Excerpt: ... this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.) The moving party's papers are to b...

Excerpt: ...).) There is no prior discovery order compelling plaintiff Katherine White (hereinafter, plaintiff) to provide further responses to defendant's discovery requests in this case, much less one defendant has shown that plaintiff has willfully failed to obey. Defendant has further failed to demonstrate any exceptional circumstances or egregious discovery abuses warranting nonmonetary discovery sanctions in the first instance, i.e., without a prior di...

Excerpt: ...n subdivision (b) of Section 1005. … (2) In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. … Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement....

Excerpt: ...n are: (i) Duty; (ii) Breach; (iii) Proximate or legal cause of injury to Plaintiff resulting from the breach; and (iv) Damage to Plaintiff. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5]. (i) Duty. This element is adequately pled in ¶¶ 55-58 of the FAC, wherein it is alleged that defendants were acting as licensed real estate salesperso...

Excerpt: ...ectronic filing fees: $272.74 Item No. 16, other: $197.50 The remainder of the motion is DENIED. The court finds that the remaining costs were necessarily incurred and reasonable in amount, and that moving parties have not shown otherwise. (Code Civ. Proc., § 1033.5, subds. (c)(2), (3); Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266-1267 [moving party's burden to present evidence substantiating cost challenges; mere argument is insufficient...

Excerpt: ... prejudgment interest in the amount of $2,372,483.91 pursuant to Civil Code section 3287, subdivision (b). 2. The portion of the judgment at paragraph 6a(4) granting plaintiff Associated Third Party Administrators, Inc. (plaintiff or ATPA) its costs of $16,196.03 is set aside and vacated, and replaced with an award of costs in an amount “to be determined pursuant to a duly filed memorandum of costs.” 3. The portion of the judgment at paragrap...

Excerpt: ...824). While a plaintiff need not show intentional conduct that also constitute violations of the Americans With Disabilities Act (“ADA”) (see Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665), as discussed below the FAC fails to allege a violation of the ADA by Soundcloud. Additionally Plaintiff's FAC fails to adequately allege facts showing that plaintiff's disability was a substantial motivating reason for defendant's conduct, causation,...

Excerpt: ... person. Moving party did not seek sanctions. To the extent responding party is requesting sanctions (Opposition at 4:11-13), the request is DENIED. (Code Civ. Proc., § 2023.040.) MP has shown that he properly noticed Bajwa's deposition on two occasions. (CCP 2025.450(a); Daucher Decl. in support of motion, Paras. 4 and 8; Ex. A thereto, pp. 15-17 [amended depo notice]; Ex. B thereto [original depo notice].) “The service of a deposition notice...

Excerpt: ... its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”].) Defendant moves for summary judgment/adjudication on the grounds that each of plaintiffs' claims fail because plaintiffs will not be able to establish the requisite elements of duty, breach, and/or causation, and also because plaintiffs' claims are barred by contractual assumption of the risk. Contractual assumption of the risk. Defendant has faile...

Excerpt: ...rt of negligent entrustment of a motor vehicle is “premised on the ‘[a]wareness [by the defendant], constructive or actual, that a person is unfit or incompetent to drive.” (Id. at 558). The elements for Negligent Entrustment are outlined in CACI 724 and include: (1) A driver was negligent in operating a vehicle; (2) Defendant owned or possessed the vehicle which was operated by the driver; (3) Defendant knew or should have known that the d...

Excerpt: ....) The court finds that moving plaintiff has shown a probability of prevailing on the merits of its breach of contract cause of action, and that the balance of equities favors plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract]; Lam v. Ngo (2001) 91 Cal.App.4th 832, 844 [“A single cause of action can sustain a preliminary injunction”]; Bajwa Decl., ¶¶ 3, 4, 8, 9, 14-27, 30; Vaughn Decl.,...

Excerpt: ...iff has met his shifted burden to show triable issues of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850.) Noticed Issue No. 1. Unlike most causes of action, on summary judgment for a FEHA discrimination claim, an employer meets its initial burden by identifying a legitimate and nondiscriminatory reason for subjecting Plaintiff to an adverse employment action, the burden then shifts to Plainti...

Excerpt: ...ff's deposition testimony alone is insufficient. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [moving defendant may meet its initial burden by showing that plaintiff “does not possess and cannot reasonably obtain, needed evidence”]; Villa v. McFerren (1995) 35 Cal.App.4th 733, 749 [plaintiff's deposition testimony that he personally was unaware of communications between all...

Excerpt: .... v. Nelson (1980) 110 Cal.App.3d 868, 881.) The purpose of a demurrer is determine the sufficiency of a complaint. It does not test the evidence or plaintiff's ability to prove her claims. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; accord, Satyadi v. West Contra Co...

Excerpt: ...of confidentiality agreement, and otherwise OVERRULED. 1st and 2nd causes of action for breach of employment agreement and breach of confidentiality agreement. The first two causes of action are based on non-compete and non-solicit provisions in the parties' employment and confidentiality agreements that constitute unenforceable restraints against trade in violation of Business and Professions Code section 16600 (section 16600). Specifically, wit...

Excerpt: ... new changes or conditions of employment for an implied agreement regarding those changes to form. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 61, 65 (Avery).) “Case law clearly requires an employee receive notice of a condition the employer places on the employee's employment before the employee can impliedly accept that condition by beginning or continuing to work for the employer.” (Id. at p. 65.) “[T]he emp...

Excerpt: ...” or “attorney's eyes only” designation. RP argues: (1) the criteria for the heightened confidentiality designation is too subjective; (2) this case does not involve trade secrets or disputes between competitors; (3) given that MP admits the extent to which RP had access to MP's confidential information during his employment, RP should not be preventing “from seeing documents that he previously had access to;” (4) the second tier will o...

Excerpt: ...o Data Systems v. Intel Corp. 184 Cal.App.4th at 239; K. C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 957.) Moving Parties further contend the gravamen of the wrongful conduct asserted against them is that it conspired to wrongfully “us[e], disclos[e], or exploit []” Plaintiff's “Trade Secrets and other confidential information.” (Compl. at ¶¶ 54–56, 65.) In opposition, plaintiff con...

Excerpt: ...t on the pleadings is equivalent to a demurrer”].) This is not a replacement for a motion for summary judgment or other evidentiary motion. The court declines to consider the declarations and exhibits submitted with the motion and opposition, except as specifically addressed below. Unless the court orders otherwise, the statutory motion for judgment on the pleadings cannot be “made” after entry of a pretrial conference order (see Calif. Rul...

Excerpt: ...easonable inspection of the premises and under the circumstances, was not on notice of the alleged dangerous condition where plaintiff fell. Moving Party presented evidence the debris on the floor was unexpected by its employees as they would have cleaned it up had they noticed it. The evidence also shows an employee sweeping the floor where plaintiff fell shortly before plaintiff slipped. It should be noted, the video presented does not show the...

Excerpt: ...ime of the subject transaction and who currently remains in contact with them. (See Kuan Decl. at Ex. 7 [Dailey Depo. 63:1-64:18 & text message exhibits attached thereto].) Contrary to plaintiff's assertions that a “Google Maps” search of these addresses purportedly show the addresses are “not verifiable because the given addresses do not correspond to any specific location except for the city and province” (Motion P&As at p. 5; see Kuan ...

Excerpt: .../21. That first motion was explicitly denied without prejudice. (ROA No. 75.) A denial without prejudice does not amount to a final ruling or order that can be appealed; it is an interim order where “no final determination of the rights of the parties was contemplated.” (Gibson v. Savings & Loan Commissioner (1970) 6 Cal.App.3d 269 [denial of an alternative writ of administrative mandamus and temporary stay without prejudice is not a final ap...

Excerpt: ...hicle, this Lease or any resulting transaction or relationship (including any such relationship with third parties who do not sign this Lease).” (Ex. A to Supplemental Cronin Decl., Page 4, Section 62; emphasis added.) Plaintiff sues over the express warranty provided during the sale and asserts Song- Beverly claims based on various alleged defects in the subject vehicle. (Complaint at Paras. 9, 10, 12-14, 16-18, 21, 27-30; Felisilda, supra at ...

Excerpt: ...dants: (i) Issued camping memberships (2ndAC ¶ 12); (ii) Failed to Send Tekaat policies in violation of Civ. Code § 1812.302 (Id. ¶ 22); (iii) Failed to update the Reynolds about park policies in violation of Civ. Code § 1812.302 (Id. ¶ 26); (iv) Entered into a contract with KOA (Id. ¶ 27) (v) Sent communications to members stating that the sale would have no effect upon their memberships (Id.¶¶ 27-31); (vi) Changed the park reservations ...

Excerpt: ...4th 263. Plaintiff contends it has alleged the breach according to its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms; this requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions. “It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excus...