Excerpt: ... 452, 458 [elements of breach of contract claim]; Plaintiff's Separate Statement, Fact Nos. 41-51 [existence of contract], 12- 29, 34, 51, 52 [performance or excuse for nonperformance], 34, 51, 55-66, 69 [breach], 12- 29, 34, 40, 50, 51, 69 [damages].) As moving plaintiff has met her initial burden, the burden then shifts to the defendant to present evidence sufficient to create a triable issue of material fact. (CCP 437c(b)(2), (p)(1).) Defendan...

Excerpt: ... demonstrated that plaintiff has refused to arbitrate (see Tahim Decl. ¶¶ 2-3, Exh. 1). Each independent contractor agreement contains a broad arbitration clause requiring binding arbitration of “any dispute [that] arises under th[e] agreement,” and further providing that the parties are “specifically ... agreeing to waive their right to a jury trial to resolve any disputes in this matter.” (Malkin Decl. ¶ 2, Exh. A, italics added; App...

Excerpt: ...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]; Cal. Comm. Code 2725(2) [“breach of warranty occurs when tender of delivery is made”]; Complaint at Para. 9 [subject vehicle acquired 3-26-13].) Further, the complaint fails to adequately allege any basis for tolling the statute of limitations: �...

Excerpt: ...ith leave to amend, based on failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) The complaint shows on its face that these claims are barred by workers' compensation exclusivity. (CA Labor Code 3600, 3601(a), 3602(a) [workers' compensation generally exclusive remedy]; Labor Code 3601(b) [no employer liability where “injury or death is proximately caused by the willful and unprovoked physical act of aggression of...

Excerpt: ... apply to summary judgment, the court finds that Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228-29, is the better reasoned decision, and that the facts set forth in plaintiff's evidence do not constitute a “default,” “default judgment,” or “dismissal.” (See Code Civ. Proc. § 473, subd. (b)). Plaintiffs' evidence fails to establish that the failure to attach Mr. Jones' declaration to the moving papers was caus...

Excerpt: ...constructive notice of the dangerous condition. Defendant's second ground for relief fails in the first instance because it does not address all of the material allegations of the complaint. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889 [if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them]; see also Teselle v. McLoughlin (2009) 173 Cal.Ap...

Excerpt: ...ard applicable to decisions by State Personnel Board]; JKH Enterprises, Inc v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057 [defining substantial evidence].) SCIF cited eight grounds under Gov't Code 19572 for petitioner's dismissal: (1) incompetency; (2) inefficiency; (3) inexcusable neglect of duty; (4) insubordination; (5) dishonesty; (6) discourteous treatment of the public or other employees; (7); willful disobedience...

Excerpt: ...ated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 839- 840 [examples of possible factors supporting unity of interest].) Both defendants' demurrer to the first cause of action for promissory fraud is sustained, with leave to amend, as this cause of action fails to allege the purported representations with the required specificity. (Complaint, Para. 20; Lazar v. Superior Court (1996) 12 Cal.4 th 631, 645 [fraud must be pled with pa...

Excerpt: ...peated, verbatim, in the separate statement of undisputed material facts.” (Calif. Rules Court, rule 3.1350, subd. (b)). Defendant Crocs, Inc.'s separate statement fails to comply with these requirements, lumping all of the undisputed facts into a single list and making no reference to the two issues noticed for summary adjudication (i.e. the 2 nd & 3rd Causes of Action). Additionally, the separate statement includes photographs, which are evid...

Excerpt: ...ts supporting knowledge of falsity. (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 is alleged as a conclusions only (FAC at Para. 17), without any supporting facts. However, the remaining elements of fraud are sufficiently pled. The remainder of the demurrer is overruled. Moving party fails to explai...

Excerpt: ...lace the fireplace glass pane per the 03/13/14 recommendation from Capo Fireside), with a money damages award (based upon an 03/22/19 bid from Capo Fireside to replace the fireplace glass). Neither of the two authorities cited by defendants involve a court sitting in equity converting a judgment ordering a party to take action to replace a defective item to a money judgment. Had the arbitrator meant to award money damages, he could have easily or...

Excerpt: ... the pleadings and GRANTED as specified below. Issue Nos. 1-3. Defendants have failed to meet their initial burden with respect to these issues, and plaintiffs Sue Gross, Sally Warpinski, Joseph Warpinski, M.D., and Sandra Stubban (collectively, plaintiffs) have also demonstrated they are entitled to relief with respect to these issues under Code of Civil Procedure section 437c, subdivision (h). With respect to the first cause of action for intru...

Excerpt: ... agreement. This was not a pre-printed or “form” contract. The terms of the contract were negotiated. The evidence presented indicates that the terms of the contract were discussed and defendant compromised on some of the terms. See Cook declaration. Plaintiff did not complain about the provision for arbitration in Washington. The provision was not buried in a long, complicated contract. The contract between the parties consisted of less than...

Excerpt: ...t (2010) 181 Cal.App.4 th 633). Defendant's evidence established all three factors. Plaintiff as the party opposing enforcement of the arbitration agreements, has the burden of proof. (See St. Agnes Med. Ctr. v. PacifiCare of Calif. (2003) 31 Cal.4th 1187, 1195). Plaintiff failed to meet her burden of proof. A contract may be superseded or modified by another contract, in which case the superseded or modified contract is usually referred to as th...

Excerpt: ...s” Bobbi Franke, Elena Frenkel, Steve DiBenedetto, and “director” Suzanne Krivda aka Suzanne King-Smith, plaintiffs cannot produce clear and convincing evidence that these “vice presidents” or “directors” had the requisite authority over corporate policy regarding safety issues associated with failing to install flame arrestors. (Moving Party Separate Statement, Fact Nos. 1, 2, 3, 36, 38, 39, 40; Gelfo v. Lockheed Martin Corp(2006) ...

Excerpt: ...as initiated between the parties without the intervention of the court. Arbitrator Hart has been appointed and the arbitration is under way. Evidence has been taken and briefing is scheduled. On 5/22/18, shortly before his termination, Chatansombute filed a superior court action (2018-00994376) seeking a writ of mandate and damages for violation of the Peace Officer's Bill of Rights (POBRA.) That matter is also currently pending. Chatansombute re...

Excerpt: ...ividually liable for the entities' obligations and debts. Because the running of the statute of limitations does not appear “clearly and affirmatively” from the dates alleged in the 2 ndAC, the statute of limitations defense does not provide grounds to sustain the demurrer. See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th 1397, 1403. The 2 ndAC also alleges sufficient facts to state a cause or action for Breach or the Implied Co...

Excerpt: ...the FAC fails to allege the existence of an enforceable contract between plaintiff and CitiMortgage, plaintiff's performance under the loan, breach or damages. The deed of trust is between plaintiff and Wall Street Mortgage Bankers Ltd, not CitiMortgage. The cited contractual language does not require a loan servicer to give notice of acceleration of the subject mortgage loan, it requires the lender to do so. An agent is generally not liable upon...

Excerpt: ...rvices provided and billed to plaintiff Leslie A. Andrews (Andrews) personally as well as her business entities. (SAC at ¶¶ 25, 27, 36, 47, 62-76.) These issues fail to address defendants' alleged misconduct directed at Andrews personally. Summary adjudication of only a portion of a cause of action is not permitted. (See Code Civ. Proc., § 437c, subd. (f)(1).) As for defendants' reliance on Lilienthal & Fowler v Superior Court (1993) 12 Cal.Ap...

Excerpt: ... attorney/client relationship (FAC at Paras. 10, 14), but fails to allege facts as to the remaining elements of breach, causation and damages. Rather, these elements are alleged as conclusions only. (FAC at Paras. 15-17.) A complaint is required to state “facts constituting the cause of action, in ordinary and concise language.” (CCP 425.10(a)(1); emphasis added.) “[P]leading conclusions of law does not fulfill this requirement [of CCP 425....

Excerpt: ...tory framework established [in sections 2924 to 2924k] to govern nonjudicial foreclosure sales is intended to be exhaustive.” (Moeller v. Lien (1994) 25 Cal.App.4 th 822, 834; see also I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 [“These provisions cover every aspect of exercise of the power of sale contained in a deed of trust”].) “Because of the exhaustive nature of this scheme, California appellate courts have ref...

Excerpt: ...ndants to disclose all of their experts, including those related to plaintiff's personal injury, emotional distress and future economic damages, would be severely prejudicial. As discussed in the oppositions to this motion, there is still significant discovery to be performed in order for the parties to have a foundation upon which to base a decision as to whether, how many and whom they will designate as experts. Moving party to give notice. ...

Excerpt: ...stained as to 2 nd& 3 rd sentences, lack of foundation and hearsay, overruled as to first sentence. 3. Sustained hearsay. 4-10 Overruled 11. Sustained, lack of foundation as to first sentence, Overruled as to balance. 12. Overruled. 13. Sustained, hearsay. Plaintiff's admissible supporting evidence fails to establish a probability of likelihood of success on any cause of action in her Complaint. The court finds the documentary evidence and Defend...

Excerpt: ... is limited to the existence of, filing of, and legal effect of the pleadings, but not as to the truth of any disputed factual matter therein. The Demurrers to the First and Second Causes of Action are each OVERRULED. The 2 ndAXC adequately alleges the legal effect of the agreement between the parties. The Demurrer to the Third Cause of Action For Accounting is SUSTAINED with leave to amend, on the basis that the 2 ndAXC fails to allege facts dem...

Excerpt: ... that the cause of action appears barred by Bus. & Prof. Code § 16600. The sale transaction pled in paragraph 15 of the FAC does not appear to fall within the exception at Bus. & Prof. Code § 16601. It is alleged that Leavitt sold the assets to plaintiff, not Garrett. The facts pled in the FAC are also insufficient to establish that the contractual restriction upon solicitation of plaintiff's clients was necessary to protect trade secrets, and ...

Excerpt: ...int in the Florida action does not appear on the face of the first amended complaint, and was the not the subject of a successful request for judicial notice. Defendant's request for judicial notice: Granted as to Items 6, 7, 8, and 15, and denied as to the remaining Items. The vast majority of the pleadings from the Florida courts bear a notation “Unofficial Document” which creates a substantial doubt as to their trustworthiness. None of the...

Excerpt: ...sh subpoenas. No opposition. Motions granted. There is no evidence defendant complied with CCP § 1985.3(b)(2) and (3). The statute requires that service on the consumer (or counsel of record) be made "[n]ot less than 10 days prior to the date for production specified in the subpoena duces tecum," and "[a]t least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail [...

Excerpt: ...ponse is internally inconsistent, in that defendant avers that he lacks sufficient knowledge to formulate a response as to contributing factors, but also includes an unqualified admission as a supplemental response. If defendant professes lack of knowledge as grounds for an inability to deny, then his response needs to comply with CCP 2033.220(c). If his response consists of an unqualified admission, this is not necessary. Defendant's supplementa...

Excerpt: ...h 4 of the deposition subpoena. With the exception of the term “work party”, which was subsequently adequately defined by Moving Party's counsel via email, the terms “photography”, “airplane”, “airport,” and “airplane flight” are not so vague and ambiguous such that Responding Party cannot properly respond. A party objecting to discovery as vague and ambiguous has the burden to show such vagueness or ambiguity and, in respondi...

Excerpt: ...hould not be viewed as the basis of any contractual obligations of Hyundai.” The plain meaning of this term is that, with the exception of at-will employment, none of the terms contained in the handbook, including the arbitration provision, rise to the level of a binding contract. Even if the court were to find the language ambiguous, that ambiguity would have to be interpreted against Hyundai as it drafted the handbook. There are many ways an ...

Excerpt: ...87, 1297 to 1298. The Cinel case is distinguishable as the arbitrators had already terminated the arbitration. Also, the resetting of trial simply followed the denial of the motion to confirm arbitration award by the court. The Roldan case is distinguishable as it addressed whether an arbitration could proceed when plaintiffs claimed a financial inability to pay fees relating to the arbitration forum. This was based on the public policy of provid...

Excerpt: ...emurrer is sustained. The plaintiff may file a first amended complaint by 2/22/19. 2. Defendant's motion to strike portions of plaintiff's complaint. No opposition. Motion granted in part, with leave to amend, and denied in part. The motion is granted with respect to the claim for $500,000.00 in damages, but denied as regards the claim for a return of the $10,000.00 allegedly paid to defendant for lease of the subject property. Plaintiff has labe...

Excerpt: ...though a non- signatory, as an employee of defendant FI may enforce this agreement. See, Thomas v. Westlake (2012) 204 Cal.App.4 th 605, 614. Consideration of an application for employment is sufficient to support an agreement for binding arbitration. See, Mago v. Shearson Lehman Hutton Inc. (9 th Cir. 1992) 956 F.2d 932, 933 to 934. The Romo case is distinguishable because the court concluded the arbitration agreement was separate from the emplo...

Excerpt: ...stence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821. Plaintiff has alleged the existence of the contract in paragraph 13, plaintiff's performance in paragraph 14, defendants breach in paragraphs 15 and 16 and damages in paragraph 18. The second cause of action for rescission is properly...

Excerpt: ...he shipping in the first place. While probably wishful thinking on the part cross-complainant (that it will ever be able to prove the necessary fraudulent intent) it is sufficient for the pleading stage. Defendant to file an answer to the first amended cross – complaint by 2/8/19. 2. Cross-defendant's motion to strike portions of the first amended cross-complaint. Motion granted in part and denied in part. The court grants the motion with respe...

Excerpt: ...that of the $221,471.00 in attorney's fees sought by Defendants, the sum of $173,617.50 was reasonably and necessarily incurred in this action. The court significantly reduced the fees sought by the Landay Roberts Firm on the grounds of overbilling and pervasive block billing, rendering the court's job difficult to impossible to determine the time spent on a number of entries. Defendants failed to meet their evidentiary burden as to the flat fee ...

Excerpt: .... However, there is nothing in the referenced paragraph that explicitly states the settlement agreement is deemed rescinded or is otherwise void if or when plaintiff files another FINRA action. Moving party's request for judicial notice is granted. Moving party to give notice. ...

Excerpt: ...mption, actually implied pre-emption, defendants have not carried their burden of establishing that the Legislature created a statutory scheme such that it intended to pre-empt the field. American Financial Services Ass'n v. City of Oakland (2005) 34 Cal.4 th1239, 1251 to 1255 [Predatory lending scheme, enforcement mechanisms, and defenses, so extensive in scope to demonstrate an intention by the Legislature to adopt a general scheme for regulati...

Excerpt: ...ition or from any other source. Defendant Regents carried its burden of demonstrating that the 5-11-16 e-mail is a protected attorney client communication. See, Scripps Health v. Superior Court (2003) 109 Cal.App.4 th 529, 533 and Ins. Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 765 to 766. Next, defendant Regents established that it is the holder of the privilege. See, People v. Gionis (1995) 9 Cal.4 th 1196, 1207. Further,...

Excerpt: ...ion. As to plaintiff's cause of action for retaliation such an action cannot be stated against a supervisor in his or her individual capacity. See, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4 th 1158, 1173 to 1174. As to the cause of action for sexual discrimination, such an action cannot be stated against a supervisor in his or her individual capacity. See, Reno v. Baird (1995) 18 Cal.4 th 640, 663 and Janken v. GM Hughes Electron...

Excerpt: ...structive fraud is overruled. The District contends that this cause of action fails as to the element of duty. The District argues that (1) there is no fiduciary relationship between a school district and its students; and (2) there is no statute imposing a mandatory duty on a school district for constructive fraud. (Moving papers at 4:23-5:7, citing C.A. v. William S. Hart Union High School District (2010) 117 Cal.Rptr.3d 283.) In a footnote, th...

Excerpt: ...) Item No. 11: grant in the amount of $6,094.21; (7) Item No. 13: grant in the amount of $35,685.91. The remainder of the motion is denied. On its own motion, the court takes judicial notice of: (1) plaintiffs' Second Amended Complaint (ROA No. 272); (2) defendant Richard Perlin's motion for nonsuit filed on 2-19-15 (ROA No. 915); (3) plaintiffs' Opposition to defendant Perlin's motion for nonsuit (ROA No. 926); and (4) the court's 2-20-15 minute...

Excerpt: ...econsideration. Motions denied. First, moving party filed an appeal of these orders on 7-24-18; thus, it appears the court lacks jurisdiction to reconsider them. (CCP 916(a).) Second, as to the motion to reconsider the 5-4-18 order, even accounting for an extension of time after Khan's electronic service of notice of the 5-4-18 order, Kabir's motion for reconsideration is untimely. (CCP 1008(a) and 1010.6(a)(4)(B); Rutter Group, Civil Procedure B...

Excerpt: ...prise or excusable neglect to support late claim relief. See, The People ex rel. Department of Transportation v. Superior Court (2003) 105 Cal.App.4 th 39, 44. Third, petitioner Quon's failure to investigate within the claim period is not excusable. See, People ex rel Department of Transportation, at 44. The Viles case is distinguishable as an adjustor advised the injured employee she had one year to bring her claim. There is no evidence of any a...

Excerpt: ...enticates a copy of the Employer's Return showing that MP is paid $5,578.41 every two weeks. (Phan Decl. in support of Opp, Para. 3; Ex. H thereto [purple flag].) RP correctly points out as MP is paid every two weeks, this totals 26 pay periods per year. $5,578.41 bi-weekly, times 26 pay periods, totals an annual gross income of $145,038.66; divided by 12, this yields a monthly gross income of $12,086.55, not the $11,156.82 claimed by MP. MP's li...

Excerpt: ...efendant Horgan's engaging in a proposed initiative relating to gun control constitutes protected activity. See, Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4 th 892, 907. But, plaintiff CHB carried its burden that defendant Horgan's initiative was both constitutionally and statutorily invalid. See, Liu, at 752 to 753, City of Needles v. Griswold (1992) 6 Cal.App.4 th 1881, 1892 and penal code sections controlling automatic and semi-...

Excerpt: ...e expected to want to conceal their contact information from plaintiffs asserting employment law violations, the state policies in favor of effective enforcement of these laws weigh on the side of disclosure, and any residual privacy concerns could be protected by affording the employees notice and an opportunity to opt out from disclosure, Williams v Superior Court, supra, 3 C5th at 553–555. As this case is not a class action, the authority in...

Excerpt: ... law were not offered at the initial hearing of the petition. (See Code Civ. Proc. § 1008(b); Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500). The “Notice of Permission to Strike” contained in the petition reflected the fact that petitioner was already aware of the various infirmities in the purchase agreement identified by the court at the time of the 05/11/18 order. Thus, the change in purchase agreement terms do not constitute a �...

Excerpt: ...paid. Be that as it may, the arbitration award is confirmed and can be reduced to judgment for whatever that is worth. Moving party to give notice and prepare judgment. ...

Excerpt: ...om the obvious similarity in names, both entities share common directors (Scrivens and Proctor); further, Price was a Senior Director for P5GI and now serves as the CEO of P5GLLC. (Moving party Request for Judicial Notice, Exs. 1 and 5; Leask Decl. in support of motion, Paras. 7 and 8; Leask Decl. in support of motion, Para. 8.) The fact that “one or more persons were officers, directors, or stockholders of both corporations” is sufficient to...