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...