Excerpt: ... or malice. (Civ. Code, § 3294(a).) “ ‘Malice' ” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code, § 3294(c)(1); College Hospital, supra, 8 Cal.4th at p. 725.) “ ‘Oppression' means despicable conduct that subjects a person to cruel and unjust h...

Excerpt: ...rant or deny the motion. (Code Civ. Proc., § 439(a)(4).) Here, the court exercises its discretion to consider this motion despite Moving Defendant's failure to meet and confer in compliance with Code of Civil Procedure section 439. First Cause of Action (Defamation per se). The elements of a claim for defamation are: (i) a publication that is (ii) false; (iii) defamatory; (iv) unprivileged; and (v) has a natural tendency to injure, or which caus...

Excerpt: ... interest in real property may move a court for an order expunging a lis pendens. A court shall grant a motion to expunge if the pleading upon which the lis pendens is based does not contain a real property claim (Code Civ. Proc., § 405.31); or the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., § 405.32.) The burden of proof rests with the party responsible for...

Excerpt: ...: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.�...

Excerpt: ...Order.) A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded s...

Excerpt: ...ns as to Plaintiff Escamilla because she concedes she was terminated on November 20, 2018, which is over one year before this lawsuit was filed. (SAC, ¶ 22) The demurrer is sustained on this basis. Defendant also contends that the fifth cause of action fails because both Plaintiffs lack standing, given they are not current employees of Defendant. Remedies under Section 226(e), however, are not available only to current employees. The use of the ...

Excerpt: ...t”) Plaintiff signed with Red Bluff: EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL … Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to ...

Excerpt: ...or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “car...

Excerpt: ... Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385, disapproved on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) For this reason, and for the reasons identified in the Court's April 19, 2021 order on Defendant's demurrer to the original Complaint, the demurrer to this cause of action is overruled. Second Cause of Action (fraud). To state a cause of action for fraud or misrepresentation, Plaintiff must allege: (1) a misre...

Excerpt: ...l foundation. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; see also Code Civ. Proc., § 436.) To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant wi...

Excerpt: ...o Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “care or custody” of the...

Excerpt: ...t. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) The elements of an IIED claim are: (1) defenda...

Excerpt: ...t as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be...

Excerpt: ...conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code section 3294(b) provides that a plaintiff may recover punitive damages against an employer for acts of its employees only where “the employer had advance knowledge of the unfit...

Excerpt: ...50.) Once the moving party meets that burden, the burden shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id., at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The Complaint pleads a single cause of action for Premises Liability. The Complaint alleges Plaintiff Charles Smith fell due to a neglige...

Excerpt: ...ptember 1, 2020. Defendant Mahmood contends that it is not a proper party to this lawsuit given its limited role in the underlying dispute. But as long as it is a named party that has not been dismissed, Defendant Mahmood cannot avoid his obligations under the Discovery Act. Given Defendant's failure to respond timely to Plaintiff's discovery requests, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. §§ ...

Excerpt: ...) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Negligence Causes of Action Plaintiff's first (negligence), second (negligent supervision), third (negligent failure to warn, train, or educate), fifth (negligent infliction of...

Excerpt: ...ablished the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Cal. Civ. Proc. Code § 484.090(a)(1)-(4).) A court may order the issuance of a writ of attachment only if the plaintiff's claim has probable validity, i.e., where it is more l...

Excerpt: ...to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the moti...

Excerpt: ...was entered into in good faith. These factors are: (1) a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6)...

Excerpt: ...al.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complai...

Excerpt: ...(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. (“CCP”), § 437c(p)(2).) The ...

Excerpt: ...ia McCaughey: This Defendant was Defendants MBSB Legacy LP's agent. The Complaint did not allege any misconduct on her part. On the breach of contract claim, she was not a party to the contract. “Normally, the agent will not be liable on a written contract made in the name of the principal. (See Rest.3d, Agency § 6.01(2).)” 3 Witkin, Summary of California Law, 11th Agency § 207 (2021). On the tort causes of action, there was no allegation o...

Excerpt: ...lusions of fact or law.” The court “also consider matters that may be judicially noticed.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498. Request for Judicial Notice: Plaintiff's Objection to the Request for Judicial Notice is GRANTED, except for the truth of the matters stated in the documents. The existence and legal effect of documents in a court file are subject ...

Excerpt: ...he trial court can relieve a party from such a waiver if “both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance; and (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §§ 2030.290(a); 2031.300(a).) On or about June 8, 2020, Plaintiff served three sets of discovery requests to Defendant U...