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 MPs do not cite any CA authority applying the ecclesiastical abstention doctrine to a religious school.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: .... 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: ...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: ...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...