Excerpt: ...on that Capistrano failed to carry its burden is reversible only if its evidence was ‘uncontradicted and unimpeached.' Ferrari's evidence contradicted Capistrano's in nearly every aspect, and the trial court's ruling was based on this evidence. We therefore affirm the order denying Capistrano's petition to compel the arbitration of Koelzer's claims against it. “The trial court did not, however, rule on the issue of whether Ferrari's own claim...

Excerpt: ...ecedent voluntarily signed an Arbitration Agreement; and that the survivor claims for Elder Abuse, Negligence, and Violation of Residents' Rights are claims that fall within the scope of the Arbitration Clause. Anaheim Healthcare Center (AHC) also submits the Arbitration Agreement by way of the Declaration of Yoseeline Andalon, who has been the Admissions Coordinator at AHC since approximately October 2020, and has been employed by AHC since 2015...

Excerpt: ...n 5/17/23 1.Plaintiffs Prime Healthcare Services – Garden Grove, LLC; Prime Healthcare La Palma, LLC; Prime Healthcare Huntington Beach, LLC; and Prime Healthcare Anaheim, LLC filed a Motion to Compel Defendant Optumcare Management LLC to provide further responses to Requests for Production, Set One, Nos. 1-4, 16-19, 22-23. Plaintiff also seeks $7,000 in sanctions . Request for Production No. 1 Moving party failed to establish how the developme...

Excerpt: ...2) an act of egregious abuse, 3) anything financial about this cause of action, each of which are required for this cause of action. Issue No. 2: Plaintiffs' cause of action under W&I Code§ 15610.30 fails on the grounds that Plaintiffs cannot prove wrongful use, which is a required element of this cause of action. Pursuant to CCP§437c(f)(1): (f)(1) A party may move for summary adjudication as to one or more causes of action within an action, on...

Excerpt: ...nd that Plaintiff fails to state a cause of action for general negligence against Defendants because the appropriate cause of action against Defendants is for professional negligence. Defendants contend that, by labeling the cause of action “general negligence,” Plaintiff is attempting to circumvent the limit on non-economic damages in professional negligence actions. “It has long been established that in ruling on a demurrer, the trial cou...

Excerpt: ...esulted from the late filing, the court will consider the opposition. Where cost items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774.) Having considered the motion, opposition and reply papers, the court taxes the following costs: Item 16 (Other): - 5/17/21 chambers copy $80.09 - 3/21/22 courtesy copy $87.02 - 2/...

Excerpt: ...Interrogatories, and Requests for Admissions are GRANTED in their entirety as follows. Plaintiff's Motion to Compel Further Responses from Defendant to Plaintiff's First Set of Requests for Production is GRANTED, in part, DENIED, in part as follows. Timeliness of Motions to Compel The instant motions to compel further responses to discovery were timely filed and served on February 22, 2023. Defendant served responses to the discovery at issue on ...

Excerpt: ...costs” are recoverable. But legislative history shows it was intended to allow only fees and costs incurred on the motion to strike [not the entire litigation]. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383.) Here, the underlying successful anti-SLAPP motion was brought by Mark B. Plummer and the Law Offices of Mark B. Plummer (the “Plummer Defendants”) . There is no entitlement to attorney fees where the...

Excerpt: ...ld be governed by the FAA. La Palma has met their burden to show that a valid written agreement to arbitrate as between La Palma and Plaintiff Coco IV Chew exists. La Palma submits the Declaration of Natalie Galvez, the Admissions Coordinator at La Palma when the Arbitration Agreement between Plaintiff Coco IV Chew aka Rathaphirom IV and La Palma was executed, and the individual who signed the Arbitration Agreement as the facility representative ...

Excerpt: ...ixth cause of action in conformance with the recent controlling decision, Dhital v. Nissan North America, Inc., (2022) 84 Cal.App.5th 828, which holds that under California law, the economic loss rule does not bar a plaintiff's fraudulent inducement claims and that such claims fall within the exception to the economic loss rule. Defendant argues that Dhita/ is not binding on this Court because the Supreme Court has granted review and while review...

Excerpt: ...ature, source and extent of his cause of action." (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) A plaintiff does not need to allege evidentiary facts. (C.A. v. William S. Hart Union H.S. Dist. (2012) 53 cal.4th 861, 872; Centex Homes v. superior court (2013) 214 cal.App.4th logo, 1102.) Defendants contend that the first through eighth causes of action fail because Plaintiff has only pled conclusory allegations that parrot the language...

Excerpt: ...3-24 and paragraphs 128-133. The Court OVERRULES MCWE's demurrer on the ground that the FAA, or Nineteenth or Twentieth Affirmative defenses is uncertain. MCWE fails to specify how or why the FAA is uncertain and where that uncertainty can be found. The Court OVERRULES MWE'S demurrer to the Nineteenth Affirmative Defense (Offset for Breach of Sublease) and Twentieth Affirmative Defense (Offset for Fraud/Misrepresentation). MCWE previously demurre...

Excerpt: ...e Auto Group (2023) 87 cal.App.5th 747, 754.) "Because controversy exist. " the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement...that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the...

Excerpt: ...LC ("Plaintiff") requests that the Court take judicial notice of 13 documents. The Court GRANTS Nos. 1, 2, and 7 through 12 of the Request for Judicial Notice pursuant to Evidence Code section 452(d). The Court also GRANTS Nos. 3 through 6, and 13 of Plaintiff's Request for Judicial Notice pursuant to Evidence Code section 452(h). Although the Court grants the request, the Court declines to take judicial notice of the truth of the hearsay stateme...

Excerpt: ... amount of $2,310; and issuing a contempt sanction against Plaintiff, pursuant to Section 2023.030(e), due to his misuse of the discovery process. Defendants request, in the alternative that the Court issue an order for issue and evidentiary sanctions. The present motion was properly served on Plaintiff by U.S. Mail. However, the Court notes that there is no evidence showing that Plaintiff has affirmatively agreed to electronic service as require...

Excerpt: ...rsy. m (Gamboa v. Northeast community Clinic (2021) 72 cal.App.5th 158, 165; cal. Rules of court, rule 3.1330.) "The moving party can meet its initial burden by attaching to the motion or petition a copy of the arbitration agreement purporting to bear the opposing party's signature." (Ibid. [internal citations omitted].) "If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitrat...

Excerpt: ...e defense to the cause of action. (CCP The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima (1991) 231 cal.App.3d 367, 381-382. Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4t...

Excerpt: ...morandum of Points and Authorities filed in support of the opposition is 2 pages over the 15-page limit. The Court disregards the last 2 pages. Defendants fail to show that the demurrer is a motion for reconsideration of the Court's December 13, 2022 Order granting Plaintiff's Motion for Leave to File Amended Pleading, and thus, fail to establish that the demurrer must meet the requirements under Code of Civil Procedure section 1008. Defendants a...

Excerpt: ...nstruction, Inc. v. Bidna & Keys, APLC (2015) 238 cal.App.4th 200, 208.) The trial court engages in a two-step ptTcess to determine whether a special motion to strike should be granted. (Code Civ. Proc., S First, the court decides whether the defendant has met its initial burden of establishing a prima facie showing that defendant's acts, of which the plaintiff complains, were taken in furtherance of the defendant's constitutional rights of petit...

Excerpt: ...reliminary Injunction is DENIED in part and GRANTED in part. Plaintiff's Motion for Preliminary Injunction is DENIED as to Plaintiff's claims brought pursuant to Business and Professions Code section 17200 et seq. Business and Professions Code section 17204 requires Plaintiff to establish that it "has suffered injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code, 5 17204.) Plaintiff's moving pap...

Excerpt: ...ion to Tax Costs. Regarding attorney's fees, the Court adopts its analyses in the 4/4/22 ruling on the motion for attorney's fees in the related matter of Elmy v. Related Management Company, L.P. (case no. 2019-1105181) and the 5/9/22 ruling in the related matter of Nava v. Related Management Company, L.P. (case no. 2019-01096579). In Elmy and Nava, the defendant made a gg8 Offer for $10,001 plus attorney's fees, which the plaintiffs rejected. Th...

Excerpt: ...provide that they were served on Plaintiff on February 3, 2023, by first class mail, with a notice of hearing for February 27, 2023. February 1, 2023, plus five calendars for mail, would require service on January 27, 2023, in order to be code compliant. Therefore, insufficient notice was provided for the instant motion. The Court notes that no opposition has been filed and that Plaintiff is in pro per. Additionally, the notice of motion provides...

Excerpt: ...d as a matter of law. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146; Westly v. Board of Admin. (2003) 105 Cal.App.4th 1095, 1114.) Like a demurrer, a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. (Consolidated Fire Protection Dist. v. Howard Jarvis Taxpayers' Ass'n (1998) 63 Cal.App.4th 211, 219.) The Cross-Complaint asserts the following four causes of action: 1....

Excerpt: ...unded to each motion which is considered proper law and motion practice. In addition, a party seeking to compel further responses to interrogatories, requests for production, and requests for admission must support their motion with a meet and confer declaration showing a reasonable and good faith attempt to reach an informal resolution of the issues. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b)(2), 2033.290(b)(1).) Counsel for Plaintiff se...

Excerpt: ...ED. No opposition has been filed such that all material facts asserted by Cross-Complainants are undisputed. Cross Complainants seek to have the property sold and the proceeds divided by way of an interlocutory order. It is also undisputed that the Property “spans five acres and consists of two buildings—a main house and a secondary building—with a total of approximately 10,000 square feet of housing.” (Cross-Complainants' Separate Statem...

Excerpt: ...ated because Defense counsel failed to appear at the May 25, 2021 hearing due to a calendaring mistake and verified responses to the disputed Requests for Admission were served on May 18, 2021. Plaintiffs' argument that this Motion is an improper attempt at reconsideration is incorrect. The June 1, 2021 Minute Order expressly states that Defendant's ex parte application was denied without prejudice to Defendant filing a noticed motion, which Defe...

Excerpt: ...hat “Any Warranty Policy and Procedure Manual published by defendant and provided to its authorized repair facilities, within the State of California, for the date the subject vehicle was purchased to the present.” (See Lemon Guide, § 10.3, p. 38.) Request No. 10: A copy of the Workshop Manual specifying diagnosis and repair procedures for vehicles of the same year, make, and model as the subject vehicle. The Lemon Guide recommends that “A...

Excerpt: ...tion for judgment on the pleadings filed by a defendant on the grounds the Court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against the moving defendant. (Code Civ. Proc., § 438(c)(1)(B).) The grounds for such a motion must appear on the face of the challenged pleading or from any matter of which the Court is required to take ...

Excerpt: ...ANAHEIM”) demurs to the the 5th (Bane Act), 6th (Battery), 7th (Assault), 9th and 10th (Negligence), and 12th (Liability for the wrongful acts by public entity employees) causes of action alleged in Plaintiff Torres Sanchez' Complaint on the grounds that Plaintiff cannot maintain a civil action pending resolution of the criminal case against him in Orange County Superior Court Case No. 21NF2207 (“CRIMINAL CASE”). Government Code section 945...

Excerpt: ...t: Pltfs have pled the consideration was intellectual property for shares; Pltfs provided shares but Deft did not provide the intellectual property; The 2021 Settlement Agreement is not before the Court; What Pltfs knew and when is outside the four corners of the Complaint; Overrule the Demurrer as to this cause of action; 5th cause of action for Breach of GF and FD: Deft argues the claim is based on pre-contract activity and is a duplicate of th...

Excerpt: ...).) “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc. § 473(a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be pr...

Excerpt: ...The Court finds that based on the evidence presented, a reasonably hourly rate for the services performed by Plaintiff's attorneys is $400 an hour. Number of Hours Billed. Plaintiff presents evidence that his attorneys at Neale & Fhima, LLP reasonably expended approximately 98.7 hours prosecuting this case (including the time on the Motion), anticipates spending an additional 4 hours to review the Opposition and prepare a Reply, and anticipates s...

Excerpt: ... a prayer for $10,000,000.00 in compensatory damages, and a cause of action for Elder Abuse against all Defendants. Also before the Court is a Demurrer to the Second Amended Complaint (SAC) by Defendant Severson Plumbing Services, Inc. (“Severson”), a Motion to Strike by Severson, and a Motion to Strike by Defendants Aliso Villas Condominium Association (“Aliso Villas”) and Total Property Management, Inc. (“TPM”). Plaintiff's Motion f...

Excerpt: ...nce: The cause of action is not sufficiently pled. The Complaint alleges that Defendants are and were in some manner strictly liable, negligent, reckless, careless, or unreasonable and/or proximately responsible for the events, happenings, and wrongful acts, failure to act, representations and omissions alleged” and “are liable to Plaintiff(s) as herein alleged either individually or collectively are, in some manner responsible for the action...

Excerpt: ...dant that caused or contributed to Plaintiff's injuries; and · The cause of action for concealment fails because Plaintiff has not established that Defendants fraudulently concealed any significant facts. On a procedural note, Defendants' Separate Statement addresses the summary judgment, only. On a motion for summary adjudication, the statement must also tie each “undisputed material fact” to the particular claim, defense or issue sought to...

Excerpt: ...Court GRANTS Cross-Defendants request for judicial notice of Exhibit B pursuant to Evidence Code section 452(h). The Court DENIES Cross-Defendants request for judicial notice of Exhibit C as the contents of a web-site are not subject to judicial notice. Demurrer: The 1st cause of action for cancellation of U.S. Trademark Reg. No. 5,960,348: Cross-Defendants contend that Cross-Complainants lack standing to cancel the trademark because it is well e...

Excerpt: ...1/21 MOTION NOS. 1 & 2 – DEMURRER AND MOTION TO STRIKE BY WONG DEFENDANTS Meet and Confer: Defendants sufficiently met and conferred under Code of Civil Procedure sections 431.41 and 435.5 to discuss the issues raised by the demurrer and motion to strike; they could not come to an agreement. (Lawrence Decls., ¶ 9.) DEMURRER: 1st COA – Wrongful Death: A claim for wrongful death is authorized by Code of Civil Procedure section 377.60 et seq. �...

Excerpt: ...��); as well as a Motion to Strike Portions of the FAC filed by Defendant, Severson Plumbing Services, Inc. (“Severson”). Late Oppositions: Oppositions were due on 11/19/21. However, Plaintiff did not file oppositions until 11/24/21 at 10:08 p.m., 10:10 p.m., and 10:12 p.m. Thus, the oppositions are untimely. However, as substantive replies have been timely filed and no prejudice is shown, the Court will consider the late oppositions. Aliso V...

Excerpt: ...eceived by Tenant from the Costco Gift Cards (see Tenant's complaint at ¶ 32(A)). 2. Issue of Duty: Tenant was entitled to deduct from Gross Sales third party fees with respect to the purchase of gift cards presented at the Premises (see Landlords' second amended cross-complaint at ¶ 8(a)). 3. Issue of Duty: Tenant was entitled to pay, and Landlord was required to accept, Alternate Rent from and after September 13, 2017 until a replacement was ...

Excerpt: ...� her attorney states only on information and belief that she is in “poor health and dying condition”. Tentative Ruling: The Motion for Preference is DENIED. Moving Party is to give notice. Motion 2: The Court finds Defendants failed to meet their initial burden of establishing an agreement to arbitrate exists. In order to meet their initial burden, Defendants purport to introduce as Exhibit A, a document entitled “Resident – Facility Arb...

Excerpt: ...rally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.” (Id. at 1252- 53.) Contact information, while personal, is not particularly sensitive, and is basic to civil discovery, especially when people are being identified as witnesses. (Id.at 1253-54.) “Nothing could be more ordinary in discovery than finding out the location of identified wi...

Excerpt: ...Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). "The petitioner 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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green ...

Excerpt: ...irement of CCP § 430.41, as it does not indicate that any meet and confer regarding the issues in the demurrer actually occurred, let alone any meet and confer by telephone or in person. Defendant's counsel, Mari Kiridjian, states that she sent Plaintiff's counsel “an email regarding FCA US' intent to file a demurrer” and asked Plaintiff “to notice counsel for FCA US if Plaintiff intends to amend the Complaint or to dismiss the fraud cause...

Excerpt: ... Exch., Inc., (1995) 11 Cal.4th 1, 18 (Waller).) Grants of coverage are to be interpreted broadly, while exclusions are interpreted narrowly and against the insurer. (Shade Foods, Inc. v. Innovative Products Sales (2000) 78 Cal. App. 4th 847, 867.) “The insurer bears the burden of proving ... the applicability of an exclusion ....” (State Farm Fire & Cas. Co. v. Martin (9th Cir. 1989) 872 F.2d 319, 321.) The court must “look first to the la...

Excerpt: ...h Ferrari did. The Agreement is signed by someone as “Facility Representative”, and by Deborah Ferrari as “Signature on behalf of the Resident and Individual”. Plaintiff also submits the form filled Declaration of Amy Magallon, Admission Coordinator for Defendant who declares that she met with “Deborah Ferrari (wife)”. After stating she met with Deborah Ferrari (and not Charles William Koelzer), she indicates “The Resident instructe...

Excerpt: ...CHAEFER properly watered the Tree post-2015 when the CITY deemed it a “City Tree”. SCHAEFER contends she properly watered it, CITY contends she did not, creating a triable issue. Here there is no evidence that the CITY planted the Tree. The Tree was on SCHAEFER's property when she moved there in 1991 and considered it “her” tree which she maintained until October 2015. CITY disputes that SCHAEFER did not have any responsibility over the T...

Excerpt: ...ant Prime, Plaintiff's employer, are protected. There is no dispute that the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Plaintiff, however, relies on Insurance Cod...

Excerpt: ...oving papers or the reply. However, based on the opposition that has been filed, it appears that the moving papers were served. The Court will presume that the reply has been properly served unless otherwise established at the hearing. The Court reminds Defendants that a proof of service must be filed. (See California Rules of Court, Rule, 3.1300(c).) In addition, as to the late-filed and late-served opposition, the court, in its discretion, may ...

Excerpt: ...A. Timory (“Timory”) (collectively, “Moving Defendants”): 2nd cause of action for negligence, 3rd cause of action for assumpsit, 4th cause of action for disgorgement (B&P § 7031), 5th cause of action for violation of B&P § 17200 et seq. Moving Defendants have met their initial burden to show that they are not the agent, partner, or alter ego of the other defendants. (D's Supp. SSUMF 28-35 [Timory Supp. Decl.].) Moving Defendants have al...

Excerpt: ...s therein. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) As a threshold matter, Plaintiff correctly contends that Cross-Complainant failed to allege that he was duly licensed at all times during the performance of the remodel services he provided, and that it is his burden to affirmatively state and prove that he was licensed to provide the work, labor, services and materials before bringing...