Excerpt: ...int that con tinues to include these two causes of action. It again alleges these causes are against “all” defendants. The striking of these causes of action may not be the most efficient remedy here. The motion to strike is DENIED without prejudice. Demurrer to Se cond Amended Complaint (Champion) Defendant Champion Construction Services, Inc., filed a demurrer to the second amended complaint. The demurrer is SUSTAINED without leave as to t...

Excerpt: ...f Court. Movants shall prepare the appropriate order for the court's signature. Demurrer Defendants filed a demurrer to the first amended complaint. The action concerns an alleged breach of an agreement and the unauthorized use of confidential information. Th ere is a choice of law provision in the agreement which states it is to be construed pursuant to New York law. Defendants also suggest that at least one key issue may likely have to be de...

Excerpt: ...are the t hree members of the Forefront 405 Owners Association. The association manages office property in a common interest development. There is a split on the board, and the plaintiff constantly finds itself on the losing end of 2 -1 votes. The main dispute her e is over whether maintenance of the parking lot (a permitted activity) includes the construction of other amenities/developments to the office property, such as basketball courts, etc...

Excerpt: ...ay of the case rests within the discretion of the court. The alleged acts occurred between December 2018 and March 2019. The children were pre -teens. They are now around 16 years old. The civil complaint was filed July 21, 2020. Evans filed an answer June 11, 2021. A jury trial has been scheduled for February 3, 2025. In the criminal case, a pre -trial conference is set for May 22, 2024, and trial is set for June 6, 2024. Bail is set at $1 mil...

Excerpt: ...face, purp ort to be a contract between the plaintiff and plaintiff's employer —a fact that defendants' counsel had confirmed in an e -mail to the plaintiff's counsel. Defendants' counsel attempted to disavow that concession during oral argument, essentially on the gr ound it was not a judicial admission, and in any event, it was made before counsel had all the facts. That argument is unpersuasive. Even if the arbitration agreement were enforc...

Excerpt: ...Villageway M anagement, Inc., and that the 90-day period ended on September 4, 2018 —is GRANTED. The court notes that no opposition was filed. 3. Defendants' evidentiary objections nos. 1 -47 to plaintiff's memorandum of points and authorities and response to the summary judgment motion are disregarded. They are not evidentiary objections. 4. Defendants' objection nos. 48 -63 are OVERRULED. 5. Plaintiff filed a document entitled “Objections...

Excerpt: ...on letter were attached to the complaint. However, the plaintiff alleged that because the damages were “ongoing and exceeded $10,000” the amount of damages claimed was “omitted” from the form because “that portion was inapplicable.” The city argues that plaintiff 's failure to state the amount claimed is a material defect and the demurrer must be sustained without leave to amend. Without properly seeking judicial notice, the demurrer ...

Excerpt: ...llegations in the complaint, defendants (including these Doe defendants), “distribute and sell their kratom products to residents in California pursuant to a false and misleading marketing campaign.” The complaint further alleges that defendants do not disclose the serious health risks of the product; nor state that the product is the subject of warnings from poison control centers and is known to be not safe for human consumption. And it spe...

Excerpt: ... declarati on of non-monetary status stricken immediately, it is DENIED. To the extent it seeks an order shortening time, it is also DENIED. Plaintiff has failed to show an emergency or why the matter cannot be heard in the ordinary course. This latter is without prejudice to the filing of a noticed motion to be placed on the court's regular law and motion calendar. Demurrer Defendant State of California Department of Health Care Services filed...

Excerpt: ...urt Orde r Plaintiff's motion to compel compliance with this court's order of September 28, 2023, is DENIED. Further responses were served on October 4, 2023, but plaintiff complains the responses are “nearly identical” to the prior responses. The motion is not accompanied by a separate statement as required by Rule 3.1324 of the California Rules of Court, and the motion fails to establish how the responses were not compliant with the court's...

Excerpt: ...day, December 13, 2023, on December 18, 2023, plaintiff and cross -defendant filed a declaration for an automatic extension. The extension expired on January 17, 2024, but the demurrer and motion to strike were not filed until March 1, 2024. And then, cross -defendant s et the matters for hearing on May 16, 2024, in violation of Rules 3.1320(d) and 3.1322(b) of the California Rules of Court [demurrer must be set for a hearing within 35 days of ...

Excerpt: ...d, and (3) it has filed a separate motion for a stay that has not yet been heard. The four discovery motions (ROAs 60, 64, 68, and 72) are GRANTED. Defendant is ORDERED to serve verified responses within 15 days. Sanctions are ORDERED against defendant and its counsel, joint and several, in the amounts requested in th e motions, payable to the plaintiff within 15 days. The defendant's request for sanctions is DENIED. Procedural Background The c...

Excerpt: ...ditions that the defendants caused, (c) she is concerned t hat she will be blackballed in the industry for suing her prior employer, and (d) defendants are trying to obtain a litigation advantage by making her disclose her real name, and they are seeking to shame and embarrass her. Code of Civil Procedure section 367 provides that an action “must be prosecuted in the name of the real party in interest, except as provided by statute.” Plaintif...

Excerpt: ... on appeal and thus it is entitled to its costs so l ong as those costs were timely requested and are allowable. In its opposition, filed the same day, defendant states that, “Hussein has indicated he does not challenge Defendants appellate cost bill.” But, in Hussein's reply, he iterates that he does chal lenge defendant's right to costs on appeal. He iterates that defendant “forfeited” its right to those costs because it failed to fil...

Excerpt: ...ion).” But the reply attempts to mislead the court and ob tain discovery plaintiff's counsel knows this court has denied in prior cases. Indeed, and contrary to its initial assertion, this motion is all about the request to produce all the documents in the General Motors universe about the Silverado vehicle. Th e final sentence of the reply gives the game away: “Based on the foregoing, GM must be ordered to produce its PMQ for deposition on ...

Excerpt: ...lves a high - end residential lease. Plaintiffs filed a 12-count complaint against the property owner, Yuan Mu, real estate agent Nancy Milne, and Ascendant International, Inc., dba Re/Max Luxury Properties. It includes causes of action for breach of contract, common counts, fraud, and dec laratory relief. Plaintiffs complain that the house they rented had numerous issues and Yuan Mu refused to fix them. Yuan Mu filed a 13 -count cross -compla...

Excerpt: ...omplaint was filed May 26, 2020. (ROA 2. ) The motion for summary judgment is supported by the declaration of John Battista, a licensed Certified Access Specialist (CASp). He visited the shopping center on May 20, 2022, and found various violations of the Americans with Disabilities Act and the Uniform Building Code, which he detailed in his report. In opposition to the motion, defendant filed a declaration from Jong Park, also a licensed CASp...

Excerpt: ...ings is based on the claim that there is no statutory ba sis for the claim and therefore no cause of action can be stated against the City under Government Code section 815. A motion for judgment on the pleadings serves the same basic purpose as a demurrer. It asks the court to determine whether as a matter of law a cause of action has been stated. (See Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 743- 744.) However, it may not be used as...

Excerpt: ...ntional Infliction Emotional Distress 8. Mental Disability Discrimination 9. No Reasonable Accommodation/Mental Disability 10. Failure to Pay Wages When Due In the complaint, she mentioned the term “sexual harassment” in paragraphs 11, 15- 16, 22, 40, 57- 59, 78, 81-84, 122, 128- 129, and 146. The claims of sexual harassment are general. They are for the most part non -specific. She alleges she was sexually harassed by two non - employees w...

Excerpt: ...tion to strike was continued to this date because the parties had fail ed to engage in a proper meet and confer. It does not appear that defendant's counsel has taken advantage of this extended time to comply with its obligations under the statutes. Accordingly, the court sets an Order to Show Cause re Sanctions against def endant's counsel. The hearing is set for April 11, 2024, at 8:30 am. Any declaration in response shall be filed at least �...

Excerpt: ..., as a Roe defendant was filed only on February 9, 2024. Moe has been an active defendant since the beginning of the case. Moreover, this case has been actively litigated by all parties as evidenced by the discovery propounded, the law and motion practice, and the many cross -complaints which have been filed. There have also been suggestions that the scope of the case has expanded tremendously over the years. On the one hand, waiting over seven...

Excerpt: ...n of the motion. To assist the parties in resolving the matter i nformally, the court would offer the following thoughts. The court notes that the motion is procedurally improper on numerous grounds. It does not, for example, specify the time, place, manner, scope, and nature of the examination in accordance with the requirements of Code of Civil Procedure section 2032.310. Nor does it comply with the California Rules of Court that govern motion ...

Excerpt: ...�lessee,” and Norm Reeves Honda Superstore is identified as “les sor (dealer).” Below that, in a separate area, it states that, “‘Lessor' refers to the Lessor (‘Dealer') named above and Assignee,” which is identified as “Honda Lease Trust.” Pertinent here, paragraph 15 on the first page of the agreement states that “p arties agree that any unresolved disputes shall be submitted to arbitration in accordance with the Arbitrat...

Excerpt: ...ssues. They allege the sellers also failed to disclose other substantial defects t hey knew about, but that the plaintiffs were only able to discover during a remodel. The demurring defendants are the real estate agents for the sellers. A real estate agent may be held liable for misrepresentation if the agent knew of the issue and did not disclose it. (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 736.) The general allegations of misrepresentation...

Excerpt: ...hen she was hit by a tightly rolled -up T -shirt fired into the crowd by a T -shirt cannon from one of the boats. The complaint alleged that venue is proper here because defendants either live or do business in Orange County and the tortious acts occurred in this county. On June 20, 2023, Sonia Atkins was su bstituted into the case as a self -represented litigant. (ROA 67.) Her husband, Christopher Atkins was admitted into the case as a party pl...

Excerpt: ... request for accommodation to work remotely. Defend ant's request for production of documents no. 10 asks for all posts she has made on her social media accounts concerning this lawsuit or the complaint. The plaintiff effectively concedes this request is proper and may lead to the discovery of admissible e vidence. Indeed, her opposition to the motion does not even address it. Request no. 11 asks for all posts she has made on her social media acc...

Excerpt: ...f Costco and Jewell is a Director thereof, that does not in an d of itself establish personal jurisdiction over them for acts taken by the corporation. (See Calder v. Jones (1984) 465 U.S. 783, 790.) Plaintiff complains he was sickened by a hotdog he ate at one of the Costco stores. He also complains that the membe rs of the Board of Directors did not do anything when he advised them about what had happened and the failure of the corporation to t...

Excerpt: ...e same generic claims that have been deemed legally insu
¯icient. (See, e.g., Taylor v. Superior Court (1979) 24 Cal.3d 890.) The Þrst amended complaint makes the same generic factual allegations but now also alleges that the defendant was convicted of driving under the inßuence of alcohol in 2015 and was given a “Watson advisement” as required by Vehicle Code section 23593. A Watson advisement informs the defendant that: “You are hereby...

Excerpt: ...es that a proper meet and confer was held to resolve the matter. That said, the court concludes that judicial economy—this is the second time the motion has been here—to move forward based on the limited information it has. This is a personal injury case. Plainti
¯ asserts she fell on her side and head from a height of three feet. The motion to quash is generic. It simply argues that the disclosure of medical records would invade plainti
¯'...

Excerpt: ...d out at $525 per hour; and the paralegal is billed out at $250 per hour. Those (alleged) billing rates are substantially above the attorney fee rates in the local Orange County legal community for the same or similar work. Even the most experienced Lemon Law attorneys in this community are not awarded fees based on such billing amounts, except in complex cases that require experience. The standard attorney fee rate for non-complex cases runs at ...

Excerpt: ...ad problems with it, he brought it into Ken Grody Ford for repairs. Unhappy with the results, plainti
¯, with the assistance of counsel that specialize in Lemon Law cases, sent a letter dated February 28, 2022, outlining the problems and demanding that Ford repurchase the truck. (See Exh. “5.”) The matter settled pre-litigation. On July 13, 2022, plainti
¯ and Ford Motor Company entered into an agreement that provided that Ford would pay pl...

Excerpt: ...endant conceded that the costs entered on lines 3 and 4 (Item No. 4 is for depositions) were supposed to be on lines 4 and 5 (Item No. 5 is for service of process). In its discretion, the court allows the amended cost bill to be filed as the original memorandum of costs contained clear errors. There is no prejudice to any party in allowing an amended cost bill as the numbers themselves have not changed. They are just now in the correct column. Th...

Excerpt: ...rcycle brakes had failed but lost. The court notes that during trial, Achstein called an eyewitness who was driving a short distance behind the motorcyclist. He stated that when defendant Kroeger made her left-hand turn, the motorcyclist "didn't have a chance." The achon against the "Suzuki" defendants was based on a theory that the motorcycle brakes had failed due to a manufacturing defect and that brake failure was the basic cause of the accide...

Excerpt: ...tions for actions not taken in 2018, the action appears to be time-barred. To the extent the statutory claims address actions not taken in 2023, the action appears to be timely. Other claims are addressed below. First Cause of Action—Civil Code section 2923.5 The first cause of action alleges a statutory violation by recording the notce of default in 2018 without complying with the statute. The notice of default was recorded August 20, 2018, bu...

Excerpt: ... the property in 2013. Leaks observed in 2015 and 2018 were repaired by the landlord. Plaintiffs allege they began suffering various physical ailments in 2018 which they now claim results from the mold. A leak in 2020 was because a prior leak had not been properly repaired. A mold report ordered by the plaintiffs in April 2021 showed elevated levels of mold throughout the unit. Plaintiffs allege they moved out in July 2021. The complaint was file...

Excerpt: ...on (c)(l). The statute requires the Labor Commissioner to bring the action "promptly." Given the Labor Commissioner's "decision" was not rendered February 3, 2020, the defendant asserts that the Commissioner's filing of the complaint on March 21, 2023, was not "prompt" and is thus barred. The statute sets a statute of limitations for these actions. Because of the six- month extension allowed for by Emergency Rule 9 as a result of the Covid pandem...

Excerpt: ...tion before the Fair Political Practices Commission into the same incident. However, the statutory framework provides for private enforcement after the FPPC and local authorities have been afforded suffcient tme to address the allegations. Moreover, once those basic time limits have passed, nothing in the statutes prohibit concurrent enforcement. The demurrer then makes a facial and an as-applied constitutional challenge to the private enforcemen...

Excerpt: ...ction. However, no credible evidence is presented to support that position. At best, it is argued that because he could have, and should have, checked on the corporate status of his clients first, then he is liable for sanctions for filing various pleadings and documents with the court for close to a year. But there is no evidence that he knew about the issue and concealed this information from the plaintiff or the court. To the contrary, former ...

Excerpt: ...at the blow caused her personal injuries, including traumatic brain injury. Although her husband, Christopher Atkins, did not see his wife being struck, he alleges he has suffered emotional distress and loss of consortium due to defendants' negligence. Demurrers to the third amended complaint were filed by defendants City of Newport Beach, Morrow-Meadows Corporation, and TLH Enterprises, Inc. A motion to strike portions of the amended complaint w...

Excerpt: ...ion 1102.5, subdivision (b), fails as a matter of law. This has to do with plaintiff's claim he engaged in protected activity. 3. Whether plaintiff's cause of action for violation of Health & Safety Code section 1278.5, fails as a matter of law. This has to do with a claim that he suffered an adverse employment action because of a purported patient safety complaint. Code of Civil Procedure secton 437c, subdivision (h) Plaintiff initially opposes ...

Excerpt: ...icolas Gonchar, a selfrepresented litigant, ate a hotdog at a Costco location, became ill, and that when he complained to Costco he was ignored. According to the declarations of these defendants, Raikes, Galant, and Jelinek are, and were at all relevant times, residents of the State of Washington. Denman is a resident of the State of Colorado. Raikes has no connection with California and does not consent to jurisdiction in this state. He has live...

Excerpt: ...laintiff was clearly the prevailing party and is entitled to its costs of suit against Crew Salon, Inc. Novation is a defense here. Although defendants now wish to avoid that characterization, the testimony from the defendants was clear. Of course, if the defendants want to deny that a novation was properly alleged, then the judgment should be amended to state it is against the Gaglios in their individual capacity. The court reporter fees are cle...

Excerpt: ...exception of the word "duty," the defendant has not clearly stated precisely what cause of action, affirmative defense, or claim for damages it seeks to completely dispose of in the "issues" themselves as required by Code of Civil Procedure section 437c, subdivision (f)(l). Accordingly, the court declines to address the motion for summary adjudication of issues. As to the motion for summary judgment, there is only one cause of action pled in the ...

Excerpt: ...iff on March 28, 2023. The defendant sent a letter to plaintiff's counsel October 2, 2023, demand-ng that the plaintiff serve responses. Plaintiff did not serve any responses, she did not respond to counsel's letter, and she did not file opposition to the motions. The motions are GRANTED. Plaintiff is ORDERED to serve answers, without objections, in 15 days. Sanctions of $1,500 are awarded jointly and severally against plaintiff and plaintiff's c...

Excerpt: ...ther, he was not timely advised of his Fifth Amendment rights during the deposition. Now that Pineda has pled guilty in the criminal matter, there do not appear to be any criminal matter impediments to the taking of a properly noticed deposition. Motion to Compel Examination of Plaintiff The motion of defendant Santa Ana Unified School District to compel plaintiff minor to submit to a psychological examination is GRANTED as modified. The plaintif...

Excerpt: ....1346 [must serve motion on deponent].) The court is initially inclined to continue the motion to permit Bottorff to be properly served. The parties should be prepared to discuss whether Bottorff has or needs to be personally served. The main issue is this: Whether communicatons between Bottorff and representatives of The Regents are protected by the attorney-client and/or work product privilege. This is a thorny question under the facts. General...

Excerpt: ...uted them to plaintiffs. The complaint seeks damages of over $253,000. The complaint raises six causes of action: 1. Breach of contract; 2. Negligence; 3. Intentional misrepresentation; 4. Negligent misrepresentation; 5. Unjust enrichment; and, 5. Money had and received. The complaint seeks monetary damages and exemplary damages for the alleged misrepresentations as to the status of the ERCs. The answer alleges the following affrmative defenses: ...

Excerpt: ...far as it relates to the fourth cause of action for failure to prevent harassment. However, the law is clear that a supervisor cannot be held personally liable under FEHA for failing to prevent the alleged discrimination. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326; see also, Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 279- 280.) Demurrer (Blower- Dempsay) The demurrer of defendant Blower-Dempsay Corporation to the fi...

Excerpt: ...ement of a proper meet and confer would not serve the intent of the code requirement. The first amended cross-complaint alleges four causes of action: breach of fiduciary duty, fraud, conversion, and breach of contract. The demurrer complains that the four causes of action are uncertain and therefore they each fail to state a viable cause of action. However, the alleged "uncertainties" are little more than challenges to the merits of the crosscom...

Excerpt: ...ilding. But the contractor did not perform and was terminated. The association then hired Champion Construction Services to complete the project. Champion's demurrer to the original complaint was sustained with leave. Plaintiff filed a first amended complaint to which Champion has again filed a demurrer. The amended complaint has made several minor adjustments to the factual pleadings, but it has done little to address most of the key issues rais...

Excerpt: ...d a person most qualified, and it properly objected to the scope and breadth of the propounded discovery. The defendant manufacturer states it is willing to turn over all documents related to the vehicle in issue—and has already done so. What it objects to is the overreach of the discovery requests, in terms of the numbers of discovery requests and the fact they relate to other vehicles and other dealerships. The PMQ, the Deposition Date, and T...

Excerpt: ...position. (ROA 120.) In essence, it argued that the third amended complaint improperly seeks to add Christopher Atkins, the husband, as a plaintiff, because he did not file a Government Tort Claim; and it improperly seeks to revive a claim for infliction of emotional distress and to add a cause of action for loss of consortium for Christopher Atkins. The basic problem with the motion is that it is procedurally improper on numerous levels. Thus, i...

Excerpt: ...esponses by cross-complainant Microwine Group, Inc., to Request for Production of Documents (Set wo) and for sanctions. Counsel for Xu concedes in a declaration filed November 2, 2023 (ROA 225) that counsel for Microwine Group, lnc„ served responses to the Request for Production of Documents on October 16, 2023. Xu contends, however, that the responses are not code compliant and therefore he refuses to withdraw the motion. The responses were se...

Excerpt: ...ction of emotional distress, which is the subject of this demurrer. The key allegation is that plaintiff was visibly pregnant at the time of the accident, that the acc:ident caused her to hit her stomach into the steering wheel, and that caused her serious concerns for the health of her unborn child. To properly analyze whether a cause of acton for intentional infliction of emotional distress has been pled, the allegations of the third cause of a...

Excerpt: ...division defendant provides no evidence that shows these costs were unnecessary or unreasonable. Defendant has not met its burden. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Item No. 8 Defendant argues the $1,530 claimed for expert fees was unreasonable because Lemon Law plaintiffs do not need to present expert testimony to prevail. Its reliance on Oregel v. American Isuzu Motors, Inc. Cal.App.4th 1094 at page 1102, footnote 8, is mispl...

Excerpt: ...n District. The first cause of achon is for racial discrimination. The second alleges retaliation. And the third complains that defendant failed to prevent the discrimination, harassment, and retaliation. On a moton for summary judgment and/or summary adjudication of issues brought by the employer in a case alleging employment discrimination, the court engages in a 3-step, burden-shifting process under McDonnell Douglas Corp. v. Green (1973) 411 ...

Excerpt: ... entitled to attorney fees. The matter has since been reassigned to this department because Judge Marks has retired. It is this court's understanding that Judge Marks' retirement is official and that she will not be returning on assignment. Thus, this court may rule on the motion. The court has reviewed the minute order statement of decision, the judgment, and the papers filed by the parties in support of and in opposition. It is undisputed that ...

Excerpt: ... filing an answer or a responsive pleading, Neil Nam Hoang, doing business as aest Home Construction and Repair, filed a Case Management Conference Statement on November 2, 2021. (ROA 39.) On March 9, 2022, the plaintiff and the court attempted to determine who was the proper defendant. It was suggested that Neil Nam Hoang was not a party, and that the named defendant, Best Home Construction and Repair, was a non-existent entity and that is why i...

Excerpt: ...dules. That resulted in an over-reporting of plaintiff's income, causing him to pay more taxes than he owed. He also alleges the defendant intentionally concealed the error. When the California Franchise Tax Board made numerous audit inquiries, apparently to determine whether all California income was properly reported on the California returns rather than the returns of other states, defendant hid key documents that would have disclosed defendan...

Excerpt: ...Hoang alleges that the homeowner's association foreclosed on and then sold his condominium unit in a nonjudicial sale. It was sold, according to the association, for Hoang's failure to pay certain assessments. Defendants were the successful bidders and purchasers of the unit at the foreclosure sale. Hoang suggests that during this time he was overseas, and when he returned, he was unaware of the redemption period. This is an old case. Hoang filed...

Excerpt: ...everly Consumer Warranty Act [l, are subject to abuse. Because Plaintiffs may recover their attorney fees from Defendant, Plaintiffs' attorneys have no incentive to keep their fees and costs to a reasonable minimum, or to exercise any judgment or restraint in the number of hours they bill. Despite the absence of any evidence that this case was in any way unusual, Plaintiffs claim they are entitled to $58,134.37 in fees, costs and expenses in a ro...

Excerpt: ...t objection or a request for a protective order, and were used within the litigation and settlement process. The court has been advised that the matter has now "settled" but the parties are unable to consummate the settlement because the plaintiff is demanding that his medical records in the possession of defendant and defendant's counsel be destroyed. Defense counsel apparently refuses to agree to execute a protective order for various reasons, ...

Excerpt: ...n issue by alleging in the complaint that he suffers and continues to suffer embarrassment, emotional distress, and mental anguish. He also seeks damages for "pain and suffering, and emotional distress." These allegations seek damages for what is more than garden-variety emotional distress. He makes the same requests in his responses to basic discovery requests. Courts generally do not issue orders compelling a mental examinaton of a party unless...

Excerpt: ...re are no detectable warnings" as required under the Uniform Building Code. He alleged "the lack of an accessible path of travel (i.e., accessible route) at the Property is a violation of the Americans with Disabilities Act [l and therefore per se violation of the Unruh Civil Rights Act." (Italics in original.) Plaintiff has failed to meet his initial burden of proof and thus the motion must be denied. First, plaintiff does not establish that he ...

Excerpt: ...sted in Rule 3.1332(c) of the California Rules of Court. Here, no good cause has been shown. The complaint was filed February 9, 2022, for an accident that allegedly occurred on March 3, 2021. (ROA 2.) According to the complaint, plaintiff was walking along the sidewalk in a residential street when a branch from a tree that was being trimmed fell on her head. Defendant Douglas Landscape, Inc., filed its answer on April 21, 2022. (ROA 40.) Defenda...

Excerpt: ...Thomas Marantz as the named defendant and Doe defendants. (ROA 7.) The gist of these allegations was that Thomas Marantz was the driver of the other vehicle that caused plaintiff's injuries. Thomas Marantz filed an answer to the complaint (perhaps unaware of the first amended complaint on file?) on May 11, 2022. (ROA 36.) Nowhere in his answer does he indicate he was not the driver. Indeed, his last affrmative defense—imminent peril—suggests ...

Excerpt: ...e records as her son's business address. She further concedes she helped her son by volunteering at least 15 hours of her time to pick up animals for cremation for her son's benefit. Whether this defendant was just helping her son as a good mother does or was more intimately involved in the starting and conducting of the business is a material issue of fact for a jury to decide. The court notes both sides have suggested that the court could contn...

Excerpt: ...tions" against plaintiff Newport Investment Group, LLC. This motion, set for hearing on October 5, 2023, also asks that the plaintiff "be prohibited from introducing into evidence, whether at trial or in opposition to summary judgment, any facts, documents or other responsive materials omitted from its untimely and non-compliant response" to this court's prior discovery orders. (Emphasis added.) Meanwhile, trial in this matter has been continued ...

Excerpt: ...es. She continues to suffer residual pain. The moton asserts summary judgment is appropriate because plaintiffs cannot establish, as a matter of law, that Podolsky breached the applicable standard of care. In addition, plaintiff cannot establish that any negligent act or omission by Podolsky caused or contributed to plaintiff's injuries. Podolsky filed the declaration of Dr. Ronald Kvitne who opined, after reviewing all the records, that "the car...

Excerpt: ...District denied plaintiff's government tort claim and was served with the complaint on April 9, 2021. District first appeared in the acton on June 7, 2021, when it filed a demurrer and motion to strike to the plaintiff's complaint. It was represented by attorneys Linda Bauermeister and Robert Kostrenich of the Law Offices of Barber and Bauermeister. In response, plaintiff filed a first amended complaint on July 23, 2021. District's demurrer to th...

Excerpt: ...complaint. At the last hearing, plaintff again asked for time to hire an attorney to represent her and to dismiss the matter. The court granted the continuance. But despite this leniency, plaintiff has failed to secure legal counsel and has failed to file any opposition to the motion for summary judgment. At the request of the plaintiff, the entire matter will be DISMISSED with prejudice as to all defendants. Thus, the defendant's motion for summ...

Excerpt: ...Under the law a family daycare center is considered a "residential" use and the landlord's consent for such use is not needed as a matter of law. But then the plaintiffs alleged that the lessor refused to give its written consent for the state operational permit for a "small daycare center," which is for businesses of six to eight children. The plaintiffs asserted that the lessor could not refuse to give consent under the aw, and of its refusal t...

Excerpt: ...judgment is denied but each cause will be addressed under the moton for summary adjudication of issues. Analysis of the motion was made particularly difficult because the plaintiff filed opposition including a separate statement of undisputed facts that was procedurally deficient. Defendants moved to strike that document (see below), and plaintiff responded by attempting to file an amended separate statement that, unfortunately, is also procedura...

Excerpt: ...a's vehicle. Moreno was dismissed (ROA 2W); apparently because he filed for bankruptcy. (See Clerk's Rejection Notice [Duument Filed listed as "Notice of Dismissal—Bankruptcy"], ROA 196.) He also settled for $5,500 and signed a Release of All Claims on June 15, 2023. Defendant Megan Garcia was the driver of the vehicle that hit Garcia's vehicle. Although Brian Lokken was a named defendant, he was dismissed without prejudice on June 14, 2023, on...

Excerpt: ... accurate itemized wage statements, failure to pay all wages due on separation, unfair business practices, and intentional infliction of emotional distress. A jury trial in this matter is scheduled for November 13, 2023. Summary Judgment Plaintiff alleges he was an employee; defendants assert he was an independent contractor. In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, our Supreme Court held that a worker is presumed ...

Excerpt: ..., Cal. Practice Guide: Civil Procedure Before Trial (2022) ¶6:795, p. 6-207.) Rather, it adds new allegations which occurred after the original pleading was filed. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.) Here are the critical pleadings: 1. On August 25, 2021, the plaintiff filed a complaint alleging five causes of action arising out of his employment with the District. Named as defendants were District and employee Richard Kwiecien; ...

Excerpt: ... party seeks a protective order on the ground the number of requests is unwarranted, the burden is on the propounding party to justify the number of requests for specific discovery. (Code Civ. Proc., § 2020.090, subd. (b), and § 2033.040, subd. (b).) The plaintiff has filed to meet its burden as to the Form Interrogatories, the Requests for Admission, and the Special Interrogatories. The motion for a protective order as to those discovery reque...

Excerpt: ...iduciary duty because the alleged breaches of fiduciary duty are little more than allegations of breach of contract. Plaintiff alleges Aviation Consultants stopped making cash distributions while it continued to allocate profits to him, and this was done so as to pressure plaintiff (and other minority shareholders) to sell their shares. Plaintiff alleges he was damaged because he incurred tax liability without having the corresponding cash distri...

Excerpt: ...is insufficient because defendants did not enter into any agreement with plaintiff contractor. The contract identifies the client as the address “@Odyssey VR.” It was signed by “Lei Zhao,” and even though it does not identify his capacity, the amended complaint alleges that he was “Defendants' Chief Operating Officer at the time of execution.” A check for the initial payment was also cut by Irvine Management Company “to the order of...

Excerpt: ...ject files, but only selected portions related to this case. Defendant complains that the plaintiff is seeking everything and something less would be appropriate. The parties are ORDERED to meet and confer meaningfully about these discovery requests. Defendant seeks to compel further responses to Special Interrogatories Nos. 127-132. They seek information about plaintiff's finances because of her claims of emotional distress based, in part, on he...

Excerpt: ...on of these tentative rulings, no new counsel has filed a substitution of attorney. (One was rejected August 7, 2023 (ROA 168), which the court assumes was to substitute out Howard.) Because Microwine is a corporation, the order shall advise it that it may only appear by counsel licensed to practice law in California. Demurrer/Motion to Strike (Microwine Cross-Complaint) The demurrer and motion to strike of cross-defendant Tao Xu to the cross-com...

Excerpt: ...use no copy of the complaint filed with the California Civil Rights Department, or the right-to-sue letter, are attached to the complaint. Exhaustion of remedies is a jurisdictional prerequisite to litigation. Failure to allege facts showing exhaustion renders the complaint subject to demurrer. Here, the complaint alleges a complaint was filed with the Civil Rights Department and a right-to-sue letter was issued on or about March 24, 2023. Based ...

Excerpt: ...heinhart v. Nissan North America, Inc. (2023) 92 Cal.App.5th 1016.) Here, the plaintiff has presented evidence she timely opted out of the class action settlement. The first cause of action alleges breach of the express warranty for defendant's failure to promptly repurchase or replace the vehicle after a reasonable number of repair attempts. The statute clearly requires the defendant be afforded more than one attempt to repair the vehicle. (See ...

Excerpt: ...s, it appears the tree was on his property. The homeowner's association hired Douglas Landscape to trim the tree. But Douglas's employees did not cordon off the area as required, and a branch fell on the plaintiff injuring her. Green was not there when the incident occurred. The defendants submit evidence that the plaintiff is claiming around $3 million in damages and her medical expenses alone at this point total over $558,000. In their mind, a ...

Excerpt: ...ntense Lighting, LLC, within 14 days of the hearing date. Defendants filed a motion to compel the “second” deposition of the plaintiff because she had been instructed not to answer five specific questions. The defendant confirmed the deposition date of its Person Most Qualified but later it refused to produce that person for deposition until after plaintiff's second deposition. However, there is no authority for the proposition that plaintiff...

Excerpt: ...und $225,000. Counsel claims attorney fees at an hourly rate of $675, and paralegal fees at an hourly rate of $175. Defendant compares the initial 998 Offer to Compromise on March 3, 2020 (which was rejected), with the 998 Offer accepted on March 8, 2022. 1. The 2020 Offer was for a buy-back, dismissal of the action with prejudice, a payment to the plaintiff of $28,658.78, and $10,000 for attorney fees and other costs. 2. The 2022 Offer was for a...

Excerpt: ...ion. In Paragraph 25, plaintiff pleads that, “Defendant failed to provide proper meal and rest breaks for employees. Plaintiff regularly worked twelve (8-10) hour shifts; however, he could not take all his meal and rest breaks on many days.” This is sufficient to put the defendant on notice of the claim against it. The pleading is not uncertain. Moreover, there is no procedural requirement that plaintiff must plead the dates and thereby estab...

Excerpt: ...versity, neither the complaint nor the cross-complaint are so limited. Plaintiffs, for example, seek additional relief in the complaint. In Paragraph 27 of the complaint, plaintiffs allege the defendants “have and continue to engage in other actions that are causing damage to [Bethesda University] including the manipulation of managers and personnel to implement the Fake Board's financial directives resulting in the inadequate funding” of the...

Excerpt: ...or sanctions and monetary sanctions should likely be imposed. But the question is: against whom? Hyundai Westlake is a non-party, and so are the service technicians, one who does not even work at the dealership anymore. Yet the plaintiff wants sanctions imposed against them? Based on a review of the competing declarations, defense counsel does not seem to have been at fault. The delay seems to have been at the dealer's end, so why should defendan...

Excerpt: ...egligence and wrongful death. They also alleged two causes of action against Grace's parents for wrongful death and negligence based on the theory of negligent entrustment of their vehicle to Grace. It was alleged that around three months prior to this accident, Grace was arrested for driving under the influence with a BAC of .15. And around two months before that, Grace drove while intoxicated and struck a parked vehicle, and then fled the scene...

Excerpt: ... included agreements over the final approval of changes and any additions to the scope of work. The demurrer asserts that, “Nowhere in that contract does it state Laidlaw was to be involved in any manner as the Owner's representative regarding change orders or additions to the scope of work.” However, the alleged breach of contract is based on more than just the written agreement. It is also based on the alleged oral agreements. As such, the ...

Excerpt: ...l papers regarding the request, which they did. Defendant argues that he has a right to conduct a physical examination of the plaintiff; if it is delayed until after the revision surgery, he will be limited to accepting the opinions of plaintiff's expert. In response, plaintiff says she has always been willing to undergo a physical examination, but that the defendant sat on his rights. The complaint was filed May 12, 2022; and defendant filed his...

Excerpt: ...ortunities to correct the deficiencies in the motion for leave to amend and sanctions under Code of Civil Procedure section 128.7. Plaintiff's failure to do so is well documented. This is the tentative ruling posted on the Internet on March 1, 2023, for the court's March 2, 2023 law and motion calendar, italicized for clearness. It was not made part of the minute order, which is this Department's normal practice and needs to be made part of the r...

Excerpt: ...e. However, that may all be a minor issue now. The court notes that the basic factual claims have changed dramatically: 1. In the complaint, the plaintiff alleged the landlord refused to consent to the use of the residence as a “small family day care.” Under the law, a small family day care center is for 6 to 8 children. 2. In the amended complaint, she now alleges she told the landlord that she wanted to operate a “large family day care ce...

Excerpt: ...that plaintiff did not meet and confer in good faith. The motion to compel was filed before a second requested extension to respond had expired. Defendant was trying to respond to a meet-and-confer letter that covered 151 discovery requests, and there were no pressing deadlines. Based on the court's review of the record, it appears plaintiff granted a two-week extension to respond to the initial meet-and-confer letter. When the two weeks had pass...

Excerpt: ...s defendant, and most of the evidentiary documents in support of its summary judgment motion filed March g, 2022. Defendant claims these records relate to "confidential financial information, and to medical or personal identifying information related to minor Plaintiff." Further, counsel for this defendant states in his declaration in support of the motion to seal that resolution of the case is "conditioned on strict confidentiality regarding, am...

Excerpt: ...ntiff objected on the ground that there are some documents subject to a right to privacy. The court has been advised that during the meet and confer process, the only concession made by defendants was that plaintiff's tax records would not have to be produced. Plaintiff has a constitutional right to privacy that may be abridged only if, after balancing the competing interests, the balance weighs in favor of disclosure. Here, plaintiff has shown t...

Excerpt: ...ties do not dispute that general jurisdiction does not apply to this defendant. Rather, the only question to be decided is whether the court may exercise specific personal jurisdiction over him. Specific personal jurisdiction may be exercised over a nonresident defendant if he has purposefully availed himself of the privilege of conducting activities within the forum State and the controversy arises out of or is related to the defendant's contact...

Excerpt: ...ant and cross-complainant Newport Window Maintenance was in charge of providing janitorial services for the office building. Along with Dolphin Partners, plaintiff sued Newport Window was sued for negligence and premises liability. Newport Window cross-complained against South Shore for implied indemnity, comparative contribution, equitable indemnity, and declaratory relief. South Shore had a contract to power wash the walkways and the trash cont...

Excerpt: ...met its initial burden to show that this was a trivial defect. Although there is some dispute as to the exact height of the raised portion of the sidewalk—the defendant's maintenance person says it "was no more than one inch," and there are photographs of the uplift at the time of the accident. The photographs submitted by plaintiff's expert (the ones unadorned by the cross-hatching) do not show an uplift that is close to two inches high. Her e...