Excerpt: ...rone, Conservator of the Estate. Responding Party Cross- Complainants Julie Sebestyen and Just Call Julie Super Service, Inc. Ruling Motion 1: Cross-Defendants' Demurrer to the Second Amended Cross- Complaint is OVERRULED. (Code Civ. Proc., § 430.10(e).) Third Cause of Action (Unlawful Business Practices Against Individual Cicerone). The demurrer to the third cause of action is overruled. Business & Professions Code Section 17200 prohibits “an...

Excerpt: ...ntiff alleged that the City retaliated against him for making “oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.” The cause of action merely alleged that City officials' negative comments created a “hostile work environment.” In a supermarket, a resident allegedl...

Excerpt: ...d to be open.” CRC Rule 2.550 (d) provides that “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing i...

Excerpt: ...h defendants from this action and dismissing the entire action with prejudice on the basis that Plaintiff's claims are barred by collateral estoppel / res judicata. Defendants should have raised their collateral estoppel argument in a demurrer, but the Court has discretion to treat this as a motion for judgment on the pleadings. (Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 Cal.App.3d 340, 342-343.) Collateral estoppel applies to preclude rel...

Excerpt: ...opounded to plaintiff Lewis Garcia, by and through his guardian, Enrique Garcia regarding the lawsuit of Jacquelyn Negrete; Lewis Garcia by and through G.A.L., Enrique Garcia, Plaintiff, vs. Granny's Attic, Inc., Granny's Attic, Inc. dba the Old Town Antique Faire and Does 1 to 10, Defendants, Case No. MCC1600109, filed in the Riverside County Superior Court, State of California (the “Granny's Attic Litigation”); (2) deposition transcripts re...

Excerpt: ...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 facts.” Collectors Universe did not specifically identify the issues in the notice of motion and did not state the summary adjudication issues verbatim in t...

Excerpt: ...17.020.) The court exercises its discretion to consider the motion to quash despite Defendant's failure to provide a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should be compelled. (Cal. R. Ct., rule 3.1345(a)(5).) Upon a motion reasonably made by a party, the court may quash, modify or direct compliance with a subpoena for production of documents. (Code Civ. Proc...

Excerpt: ...ode of Civil Procedure Section 1987.1 provides that the court, upon noticed motion, may make an order compelling compliance with a deposition subpoena. Section 2025.450(a) further provides that if a party witness fails to produce documents, the noticing party may move for an order compelling the production of any document described in the deposition notice. This motion is not moot because YouTube has not fully complied with its obligations under ...

Excerpt: ... that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party 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. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the ...

Excerpt: ...and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Defendant has met his initial burden on the cause of action for professional negligence through the declaration of Amandeep Bhalla, M.D., which establishes that Defendant's care and treatment of Plaintiff was within the requisite st...

Excerpt: ... and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaint...

Excerpt: ... 1 to 12: Overruled. Pretext: “Once an employer has offered a legitimate, nondiscriminatory reason for the adverse employment action, a ‘plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.'” Moore v. Regents of Univer...

Excerpt: ...of Defendant's Motion for Summary Judgment contain confidential information, much of which is protected by Government Code § 6254, which is an overriding interest that will be prejudiced if the requested relief is not granted, and which overcomes the right of public access to the records and supports sealing the records. (CRC 2.550(d)(1)-(3).) The court further finds that the sealing of these records is narrowly tailored and that no less restric...

Excerpt: ... penalized for invoking their Fifth Amendment right against self-incrimination. (See Pacers, Inc. v. Super. Ct. (1984) 162 Cal.App.3d 686, 689.) A stay, however, is not mandated or even presumptively required. (See, e.g., Avant! Corp. v. Super. Ct. (2007) 79 Cal.App.4th 876, 884.) Here, Defendant Carlson wholly failed to meet her burden to show any parallel criminal proceeding. To the extent Defendant's motion is based on the possibility of a cri...

Excerpt: ... are overruled. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Civ. Proc. Code, § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 2...

Excerpt: ...erba or according to its legal intendment and effect.” Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640. Plaintiff failed to allege the terms of the oral contract. Third Cause of Action for Breach of Implied-in-Fact Contract: Since there was an existing express contract, there cannot be an implied-in-fact contract covering the same subject matter. “[I]t is well settled that an action based on an implied-in-fact or quasi-contract cannot lie wh...

Excerpt: ...n is overruled. “‘Promissory fraud' is a subspecies of the action for fraud and deceit.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a cause of action for promissory fraud: (i) the defendant made a false promise; (ii) with intent not to perform; (iii) intent to induce reliance; (iv) justifiable reliance by the plaintiff; and (v) resulting damages. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638; Beckwith v. Dahl (2...

Excerpt: ...motions in limine and motion for bifurcation of damages should be disallowed because the parties had already agreed on the merits of those motions before they were filed, so they were not necessary, and Defendant provided evidence of such an agreement. Plaintiff did not respond to this argument. The motion is granted as to these costs ($180 for 3 motions to compel, $60 for request for judicial notice, $120 for motions in limine, and $120 for the ...

Excerpt: ... a motion to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The movant bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings,...

Excerpt: ...mit the award of attorney fees for tort claims. “The limitation of Civil Code section 1717, subdivision (b) (2)—precluding attorney's fees when a complaint is voluntarily dismissed—applies only to contract claims. . . . It does not apply to noncontract claims and thus does not preclude attorney's fees on noncontract claims where the contractual attorney's fees clause is broad enough to encompass noncontract claims.” Drybread v.Chipain Chi...

Excerpt: ... made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Generally, a demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine ...

Excerpt: ...2019, trial in the matter had been set for November 4, 2019. Accordingly, leave of court is required to bring a Cross-Complaint against third parties Tony Cedeno and Century 21 Peak. (Code Civ. Proc., §§ 428.5(b) and (c).) Leave of court is not required for Defendants/Cross- Complainants to file the Cross-Complaint against Plaintiff. Defendants/Cross-Complainants filed the Cross-Complaint at the same time they filed their Answer to Plaintiff's ...

Excerpt: ...f 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.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437...

Excerpt: ...have 15 days leave to amend. Specific to a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the c...

Excerpt: ...ll have 15 days leave to amend. Second Cause of Action for Breach of Contract The elements for a breach of contract are: (i) the existence of a contract; (ii) plaintiff's performance or excuse for nonperformance; (iii) defendant's breach; and (iv) resulting damage to plaintiff. (See First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a...

Excerpt: ...of Civil Code §§ 51.9 and 52, which are part of California's Unruh Act. As indicated in the Court's prior ruling on the demurrer to the original complaint, even if the Court were to rule that a public school is a “business establishment” subject to the Unruh Act, the Complaint does not allege a “business, service, or professional relationship” sufficient to establish a claim under Section 51.9. Section 51.9 provides that “A person is ...

Excerpt: ...st, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538. (Emphasis added). Adequate Allegations: “Whether a party i...

Excerpt: ...es Nos. 1 & 2: OLHS: Willful Misconduct & IIED & Issues Nos. 10, 11 & 12: Antoinette Duran: Willful Misconduct, IIED & Punitive Damages. Plaintiff opposed the summary adjudication on the following issues: Issues Nos. 4 & 7: IIED: Madeline Clark & Crystal Duran; Issues Nos. 3 & 6: Willful Misconduct: Madeline Clark & Crystal Duran; Issues No. 5 & 8: Punitive Damages: Madeline Clark & Crystal Duran. Issue Nos. 9: Negligence: Antoinette Duran. Willf...

Excerpt: ...of Holistic Healing in contempt of the TRO and Preliminary Injunction Order is denied without prejudice. Defendant Adam's request for judicial notice is granted. As an initial matter, the court finds that it has jurisdiction over Defendant Adam. (Donovan v. Superior Court (1952) 39 Cal.2d 848, 851; see also Darden v. Superior Court (1965) 235 Cal.App.2d 80, 82 [a general appearance by filing a response to a contempt citation precludes the contemn...

Excerpt: ...ach of the four patients that received treatment. “While the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,' the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.'” Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767. The forms included a “Benefits and Eligibility Disclaimer,�...

Excerpt: ...f the Homeowner Bill of Rights (“HBOR”) that 1) was not corrected or remedied prior to the Trustee's Deed Upon Sale and that 2) caused Plaintiff actual damage. (Code Civ. Proc., § 2924.12(b).) The demurrer to the first cause of action is sustained. With respect to the Second Cause of Action for Civil Conspiracy, a conspiracy claim requires a plaintiff to plead facts to establish: “(1) formation and operation of the conspiracy and (2) damag...

Excerpt: ...must expressly find facts that establish, among other things: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; and (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed. (Cal. Rules of Court, rule 2.550, subd. (d).) The party moving to have a record sealed bears the burden of proving s...

Excerpt: ...very. 2. Motion to Compel Deposition Moving Party: Plaintiff Isabella DeAngelo Responding Party: Defendant Lutheran High School Association of Orange County dba Orange Lutheran High School Motion 2 Ruling: Plaintiff's Motion to Compel Appearance and Testimony at Deposition denied. Plaintiff's request for sanctions is granted in part and denied in part. Mr. Moritz's deposition is limited to the methods used by Mr. Moritz to gather discovery and hi...

Excerpt: ...ncrease the page limit on the moving and opposition briefs to 20 pages. Petitioner's opening brief is over 20 pages and uses a font size smaller than 12 points, in violation of California Rules of Court 2.104 and 3.1113(d). The opposing brief is also over 20 pages. The parties are admonished to comply with all applicable court rules in future filings. Based upon an independent review of the evidence, the court finds that substantial evidence supp...

Excerpt: ... and Joseph Craciun (Doe I) only. This motion for attorney fees is brought on two grounds: Code Civ. Proc., § 425.16 (c) (1) and Civ. Code, § 5975 (c). “Attorney fees authorized by statute or by contract are included in an award of costs.” Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027. Attorney Fees for Anti-SLAPP Motion: “[U]nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings ...

Excerpt: ...viously granted by this court 03/20/2019. Defendants do not object to the FAC on that ground and instead attack the three new causes of action pursuant to Code of Civil Procedure Section 430.10(e). The FAC pleads causes of action for cancellation of instruments, wrongful foreclosure, and slander of title. All three causes of action are based on the allegation that the 2007 Deed of Trust, the 2015 Assignment of Mortgage, and the subsequently recor...

Excerpt: ...gligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) “A plaintiff ‘must allege a causal connection between the negligence ... and the injury he suffered …. [W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specif...

Excerpt: ...ed by the court's order. (See Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.) This Court previously sustained without leave to amend Plaintiff's cause of action for breach of contract, and Plaintiff did not move for leave to add any additional cause of action prior to filing the First Amended Complaint (“FAC”). (See Code Civ. Proc., § 472.) Thus, the first cause of action is hereby stricken on the court's order. The general and...

Excerpt: ..., § 831.4, the County is immune from liability, injuries caused by a physical defect of a recreational trail. Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929. Trail Immunity: Gov. Code, § 831.4 provides that “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to ...

Excerpt: ...rtainty is overruled. Plaintiff shall have 15 days leave to amend. Plaintiff's requests for judicial notice are granted. First Cause of Action for Negligent Supervision To establish a claim of negligent supervision, a plaintiff must prove the traditional elements of actionable negligence. (Thompson v. Sacramento City Unified School Dist., 107 Cal.App.4th 1352.) To prevail on an action in negligence, the plaintiff must show that the defendant owed...

Excerpt: ...Cause of Action (Battery) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (...

Excerpt: ...any statute prohibiting the filing of an amended costs memorandum, so long as the memorandum is timely under CRC 3.1700. Insofar as the Reply in support of this Motion addresses costs not listed in the costs memorandum filed on March 29, 2019, such arguments are disregarded, as new arguments or evidence are not permitted on reply, particularly where Plaintiff has not had an opportunity to respond. Filing and Motion Fees Defendant argues that the ...

Excerpt: ...under submission. Void Judgment: The Cross-Complaint did not allege personal injury or wrongful death. The pleading alleged no specific sum of damages. Since the Cross-Complaint failed to allege any amount of the Default Judgment is void. “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to ...

Excerpt: ...eillance video taken of Plaintiff. Defendants decline to produce surveillance video of Plaintiff on the grounds of the qualified work product privilege. Plaintiff contended that the surveillance video was no protected under the work product rule and that there was a special need for the production of the tape. “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified prot...

Excerpt: ... appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the l...

Excerpt: ...propriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the lode...

Excerpt: ...lar. Plaintiff failed to allege a cause of action for professional negligence. Plaintiff should re-draft these six causes of action. “'The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss o...

Excerpt: ...court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading....' (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. . . . The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. . . .'” Howard v. County of San Diego (2010) 184 Cal.App.4th 142...

Excerpt: ...pointed for the hearing.” Ordinarily, when a defendant files an opposition on the merits, any defect in service is waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697).) Here, however, not all defendants opposed the Motion. While Defendants Ge Diao and Leo Liu filed an Opposition to the motion for summary adjudication, Defendants Surterre Properties, Inc. and Rex McKown did not file an Opposition to Plaintiff's Motion for Summary Adjudicat...

Excerpt: ...resident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (See Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.) Lowell Menorca II (“Menorca”) presented evidence to establish that the Court does not have general jurisdiction over Menorca, and Plaintiff does not dispute this argument. A nonresident defendant may be subject to specific juris...

Excerpt: ... “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. “A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language' (Code Civ. Proc., § 425.10, subd. (a)(1)) ...

Excerpt: ...ubject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbitr...

Excerpt: ...ns. The court will consider this issue at a later time. Motion No. 2: Individual Defendants' Motion to Strike is DENIED without prejudice. CRC Rule 3.1322 (a) provides that “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” This Motion...

Excerpt: ...at the party will comply with the particular demand, a representation that the party lacks the ability to comply, and/or an objection to the particular demand. Plaintiff's statements of compliance do not state she “will” comply, but given that the production has already taken place and Defendant did not move on this deviation from Section 2031.220, this court will not compel compliance in that respect. Plaintiff's previous discovery responses...

Excerpt: ...edure section § 2025.450. That section, however, relates to a party deponent. “The code applies by its language only to current officers, directors, managing agents, or employees. Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 (internal quotation marks and citations omitted).) Here, it is un...

Excerpt: ... applicable statute of limitations. Section 338(d) applies to “[a]n action for relief on the ground of fraud or mistake.” (See also Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348 [applying section 338(d) to an unjust enrichment claim based on mistake].) Section 343 provides a four-year statute of limitations on all claims not otherwise provided for in the relevant code sections (Code Civ. Proc., §§ 335 et seq.). Here,...

Excerpt: ...he moving papers. This court continued the hearing on this petition for Attorney Petrohilos to file the proper substitution of attorney forms, which Attorney Petrohilos has since done. The petition was timely and complies with all procedural requirements, and was duly served and filed. (Code Civ. Proc., §§ 1285.4, 1286, 1288, 1288.4.) Plaintiffs' request for post-award, prejudgment attorney's fees and costs is granted pursuant to a timely filed...

Excerpt: ...to the filing of the documents and does not extend to the truth of any disputed factual matters therein. Defendants' objections to the Declaration of the City of San Bernardino are overruled. The court declines to rule on Defendants' remaining objections as they are not material to the disposition of the summary judgment motion. Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use...

Excerpt: ...have 15 days leave to amend. First Cause of Action for Unlawful Business Practices Plaintiff's first cause of action for unlawful business practices alleges that the Williams Defendants and Western Surety conspired with each other to illegally allow Don Williams to perform services as a principle contractor enough though his license had been revoked in 2011. (Compl., ¶ 6.) Plaintiff further alleges that Western Surety guaranteed the work of the ...

Excerpt: ... but not as to the truth of the facts asserted within those documents. Plaintiff's evidentiary objections are denied. Moving Defendants' Objections Nos. 1-4, 6, and 7-10 are sustained, while all other objections are overruled. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the pl...

Excerpt: ...europsychological examination with George K. Henry, Ph.D. at Dr. Henry's office in Los Angeles. Dr. Henry's assistant or Plaintiff's mother and guardian ad litem, Jacquelyn Negrete, may be present at the neuropsychological examination and the examination may be recorded by audiotape. Defendant's objection nos. 1, 3, 4, and 6 are sustained. Defendant's remaining objections are overruled. Defendants contend that California case provides that the pr...

Excerpt: ...subject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbit...

Excerpt: ...ith leave to amend. The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) Here, the Complaint attaches a copy of the parties' Agreement as Exhibit A. The Complaint also alleges that Defendant BSB breached the written ...

Excerpt: ... serious injury to others. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 893-96; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210; Peterson v. Superior Court (1982) 31 Cal. 3d 147, 163.) Moving party to give notice. ...

Excerpt: ...els, Enlargements & Photocopies: $6,881.05 for costs for records retrieval for subpoenaing records for trial; Item 16: Other: $6,219.11 for local travel and transportation expenses. Premature Filing of Memorandum of Costs: Defendant's cost bill was filed a few days before the Notice of Entry of Judgment. “[T]ime limitations pertaining to a memorandum of costs are not jurisdictional . . . and the premature filing of a memorandum of costs is trea...

Excerpt: ...s for Admission, the four discovery motions to compel are moot, except for sanctions. For the Motions to Compel Form Interrogatories, Special Interrogatories, Requests for Production, the Court declines to impose sanctions. Pursuant to Code Civ. Proc., § §2030.300 (d) & 2031.300 (c), the court finds that it would be unjust to impose sanctions based on the circumstances of this case. Due to a breakdown in the relationship with Plaintiff's former...

Excerpt: ...element of' the ‘cause of action' in question has been ‘proved,' and hence that ‘there is no defense' thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (p)(1).) “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 that cause of action or a defense thereto. The defendant ...

Excerpt: ...as waived her right to privacy over the personal injuries she has put at issue in this case. (See Palay v. Super. Ct. (1993) 18 Cal.App.4th 919, 934 [disapproved on other grounds in Williams v. Super. Ct. (2017) 3 Cal.5th 531, 556-557]; Reuter v. Super. Ct. (1979) 93 Cal.App.3d 332, 340; Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) Further, while Defendants need not show good cause for the examinations, they have done so by providing evidence...

Excerpt: ...); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “Fraud must be pleaded with specificity rather than with ‘general and conclusory' allegations. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) “General and conclusory allegations do not suffice.” (Lazar v. Superior Court (1...

Excerpt: ...secrets claim. (K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc. (2009) 171 Cal.App.4th 939, 958.) Depending on the particular facts pleaded, the statute can operate to displace claims such as breach of confidence, interference with contract, and unfair competition. (Id. at 958- 59.) The CUTSA “by its terms does not displace a contract claim, even if it is based on the misappropriation of a trade secret.” (Angelica Textile Servs....

Excerpt: ... the documents and does not extend to the truth of any disputed factual matters therein. Defendants' objections to the Declaration of the City of San Bernardino are overruled. The court declines to rule on Defendants' remaining objections as they are not material to the disposition of the summary judgment motion. Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use in similar circ...

Excerpt: ...�� discovery responses. Plaintiff's initial responses to RFPs and Special Interrogatories included only boilerplate objections. (Def.'s Ex. O, P.) Further, while Plaintiff did provide substantive responses to the Form Interrogatories, those interrogatories are not sufficiently comprehensive such that Plaintiff's responses preclude the possibility that Plaintiff may possess or reasonably obtain evidence sufficient to establish her claim. (Weber v....

Excerpt: ...upreme Court nor any California court of appeal has determined whether the Unruh Act applies to public schools. Several federal courts, however, have considered the issue. It appears that the majority of them have determined that the Unruh Act applies to public schools. (Yates v. East Side Union High School District (N.D. Cal., Feb. 20, 2019) 2019 WL 721313, at *3; Z. T. by and through Hunter v. Santa Rosa City Schools (N.D. Cal., Oct. 5, 2017) 2...

Excerpt: ...ecifically, Plaintiff argues that the “the jury's verdict was that Plaintiff suffered no injury during the crash.” (Motion at 13:8.) This is incorrect. The jury's verdict states that Defendant was negligent but Defendant's negligence was not “a substantial factor in causing harm to Plaintiff.” (Special Verdict Form at p. 1.) Plaintiff argues that, because injury occurred as a result of the collision, then there cannot be a “no substanti...

Excerpt: ...“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Emphasis added). “The failure to make this motion within the specified period constitutes a waiver of any rig...

Excerpt: .... (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (2000) 22 Cal.4th 245, 255.) Here, Plaintiff files a timely motion, so the burden falls to C&D to justify its objections. C&D fails to meet its burden to justify objections based on relevance, burden, oppression, harassing, information equally available to Plaintiff, and third-party privacy. (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 573-...

Excerpt: ...s at issue here are covered by that agreement, and that Plaintiff refused a prior demand for arbitration. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230; see Kramer Decl. ¶ 3, Ex. A.) The arbitration agreement covers “all disputes” under the Agreement, including claims of fraud in the inducement. (Civ. Code, §§ 1638-1639; Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 3...

Excerpt: ...d cells, white blood cells and platelets), liver cirrhosis, psychiatric disorder, esophageal varices (abnormal, enlarged veins in lower esophagus), portal hypertension gastritis, and splenomegaly (enlarged spleen). At the time when Dr. Cheng examined Nashed, he had a chronic pre-existing subdural hematoma. Plaintiffs' main contention is that Dr. Cheng should have ordered a MRI or CT Scan with would have led to an earlier discovery of the subdural...

Excerpt: ... showing by an attorney declaration of mistake, inadvertence, surprise or neglect is mandatory. Here, Defendant' counsel has made a showing of surprise. Defendant's counsel did not know that Defendant was served until after the default was entered. Plaintiff's counsel, however, did not warn Defendant's counsel before requesting entry of Defendant's default, despite the fact that Plaintiff's counsel apparently knew the identity of Defendant's coun...

Excerpt: ...act. “'The Attachment Law statutes are subject to strict construction . . . .'” Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. Code Civ. Proc., § 483.010 (a) provides that “an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied . . .” The original Loan Agreement listed SkyBell as the borrower. (Exhibit A to Complaint). ...

Excerpt: ...ation). Responding Party Plaintiff Ken Stuart. Ruling: Defendants' demurrer is sustained in its entirety. Plaintiff shall have 15 days leave to amend. Defendants' request for judicial notice is granted. Res Judicata/Claim Preclusion “A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be...

Excerpt: ...n for failure to dismiss for failure to comply with Local Rule 317, Plaintiff dismissed the Complaint and Cross- Complainant dismissed the Cross- Complaint without prejudice. Subsequently, Plaintiff dismissed the First Amended Complaint withoutprejudice. The court set this hearing to determine if these pleading should be dismissed with prejudice. “[A] plaintiff cannot defeat a defendant's right to obtain a determination on the merits by simply ...

Excerpt: ...y of Orange. (Defendant's Exhibit C) substantially complied with the claim filing requirement. “The requirement for advance notice of the claim has at least three purposes. First, it provides the public entity with sufficient information to enable it to perform an adequate investigation of the claim and, if appropriate, settle it without the expense of litigation. . . . Second, the written claim informs the public entity of potential liability ...

Excerpt: ...order,” because Plaintiff did not provide any “new or different facts, circumstances or law,” and because the Court loses jurisdiction to rule on a pending motion for reconsideration after entry of judgment. (APRI Ins. Co. v. Sup.Ct. (Schatteman) (1999) 76 Cal.App.4th 176, 181.) Insofar as the Motion is one for relief under Code Civ. Proc. § 473(b), Plaintiff correctly points out that a Notice of Errata was filed on December 6, 2018, which...

Excerpt: ...s uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The Second Amended Complaint is sufficiently certain for Defendant to answer the Complaint. Undertaking Creates a Duty: “The foundational requirement for liability under a negligent undertaking theory is the undertaking of a task that the defendant allegedly performed negligently. . . . The...

Excerpt: ...w evidence in their Reply. “The general rule of motion practice … is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312, as modified (Oct. 9, 2002) (“Assignee contends the trial court erred when it considered the supplemental declaration which landlord submitted with its reply papers. We agree.”)....

Excerpt: ...upervisor, attacked him on several occasions. Steven Estrella threatened him for taking time off. In addition, Plaintiff asserted that his Supervisor was upset that Plaintiff complained about Eric Estrella, Steven's son, videotaping with his cell phone. Separate Statement: CRC Rule 3.1350 (b) requires that “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action...

Excerpt: ...eigh any opposition by the existing parties. (Code Civ. Proc., § 387(a); Truck Ins. Exch. v. Superior Court (1997) 60 Cal.App.4th 342, 346.) Permissive intervention will not be allowed when it would retard the principal suit, or require a reopening of the case for further evidence, or delay the trial of the action, or change the position of the original parties. (City of Malibu v. California Coastal Comm'n (2005) 128 Cal. App. 4th 897, 906.) The...

Excerpt: ...ial Services NA, LLC. Responding Party Defendant First Class Aviation, Inc. Ruling Motion 2: Plaintiff's unopposed application for writ of possession is GRANTED. Plaintiff has sufficiently shown that it is entitled to possession of the subject 2016 Land Rover Range Rover motor vehicle, serial number SALGS2EF1GA293504 (“Vehicle”); Defendants Mahmod Maggy Mouefi aka Mahmod M. Mouefi aka Mahmod Mouefi or First Class Aviation, Inc. are wrongfully...

Excerpt: ...intiffs to file Opposition to the Motion or before March 4, 2019. Defendant may file its Reply and other documents pursuant to Code. While Plaintiffs' counsel associated an additional attorney to represent the client, the Association of Counsel was not filed with the court. When associated counsel attempted to file Opposition to this Summary Judgment Motion, the papers were rejected. Although Plaintiff counsel had a clerical error, this court sho...

Excerpt: .... Defendants' Motion for Summary Adjudication is DENIED as to Issues Nos. 1 to 9. Issue No. 1: The First through Fifth Causes of Action have no merit because SCE was not injured in its dealings with the Sharifi Entities and Plaintiffs ratified or are estopped from complaining about distributions to Sharifi or his interests. Analysis: Bob failed to meet the burden to show SCE was no damaged. Ali disputed the accuracy of the Quickbooks accounting. ...

Excerpt: ...eply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) However, the court observes that nothing in the supplemental exhibits would cause the court to reach a different conclusion as to the merits of this matter. First, Second, and Third Causes of Action Generally, there is a presumption that employment is at will. Lab. Code §2922 (“An employment, having no specified term, may be terminated at the will of either party on notice to the other...

Excerpt: ...apers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Under Code of Civil Procedure Section 437c(c), a summary judgment motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A plaintiff meets its burden on summary judgment by showing plaintiff has prov...

Excerpt: ...5.6 only applies to subpoenas. Pursuant to Code Civ. Proc., § 2031.310 (h), Plaintiff's request for sanctions is denied, because the circumstances make the imposition of sanctions unjust. Privacy: “'[C]ourts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.'. . . ‘In determining whether disclosure is required, the court must indulge in a ‘careful balancing' o...

Excerpt: ...f Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) Plaintiff contends that Defendants have failed to meet their burden of establishing the existence of an arbitration agreement between the parties. Plaintiff argues that Defendants have only atta...

Excerpt: ...urrer to the sixteenth and seventeenth causes of action is SUSTAINED for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) Plaintiff shall file and serve an amended complaint within 15 days of service of the notice of ruling. Government Claims Act – Notice Requirements “The Government Claims Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a publ...

Excerpt: ...failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim(1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4 th 612, 616.) Further, uncerta...

Excerpt: ... (Code Civ. Proc., §§ 2030.300; 2031.310.) Plaintiff asserted essentially the same objections in response to each of the Requests for Production (“RFP”) at issue: (1) the RFPs are overbroad, unintelligible, vague and ambiguous, and burdensome, (2) the RFPs invade Plaintiff's right to privacy, and (3) the RFPs are not relevant to the subject matter of this action. (Kolar Dec., Ex. B.) The RFPs at issue are not vague or ambiguous, and Plainti...

Excerpt: ...emurrer to the Third Cause of Action is OVERRULED. (Code Civ. Proc., § 430.10(e).) The elements of a cause of action for financial elder abuse are: (i) Defendant took or retained plaintiff's property; (ii) Plaintiff was 65 years or older at the time of the conduct; (iii) Defendant took or retained Plaintiff's property for a wrongful use, with the intent to defraud, or by undue influence; (iv) Plaintiff was harmed; and (v) Defendant's conduct was...

Excerpt: ...cial notice is granted as to Exhibits 1-10. (Evid. Code § 452(h)), though it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. First Cause of Action (Predatory Lending Violations). The demurrer to the first cause of action for predatory lending violations is sustained with leave to amend. The SAC does not allege facts to show the loan at issue to be a “covered loan” pursuant to Financial Code...