Excerpt: ...905 [same].) MPs do not cite any CA authority applying the ecclesiastical abstention doctrine to a religious school. Second, Episcopal School is distinguishable, both procedurally and factually. As noted above, there does not appear to be any procedural equivalent under CA law to the “plea to the jurisdiction” at issue in Episcopal School. Further, the Episcopal School court determined that defendant school was a faith-based institution after...

Excerpt: ...ction (intentional interference with contract) and overruled in all other respects. Second cause of action for breach of implied covenant of good faith and fair dealing. Defendants are correct that the second cause of action for breached of the implied covenant is merely duplicative of the first cause of action for breach of contract. However, redundancy of a cause of action is not a ground on which a demurrer may be sustained. (See Blickman Turk...

Excerpt: ...laration at paragraph 4. (See Whitworth Decl. ¶¶ 6, 9-11; Fatone Decl. ¶¶ 4, 7.) Mr. Whitworth attests to his paralegal's billing rate as $165, but provides no details or support for such a high billing rate. (See Whitworth Decl. ¶ 6.) The court finds these rates excessive. Lemon law cases are routine and repetitive save for the specific defect involved. There were no unique factors involved in this case. Although an average rate for this ty...

Excerpt: ...ed as to item 1 and denied as to items 2 & 3. The Demurrers on the grounds of lack of capacity to sue are each OVERRULED. The individual Plaintiffs are parties to the subject Residential Purchase Agreement. (See FAC Exh. 1.) Paragraph 51 of the FAC alleges that Plaintiffs took title to the subject real property in the name of their trust, thus the Plaintiffs as individuals, and as Trustees of the Ham Family Trust Dated 10/03/06 have capacity to s...

Excerpt: ...lege and/or the attorney work product doctrine. RPD Nos. 1-5 RP responded to these RPDs with objections, then stated: “All non privileged materials responsive to the category will be produced.” RP contends this response does not comply with CCP 2031.220 and/or CCP 2031.240. CCP 2031.220 states: A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand sha...

Excerpt: ...s given notice of this motion. Second, on the merits, a motion for reconsideration must be made: (A) Before the same judge or court that ruled upon the matter; (B) be made within 10 days of service of notice of entry of the order; (C) (1) Be based upon new or different facts, circumstances or law, and (C)(2) why such facts, conditions, or law were not provided at the initial hearing; (D) Be supported by a declaration stating the previous order, w...

Excerpt: ...stody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. (W&I 15610.57(a)(1).) “Neglect” includes, but is not limited to, the “failure to provide medical care for physical and mental health needs” and/or “failure to protect from health and safety hazards.” (W&I 15610.57(b)(2) and (b)(3).) The Act provides enhanced remedies, including attorney fees, to a plaintif...

Excerpt: ...retation of a contract, the question is one of law for the arbitrator, not the court. United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960) 363 US 593, 599; Safeway Stores, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70 of Alameda County (1978) 83 Cal.App.4 th 430, 438 Errors of law are not reviewable. Moncharsh, supra, at p. 11 Arbitrators need not follow the law and may base their decisions on “broad princ...

Excerpt: ...al purchasers at reasonable times and intervals. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [elements of declaratory relief]; Civ. Code, § 1954, subd. (a)(2), (b); Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 285-286; see also E. Barbanti Decl. ¶¶ 2-4, Ex. I; Norton Decl. ¶¶ 5, 11-14, Ex. C; Alexander Decl. ¶¶ 2-8, Exs. E-H; D. Barbanti Decl. ¶¶ 2, 10, 14; Complaint ¶¶ 1-29.) Plaintiff has also demonstrated that the parti...

Excerpt: ...th leave to amend, the plaintiff may amend the complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without obtaining permission to do so, except when the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortg. (2010) 185 C.A.4th 1018, 1023; see Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 ...

Excerpt: ...d. (b)(1) requires the trial court to engage in a two-step process to determine whether a SLAPP motion should be granted. First, the court must decide whether the defendant has met the 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 petition or free speech in connection with a public issue. (See Navellier v. Sletten ...

Excerpt: ...le 3.1350, subd. (b).) Defendants' Notice of Motion seeks summary adjudication of “…certain specified claims.” This utterly fails to comply with California Rules of Court, Rule 3.1350, subsection (b). A separate statement seeking summary adjudication must state verbatim, the noticed issues from the notice of motion at the beginning of each issue for summary adjudication. (See Calif. Rules Court, rule 3.1350, subd. (b); Truong v. Glasser (20...

Excerpt: ...Plaintiff should have responded to Defendant's request to meet and confer pursuant to Code Civil Procedure section 430.41, subd. (a) within a reasonable amount of time, without the need for repeated requests. An attorney's communications about the legal system should at all times reflect civility, professional integrity, personal dignity, and respect for the legal system. An attorney should not engage in conduct that is unbecoming a member of the...

Excerpt: ...nter, this cause of action as currently pled is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [“Robinson Helicopter”].) Plaintiff fails to allege personal injury or any damages other than those related solely to her warranty claims. (FAC at Paras. 11, 18, 21, 50, 55- 57.) Absent allegations of damages other than those related to the warranty claims, plaintiff's claim for fraudulent o...

Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.) Plaintiff's supporting evidence fails to demonstrate the existence of general jurisdiction under the requirements of Daimler AG v. Bauman (2014) 571 US 117, 130, 132-133, 134 S.Ct. 746, 756, 758 & fn. 8. California is not Defendant's place of incorporation, nor is California its “home” for purposes of general jurisdiction. Even if a nonresident defendant's “contacts” with Cali...

Excerpt: ...4, 59.) Here, the first amended complaint asserts a single cause of action for medical negligence. As alleged against Dr. Vora, it is based solely on a theory of vicarious liability. (See FAC ¶¶ 3, 8; see also id. ¶ 11.) The first amended complaint does not allege any direct liability against Dr. Vora. The only persons who are alleged to have directly provided medical care to the plaintiff are defendant Thrissawan Sungkapalee, M.D. and the sta...

Excerpt: ... of the summons and complaint shows substituted service on 10-24-19 to defendant at 14248 Oxnard Street, Suite B, Van Nuys CA 91401, by leaving the documents with: “'John Doe' (refused name), Person in Charge - Middle Eastern male with glasses, dark brown hair and a beard, 43 years old, with brown eyes.” (ROA No. 9, Para. 5(b).) The POS also shows that the summons and complaint were subsequently mailed by first class mail to the same address....

Excerpt: ..., particularly with respect to the misappropriation of trade secrets claim, which is based on the same nucleus of operative facts as alleged against each of these defendants. (See Complaint ¶¶ 8-18, 30- 37.) Beauty Molecules is an entity (id. ¶ 2) and therefore can only act through its agents. As alleged, at least two of those agents were Stoddart, one of its principals, and Taha, also a principal as well as its CEO. (See id. ¶¶ 14, 15, 32-3...

Excerpt: ...rt, rule 3.1354, subd. (b) requires that evidentiary objections be raised in a separate pleading and in a specific format. Additionally, Calif. Rules Court, rule 3.1350, subd.(d) does not authorize raising evidentiary objections in a separate statement. The court did not consider arguments raised therein either, as Calif. Rules Court, rule 3.1350, subd. (f)(2) requires that the responsive separate statement state: (i) whether the MP's UMF is disp...

Excerpt: ...ith 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 562, 567 568). Defendants fail to show th...

Excerpt: ...th the request, it does not state whether or not it is withholding some documents. RPD #4: This response is sufficient. Unlike #2 above, defendant responded that, after a diligent search and reasonable inquiry, there is only one responsive document in its possession, custody or control that is responsive. It identifies the document as Vehicle Information Detail Report for the 2011 Jeep Wrangler, VIN 1J4BA3H13BL597161. RPD #7: The response is not ...

Excerpt: ... of appeal clearly based its holding on a body of law having to do with construction, not the design or manufacture of specialized medical devices such as orthotic shoes. Defendant's evidence also fails to establish that it constructed the subject orthotic shoes in full compliance with specifications provided by co-Defendant Fountain Valley Orthotics and Prosthetics, Inc. The shoe that allegedly caused Plaintiffs' damages was the right shoe. The ...

Excerpt: ...nc. (1991) 234 Cal.App.3d 205, 215 [Cal. U. Com. Code, § 2725 applies to claims under Song-Beverly Act, including claims for breach of warranty]; Code Civ. Proc., § 388, subd. (d) [four year statute of limitations for fraud]; see also SAC ¶¶ 6 [plaintiffs purchased subject vehicle on 7/21/13], 108-115 [sixth cause of action for fraud by omission based on fraud occurring at the time of purchase].) Where, as here, a plaintiff relies on a theory...

Excerpt: ...ied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in his reliance or whether his neglect to attend to the matter was inexcusable. (See Santa Barbara Live Stock & Farming Co. v. Thompson (1873) 46 Cal. 63, 64; Crane v. Kampe (1964) 225 Cal.App.2d 200, 205-07; Stout v. Bakker (1963) 212 Cal.App.2d 78, 82-83; Montijo v. Robert Sherer & Co. (1907) 5 Cal.A...

Excerpt: ...re capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”]. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145-1146 [private party documents not proper matters of judicial notice].) Further: “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or pr...

Excerpt: ...rose, LLC defaulted in repayment of the loan guaranteed by Plaintiff and the Defendant foreclosed upon the Hollywood real property, resulting in a $975,000.00 deficiency (Id. ¶¶ 10 & 11); (d) Defendant obtained a LACSC money judgment against Plaintiff on the deficiency in the sum of $911,077.38 (Id. ¶¶ 11-14, Exh. C); (e) During the pendency of the LACSC action, Defendant initiated nonjudicial foreclosure against the Newport Beach Property un...

Excerpt: ...b), 1013.) Plaintiff is in pro per; thus, e-service is not permitted, absent “affirmative consent,” of which there is no evidence. (CRC 2.253(b)(3).) However, there is nothing indicating that MP served plaintiff at all. Second, the motion should also be denied on the merits. The moving papers appear to have been copied from a form book, including directions to check boxes for applicable arguments, and assert nearly every conceivable legal gro...

Excerpt: .... Proc. § 2023.020, subd. (g)). Code Civ. Proc. 2023.030 provides for the following sanctions for a party's failure to comply with an order to provide discovery: (i) imposition of monetary sanctions; (ii) imposition of evidentiary sanctions; (iii) imposition of issue sanctions; (iv) issuance of an order barring introduction of evidence; (v) issuance of terminating sanctions; and (vi) contempt. (See Code Civ. Proc. § 2023.030, subd.(a) – (e))....

Excerpt: ...roc., § 2031.320, subd. (a).) Rickard is ORDERED to produce all responsive documents to plaintiffs' first set of requests for production, Nos. 1, 2, 4, 5, 7, 8, 17, 18, 21, 23-28, 30, 31, 33, 35, 47, 53, 59, 62, 63, 67, 68, and 78, within 15 days of service of this order. The motion is denied to the extent it seeks an order compelling Rickard to produce documents with respect to request Nos. 3, 19, 20, and 22. Rickard's responses to request Nos....

Excerpt: ...4 Overruled 5. Sustained, lack of foundation 6-9 Overruled. 10. Sustained, hearsay. 11. Overruled. The Defendants' motion seeks to set aside the judgment in this action and conduct a new trial. The court construes this motion as one seeking a new trial. A motion for new trial may be made under the provisions of Code Civ. Proc., §§ 656 to 663.2 and 914 in any California superior court. (Code Civ. Proc., § 655). A new trial is a re-examination o...

Excerpt: ...he FAA governs any disputes, the CAA governs procedures. (See ibid.; Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 922.) Here, Alta Gardens' motion is based on two arbitration agreements entered into between Alta Gardens and decedent Nu Luu (decedent) on March 13, 2018. (See Gonzalez Decl. ¶¶ 6-7, Exs. A-B.) Both agreements call for the application for the “Rules of Civil Procedure ... for the state in which the Center [Alta Gar...

Excerpt: ... signed by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173 (Goldman); Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6 (Young); see Eusey Decl. ¶¶ 4, 6-8, 14, Ex. A.) Emeritus has not met this burden. Emeritus has failed to submit any competent evidence of an actual agency between decedent Lois Christie (Christie) and her purported agent, plaintiff Donna Lewis (Lewis). There is no durab...

Excerpt: ...th Care Dist. v. Sierra View Med. Plaza Assocs., LP (2005) 126 Cal.App.4th 478, 484). Plaintiffs/Cross-Defendants (hereinafter referred to collectively as “Plaintiffs”), have presented admissible evidence of juror misconduct. It is misconduct for jurors to communicate to fellow jurors special personal knowledge or experience on the matters at issue. (See Smith v. Covell (1980) 100 Cal.App.3d 947, 953). Plaintiffs' evidence establishes that ju...

Excerpt: ...ight to foreclose. Based upon the current state of law on this issue, plaintiffs (as strangers to the subject mortgage loan, much less borrowers) lack standing to challenge the assignment of the subject Deed of Trust. (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23). Unlike the plaintiffs in Yvanova v. New Century Mortgage Corp. (2015) 62 Cal.4 th 919; and Glaski v. Bank of America (2013) 218 Cal.App.4th 10...

Excerpt: ... judgment in California under the Sister State Judgment Act (the “Act”) , or maintain an action in equity to enforce the out of state judgment. (See Code Civ. Proc. § 1913; Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 838). The out of state judgment Plaintiff seeks to enforce in the 2 nd, 3 rd, and 4 th Causes of Action is against Thomas w. Price and Hyun J. Um, not the named Defendant Equity Funding, LLC o...

Excerpt: ...by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173 (Goldman); Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6 (Young); see Eusey Decl. ¶¶ 4, 6-8, 14, Ex. A.) Emeritus has not met this burden. Emeritus has failed to submit any competent evidence of an actual agency between decedent Lois Christie (Christie) and plaintiff Donna Lewis (Lewis). (See Eusey Decl. ¶¶ 2, 4, 6-8, 14, Exs. A, B...

Excerpt: ...efects that appear on the face of the pleading, or from matters outside the pleading of which judicial notice has been properly requested].) The request for judicial notice filed on 02/20/20 by defendant Rahgoshay is denied on the grounds that it is untimely in support of the demurrer, and constitutes improper new evidence submitted with a reply. Moving party to give notice. 2. Defendant Abhari's demurrer to plaintiff's second amended complaint. ...

Excerpt: ...f contract, and twelfth cause of action for quasi-contract/unjust enrichment. Plaintiff has not alleged these causes of action against Taryn Garett or Rick Granados; they are alleged solely against defendant Kevin Garrett (hereinafter, Garrett). (See TAC at pp. 16, 19, 25.) First cause of action for “breach of contract – failure to compensate [plaintiff] for the book of business.” The first cause of action is based on a client nonsolicitati...

Excerpt: ...are no facts alleged to support liability against these moving parties on the basis of conspiracy. (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44 [“[a] cause of action for civil conspiracy may not arise … if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing and was acting only as the agent or employee of the party who did have that dut...

Excerpt: ...he breach of fiduciary duty cause of action as alleged in the 3 rdAC has a three year statute of limitations. “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery de...

Excerpt: ...ories 7.1 and 7.2 have been answered and there is no need for resolution by this court. Interrogatory 9.2 asks for the identity of documents supporting the existence of damages claimed in 9.2 In response, plaintiff objected that documents contained confidential and private financial information and that he would “produce the documents after execution of a stipulated Protective Order.” During the meet/confer process a proposed protective order...

Excerpt: ... Warranty is sustained, with leave to amend, for failure to state sufficient facts to constitute a cause of action. (C.C.P. §430.10(e)). This cause of action is time-barred. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213 [four-year statute of limitations under Cal. Comm. Code 2725 applies to claims under Song-Beverly Act]; Commercial Code §2725(2) [“breach of warranty occurs when tender of deliver is made']; Cardinal ...

Excerpt: ...as the burden to demonstrate both violation of the court's orders, and that such violation was willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4 th 486, 495). The court finds that defendant's evidence establishes violation of at least two different court orders by plaintiff to provide discovery, and that the plaintiff's failure to comply was willful. The evidence also establishes a pattern of conduct by plaintiff designed...

Excerpt: ...ed the moving papers to plaintiff on 9-4-19. (Notice of motion at 2:16-17.) However, there is no proof of service on this date, and no other evidence that defendant in fact served the moving papers on this date; defendant attorney's declaration is silent on this point. [On the other hand, plaintiff's opposition does not dispute “safe harbor” compliance.] Second, defendant has not shown that the complaint violates CCP 128.7(b). Defendant argue...

Excerpt: ...met its burden showing it is not a covered employer subject to the FMLA. Plaintiff has not raised a triable issue of fact thereto. First cause of action for disability discrimination Plaintiff can establish a prima facie case for unlawful discrimination by providing evidence that:  he was a member of a protected class;  he was performing satisfactorily at work;  he suffered an adverse employment action; and  some circumstance suggests...

Excerpt: ...) too high based on their experience levels and has allowed $350 and $50, respectively. The court declines to reduce the charges that were “block billed” as the entries provide adequate information for the court to fairly review the hours for reasonableness. However, the court did find a number of entries for which the time charged was unreasonable, unnecessary, and duplicative. The amount claimed has been reduced accordingly. The request for...

Excerpt: ...ed as he did if he had known of the concealed or suppressed fact, and plaintiff's resulting damage with the level of specificity required to allege a cause of action sounding in deceit. Plaintiff to file and serve an amended complaint within ten days. Plaintiff's request for judicial notice is granted. Moving party to give notice. 2. Plaintiff's motion for reconsideration. Motion denied. Plaintiff's motion fails to: (i) Be based upon new or diffe...

Excerpt: ...dequately allege the elements of the plaintiff's right to payment of specific amount. To the extent that sixth cause of action sounds in constructive fraudulent transfer, the FAC fails to adequately allege the elements of: (i) that the debtor did not receive a reasonably equivalent value in exchange for the transfer/obligation; and (ii) that the debtor was insolvent at that time or became insolvent as a result of the transfer or obligation. The d...

Excerpt: ...to the plaintiffs' occupancy (UMF 20); the room was inspected by a pest control vendor on 3/7/12, 2/25/13, and 1/29/14 finding no bedbugs (UMF 25); the defendant had an intensive program to detect and treat bedbug infestation (UMF 1-17); and the room has been inspected numerous times since the plaintiffs' occupancy without finding bedbugs (UMF d8.) Turning to the opposition, first, the opposing party's separate statement must state unequivocally ...

Excerpt: ...ice of Intention to Move for New Trial. (CCP 12a(a).) However, plaintiff did not do so until 8-1- 19. Plaintiff's Notice of Intention to Move for New Trial is two days late. As defendant County served its Notice of Entry of Judgment by mail, plaintiff may have been under the impression that she had an additional five days, pursuant to CCP 1013, to seek a new trial. However, as noted above, the time requirements of CCP 659 are not extended based o...

Excerpt: ...�[a] motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Id. at 318). Although technically different than a motion to expunge lis pendens, as explained by the Howard court, the applicable standards are the same: “The inquiry upon such motion is likewise lim...

Excerpt: ...n person or by telephone”].) As the meet and confer declarations by defendants Abhari and Menke appear sufficient, the court exercises its discretion to rule on the merits of all the motions. The demurrers by defendants Mahdavi, Abhari, Rahgoshay, and Menke, to plaintiff's first amended complaint are sustained, with leave to amend, based on failure to state facts sufficient to constitute a cause of action and uncertainty. (CCP 430.10(e), (f).) ...

Excerpt: ...be able to use the dispute resolution results to rebut that presumption. As for the assignment issue, plaintiff was the sole person listed on the purchase agreement and the sole borrower on the loan. As such he was the sole “buyer” under the Song Beverly Act. Had plaintiff defaulted on his loan payments, he alone would have been liable to the lender for any money owed and the vehicle, as collateral on the loan, could be repossessed regardless...

Excerpt: ...of the Tech-Bilt factors, and the court cannot reach a determination without such evidence. The court also finds that for purposes of this motion only, that Proof Positive's evidence as to its proportionate liability to plaintiff is lacking. Arguments that Proof Positive is not a mandated reporter may be precluded by application of the doctrine of estoppel, based upon its written representations to plaintiff's parents that it is a mandated report...

Excerpt: ... exercise reasonable care and skill in undertaking to perform legal services for Plaintiffs”), and Para. 16 (“Had Defendants exercised proper care and skill in providing legal services to Plaintiffs, Plaintiffs would not have lost money in their investments”).] The SAC also alleges the existence of an attorney-client relationship. (SAC at Paras. 10, 12, 17.) The SAC also now alleges more facts as to how exactly MPs failed to adequately / pr...

Excerpt: ...se allegations, plaintiffs' claim for fraudulent omission is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [plaintiff is required to “demonstrate harm above and beyond a broken contractual promise,” in order to recover tort damages].) Other than the absence of allegations as to damages other than those related to their warranty claims, the court finds that plaintiffs' concealment cla...

Excerpt: ...2003) 109 Cal.App.4th 739, 761 [where no prejudice is shown to the adverse party, the liberal rule of allowing amendment prevails]; Code Civ. Proc., § 473, subd. (a)(1).) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson, supra, at p. 761.) ...

Excerpt: ...y the objecting corporations. Plaintiff's request for judicial notice is granted. (Ev. 452(h).) The subpoenas seek directly relevant evidence regarding plaintiff's fraudulent transfer claims. The subpoenas seek records which not only belong to the objecting corporations, but also to the named defendants, and thus the records are directly relevant to show the transfer of any assets between defendant Xin Li, the alleged obligor, and the other defen...

Excerpt: ...ce the petitioner has met that burden, the burden shifts to the party opposing arbitration, to produce evidence to show by a preponderance “any fact necessary to the defense." (Id.) The declaration of Sandra M. Putnam purports to support the contention there is a valid arbitration agreement between the parties. However, as pointed out by plaintiff, Ms. Putnam's declaration in support of the moving papers is not admissible. A motion may be suppo...

Excerpt: ...or control the premises where plaintiff was injured. Plaintiffs have not produced sufficient evidence to show defendant, as the parent company of the owner of the premises (GWGG) sufficiently manipulated GWGG's actions to as to impose liability against Moving Party as a parent company of GWGG. To prevail here, plaintiff must show “specific manipulative conduct” by the parent toward the subsidiary that relegates the latter to the status of mer...

Excerpt: ...the third amended complaint. Likewise, there are no facts pled in the 3 rdAC that would give rise to a claim that these demurring defendants are estopped from claiming that they are not plaintiff's landlord. Plaintiff alleges that he has an oral, month to month sublease with defendant Stein, not with these defendants. (See 3 rdAC ¶ 14). Additionally, both causes of action appear barred by the applicable statutes of limitations. A claim for damag...

Excerpt: ...ach of implied contract “addresses work completed from May 16, 2016 through June 30 2016, which is barred by the statute of limitations found in Code of Civil Procedure § 339(1)” (moving papers at 5:11-14); and that the 2 nd C/A for breach of the implied covenant fails for the same reasons (moving papers at 5:15-16). MP is incorrect. The complaint alleges that plaintiff worked for defendants and that “[u]p until May of 2016, Plaintiff had ...

Excerpt: ...complaint where it states defendants left hoses, materials, and equipment on the ground “in a manner which could not be seen by plaintiff”], with FAC at pp. 4, 5 [containing no such quoted language].) The filing of an amended complaint moots a motion directed to a prior complaint. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Next, even if OCWD had directed the motion to the correct pleading, OCWD's c...

Excerpt: ...full body soreness or lethargy of which plaintiffs still complain. The scope of discovery is broad enough to permit defendant an opportunity to explore other causes of plaintiffs' past and remaining conditions and defendant's need for the discovery outweighs any privacy rights held by plaintiffs to the information. Defendant to give notice. ...

Excerpt: ...anted as to the first cause of action for breach of oral contract. Moving party has met its initial burden of presenting evidence showing that plaintiff cannot establish the essential element of a valid contract. (Moving Party Separate Statement, Summary Adjudication Issue No. 1, Fact Nos. 2, 3, 5, 6, 7, 16-19; CCP 437c(p)(2) [moving party's initial burden]; Civil Code 1625 [“The execution of a contract in writing, whether the law requires it t...

Excerpt: ...o file a proper opposition to these motions. The court is not persuaded that the vaguely referenced Supreme Court and Court of Appeal deadlines impaired plaintiff's ability to timely respond to these motions. Moreover, the boiler-plate objections to these simple and straight forward interrogatories are without merit and demonstrate an unwillingness to participate in the discovery process in good faith. Sanctions are awarded to defendants in the s...

Excerpt: ...nefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person.' “(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) Here, it is undisputed the contract provides Day will defend and hold the District, as well ...

Excerpt: ...declaration evaluated plaintiffs' damages as between $15K and $150K, “consisting of damage due to delay and specifically, increased costs of construction due to any improper delay in approving the application as is alleged to have occurred.” (Cogger Decl., Para. 2.) MP attorney's original declaration also averred that plaintiffs would be entitled to attorney fees of $250K to $350K if they prevail. (Id. at Para. 3; see also CC 5975(c).) MP att...

Excerpt: ...asis that the causes of action both appear to be barred by application of Bus. & Prof. Code § 166000. The exception in Bus. & Prof. Code 16601 is not applicable based upon the facts pled. The statutory exemption to Section 16600 includes the following factual scenarios: (i) A person selling the goodwill of a business. This is not applicable to Mr. Garrett because the seller of the client accounts was Leavitt, not Mr. Garrett; (ii) Any owner of a...

Excerpt: ...rth Cause of Action are pled in paragraphs 13-17 and 44-50 of the 3 rdAXC. A review of these allegations reveals either that they are not alleged with the level of specificity required to allege fraud against a corporation, or are not specific promises to take some action or refrain from taking action in the future. The sole representations by Cross-Defendant that are alleged with the required level of specificity are those contained in the press...

Excerpt: .... As the District has prevailed on the issue of duty to defend, the court cannot grant adjudication in favor of PJHM on these claims. The third cause of action for express contractual indemnity does not seek a declaration regarding PJHM's duty to defend. However, there are triable issues of fact with regard to whether the District waived its right to sue PJHM and as to whether PJHM has a duty to indemnify the District. With regard to the issue of...

Excerpt: ...gence): The Sanchez and Benavides decisions do not stand for the broad proposition asserted by defendant that insurers cannot be sued for negligence related to improper claim handling. Sanchez held that an adjuster hired by an insurer owes no duty of care to the insured. Benavidesheld that plaintiff could not recover for negligent claims handling because there was no coverage under the terms of the policy. Further, the element of duty is adequate...

Excerpt: ... to defendant's contentions, plaintiffs adequately allege defendant repeatedly promised plaintiffs that she would rectify the damage caused by the water leakage and promised to pay for and send proper contractors, and that defendant repeatedly failed to do so. (See Complaint ¶¶ 10-32, 59-61.) Plaintiffs also adequately allege that defendant made these promises without the intent to perform. (See ibid.) The mere fact that defendant may have sent...

Excerpt: ...v. Superior Court (2006) 139 Cal.App.4th 528, 539, FN 7.) Regarding the AT&T subpoena, the subpoena is not limited to calls/texts to or from plaintiff, which could be relevant to her harassment and wage/hour claims. Responding party also contends that she has the names and phone numbers of at least 30 escorts whom she allegedly personally drove and delivered to moving party's home (Opp at 5:4-7; Guevara Decl., Para. 19); however, the subpoena is ...

Excerpt: ...eal Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) A court may not, however, award costs in the judicial proceeding to confirm an arbitration award that should have been sought and awarded, if at all, in the arbitration. “ ‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and a...

Excerpt: ...etween the parties. The evidence shows UCMI owes the District a duty to defend as a matter of law. The duty to defend is not contingent upon a showing of negligence on the part of UCMI. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjud...

Excerpt: ...nted such a request. Thus, the court lacks subject matter jurisdiction to consider this motion. (See Sayta v. Chu (2017) 17 Cal.App.5th 960, 966- 968; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180-182 [court lacks jurisdiction to consider a motion for reconsideration after dismissal]; ROA Nos. 35-37, 108-110.) Even if the court had jurisdiction, the motion would be denied. Plaintiff previously brought a motion for entry ...

Excerpt: ...'s evidentiary objections to defense counsel's billing records, among other things. As plaintiff has not had an opportunity to respond to attorney Hatch's supplemental declaration or additional exhibits, the hearing is continued for this purpose. Second, the hearing is continued for both parties to provide further briefing. Moving defendants cite Sections 6.01(a) and 6.01(b), Section 7.20, and Section 5.01(b)(2), of the alleged Asset Purchase Agr...

Excerpt: ..., hearsay. 2. Sustained, lack of foundation, hearsay. 3. Overruled. 4-5 Sustained, hearsay Declaration of Steve Rader. 1. Sustained as to “…after the homebuilder's counsel…” through end, hearsay, overrule as to balance. 2. Sustained, lack of foundation, improper expert opinion. 3. Sustained, lack of foundation, hearsay. 4-9 Sustained, Evid. Code § 1520. 10. Sustained, lack of foundation, hearsay. 11-12 Overruled. 13-18 Sustained, hearsay...

Excerpt: ...ton. Day argues the ruling determines Day was not negligent in its work with regard to the project. Day also contends that because it is not liable to plaintiff, it is not liable to District. Day is incorrect with regard to both points. Under the “completed and accepted” doctrine, once a contractor or subcontractor has completed work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condit...

Excerpt: ... for production No. 19 as follows (where underlined) to limit it in scope to vehicles of the same year, make, and model as the subject vehicle: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE, including but not limited to...

Excerpt: ...he time of the alleged sexual abuse, RCOC knew, had reason to know, or was otherwise on notice of defendant Jonathan Ryan McKay's (McKay) unlawful sexual conduct, and failed to take reasonable steps to avoid acts of further unlawful sexual conduct by McKay. (See FAC ¶¶ 39, 41-44, 47, 76, 77, 81.) RCOC has not properly addressed these allegations. RCOC has presented no evidence showing that it did not know of and was not on notice of the alleged...

Excerpt: ... fall under the arbitration provision, specifically subdivisions (C), (F), and (H). Plaintiff also contends that she would not have incurred arbitration fees absent defendants' alleged fraud (TAC at Paras. 25, 27), which would fall under subdivision (H) of the arbitration provision above. Thus, the arbitration provision of the HBLW applies to plaintiff's claims in this action Plaintiff does not dispute that she entered the HBLW, or that it is val...

Excerpt: ...under the contract between the parties. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjudicating a party breached a duty. Paramount Petroleum Corp. v. Superior Court (2014) 227 CA4th 226, 244. Even if items 2 through 4 could be summari...

Excerpt: ...ell as the conflicting evidence at trial, do not show that the jury's verdict was contrary to any instructions, or otherwise against law. (CCP 657(6); Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal.App.3d 948, 958.) Third, the court is not persuaded that use of a general verdict, in light of the parties' inability to agree on a special verdict form, or that any instructions given or not given, were error. (CCP 657(1), (7).)...

Excerpt: ...ers, there are no facts pled tending to show that a corporation owes a fiduciary duty to shareholders such as plaintiffs. In this case, the damages suffered by the individual plaintiffs by the sale of their shares at an artificially deflated value, is not incidental to the general damage to the overall value of the shares in Posh Shop, Inc. because only the plaintiffs sold their shares. Because the plaintiffs' claims against the company and Ms. N...

Excerpt: ...8; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) 2. Defendant Sham's motion to strike portions of plaintiff's first amended complaint (punitive damages and attorney fees.) Motion granted in part and denied in part. The motion is granted as to the prayer for attorney fees (Page 17, Line 6) as to this moving party only. The remainder of the motion to strike is denied. Based on the ruling on the demurrer, the Firs...

Excerpt: ...14) 227 Cal.App.4th 107, 127 [elements of negligent misrepresentation]; Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [“Each element in a cause of action for ... negligent misrepresentation must be factually and specifically alleged.”].) Fourth cause of action for constructive fraud – OVERRULED. The first amended complaint states sufficient facts in support of this claim. (See Civ. Code, § 1573; Assilzadeh v. California Fe...

Excerpt: ... San Mateo action is irrelevant to the core issue, the avoidance of inconsistent rulings. If plaintiffs wish to participate in discovery in the San Mateo action they could petition to intervene in that action. The court agrees with moving party that the longer the San Mateo action takes to get to trial, the greater the danger of witnesses losing recollection and documents being lost or destroyed. As before, this court is willing to permit limited...

Excerpt: ...udication against 3 separate cross-complainants into one motion, the court has decided, for expediency's sake, to forgive those defects and get to the heart of the matter. CFO Door has established that its scope of work did not include removal of the door stop over which plaintiff tripped. As a matter of law, the Subcontract between CFO Door and Day Construction expressly limits any duty that CFO Door may have to indemnify to only those claims ar...

Excerpt: ...f the flooring were altered to ensure patrons' safety, there are still two areas of flooring that remain unaltered and are in the same condition as the portion of the floor where Ms. Botsford fell. Plaintiffs have not offered any explanation as to why the testing could not be performed on those unaltered portions of the flooring. Moving Party to give notice. ...

Excerpt: ...nd for relief under Code of Civil Procedure section 663. (See Code Civ. Proc., § 663; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738; Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302; see also Garibotti v. Hinkle(2015) 243 Cal.App.4th 470, 477.) Error Nos. 2 and 5. The “uncontroverted” facts do not establish that FCI was denied a fundamentally fair hearing. The evidence before the court shows FCI h...

Excerpt: ...” Plaintiff claims he would be unduly prejudiced should the court order the case to arbitration as he has incurred over $77,000 in attorney fees to date. However, that fact alone is insufficient to find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses. Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 CA4th 436, 451- 452. Although the cost sharing provision implied in the arbitration ag...

Excerpt: ...ction for intentional infliction of emotional distress: This cause of action fails as plaintiff has not alleged sufficient facts showing intentionally outrageous conduct on the part of these moving party defendants. Further, plaintiff has not alleged sufficient facts showing he suffered severe emotional distress. Fourth cause of action for fraudulent concealment: This cause of action fails as the allegations are not alleged with the required spec...

Excerpt: ...o whether defendant Foulks is entitled to invoke the imminent peril doctrine as there are triable issues of fact as to whether or not Mr. Foulks contributed to the emergency situation. Specifically, there are triable issues of fact as to defendants' UMF numbers 6, 8, 12, 13, 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and plaintiff Munoz's additional material facts 37 through 69. Defendant's objections to the Gaynor declaration are ove...

Excerpt: ...rting the elements of knowledge of falsity or intent to defraud. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements of fraud]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [fraud must be specifically pled].) Defendant's knowledge of falsity and intent to defraud are alleged as conclusions only (Complaint at Paras. 16, 20), without any supporting facts. However, the remaining elements of fraud are sufficiently pled. The remaind...

Excerpt: ...resulting damage with the level of specificity required to plead a cause of action sounding in deceit. (See Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 557). The cause of action also fails to adequately allege a claim for concealment. The demurrer to the second cause of action for negligent misrepresentation is sustained with leave to amend, on the grounds that the FAC fails to allege facts as to the elements of defendants' fals...

Excerpt: ...e of the power of sale contained in a deed of trust”].) “Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute.” (See Lane v. Vitek Real Estate Indus. Group(E.D.Cal.2010) 713 F.Supp.2d 1092, 1098; accord, Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154–57). Thus federal substantive law and procedure are...

Excerpt: ...provided by Section 1013 if service is by mail [5 days if the place of address is within the State of California, 10 days if it is outside of California but within the United States, and 20 days if it is outside the United States]." Here, the subpoenas were issued 12-13- 18. The required Notice to Consumer was served personally on plaintiff the following day, 12-14-18. Plaintiff was not served at least 5 days prior to service on the custodian of ...

Excerpt: ...r writ of attachment against defendant Christina Nguyen. Application denied. Defendant's evidence submitted in opposition to the application reveals that there was no consideration for the execution of the guaranty of payment by defendant Christina Nguyen. Thus plaintiff failed to show a probability of success on his contract claim against defendant Christina Nguyen. (See Civ. Code § 1689, subd. (b)(4)). Additionally, the motion is denied on the...