniform Voidable Transactions Act (misnumbered the sixth cause of action) (the “Motions”). Defendants contend that each of Plaintiff's seven causes of actio...

Excerpt: ...ponses to (1) Form Interrogatory 15.1 as it relates to the 1st-10th, 12th-13th, 15th-17th, and 19th-25th affirmative defenses, and (2) Form Interrogatory 17.1 as it relates to Requests for Admission 1, 2, 3, 4, 6, 7, 8, 9, 11, 15, 16-19, 21, 24, and 27-77. Form Interrogatory 15.1 Plaintiff fails to respond to subsections (b) and/or (c). To the extent that Plaintiff references other documents and does not summarize the contents of the same so that...

Excerpt: ...etitioner appears to be seeking reinstatement of her position with reasonable accommodations – 45 minute rest breaks with only 15 minutes of work to which Respondent would not agree. Petitioner also alleges she was denied “grievance and discrimination” procedures. Respondent properly demurs to this Petition pursuant to Code of Civil Procedure section 430.10, subds. (e) and (f) for insufficient facts and uncertainty, respectively. (SJJC Avia...

Excerpt: ...of good faith and fair dealing; 6. Interference with economic relations; 7. Intentional interference with prospective business relations; 8. Negligent interference with prospective business relations; and 9. Declaratory relief and injunctive relief. On 9/22/20, Kemp cross-complained against AHC and Prasla. On 12/8/20, he filed a First Amended Cross-Complaint (FACC) alleging: 1. Violation of 15 USC Sections 1635 et seq.; 2. Violation of CA Financi...

Excerpt: ...s.” Therein, it alleges that Defendant became indebted to Plaintiff: (1) “on an open book account for money due”; (2) “on an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff”; (3) “for money lent by plaintiff to defendant at defendant's request”; (4) “for money paid, laid out, and expended to or for defendant at defendant's special instance and req...

Excerpt: ...ants Villas Aliento Partners, LP and Western National Securities dba Western National Property Management, the owners and/or management company of the subject property, for: 1. breach of warranty of habitability (Civ. Code, § 1941.1); 2. breach of warranty of habitability (Health & Saf. Code, § 17920.3); 3. breach of warranty of habitability (Civ. Code, § 1942.4); 4. negligence – premises liability; 5. Nuisance; 6. Battery; 7. intentional in...

Excerpt: ...cl., ¶¶ 12-13, Exhs. H-O.) Arguments: Ton claims that Thuy Nga responded to RFAs that it does not have documents to sufficiently determine the profits and losses from the VStar and New Wave television programs by first stating it had them, then changing the response to state Vietface has them, and then stating it was “informed and believed” that Vietface had them, even though Vietface, under oath, already denied having them. Ton argues the ...

Excerpt: ...42, 48-50, 52-54, 56, 58, 60, 64, 68, 70, 71, and 73. Meet and Confer: The parties exchanged multiple correspondences and telephone calls and are now at an impasse. (Castaneda Decl., ¶¶ 18-43.) They have sufficiently met and conferred. Separate Statement: Plaintiff argues the separate statement was not procedurally proper in that it requires the reader to refer to different parts of the document and that it improperly included multiple motions ...

Excerpt: ...of sending the entire amount to plaintiff. The Court seriously questions the logic and legal basis of plaintiff's counsel argument that he is entitled to the agreed upon settlement amount without consideration of the lienholder's lien. Nonetheless, as there did not appear to be a meeting of the minds, the Court vacated the judgment on 11/20/20 per Ford's request. Immediately following that ruling, in attempting to play a procedural game of “got...

Excerpt: ...pport of the summary judgment motion. 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 in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (emphasis added). Nanigans moves, in the alternative, for summary adjudica...

Excerpt: ... 7th causes of action for trade secret misappropriation, intentional interference with prospective economic relations, conversion, unfair competition, and unjust enrichment asserted against Defendant CARRILLO, Defendants demur on the grounds that the alter-ego allegations and agency allegations upon which Plaintiff relies in order to assert liability against her are insufficiently pleaded. Defendants contend the SAC fails to plead the necessary f...

Excerpt: ... filed. Given that both subpoenas are identical, the matters may be addressed by this single motion. Timeliness: Code of Civil Procedure section 1985.3, subdivision (g) provides, in pertinent part, that “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash o...

Excerpt: ...le with one of several joint tortfeasors without releasing the others. Whether a settlement is within the “good faith ballpark” is to be evaluated on the basis of information available at the time of settlement under the following factors: • the amount paid in settlement • a rough approximation of plaintiff's total recovery and the settlor's proportionate liability • a recognition that the settlor should pay less in settlement than if f...

Excerpt: ...laintiffs. 2. Plaintiffs' third cause of action for violation of the Consumer Legal Remedies Act lacks merit entitling Defendant to summary adjudication as a matter of law because Plaintiffs cannot prove Defendant induced them to buy or enter into a lease, they provided improper notice, and misdirected the notice to a third-party and not to Defendant's principal place of business. 3. Plaintiffs' fourth cause of action for intentional infliction o...

Excerpt: ...which extended to claims not at issue in the pending lawsuit and; (2) it was uncertain and not capable of valuation because it required Plaintiff to satisfy “any and all liens” as part of the offer. Whether Defendants' Offer to Compromise Was Invalid. The Offer to Compromise states: “Scott Gray and Lana Thi Gray ("defendants") offer to settle with plaintiff Jana Pierce ("plaintiff") pursuant to the provisions of Section 998 of the Californi...

Excerpt: ... and 1.13. Rassman also contends that Aplin is subject to mandatory disqualification because the Cross-Complaint is a direct and shareholder derivative action on behalf of New Hair Institute Medical Group, a California Professional Corporation and the case involves Aplin's concurrent representation of a corporation and shareholders resulting in a conflict of interest that is nonwaiveable. An opposition was filed by Plaintiffs and Cross-Defendants...

Excerpt: ...s responsive to those demands. 3. Produce all documents responsive to MFH's Requests for Production, Set One Nos. 1, 2, 29-37, seeking OBCI's financial records, consistent with OBCI's statements of compliance. 4. Produce further all documents responsive to the corresponding demands in MFH's Notice of Deposition to OBCI's Person Most Qualified (which contains document requests substantially identical to MFH's Requests for Production) and appear fo...

Excerpt: ... amount of $2,280 for attorney's fees and costs incurred in bringing this motion pursuant to Code of Civil Procedure sections 2023.010 and 2030.300 (the “Motion”). Defendants contend that Plaintiff's witness, his father, Jose Palomera, attended his noticed deposition on August 25, 2020, but that Plaintiff's counsel of record asserted erroneous objections and instructed Plaintiff's witness not to answer, and that although defense counsel attem...

Excerpt: ...fficient to support a cause of action as Plaintiff fails to allege when the vehicle was out of service for more than 30 days. In general, statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Civil Code section 1793.2 applies to manufacturers of consumer goods sold in the state of California, and sets forth a manufacturer's obligations for goods for which it has made an ...

Excerpt: ...e case (i.e., Eldercare is Doe 1). The Elder Abuse and Dependent Adult Civil Protection Act, codified at Welfare & Institutions Code §§ 15600, et seq., makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a “person residing in this state, 65 years of age or older.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) The elements of a claim for physical elder abuse are: (1...

Excerpt: ...ly no conduct that qualifies as severe or pervasive not any harassing conduct that is related to his actual or perceived disability 2. The Second Cause of Action for Disability Discrimination should be summarily adjudicated in favor of the City because Plaintiff failed to timely exhaust administrative remedies, he failed to produce prima facie evidence of discriminatory motive, and because the City can show legitimate, non-discriminatory reasons ...

Excerpt: ...ion is timely as Defendant never served verified responses, and that even assuming the 45-day time frame applied, the parties agreed to extend the deadline for a motion to compel to 2/19/21. Plaintiff also contends that despite good faith meet and confer efforts to which Defendant's counsel did properly engage, Defendant fails to provide proper further responses and that Defendant interposes boilerplate, meritless objections. Plaintiff also conte...

Excerpt: ...d States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed broadly. (Code Civ. Proc. § 425.16(a).) The court's determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party movin...

Excerpt: ... United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed broadly. (Code Civ. Proc. § 425.16(a).) The court's determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party...

Excerpt: ...ce that the defendant has been guilty of fraud, oppression or malice, punitive damages may be recovered. Driving while intoxicated is not enough to support allegations of punitive damages, but driving in a way which enhances an appreciable risk to others may warrant those damages. (See Taylor v. Superior Court (1979) 24 Cal.3d 890 [punitive damages allegations supported where defendant was a long time alcoholic with a record of arrests and convic...

Excerpt: ...er tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Exec. Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal. App. 3d 496, 499.) This principle means that if the pleading sufficiently states a cause of action the demurrer cannot be granted on the basis of a showing of extrinsi...

Excerpt: ...ents of principal and interest of $10,607.92 each, and one final principal and interest payment of $108,595.70. The note is attached as Exhibit A to the complaint. “Schedule A” attached to the note shows interest totaling $29,811.55. The complaint states defendant made the first two payments, albeit late, but failed to make the last and final payment which was due on 9/30/20. In the demurrer, defendant argues plaintiff is barred from suing on...

Excerpt: ...n Eureka, California, on the grounds venue is not proper in this county because none of the Defendants reside in Orange County. Because the two motions seek the same relief and are essentially identical, the Court will analyze both Motions simultaneously below. Code of Civil Procedure section 395 states in pertinent part as follows: “(a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings...

Excerpt: ...es, (3) displaying a lack of decorum and civility at depositions, (4) refusing to stipulate regarding production of witnesses at time of trial, and (5) refusing to produce documents reviewed in preparation for deposition contrary to the California Evidence Code section 771, and the California Code of Civil Procedures. Based on such conduct, Plaintiff moves the Court to order a discovery referee at cost to Defendants pursuant to C.C.P. section 639...

Excerpt: ...plaint, and for the sake of clarifying the record, the court ordered Plaintiff to separately file the same by the end of the next business day. (ROA 291 [2/4/21 Minute Order].) The court notes that Plaintiff represents in its opposition brief that subsequent to the 2/4/21 hearing, it attempted to file the FAC but the clerk's office rejected the same, stating “First Amended Complaint already filed 3/11/2020.” Plaintiff further represents that ...

Excerpt: ...in and Ironhorse for indemnification, apportionment of fault, and declaratory relief. On 11/9/20, Andrade filed an application for a determination of a good faith settlement with plaintiff. On 11/25/20, Tarin and Ironhorse cross-complained against Andrade for indemnification, declaratory relief, apportionment of fault, and equitable indemnity. On 12/1/20, this court stated by minute order that any party objecting to the settlement must file an ob...

Excerpt: ...er against defendant on 12/1/20. The plaintiff has the burden of proving: that the claim is one on which an attachment may be issued; the probable validity of such claim; and that the attachment is not sought for any purpose other than to secure recovery on the claim. (Code Civ. Proc., §484.090.) Types of claims subject to attachment: A claim upon which an attachment may be issued is a claim (1) for money based upon a contract, express or implie...

Excerpt: ... Inc and Orange County Coatings, Inc. (collectively, “Garage Coatings”) failed to comply with Sections 20.7 and 20.8 of the franchise agreement (“Franchise Agreement”), which is attached as Exhibit B of the SACC. It states as follows: “20.7 Prior Notice of Claims. As a condition precedent to commencing an action for a Claim, you must notify us within thirty (30) days after the occurrence of the violation or breach, and failure to timely...

Excerpt: ...uperior Court (1997) 60 Cal.App.4th 342, 346.) CCP § 387(b) is a compulsory joinder provision which states that a nonparty has the right to intervene in litigation between others where he claims an interest in the property or transaction involved in such litigation, and is so situated that any judgment rendered in his absence “may as a practical matter impair or impede that person's ability to protect that interest ... ” Intervention by an i...

Excerpt: ...edure sections 1008, 437c, and 1170.7. Majid contends that there are new or different facts as follows: (1) establishing that Majid being a party to a contract or transaction is an element for each of the six causes of action; (2) clarifications to the Declaration of Majid Adassi that he did not sign any of the invoices in the Second Amended Complaint (“SAC”) which rebukes the Declarations of Mohamad Odeh and Ashraf Sulaiman for lack of found...

Excerpt: ...y certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2. “(b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (...

Excerpt: ...) There is no evidence to support Plaintiff's First Cause of Action for “Motor Vehicle” and Count MV-2(d) as against EMMANUEL C. AGUIRRE, JR., and CATHERINE ELIZABETH AGUIRRE; (2) There is no evidence to support Plaintiff's Second Cause of Action for “Negligence”/ “Negligent Entrustment”, as against EMMANUEL C. AGUIRRE, JR., and CATHERINE ELIZABETH AGUIRRE; (3) There is no evidence to support Plaintiff's Third Cause of Action for “N...

Excerpt: ...ments made in Ellis' anti-SLAPP motion were identical to those made by Defendant, Dana Point Taxpayer's Association (“DPTA”) in its anti-SLAPP motion filed on May 8, 2019, and rejected by the Court on October 3, 2019. Plaintiff also contends that no reasonable person would have expected a different outcome on the issues concerning the defamatory nature of the statements, malice, damages, and fair comment as nothing had changed in the facts or...

Excerpt: ...-year/100,000-mile powertrain warranty, which covers the engine and transmission. During the warranty period, the vehicle contained or developed defects related to the engine. The FAC alleges: (1) Violation of Civil Code section 1793.2 (failing to promptly replace or make restitution); (2) Violation of Civil Code section 1793.2 (failed to timely repair); (3) Violation of Civil Code section 1793.2, subdivision (a)(3) (failure to provide sufficient...

Excerpt: ...g argument, and denying Plaintiff's request to give the jury a special instruction; (3) the jury's award being against the law and not supported by the evidence due to an insufficient damage award; and (4) the jury's award being against the law for the jury's failure to award any non-economic damages despite an award of $3,500 for general damages. Alternatively, in lieu of a new trial, Plaintiff requests an additur for $222,220 for Plaintiff's re...

Excerpt: ...rds, and all writings. Including, but not limited to, all office. emergency room, inpatient, outpatient, hospital charts/records, radiology reports and pathology reports; any and all radiology materials and films, X-rays, MRl's, and CT scans (a complete list of breakdown from your film library must be provided prior to production of requested films); any and all itemized statements of the billing charges, billing records, insurance records, expla...

Excerpt: ...acy right of third parties, as to his former employment records; (2) the Subpoena seeks documents regarding McBride's former employment, that consist of financial, medical, and personnel records, which are wholly irrelevant to the instant action, and not reasonably calculated to lead to the discovery of admissible evidence; (3) the Subpoena is overly broad in scope, oppressive, and harassing. Plaintiff served the Subpoena on Third-Party Servite s...

Excerpt: ... 29, 33, 40, 44, 45, 57, 58, 60, from Plaintiff, and awarding monetary sanctions in the amount of $1,704 against Plaintiff and/or Plaintiff's attorney of record, Knight Law Group, LLP. In opposition to both motions, Plaintiff's counsel has filed a declaration indicating Plaintiff's counsel did not properly calendar the due date for Plaintiff's supplemental discovery responses which were due on 10/12/20, due to a calendaring error stemming from wo...

Excerpt: ...ause of Action for Negligence, and Fifth Cause of Action for Unfair Business Practices, Violation of Bus. & Prof. Code § 17200, et seq. of Plaintiff Salvador Ojeda's Complaint for failure to state facts sufficient to constitute causes of action under Code of Civil Procedure section 430.10(e). The Complaint alleges causes of action based on violations of the Homeowners' Bill of Rights (“HBOR”), negligence, and Violation of Business & Professi...

Excerpt: ...ntiffs have failed to plead their claims for fraud and negligent misrepresentation with the requisite particularity. Defendants also contend that Plaintiffs' cause of action for intentional infliction of emotional distress (“IIED”) fails because: (1) Plaintiff's purported mental ailments as alleged in the SAC do not rise to the level of “severe emotional distress” necessary to establish an IIED claim; (2) Plaintiffs have failed to plead s...

Excerpt: ...E contends that she is entitled to partition of the real property known as 223 E. Avenida Ramona, San Clemente, CA 92672 (APN 690-431-25) “Property”) because it is undisputed that PRICE, on the one hand, and Plaintiffs Marion Bendix Creasman (“CREASMAN”) and David Barker (“BARKER”) (collectively “Plaintiffs”), on the other hand, jointly own an undivided 50% interest in the Property, as tenants in common. Request for Judicial Notic...

Excerpt: ...or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the action; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, Defendant, Silviano Vergara Vences, contends that both cases share common questions of law and fact, in that both actions arise out of the same three-car motor vehic...

Excerpt: ...ble provision of Code of Civil Procedure section 473(b), as they attempted to serve an opposition, but the opposition was to the wrong defendant, and that the Order deeming the admissions admitted is essentially a terminating sanction. Defendants, Patricia Pacheco (“Pacheco”) and Keith Muraoka contend that Plaintiffs' counsel's failure to respond to Defendant Pacheco's First Set of Requests for Admission for nearly nine months constitutes ine...

Excerpt: ...Sun Mar Management Services and Sun Mar Healthcare, Inc. (collectively, “Defendants”) do not oppose Plaintiff's request to substitute Plaintiff. An order substituting the decedent's representative or successor in interest may be obtained “on motion.” (CCP § 377.31.) A successor in interest who seeks to be substituted as plaintiff in place of the decedent must execute and file a declaration in statutory form. (CCP § 377.32.) Plaintiff su...

Excerpt: ...ion 2016.040 states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Here, in Opposition, Plaintiff contends that Defendants failed to adequately meet and confer prior to filing this Motion because even after Plaintiff's served an Objection to the Deposition Notice and Plaintiff's counsel and the non-party witn...

Excerpt: ... not supported by substantial evidence; and/or 2. The first affirmative defense of contributory negligence has no merit because the element of causation is not supported by substantial evidence. Plaintiff's Request for Judicial Notice Plaintiff requests that the Court judicially notice page 41 of the 2018 California Driver Handbook published by the California Department of Motor Vehicles which is attached as Exhibit L to Plaintiff's Evidence in S...

Excerpt: ...tates, in relevant part, as follows: “A new trial is a re-examination of an issue or fact in the same court after a . . . decision by a . . . court.” A right to a new trial is purely statutory and must be based on grounds set forth in CCP § 657. Plaintiff's notice of intent to move for new trial indicates the following as grounds upon which her motion is based: 1. CCP § 657(1) – Irregularity in the proceedings of the court, jury or advers...

Excerpt: ... controlled by FDISS, but that it is the personal checking account of Williams. Williams also contends that he is not subject to the Writ of Attachment, and that he never received notice of Plaintiff's Ex Parte Application for Writ of Attachment. Plaintiff, Sami Services Inc. dba Sami-Aid (“Plaintiff”) contends that an individual's personal checking account is subject to attachment, that the evidence establishes the probable validity of Plain...

Excerpt: ...e, inadvertence and/or excusable neglect. Plaintiffs, in opposition, contend that Defendant's motion fails because: (1) it is brought under CCP § 473(b), instead of CCP § 2031.300(a), the latter of which specifically governs requests for relief from waiver in connection with untimely RFP responses; (2) Defendant's Motion is untimely because more than eight months elapsed between the time Plaintiffs emailed Defendant about the untimely responses...

Excerpt: ...session and a withholding thereof from the plaintiff 1st cause of action for Ejectment: The essential elements of a cause of action in ejectment are: “ownership disclosing a right to possession, the defendant's possession and a withholding thereof from the plaintiff.” [Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 675] Here, it appears from the face of the Cross-Complaint, that the cause of action for ejectment is MOOT. In...

Excerpt: ...cting Plaintiffs' access to the “Easement Area”; (2) requiring Defendants to (a) detach the “Fence” from Plaintiffs' home and repair any damage resulting therefrom; and (b) consenting to replacing the Fence with a new fence with an entryway that is adjacent to Plaintiffs' home, and across the Easement Area, that is wholly accessible to Plaintiffs, which Plaintiffs agreed to pay for in its entirety. The burden is on a plaintiff to show all...

Excerpt: ... granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”]) Mojtaba Sean Taat's Evidentiary Objections (ROA 557) Objections 1 – 4 – OVERRULED Merits By the 17th COA, which is alleged by Mojtaba Sean...

Excerpt: ...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. Sup.Ct. (Morgan) (1959) 172 CA2d 527, 530] Initially, there is no argument whatsoever by Defendant Dr. Phan that Plaintiffs' motion is either untimely or that granting the motion will r...

Excerpt: ...to allege any “material” violations of these code sections as required. Civil Code section 2924.12 states, in pertinent part, as follows: “(a)(1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.” Here, the Complaint fails to allege that the violations of Civil Code sections 29323...