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: ...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: ...).) 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: ...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: ...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: ...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: ...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: .... 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: ... 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...

Excerpt: ...e parties' course of dealing (conduct); that under those terms, Vit-Best generally shipped cross-complainant Dr. Rath Health Programs, B.V.'s (DRHP) orders within 3-4 months; that the subject purchase orders themselves also specified that the orders be “ready to ship at Vit-Best” by 3/1/19 and 4/1/19, respectively; Vit-Best shipped many of the subject products late and the shipments were not completed until approximately August 2019; as a res...

Excerpt: ...ustaining its demurrer without leave to amend on 6/18/21. EAS also demurred, but its demurrer was sustained only in part and with leave to amend. (See 6/18/21 Minute Order.) Mr. Nuelle then filed Fidelity's memorandum of costs on 7/1/21, and plaintiff filed a first amended complaint on the same date, now naming only EAS (since Fidelity's demurrer was sustained without leave to amend). Subsequently, EAS filed a substitution of attorney on 8/3/21, ...

Excerpt: ...this request for admission. Request for admission No. 21. The nature of the information sought by this request is readily apparent. The question is whether plaintiff's agent, Ronald Jazzar, ever told Tafoya's agent, Steve High, that plaintiff could not perform under the terms of the subject agreements regarding the purchase of the subject property due to the impact of the Covid- 19 pandemic. A request must be answered if the nature of the informa...

Excerpt: ...n any directory information of a student provided in response to the subject interrogatories in a confidential manner, and any such information shall only be used for purposes of this litigation. (See Ed. Code, § 49077.) The subject interrogatories seek percipient witness identity and/or contact information (i.e., certain directory information). CUSD has refused to provide this information with respect to any students pursuant to Education Code ...

Excerpt: ...]). The remedy of attachment is wholly statutory. Its scope and procedure are limited by the statutes, and these statutes are strictly construed. (See Nakasone v. Randall (1982) 129 Cal.App.3d 757.) To be a readily ascertainable amount, the damages need not be liquidated, but they must be measurable by reference to the contract itself and the basis for computation must be reasonable and certain. (See CIT Group/Equipment Financing, Inc. v. Super D...

Excerpt: ...verriding interest will be prejudiced if the record is not sealed, as the privileges and confidentiality would be destroyed by disclosure; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Exhibits 3, 4, 16, 20-36 and 39 to Defendant's Motion to Compel Return of Records are ordered sealed. Moving party to give notice. 2. Defendant's Motion to Compel Plaintiff to: (i) State U...

Excerpt: ...y adjudication, as discussed below. Open and Obvious Defect. A landowner who has a duty of care to avoid injury to invitees who come on the land is only required to keep the premises in a reasonably safe condition and to give warning of latent or concealed perils. He or she is entitled to assume that invitees will perceive that which should be obvious in the ordinary use of their senses, and is not liable for injury resulting from a danger that w...

Excerpt: ... statute of limitations for fraud]; SACC at ¶¶ FR-1 [alleging misrepresentation occurred on 6-10-16], FR-2 [alleging concealment occurred on 3-13-15], FR-4 [alleging false promise on 3-13-15]; original cross-complaint filed 9-16-20.) While cross-complainant's Opposition argues delayed discovery, this is not alleged in the SACC. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4 th 797, 808-809 [delayed discovery requires specifically pled f...

Excerpt: ...ecline to enforce the arbitration agreement include unconscionability. Defendant's evidence reflects the fact that the Arbitration Agreement was an express condition of Plaintiff's employment, offered on a take it or leave it basis. (Kibushi Dec. ¶¶ 4- 5.) The face of the Arbitration Agreement expressly states that execution of the Agreement is a condition of employment, thus procedural unconscionability exists. As for the substantive unconscio...

Excerpt: ...r under a third party beneficiary or equitable estoppel theory. MP BMW first contends it may enforce the arbitration provision in the MVLA as a third party beneficiary. Generally, third parties may enforce an arbitration provision when they are intended third party beneficiaries, or are assigned rights under contract. (Cohen v TNP 2008 Participating Notes Program, LLC, (2019) 31 Cal.App.5th 840, 859.) It is “not necessary that the beneficiary b...

Excerpt: ...tions not addressed by the motion; accordingly, moving plaintiff has not met her initial burden on summary judgment / adjudication. (First Amended Complaint, ¶¶ 48, 50, 79, 80 [transactions not addressed by motion]; Keniston v. American Nat'l Ins. Co. (1973) 31 Cal.App.3d 803, 812 [moving party's evidence must be directed to the claims or defenses raised in the pleadings]; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4 th 98...

Excerpt: ...g: (1) “Defendants also blocked Dr. Goodman's return to the Practice because they believed Dr. Goodman was an ‘old time doctor' and his age would have a negative impact on the work environment” (TAC at Para. 6); (2) Muirhead stated in an email that “Defendants believed Dr. Goodman was biased against women because he was a member of the Mormon faith and did not want him to return because of this alleged bias” (TAC at Para. 31); (3) “SC...

Excerpt: ... of the previous litigation, and thus were virtually represented in the lawsuit”]; accord, Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1422; Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1074, 130 Cal.Rptr.3d 123 [court may amend judgment to add alter egos of the judgment debtor at any time]; Robbins v. Blecher (1996) 52 Cal.App.4th 886, 892 [alter ego requirements]; Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.A...

Excerpt: ...bson (2011) 195 Cal.App.4th 1, 15.) Defendant has failed to meet this burden. First, contrary to defendant's contentions, plaintiff did not expressly agree to arbitrate her claims against FMC. The arbitration agreement explicitly requires only plaintiff and the nonparty seller to resolve “any dispute between us”—i.e., any disputes between plaintiff and the seller (including the seller's employees, agents, successors, and assigns)—by bindi...

Excerpt: ...2009) 180 Cal.App.4 th 932, 938), Plaintiff has an express written contract for the development and delivery of the prototype machine. Defendant failed to meet its initial evidentiary burden for noticed issue No. 2 by establishing that Plaintiff waived its right to performance. Defendant met its initial burden to show the action has no merit as to Noticed Issues No. 1, 3-4, and 6-8. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Agui...

Excerpt: ...ial evidentiary burden of its Fifth Cause of Action. This cause of action arises from Civil Code section 1113. The statute establishes as a matter of law, that certain covenants (unless expressly disclaimed) are made to the grantee, his/her heirs or assigns. That action may be enforced in the same manner as that for breach of an express contract. (Id.) Plaintiff fails to present evidence that it is the grantee, the grantee's heir, or the grantee'...

Excerpt: ... “forced back” into arbitration upon entering the RISC. This argument is not persuasive. First, RP here did not opt out of the arbitration provision in the Order Agreement, and thus RP's “hyper loop” arguments to this effect are somewhat hypothetical. Second, as MP points out in the Reply, the RISC is only entered into if a customer purchases the vehicle on credit; if not, then the hypothetical customer could opt out of the arbitration ag...

Excerpt: ...nd individual claims: Plaintiffs do have a point that in certain circumstances, a minority shareholder may sue for a breach of fiduciary duty (or other wrong) via a derivative or a direct action, but they may not do what they are attempting to do here and sue for both. They have to pick one or the other. The court in Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621 considered and rejected similar attempts to allege both a di...

Excerpt: ...p. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 the California Supreme Court held that a valid cause of action for civil conspiracy can be made, and cites the elements of such cause of action, stating that the conspiracy, activated by the underlying tort, states a valid claim. (Id.) (See also Pettitt v. Levy (1972) 28 Cal.App.3d 484, 491.) As for the aiding and abetting cause of action, see (Casey v. U.S. Bank Nat. Assn. (2005) 127...

Excerpt: ...ttendants are trained to recognize the possible signs of bed bugs such as actual bed bugs, brown or black spots that may be left by bed bugs, or blood smears on bed linens. (UMF 2);  Room Attendants receive separate training to learn how to detect bed bugs and another training to learn how to detect other types of pests. (UMF #5);  On a daily basis, the Room Attendant cleans and inspects the bed's headboard for cleanliness and for signs of ...

Excerpt: ...t a writ of attachment in the amount of $411,144.88 shall issue against defendant Health Connect, Inc., upon plaintiff's filing of a separate undertaking in the amount of $10,000. (CCP 489.210; CCP 489.220.) Both applications here are supported by a single declaration, by MP plaintiff's COO Jonathan Kaplan. RPs contend that Kaplan's affidavit does not satisfy CCP 484.040, in that he lacks personal knowledge of the transactions between the parties...

Excerpt: ...e construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem. Hosp. v. Mercury Const. Corp. (1983) 460 US 1, 24 “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable cla...

Excerpt: ...prior opposition declaration was not clear on this point. (ROA No. 351 [6-11-21 minute order].) Plaintiff timely did so on 6-25-21 (ROA No. 360), indicating she was not served with the subject discovery. Absent proper service of the discovery, the motion is denied. Further, plaintiff filed an additional declaration on 7-7-21 (ROA Nos. 372, 374) indicating she has responded to the subject discovery; thus, the motion is moot in any event. Given the...

Excerpt: ...rgas Decl. in support of motion, ¶¶ 4, 6, 7, 9-11, and Ex. B thereto; Durkin Decl. in support of motion, ¶ 3.) The court finds that the provision requiring sharing of arbitration costs after three days of arbitration is substantively unconscionable. (Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889, 894 [applying CA law] [fee splitting agreement requiring plaintiff asserting statutory claims to incur costs in arbitration that th...

Excerpt: ...posit— this states a claim for breach of contract that has already accrued. Declaratory relief does not lie as to contractual rights and obligations if a claim for breach of the contract has already accrued, i.e., where the breach is complete and the only issue is whether there is liability. (See Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323-324.) To the extent plaintiff seeks declaratory relief as to its alleged continuing right to pur...

Excerpt: ...endants Katten Muchin Rosenman LLP and Claudia Callaway's motion to apply judicial or collateral estoppel is DENIED. I. Background of CFPB Litigation This motion concerns the effect of the federal court's judgment in Consumer Financial Protection Bureau v. CashCall, Inc., C.D.Cal. No. CV 15-07522-JFW (RAOx) (“CFPB”), and more specifically, the federal court's opinion of January 19, 2018, available at 2018 WL 485963. The Court will refer to th...

Excerpt: ...l has no effect on the named Plaintiffs' individual claims. Defendant's unopposed request for judicial notice is GRANTED. The Court, on its own motion, takes judicial notice of the California Supreme Court's docket in Naranjo v. Spectrum Security Services, No. S258966. GROUNDS FOR RULING I. Rest Breaks Defendant admits a four-year statute of limitations applies because there is a UCL claim at issue. However, it contends the earliest relevant fili...

Excerpt: ...able fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (See Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 890–91.) Additional...

Excerpt: ...4th 1244, 1255 [elements].) This claim is not based solely on defendant's misrepresentation that the vehicle was in “excellent condition,” but also on its alleged misrepresentation that the vehicle had “passed a vehicle inspection” (see Compl. ¶ 13), and defendant's failure to disclose the true, substandard condition of the vehicle (see id. ¶¶ 12- 13, 16). Further, to the extent the claim is based on the misrepresentation that the vehi...

Excerpt: ...uled. 1st cause of action: misrepresentation. The demurrer to the first cause of action for misrepresentation is sustained, with leave to amend, on grounds of failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) This cause of action does not allege all of the elements of fraud with the required specificity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements]; Lazar v. Superior Court (1996) 12 Cal.4 th ...

Excerpt: ...med by plaintiff. (CCP 762.010, 762.050.) Any party may serve discovery. (CCP 2017.010.) Whether or not this defendant is in fact a proper party cannot be determined by a motion to strike. Plaintiff to give notice. 2. Plaintiff Ragland's motion for reconsideration of the court's 10-30-20 discovery order. Motion granted. The court finds that plaintiff has timely sought reconsideration; has shown new and/or different facts justifying reconsideratio...

Excerpt: ... 787-788 [“Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply. [Citation.] A willful failure does not necessarily include a wrongful intention to disobey discovery rules.”].) The 2/27/20 discovery order unequivocally orders plaintiff to produce all responsive documents to the subject requests for production within 20 days of notice, and also unequivoca...

Excerpt: ...o the other alleged breaches of the parties' manufacturing agreement claimed in the first amended cross-complaint (which form the subject of the first and third causes of action for breach of contract). (See FAXC ¶¶ 34-41.) The subject manufacturing agreement does not require Vit-Best to provide proper certificates of origin (see id. ¶ 4, Ex. 1), and DRHP fails to allege any facts demonstrating a course of dealing between DRHP and Vit-Best (or...

Excerpt: ...he privilege warranting disclosure applies. (See Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721 (Schnabel) [listing exceptions].) First, AIM contends plaintiff has impliedly waived the taxpayer privilege by making a claim of loss of business value and lost profits which directly relate to plaintiff's business valuation and income, and that therefore, the “gravamen of [the] lawsuit is so inconsistent with the continued assertion of the tax...

Excerpt: ... (2001) 25 Cal.4th 826, 850-851 (Aguilar) [same].) With respect to the first cause of action for fraudulent transfer of the subject Riverside property and noticed issue Nos. 1-3, defendants fail to establish that the value of the Riverside property was equal to or less than the value of Bahjat and Tameem's alleged debt to Harb. (See Defs. Sep. Stmt., in passim.) With respect to the second cause of action for fraudulent transfer of the Ladera Ranc...

Excerpt: ...impose a special assessment against Plaintiffs to recover fees and costs incurred in obtaining compliance with the CC&Rs. The court is not convinced that items (ii) and (iii) fall within Calif. Code of Civil Procedure, section 128.5, subdivisions (a) and (b)(1) as “actions or tactics.” A motion for sanctions may not be filed with the court until 21 days have lapsed following service of the notice of motion upon the party against whom sanction...

Excerpt: ...eir purported lack of personal knowledge. An unestablished assertion that a particular witness lacks personal knowledge of the facts of the case is insufficient to show good cause for a protective order precluding that witness's deposition. (See Code Civ. Proc., § 2025.420, subd. (b); see also Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [the burden is on the party seeking the protective order to show good cause for...

Excerpt: ...ry No. 53) Meet and confer narrowed the issue, combining Interrogatories No. 52 & 53 and limiting the scope to the identities of all former employees whose employment was terminated by the same decision makers as Plaintiff and for the same reasons as Plaintiff within the last 5 years. (Livshits Dec. Ex. 6, 10/28/20 e-mail.) Defendant seeks to further limit the information sought to ex-employees who disclosed a medical condition or disability. (Ur...

Excerpt: ...ut also her history involving erratic driving. The hearing report of 5-22-18 states in part: “Did the Respondent cause or contribute to the cause of a collision that resulted in a fatality? The department finds that the Respondent contributed to the cause of a collision based on the physical evidence regarding the damages sustained to the Mercedes Benz on the left driver side which is consistent with damage sustained to Respondent's vehicle on ...

Excerpt: ...agreement with non-party Crevier BMW, which contains the arbitration clause. However, while the existence of the lease is a prerequisite to Plaintiff's Song-Beverly Act claim, plaintiff's claims against BMW do not rely on the terms of the lease. They rely on the express warranty issued by BMW as alleged at paragraph 10 of the complaint. In support of its argument, BMW points to the case of cites Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. ...

Excerpt: ...ants' separate statement is grouped by cause of action, with between 2-3 discrete issues for adjudication set forth below, instead of setting each issue as a separate noticed issue with its own section as required by the Rules of Court. Additionally, rather than sent forth separately, each Undisputed Material Facts (“UMF”) in support of each noticed issue, most of the separate statement incorporates the preceding UMFs by reference. Failure to...

Excerpt: ... the court finds was reasonably and necessarily incurred. Plaintiffs argue that no apportionment between defendants is required. However, plaintiffs have not provided any evidence to show that apportionment is not required. Defendant Mission Pools of Escondido argues that defendants Sal Vargas dba New Vision Landscape, and New Vision Landscape, Inc., should bear a proportionate share of plaintiffs' attorney fees, on grounds of comparative and/or ...

Excerpt: ... contract typically arises upon the breach. Defendant's Undisputed Material Facts (“UMF”) 8 establishes that Avenue K was unable to pay the full balance on the loan by 07/31/07 as agreed. (See Compl. Exh. 1.) The next UMF establishes that Avenue K made payments on the loan between 07/23/07, and 03/07/11. (UMF 9.) As a general rule, part payment of a debt or obligation is sufficient to extend the bar of the statute. The theory on which this is...

Excerpt: ...s the declaration of attorney Mark. S. Rosen states: “The petition was verified by one of the parents of Student DOE and one of the parents of Student Roe.” See Rosen Declaration, ROA #45, page 2, paragraph 2. In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court...

Excerpt: ... to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Defendant has failed to meet this burden. First, contrary to defendant's contentions, plaintiffs did not expressly agree to arbitrate their claims against Kia. The arbitration agreement explicitly requires only plaintiffs and the nonparty seller to resolve “any dispute between us”— i.e., any disputes between plaintiffs and the nonparty seller (including the seller'...

Excerpt: ...material fact as to whether he made the subject misrepresentations/false promises and whether plaintiff Alan S. Inbody (plaintiff) justifiably relied on them, causing plaintiff damages. Furthermore, even if Candland had met his initial burden, which he has not, plaintiff's evidence in opposition to the motion only further demonstrates that there are triable issues of material fact with respect to these claims. Specifically: 1. Contrary to Candlan...

Excerpt: ... anti- SLAPP motion and the appeal, was whether the Burkholders' complaints to the HOA regarding potential view obstruction were made in “connection with an issue of public interest.” Ultimately, the court came out in favor of plaintiffs on this issue but defendants' position was not without support. Defendants' original motion cited various authorities involving disputes involving HOAs, which supported defendants' contention that the instant...

Excerpt: ... claim to WRCOG; 3. Plaintiff substantially complied with the presentation requirement; and 4. Plaintiff's claim is exempt from the presentation requirement under Government Code §905(h). No suit for money damages may be brought against a public entity unless the plaintiff first presented a timely claim to the entity and the entity has ruled on that claim. (Gov. Code 905, 911.2, and 945.4.) Claims for personal injury must be presented not later ...

Excerpt: ...rnia Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048 [elements of conspiracy]; AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 [complaint sufficient where it apprises defendant of the “character and type of facts and circumstances upon which (plaintiff) was relying to establish the conspiracy,” including pleading “facts and circumstances that permit a reasonable inference (defendant) was aware of the plan to defraud”].) 1. ...

Excerpt: ... judgment against Truong by way of default. The court finds Truong has willfully failed to comply with the court's discovery order of 10/16/20. Willfulness in this context means a “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance. ... ” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788 (Deyo), superseded by statute on another point as stated in Guzman v. General Motors (1984) 154 Cal.Ap...

Excerpt: ...petition or free speech in connection with a public issue. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If the moving defendant makes this showing, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim, i.e., a showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 56...

Excerpt: ...0 Cal.App.3d 868, 881.) The court declines to consider Plaintiff's declaration. The allegations against these demurring defendants based upon vicarious liability continue to be inadequately alleged. The facts necessary to allege conspiracy, aiding and abetting, and alter ego liability are absent from the 2 ndAC. As for agency, the 2 ndAC alleges in a conclusory fashion that each of the Defendants was acting as the agent for the other Defendants a...

Excerpt: ...cks foundation); Nos. 21, 23, 32 (lacks foundation, speculative); No. 24 (improper legal conclusion); Nos. 28, 31 (lacks foundation, improper legal conclusion); No. 29 (speculative); and Nos. 35-194 (lacks foundation, lacks authentication). Defendants' remaining evidentiary objections are overruled. Defendants have met their initial burden of showing that the challenged causes of action arise from protected activity. (Navellier v. Sletten (2002) ...

Excerpt: ...ysis because he was no longer a resident of California as of January 2008, and this action arises out of conduct occurring no sooner than 2017-2018, and more likely beginning in 2019. (See, e.g. Compl. ¶¶ 10, 13-18, 33, 36 [PN did not launch the subject products until 2017; BM did not exist until 2018; and Beauty Molecules failed/refused to pay for products delivered in fall 2019, and that “since then,” defendants have engaged in the miscon...

Excerpt: ...efault. CCP § 473(b); People v The North River Ins. Co. (2011) 200 CA4th 712, 721. This 6-month time limit is jurisdictional. Notwithstanding the above, the court may employ its power of equity to set aside a default if the motion is made more than six months after entry of default. Under traditional “equitable set-aside” law, a judgment is subject to set-aside on “equitable” grounds where the complaining party can demonstrate he or she ...

Excerpt: ...e of a single issue of triable fact will require that the motion be denied. Second Cause of Action. Defendants' motion attempts to affirmatively negate the element of breach for the Second Cause of Action. Thus, to negate the allegations of the Third Amended Complaint (“3rdAC”), Defendants each will have to establish that they did not: (i) disrupt CBIZ's business; (ii) soliciting CBIZ's existing and prospective clients on behalf of a competit...

Excerpt: ...tion notice, without objection, at the time of deposition, as moving party has shown good cause for production. (CCP 2025.450(b)(1).) The burden is on the deponent to justify objections. (Weil & Brown, Rutter Group, Civil Procedure Before Trial, Chapter 8E-15, Section 8:814-8:816, citing San Diego Professional Assoc. v. Superior Court (1962) 58 Cal.2d 194, 199.) Here, while RP's objection (MP Ex. 2) asserted various objections, the only objection...

Excerpt: ...or PDLL “is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under Government Code section 12940.” (Cal. Code Regs., tit. 2, § 11047; see id., § 11046(a); 29 C.F.R. § 825.702(a).) “Under the FEHA, a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship o...

Excerpt: ...as a remedy, in connection with another, valid cause of action. Plaintiff's requests for judicial notice are not considered, as they are irrelevant to the instant motions. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295.) Moving parties to give notice 3 - 4. Defendants Wells Fargo, Ocwen, and PHH's demurrers to the plaintiff's first amended complaint. Demurrers sustained in part, with leave to amend, and overruled in part, as s...

Excerpt: ...e Before Trial, Section 7:85, citing Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) First, failure to properly “label” a C/A does not render a complaint uncertain, so long as the pleading contains enough facts to apprise defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, FN 2.) Second, the claims alleged are set forth in the caption, and the parties bring...

Excerpt: ...ct (9th Cir., 2016) 823 F.3d 1011.) On the merits of Plaintiffs/Petitioners' claims, they have failed to show a likelihood of success on the merits. (See Fleishman v. Superior Court (2002) 102 Cal.App.4th 350.) Plaintiffs'/Petitioners' arguments are based upon a claim that the requirement that successful bidders for a City of Anaheim project agree to be bound by its Community Workforce Agreement violates the Privileges and Immunities Clause of th...

Excerpt: ...ares v. Braemar Country Club, Inc. (1999) 29 Cal.4th 1019]. The pendency of an appeal does not divest the court of jurisdiction to determine ancillary or collateral matters which do not affect the judgment on appeal. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4 th 180, 191). This includes setting the amount of attorney's fees already awarded in the Judgment. The court finds that, given ...

Excerpt: ...n any protected class. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355 [elements]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [FEHA claims, like all statutory claims, must be pled with specificity]; FAC at Paras. 98 and 109 [alleging discriminatory motive as conclusion only, without supporting facts].) Further, the seventh and eighth causes of action fail as to the individual defendants, as individual employe...

Excerpt: ...ecause of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.” (See Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) Defendant's only supporting evidence is its request for judicial notice. Turning to the Farmland criteria: 1. Multiple litigation designed solely to harass an adverse party. Defendant presents zero evidence as to this criteria....

Excerpt: ...l. at Ex. A [arbitration agreement].) The arbitration agreement also complies with Code of Civil Procedure section 1295, subdivision (a) (section 1295(a)). Contrary to plaintiff's assertions, the disputed “message of arbitration” is not a part of any contract, either for medical services or arbitration. The only contract before the court begins where the subject document states, in bold, capital letters: “PSYCHOLOGIST–PATIENT ARBITRATION ...

Excerpt: ...y in a case that involves the interplay of many documents and several witnesses.” Liberty National, supra at 847. Here, after litigating this case for over 2.5 years, Moving Party urges the court to disqualify plaintiff's counsel on the eve of trial. It seems a difficult task to obtain new counsel and get that counsel up to speed and prepare for trial in just 2.5 months. This situation is more extreme than in Liberty National where the court de...

Excerpt: ...tions are untimely. Plaintiffs served their responses to the remaining subject form interrogatories via email on 8/4/20, and it is these responses that remain at issue in these motions. (See ROA No. 102– Balladares Decl. ¶ 3, Ex. B; ROA No. 81–Balladares Decl. ¶ 3, Ex. B; see also ROA Nos. 103, 82 [separate statements regarding form interrogatories].) Plaintiffs' responses to these interrogatories consisted of multiple objections and, witho...

Excerpt: ...ary value in determining personal jurisdiction. (See Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) Plaintiff's complaint is unverified and therefore is not evidence to establish jurisdictional facts. Plaintiff fails to present any evidence to support general jurisdiction over Defendant. Even if a nonresident defendant's “contacts” with California are not sufficient for general jurisdiction, the defendant may still be subject to ju...

Excerpt: ...able issues of fact as to UMF #2, 4, 5, 6, 7, 14, 18, 21, 22, 23, 25, 28 and 29. Defendants claim plaintiff loses this case because he cannot prove the underlying claim for personal injuries. Defendants claim the alleged underinflated helmet was not the cause of his concussion and resulting difficulties and therefore the fact defendants failed to file a governmental claim within the period of limitations is of no consequence. Defendants argue the...

Excerpt: ...on as to when the arbitration award was served. [See 12-18-20 minute order (ROA No. 489).] MPs were ordered to do so by 1-22-21. (Id.) It appears that MPs attempted to do so on 12-24-20, but this filing was rejected by the clerk. (ROA No. 490.) However, on 1-20-21, respondents' counsel served a declaration in opposition to the instant Petition. (ROA No. 492.) That declaration admits that the award was served on or about 12-8-18. (Id. at Para. 3.)...

Excerpt: ...23, 24-33. Demand for production of documents: 4, 5. Plaintiff complains that the verifications served with the original August 5 responses are inadequate as they were “pre-dated” July 10, 2020. Plaintiff implies the verifications were signed before the responses were prepared. Therefore, plaintiff contends, the verifications were not really verifications for purposes of a motion to compel further response. Defendant contends they were signed...

Excerpt: ...34 S.Ct. 1115, 1122); see also David L. v. Sup.Ct. (Mariana C.) (2018) 29 CA5th 359, 371-372, 240 CR3d 462, 473 (citing Walden with approval and noting plaintiff may not be only link between defendant and forum) Plaintiff contends defendants are subject to special jurisdiction because Kaiser and Sun personally flew to California to communicate with AKT Franchise decision makers. Plaintiff contends “For months following the California meeting, S...

Excerpt: ...due to the existence of triable issues of fact. (CCP 437c(p)(2).) As to the first cause of action for failure to engage in the interactive process, and second cause of action for failure to accommodate, there are triable issues of fact as to: (1) whether PetVet was aware of plaintiff's need for accommodation; (2) whether Briggs and/or Proud were aware that plaintiff was disabled, and/or considered her disabled; and (3) whether plaintiff's transfe...

Excerpt: ...fect the judgment on appeal. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4 th 180, 191). This includes setting the amount of attorney's fees already awarded in the Judgment. The court finds that, given the specific factual allegations of Plaintiff's complaint, each cause of action constituted an action “…under the Lease.” (See Compl. Exh. A, ¶ 46). Plaintiffs' Complaint alleged ca...

Excerpt: ...The allegations are inadequate as to the remaining Defendants. The Demurrer to the Second Cause of Action is SUSTAINED with leave to amend on the basis that the complaint fails to allege that Defendants owed Plaintiff a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise. The Demurrer to the Third Cause of Action is SUSTAINED with leave to amend on the basis that the complaint fails to ...