Excerpt: ...t Cause of Action (§ 1983 Action) There is no cause of action against the University under 42 U.S.C. § 1983. The University is an arm of the State. (See Miklosy v. Regents of the Univ. of California (2008) 44 Cal.4th 876, 889-890.) An arm of the State is not a “person” under the statute and cannot be sued. (See, e.g., Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66-67.) Third Cause of Action (FEHA Claim—Sex) The sexual-orien...

Excerpt: ...aw, even if there is a suggestion the buyer did not act with due diligence in investigating the facts. (See Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1497-1499.) As to the fiduciary causes of action (the Fourth and Fifth), a broker has a duty to disclose items that affect the desirability of the property to the buyer. (See Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1520.) As to the breach of the implied covenant cause of ac...

Excerpt: ...e is evidence the plaintiff fell off the stairway and landed on the ground in an area below where a handrail should have been, a reasonable jury could find that the absence of a handrail was a proximate cause of the plaintiff's injuries. The defendant suggests there is no evidence that the plaintiff was either attempting to ascend or descend the stairway; in short, he was just standing there when he fell off the stairway. Even if the plaintiff ha...

Excerpt: ... or portion thereof. To the extent such a request is even relevant here (see defendant Torriero's argument explaining why it is not), it is meritless because that part of the Rule is permissive, not mandatory. The failure of the defendant to list each party and pleading affected by the motion does not affect the merits of the motion. There is only the original complaint, and all of the other defendants (i.e., not Severson or Nunez) have been brou...

Excerpt: ... matters were first on calendar, it was clear that the parties had not met and conferred beforehand. The parties were ordered to meet and confer and to submit a “joint statement” as to the discovery issues that remained following the mandated meet and confer process. For reasons that are unclear, counsel did not jointly file a meet and confer statement as ordered. Rather, each submitted a “unilateral joint” statement—whatever that is—...

Excerpt: ...r or a four-year statute of limitations period? Case Management Conference The defendants request a 4-day jury trial. The parties are ORDERED to post jury fees forthwith. Notice The defendants shall give notice. ...

Excerpt: ...1/2 page form complaint, researching the law on restitution under the “Lemon Law,” and a “lengthy” telephone call with the client. Given her law firm is called “Lemon Law Associates of California” and she claims to have a large state-wide practice in this area, it would be fair to assume that she has a standard complaint where the only changes are to the name of the plaintiff and the county. Any research on restitution would be minima...

Excerpt: ... objective test there is a triable issue of fact as to when the plaintiff discovered, or through reasonable diligence should have discovered, defendants committed dental malpractice. The plaintiff shall give notice. ...

Excerpt: ...s could proceed because the motion does not appear to affect the Perero defendants in any meaningful way. It would appear the Case Management Conference will need to be continued to provide adequate notice. First, Second, and Third Causes of Action The motion of defendants Huntington Beach City School District, Greggory Haulk, Jeff Smith, and Darrenn Platt for judgment on the pleadings as to the First, Second, and Third Causes of Action is GRANTE...

Excerpt: ...ovisions that were “to resolve all disputes that may arise out of the employment context.” The agreements appear to be effectively the same. The plaintiff claims these agreements are substantively and procedurally unconscionable. 1. Procedural Unconscionability The plaintiff argues that the arbitration agreement was forced on him; i.e., “take it or leave it.” The plaintiff does not submit a declaration to support that assertion. Even if i...

Excerpt: ...mpany, LLC.” The plaintiff claims the caption is a clerical error. Having reviewed the Court's file, the Court finds this was a clerical error and defendants were not prejudiced by it. Amendment of Judgment—Individual Defendant's Name The motion of plaintiff Merchant Capital Source, LLC, to amend the Clerk's Default Judgment nunc pro tunc to reflect a different name for the individual defendant is DENIED without prejudice. The Complaint filed...

Excerpt: ...f the plaintiffs for judicial notice is GRANTED, but only to the extent the documents exist, not as to the truth of any matter contained therein. The request of the defendant for judicial notice is GRANTED, but only to the extent the documents exist, not as to the truth of any matter contained therein. (See Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121, 124.) The evidentiary objections of the plaintiffs are OVERRULED. Th...

Excerpt: ...ng because he is not a party. But Article X, Section 9 of the Memorandum expressly authorizes the plaintiff's action. 2. The defendant asserts the Memorandum of Understanding is not a valid contract because there is no consideration. Specifically: “In terms of consideration, what exactly is being provided to the County by either OCMA or its public employee members in exchange for the granting of these various entitlements?” An awkward argumen...

Excerpt: ...ges in a property management business is not sufficient, as a matter of law, to show agency, alter ego, or any other relationship between it and Sage Kia Downtown LA as to this design contract. The plaintiff does show a contract between it and defendant Sage Kia Downtown LA. But there is a procedural problem with the notice of motion: It is misleading in that Paragraph 1 it lists the summary adjudication as having been brought against all three d...

Excerpt: ...arty. But under Code of Civil Procedure section 369, subdivision (a)(2), the plaintiffs may only proceed on the allegations here in their capacity as trustees of the trust. (Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753.) The plaintiffs have not sufficiently pled around the statute of limitations. The limitations period for a latent construction defect starts “after the damage is sufficiently appreciable to give a reasonable man notice t...

Excerpt: ...e. Paragraph 72 alleges, for example, that after the tenancy commenced the defendant hired a mold expert and failed to disclose that the property had tested positive for toxic and mold growth. The defendant shall file his answer within 10 days. Motion to Strike The defendant's motion to strike portion of the First Amended Complaint is DENIED. Case Management Conference It appears the case is ready to set for trial. The Court intends to set the ma...

Excerpt: ...ails to amend the pleading in a timely fashion. It says nothing about service. Defendant does not cite, and the Court is unaware of, any authority justifying the dismissal of an action where, as here, the pleading was timely amended even if not timely served. The defendant also relies on Code of Civil Procedure section 581, subdivision (m). But that section is a general statement of the Court's powers and does not provide a legal basis on which t...

Excerpt: ...udgment. ...

Excerpt: ... Strike Code of Civil Procedure section 430.41, subdivision (a), requires the demurring party to meet and confer in person or by telephone with the party who filed the complaint before filing a demurrer. Counsel for the demurring party did neither. It merely sent a relatively short letter without substantial discussion or citation to authority indicating it did not believe the complaint stated a cause of action. The demurrer and motion to strike ...

Excerpt: ...re due no later than May 10, 2018. On May 21, 2018, the defendants filed a motion to dismiss for failure to file an amended complaint. Plaintiff has not filed opposition to the motion, but he has reserved a law and motion hearing date of October 11, 2018, seeking to “continue the case.” He suggests that he is no longer in the country and will not return until October, but he does not provide the Court with any evidence, such as copies of airl...

Excerpt: ...n the controlling statutes, the conduct of the parties, and its understanding of the intent and purpose of the stipulated discovery order, the Court concludes that the motion was timely. These Special Interrogatories do not violate Code of Civil Procedure section 2030.060, subdivision (f); and, they fall within the scope of the First Stage Discovery. The Court concludes that in the interests of justice no sanctions should be awarded. The plaintif...

Excerpt: ...thinks could state a cause of action. The Fourth Cause of Action is for fraud in the inducement, but fails to state specific facts showing the defendant did not intend to perform at the time it issued the policy. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.) The motion of defendant Interinsurance Exchange of the Automobile Club of Southern California to strike allegations of punitive damages is GRANTED with 10 days leave to amend. The ...

Excerpt: ...re due no later than May 10, 2018. On May 21, 2018, the defendants filed a motion to dismiss for failure to file an amended complaint. Plaintiff has not filed opposition to the motion, but he has reserved a law and motion hearing date of October 11, 2018, seeking to “continue the case.” He suggests that he is no longer in the country and will not return until October, but he does not provide the Court with any evidence, such as copies of airl...

Excerpt: ...t case is unhelpful for two reasons: (1) it involved a motion for relief brought in the context of a summary judgment motion for which subdivision (b) [requiring mandatory relief for attorney fault] was held not to apply [id. at pp. 228-229]; and (2) counsel's declaration stated the answer was filed a few days late because he had “forgotten to instruct [his] assistant” to file the answer on the day it was due. (See decl. of attorney Colin Mun...

Excerpt: ... After the request for partial dismissal was filed, the Court issued its final ruling and indicated the motion brought by this defendant was now moot. Based on the above history, the request for attorney fees (if any fees are still being requested) is DENIED. John Severson The anti-SLAPP motion of John Severson was granted in part and denied in part. (See this Court's June 4, 2018 minute order.) A defendant who successfully brings an anti-SLAPP m...