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: ...ivil Code section 1793.2, subdivision (b); Violation of Civil Code section 1793.2; Breach of an Express Written Warranty; Breach of the Implied Warranty of Merchantability; and, Fraud. Evidentiary Objections a. Plaintiffs' evidentiary objections to the Declaration of Sandra Beshai, Nos. 1-5, are OVERRULED. The basis of the objections is that the statements in the declaration are based on lack of foundation and/or personal knowledge, are irrelevan...

Excerpt: ...defect. Although a landowner is not an insurer of a guest's safety, the landowner must exercise ordinary care by making reasonable inspections of the property to ascertain whether there are any dangerous conditions. Where the dangerous condition is caused by a third person, the landowner must have some knowledge, direct or constructive, of the dangerous condition. Here, the defendant never comes out and directly states a lack of knowledge of a da...

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: ...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...

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: ...ase in the cost of litigation. In reviewing a motion brought under this section, the court applies an objective test: Whether the papers filed are frivolous, legally unreasonable, or without any factual foundation. As the Supreme Court teaches, "We measure the truth-finding inquiry's reasonableness under an objective standard and apply this standard both to attorneys and to their clients." (Bockrath v. Aldrich Chemical Co., Inc. (Iggg) 21 Cal.4th...

Excerpt: ...y legally refuse to permit the defense and its experts from entering the property unless they first execute a liability waiver. Plaintiff's counsel does not suggest that a party may require a liability waiver in every case. Counsel argues, and has submitted his own declaration in support thereof, that this particular property is so dangerous that an executed waiver of liability is necessary to protect the plaintiff. Defendant's counsel argues in ...

Excerpt: ... the name as listed in the Doe amendments and the answer— Anderson.) Summary Adjudication of Issues The defendants joined a motion for summary adjudication of issues with the motion for summary judgment motion. This part is denied on procedural grounds. The defendants failed to comply with Rule 3.1350(b) of the California Rules of Court. Summary Judgment 1. Facts This is a dog bite case. Plaintiff was walking through the parking lot at the Full...

Excerpt: ...gaged in the interactive process, which is why there were, among other things, eleven leaves of absences. Whether the employer's engagement with the employee was "reasonable" is a triable issue of material fact. The court notes Disney appears to concede that there were no "actual conversations" between a Case Advocate and the plaintiff, but it argues that there is no requirement that there be direct communications with the employee under the Cali...

Excerpt: ...laintiff's parents, occurred December 8, 2020. Grace Coleman suffered a conviction for felony vehicular manslaughter as a result of the accident and is now serving a lengthy term in state prison. She pled guilty on June 24, 2022. The court has been informed that the parties went to private mediation on August 29, 2022. It was unsuccessful. On September 22, 2022, the court set a 7-10 day jury trial for June 12, 2023. Grace Coleman's deposition was...

Excerpt: ...y, the helicopters located in Alabama were therefore not covered and there was no breach of contract by Hartford. To the extent plaintiff appears to try to pin Aon's alleged negligence on Hartford, the rule is clear: “Unlike an agent, a broker does not act for the insurer, and the insurer is not liable for the broker's acts or omissions.” (Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 929.) Summary Judgment—Aon Risk Defendant Aon R...

Excerpt: ...llowed Payne's financial advice. However, defendants failed to account for the money he invested or to return it in breach of the agreement. Other causes of action were alleged. But the thrust of the complaint was that plaintiff and defendants had an agreement. Defendants filed an answer denying all allegations. The motion for summary judgment claimed defendants had no duty to the plaintiff. They asserted that plaintiff had been the victim of a f...

Excerpt: ...mplaints (internal and external, such as to the United States Securities and Exchange Commission) about alleged wrongful conduct of the cross-complainants. The cross-complaint alleges in essence that the plaintiffs and cross-defendants were terminated because they engaged in various wrongful conduct, such as taking of pages and pages of confidential and proprietary files, including customer information and proprietary financial information. The c...

Excerpt: ...compel arbitration is based on the sales agreement signed by the plaintiffs when they purchased the vehicle from a dealership in Tustin. That sales agreement contains a common arbitration provision. It is undisputed that neither Nissan North America nor the Nissan dealer that performed the repairs were signatories to the sales agreement. One California case, Felisi/da v. FCA US, LLC (2020) 53 Cal.App.5th 486, has held that a non-signatory, third-...

Excerpt: ...e of Georgia, due to the Covid-lg pandemic. Georgia declared that business of plastic surgery was non- essential. The defendant argued—and proved—it could not make the monthly payments because it did not have any business income due to being closed. Moreover, the defendant was clear that it was prepared, and able, to continue making monthly payments once Georgia let it reopen. The court rendered judgment for the defendant. In its minute order...

Excerpt: ...strike the Complaint is GRANTED in part and DENIED in part. The motion to strike the prayer for punitive damages is GRANTED. The plaintiff has not alleged sufficient facts to support the conclusory allegations that Seki's conduct was malicious, fraudulent, or oppressive within the meaning of Civil Code section 3294. The motion to strike is otherwise DENIED. The court does not find that any of the other challenged portions of the Complaint to be i...

Excerpt: ... of attorney fees. The prevailing party in a Lemon Law case such as this one is entitled to an award of attorney fees "based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code, S 1794, subd. The court finds as a matter of law that plaintiff was the prevailing party. The fact that the vehicle was purchased "used," and there i...

Excerpt: ...LC (2020) 53 Cal.App.5th 486. There, the appellate court found the arbitration provision was enforceable by the non-signatory manufacturer. Federal cases such as Ngo v. BMW (9th Cir. 2022) 23 F.4th 942 have found the reasoning in Felisilda unpersuasive. As this court has noted before in various other Lemon Law cases, if it were writing on a clean slate, it would deny the motion because it believes the federal cases are far better reasoned, and ri...

Excerpt: ...g tolled the statute of limitations for civil causes of action 180 days from April 6, 2020, until October 1, 2020. Thus, the statute of limitations did not expire in January 2021 as defendant asserts but would have expired six months later. The filing of the complaint on March g, 2021, was thus not time- barred. The defendant seeks summary adjudication as to the breach of contract claim in the First Cause of Action involving the Palmdale Project....

Excerpt: ...ney Parks and Resorts U.S., Inc. In Futrell v. Payday California, Inc., (2010) 190 Cal.App.4th 1419, the Court of Appeal held: "The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes. The preparation of payroll is largely a ministerial task, albeit a complex task...

Excerpt: ...iled non-opposition to both motions. The Request for an Evidentiary Hearing Defendants MemorialCare Medical Foundation, MemorialCare Surgical Center at Orange Coast, LLC, and Beach Surgical Holdings, LLC, filed a request to hold an evidentiary hearing as permitted under Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394. Defendant MemorialCare Medical Group also seeks an evidentiary hearing, but it is not a party to eithe...

Excerpt: ...r was filed July 19, 2022, denying the allegations in the complaint and asserting various affirmative defenses. The parties filed Case Management Conference Statements in mid-September 2022, and on September 26, 2022, the court issued a Case Management Order that scheduled trial in this matter for March 13, 2023. At the defendant's request, this was set as a one-day jury trial. (No jury fees have been posted by either side, and the court intends ...

Excerpt: ...by the defendant. Thus, the court concludes that the better course is deny the current motions as moot and address any perceived deficiencies via new motions to compel further responses. Accordingly, the motions are DENIED as MOOT. Sanctions The plaintiff has requested sanctions of $5,900 against the defendant and her attorney. This request is beyond the pale. These were two very simple discovery motions to compel responses to two sets of discove...

Excerpt: ...e parties vacated. Irving now asks the court to reconsider that order primarily on the ground it has new evidence. The motion is DENIED for the reasons given below. The Motion is Deemed Timely The court deems the motion for reconsideration, brought pursuant to Code of Civil Procedure section 1008, timely under the peculiar facts of this case. Section 1008 states that a motion for reconsideration must be filed within 10 days of the Notice of Rulin...

Excerpt: ...with Larschan, Jr., as Successor Trustee. The lease was first entered into in 2011. The plaintiffs' claims for mold and water intrusion began in 2016, before the death of Larschan, Sr. It is alleged that they have continued through 2021 during the tenure of Larschan, Jr., as the Successor Trustee. Four attempts were made to state a cause of action against Phillip Larschan, Jr., in his individual capacity. (Claims against him solely in his represe...

Excerpt: ...attached to the petition as Exhibit “A”) indicates who the “Company” is. The parties agree, however, that the employment application was for a position with Crevier BMW at the Auto Mall in Santa Ana. Attached to the Employment Application was an “Applicant Statement and Agreement” which the plaintiff had to execute. In the text of the “Statement and Agreement” was an arbitration provision. By its express terms, this “agreement�...

Excerpt: ...llow statutory protocols. However, the court has decided this time to address the demurrer on the merits. Plaintiff's counsel is warned that continued failure to comply with the meet and confer requirements of the law may result in the imposition of sanctions against counsel. 2. Proofs of Service The defendants failed to attach proofs of service of the demurrer and the reply. Because the plaintiff filed opposition, it appears he received the demu...

Excerpt: ...erts that the mother has a gambling addiction, and the property transfers were an effort to avoid creditors. The son brings his cross-complaint primarily as a derivative action on behalf of the family corporation against his parents. He owns 30 percent of the corporation, and the parents own a combined 70 percent. It is alleged that the impetus for this action is that the transfer of one property apparently triggered a due-on-sale clause from the...

Excerpt: ...ntanyl was given to the decedent and his ultimate death. Statute of Limitations The defendant first argues the survival cause of action is time-barred by Code of Civil Procedure sections 335.1 and 366.1. A review of the original Complaint shows the action was brought (in part) on behalf of the Estate, and that it pled a survival cause of action. The defendant concedes that as of the filing of the Complaint the statute of limitations had not yet e...

Excerpt: ... for a medical examination is made “over objection.” (Query if such a separate statement is required where the objection is—as here—untimely?) The defendant's objection was untimely and therefore the defendant waived any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) Any objection must be served within 20 days of service of the demand. Here, the demand was served November 11, 2022 (with an examination date of December...

Excerpt: ...ion is otherwise sufficient to meet defendant's initial burden that defendant did not violate the standard of care. Given the initial burden was met, and there is no opposition, the motion must be granted. The court is aware that this is the second motion for summary judgment brought by this defendant. The first one was withdrawn after opposition (including a declaration from plaintiff's expert, Dr. Gregory Hammer) was filed. Although the motion ...

Excerpt: ...ur. Robert I. Cohen, with 30 years of practice and a focus on business litigation, bills at $430 per hour. The defendant argues that these hourly rates are inflated and should be adjusted downward to $350 per hour. But she fails to provide any evidence as to the prevailing rate in Orange County in support of her request for a downward modification. The court finds the rates charged reasonable within the local Orange County legal community for the...

Excerpt: ... computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data,” as well as “[k]nowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external...

Excerpt: ...iscrimination. They are Black. They also allege violations of Business and Professions Code section 17200 as well as Article I, section 7, and Article IV, section 16(a) of the California Constitution on grounds of alleged violations of substantive due process. The parties agree that defendant Inland Empire Health Plan is a “local agency” as that term is defined by statute. The plaintiff further concedes that the complaint was not filed in the...

Excerpt: ...ges he had not consumed any alcohol in the prior 12 hours. The test results were sent to his employer, and he was fired based on those breath test results. Plaintiff further alleges the EBT device was not properly calibrated and had not been properly maintained in accordance with the manufacturer's instructions or state law and thus the test results were not accurate. The transmission of those results by defendants to his employer and the FAA res...

Excerpt: ... not the alleged written agreement, the applicability of the forum selection clause is irrelevant. In their reply, the defendants ignore whether the forum selection clause is void and argue that because defendant is a resident of Los Angeles County, a change of venue is appropriate. They also argue that the plaintiff has stipulated, tardily, to a change of venue. The motion is DENIED without prejudice. The Motion and the Evidence in Support The m...

Excerpt: ...ty Services Health Center as defendants in this action. (See ROA 62.) The court treats the filing of a First Amended Complaint as evidencing an intent by the plaintiff to dismiss these defendants, and thereby cause the stay to be lifted and the action proceed as to the other defendants. Accordingly, defendants Bora Shin, M.D., and Korean Community Services Health Center, will be dismissed with prejudice at the time of the hearing unless the plain...

Excerpt: ...parently since 2013 at the latest) and the plaintiff (and the homeowner's association) lost all contact with them, the plaintiff remained on the property and paid all costs, fees, and taxes associated with ownership. The defendants filed a verified answer to the complaint on June 10, 2022. (See ROA 36.) It was verified solely by Kumiko Kojima. The other defendant, Masami Kojima died May 12, 2022, and Kumiko Kojami was substituted in as successor-...

Excerpt: ... defendant Debora Werksman, started a competing pet cremation business, Dignity Pet Cremations. Plaintiffs further allege Werksman took, and has used, the plaintiffs' client and vendor lists and their trademark to compete with plaintiffs and to re-direct web site traffic that without such misuse would have gone to plaintiffs. Defendant Debora Werksman claims that the amended complaint fails to state a cause of action against her because it only a...

Excerpt: ...nded Complaint is the operative pleading. Although Sanchez was the driver of the vehicle, the plaintiff named Topolewski as a defendant because he was the registered owner. The plaintiff asserted the father was liable based on claims of negligent entrustment, agency, and employment. Also included in it was a sentence stating that Sanchez was living in her father's house at the time of the accident. Topolewski had a homeowner's policy. He was insu...

Excerpt: ...Coast Memorial Care Medical Center-Bills (ROA 125) 6. Orange Coast Memorial Care Medical Center-MR (ROA 126) 7. Ryan Aronin, MD (ROA 127) 8. Santa Monica Cancer Care (ROA 137) 9. Sara Vakkalanka, ENT (ROA 138) 10. Sarah C. Kim, MD (ROA 139) 11. Shela Haji Ali Ahmadi, MD (ROA 140) 12. Stephen Brewer, MD (ROA 141) 13. Stephen Kim, MD (ROA 142) 14. Surinder Saini, MD (ROA 143) 15. Tam Bui, MD, Inc. (ROA 144) 16. UCLA Health System-Bills (ROA 156) 17...

Excerpt: ...urse, this issue may also be addressed at trial. Motion for Summary Judgment/Summary Adjudication The motion of the defendant for summary judgment and/or summary adjudication of issues as to the Third Amended Complaint is GRANTED in part and DENIED in part. The motion is DENIED as to the First Cause of Action for disability discrimination. The plaintiff established that there is a triable issue of material fact as to whether the actions taken aga...

Excerpt: ...on is GRANTED in part and DENIED in part as follows: 1. Request No. 1 This request seeks all repair orders, including handwritten notes, relating to the subject vehicle. Defendant responded that the subject vehicle was inspected and repaired by a GM- authorized repair facility, not defendant, and that it will produce any repair orders that it may have obtained from those GM-authorized dealerships. Plaintiffs argue defendant has failed to produce ...

Excerpt: ...f action for elder abuse and negligence. The “Skilled Nursing Facility Arbitration Agreement is attached as Exhibit “2” of defendants' Notice of Lodgment of Exhibits. Article 1 states that disputes with respect to medical malpractice and the sufficiency of treatment “will be determined by submission to arbitration as provided by California law.” Article 3 then provides that because the Facility participates in Medicare and/or Medi-Cal, ...

Excerpt: ...ty. The driver of an automobile turned left turn in front of the officer's motorcycle. Plaintiff filed for worker's compensation benefits from his employer, the City of Los Angeles. The City paid out a gross total of $190,320.54. The total paid to the plaintiff was $130,080.53—which included benefits of $112,012.95 and temporary disability benefits of $12,991.58. Later, he was paid permanent disability benefits of $76,560. From this award, the ...

Excerpt: ...omplaint alleges that the insurance contract provides coverage for certain sudden and accidental discharges of water. It quotes the applicable section. Given the complaint alleges the plaintiffs made a claim for water damage under their homeowner's insurance policy, quoting that one provision within the insurance contract is sufficient for pleading purposes. The demurrer also argues that the complaint does not state facts supporting its claim tha...

Excerpt: ...n the dealer was later dismissed, the motion for change of venue was (for reasons which are unclear) withdrawn. The argument for change of venue was—in part—that defendant Sacramento Chrysler Dodge Jeep Ram was the place where the repairs were made and is the principal address of the dealer. Moreover, the contract was entered into in Sacramento County and neither plaintiff resides in Orange County Those facts appear to be undisputed. The “u...

Excerpt: ...LRS, Inc., to collect from the plaintiff the claimed debt. The basis of the complaint is simple: The debt collector furnished false information about the debt (the false information is that there is a debt) to a credit reporting agency in violation of Civil Code section 1785.25. The defendant accounting agency is liable for the furnishing of the false information because it “authorized” the debt collector to furnish the false information (i.e...

Excerpt: ...em to argue that the court should exercise its inherent power under Code of Civil Procedure section 128, subdivision (a)(5), to disqualify counsel. (See In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 575.) The argument is that Zeutel cannot represent both the owner (Mu) and the real estate agent (Milne) because Mu should be suing Milne based on an alleged misrepresentation as to the condition of the property. In short, the suggestio...

Excerpt: ...ting additional time to respond, the defendant never provided responses. The defendant did not file opposition to the motion. Nor did he appear at the hearing. At this point, the defendant was self-represented. On June 8, 2022, the defendant, still self-represented, filed a motion to set aside the order, claiming he had been unable to log in remotely to the May 12 hearing. He also claimed he had served responses to the Requests by e-mail the day ...

Excerpt: ...have been the subject of discovery, and were the subject of a prior motion under CCP §3295. While Defendants could have challenged the complaint by demurrer or motion to strike, it filed an answer, and later filed an amended answer, neither of which mentions CCP §425.14. Indeed, when Plaintiff sought an order permitting financial discovery for purposes of punitive damages in July of 2021, Defendants likewise failed to cite the statute. The Cour...

Excerpt: ...rocess,” such as “[f]ailing to respond or to submit to an authorized method of discovery” or “[d]isobeying a court order to provide discovery.” (C.C.P. §§ 2023.010; 2023.030.) C.C.P. § 2031.310(i) provides that if a party fails to obey an order compelling further responses to request for production of documents, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a te...

Excerpt: ... to add a claim for punitive damages. “(a)(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse pa...

Excerpt: ... there is no ground for general demurrer.” (Roman v. County of Los Angeles (2000) 85 al.App.4th 315, 324-325.) 1st cause of action for quiet title “The Legislature has not established a specific statute of limitations for actions to quiet title. [Citation.] Therefore, courts refer to the underlying theory of relief to determine the applicable period of limitations. [Citation.] An inquiry into the underlying theory requires the court to identi...

Excerpt: ...inion. The plaintiff filed this action in January 2015. The matter was tried to a jury in August 2017. Frost was awarded nothing. Her appeal from the judgment was dismissed when she failed to file a brief. Frost now claims, in essence, that she lost at trial because the defendant lied, and an important document was concealed from her and not introduced into evidence. It is unclear who actually concealed the document, but her suggestion is that it...

Excerpt: ...aller fonts, which make the papers in violation of the Rules of Court. The court elects to overlook these procedural irregularities in order to address the merits. She also procedural irregularities with plaintiffs' evidentiary objections, as noted below. Plaintiffs' Request for Continuance The summary judgment motion was filed with an initial hearing date of May 12, 2022. It has been continued several times pursuant to Code of Civil Procedure se...

Excerpt: ...is when plaintiff began to sustain damages and therefore this action is time-barred. The plaintiff alleges it sought to purchase an insurance policy to protect it from lawsuits brought after the sale of the business for products it had manufactured prior to the sale of the business. It is alleged that an accident occurred in 2017 involving a product it had manufactured and that an action for personal injury damages was filed in Utah. It turned th...

Excerpt: ...urther order of the court. On June 23, 2022, the parties met with the arbitrator with the American Arbitration Association at an Arbitration Management Conference. On July 18, 2022, the arbitrator sent notice that the employer would be billed $66,000 for its arbitration services. On July 27, 2022, defendant employer advised the arbitrator that it would not pay the arbitration fees as it found them “commercially unreasonable.” It also expresse...

Excerpt: ..., and the residence of the buyer (now and at the time the subject vehicle was purchased) are all apparently located in Shasta County. The plaintiff pled venue as follows: He alleged he is a “resident of California,” without identifying his county of residence. He alleged he purchased a vehicle manufactured by FCA US, without identifying where he purchased it, and he alleged that FCA has its principal place of business in Michigan. He also all...

Excerpt: ...r has ever been, filed. Defendants were served by substituted service on April 10, 2022. Declarations attached to each proof of service shows mailing was made April 11, 2022. Substituted service was therefore complete on April 21, 2022. Thirty days from April 21 is May 21, 2022. However, May 21 fell on a Saturday. Because this motion had to be filed within 30 days, the last day to file must be advanced to the last court day, which was Friday, May...

Excerpt: ...e motion is whether a vehicle manufacturer may enforce an arbitration provision in a sales agreement between a buyer and the dealer in a “Lemon Law” case brought pursuant to statute. The leading case in state court is Felisilda v. FCA US, LLC (2020) 53 Cal.App.5th 486. It held that a manufacturer may enforce the arbitration provision (if the language includes third parties within its terms), even though the manufacturer is not party to the ag...

Excerpt: ... civil action, and without advising him first of his Fifth Amendment rights. When the court became aware of this, it sealed the reporter's transcript. That sealing order remains in effect pursuant to the express terms of the sealing order. 2. Defendant Santa Ana Unified School District filed a motion for summary judgment which is scheduled to be heard January 19, 2023. 3. The plaintiff moved to strike the summary judgment motion—which is the mo...

Excerpt: ... city limits. The City filed this action to enforce the ordinance. Following a hearing, the court granted a preliminary injunction. The order, among other things, prohibits anyone from entering the space pending further order of the court. Forest Ridge is the landlord of the property. It states it wants to enter the premises in order to remove the current unpermitted tenant improvements and prepare the space for a future rental. It states that th...

Excerpt: ... scope and extent of August's representation based on the limited information/evidence that was provided by the parties. (See ROA 41.) However, the court notes that attorney Kenneth August has attached a declaration to his recently-filed Response to Motion in which he affirmatively states that he “and his firm were retained for the sole and specific purpose of providing advice and counsel to Danny Ryan related to the transaction at issue in thi...

Excerpt: ...rt animal” and that its loss caused her, in addition to economic damages, damages for emotional distress. Other facts are disputed: The plaintiff asserts, for example, that the defendants made no effort to stop the attack despite repeated requests from the plaintiff and that they simply walked away once the cat had escaped. But the court finds those other facts are not relevant. There are only three cases in California that speak to the issue o...

Excerpt: ... to evidence the requisite elements of their claim,” without specifying any issue to be decided. That is insufficient to put the opposing party on notice of the precise issue to be resolved. The second paragraph is specific: It says the two procedures—LASIK and PRK— are not “substantially different” and therefore the consent plaintiff gave for the one procedure constitutes consent for the other. However, the points and authorities raise...

Excerpt: ... also provides that the motion may be made before entry of judgment, and that after judgment has been entered, the public entity may only seek its fees and costs through a malicious prosecution action. On June 7, 2022, the court ordered summary judgment in favor of the County and against the plaintiff. A formal judgment has not yet been entered. Thus, the motion for attorney fees and costs is timely. The defendant's request for judicial notice of...

Excerpt: ...he stock of plaintiff's construction business, a sale that is at the heart of this dispute. The plaintiff asserts August was, among other things, his personal attorney at all relevant times. The defendants contend in response that they are not seeking the plaintiff's personal files, but only those attorney-client files that belong to the business defendant, the business they bought. The subpoena tries to maintain this distinction. Although hearsa...

Excerpt: ... over because there is no way to tell if these documents really are privileged. The plaintiff does not offer any concrete evidence suggesting why she is not convinced of their provenance. Rather, she just says the communications “line up” with other documents and from the timeline it looks suspicious. It would be one thing if she had some specific evidence. But a blanket claim that she does not know if they are or not covered by the attorney-...

Excerpt: ...ommunity for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The trial court is given broad discretion in valuing the professional services rendered in a particular case. “In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees . . . the difficulty or complexity of the litigation to which the ...

Excerpt: ... irrespective of whether the proposed amended complaint was originally submitted to the court more than 20 days after the demurrer was sustained. Moreover, any motion to strike the amended complaint on this ground had to have been filed before the amended complaint was submitted to the court. The plaintiff was previously directed by the court to reduce the length of the complaint. His latest iteration of an amended complaint attempts to do this. ...

Excerpt: ...mplaint that made certain minor corrections, including the addition of a part of a sentence to these particular causes of action. But those changes did not change the substance or character of the causes of action. These were but minor corrections. Generally, the filing of an amended complaint re-opens a defendant's right to demurrer to any cause of action, even one as to which the court overruled a demurrer. But here, the Complaint was corrected...

Excerpt: ...vities that morning and had not done anything to protect other patients from that behavior, and (b) the hospital was understaffed and had not properly trained its staff (among other things) and thus was ill-equipped to prevent the assault from happening. The two prime cases cited by the parties—Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85 [sexual assault by employee], and Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th ...

Excerpt: ...howing the Board actions were taken with improper motives or as a result of a conflict of interest. As to the allegations of alter ego liability, the court finds the complaint does not allege sufficient facts to show alter ego liability. The Facts Alleged in the Complaint The complaint alleges 14 causes of action: (1) breach of fiduciary duty, (2) abuse of control, (3) gross mismanagement, (4) waste of corporate assets, (5) breach of written cont...

Excerpt: ...vide responses without objection within 21 days of this order.” A fair reading of the minute order suggests that this extension-of-time modification was likely intended to relate to the concurrent motion to compel answers to Form Interrogatories (Set Two). However, the modification is not clear and does not state that it applies only to the one discovery motion and not the other. The court assumes that the Temporary Judge who handled the law an...

Excerpt: ... fails to demonstrate a basis on which to assert specific jurisdiction. Brown denies he was a party to any agreement that is the subject of this action, and he does not have any relationship with the other defendant. (See Decl. Brown, paras. 14 and 16.) The plaintiff alleges that Brown purposefully availed himself of the benefits of this forum because he “created a continuing contractual obligation between himself and UFSF, a California Limited...

Excerpt: ...from the plaintiff's attorney detailing that the defendant was personally served with the original summons and complaint as well as the amended complaint. He also asserts the defendant evaded service of the order for judgment debtor examination. However, counsel's declaration is inaccurate and fails to oppose the motion with competent evidence. He states, for example, that defendant was personally served by a registered process server with the or...

Excerpt: ...e motion for summary judgment that was ultimately withdrawn. Further, the court is unwilling to award fees performed (apparently) by attorney Kozinska at her hourly rate of $350 per hour where these tasks could be performed by staff or attorneys with lesser experience. Review of the Covid-19 court protocols and how it affects this case does not require the lead attorney. Finally, the court is unwilling to award attorney fees for preparation of �...

Excerpt: ... the plaintiffs (Joel 2012 Nevada Holdings, LLC) was never in privity with the defendants (and the defendants did not even know it existed), and that defendant and CEO of Crowdfunding, LLC, Edward Fernandez, was only an employee of Crowdfunding and thus cannot be held liable at all. For purposes of a demurrer, the court cannot consider the declaration of Fernandez or the discovery that has been exchanged. Separating what the court may consider fr...

Excerpt: ... from First Light Recovery and intentionally ran in front of a moving truck and was killed. These are the allegations against the Medical Center in the wrongful death cause of action against it. The thrust of the demurrer is that the Medical Center is immune from liability pursuant to Welfare and Institutions Code section 5113. That section falls under the Lanterman-Petris- Short Act [LPS Act]. Pertinent here, under section 5150, a person may be ...

Excerpt: ...ned by the plaintiff. A copy of the Dispute Resolution Agreement is attached to the motion to compel. (See ROA 13.) (The court notes that the declaration of Rebecca Douglass authenticating the Agreement (see ROA 14) inaccurately states the Agreement is attached to it. None is. However, the plaintiff does not suggest that the Agreement attached to the motion is different from the one Douglass authenticated.) Evidence is presented that the plaintif...

Excerpt: ...nue argues that venue has been improperly laid in Orange County because defendants Hernandez and Hire Well Screening Solutions, Inc., are residents of Madera County. The plaintiff concedes Hernandez is a resident of Madera County but argues venue is still proper in here because Hernandez committed the wrongful acts in Orange County at the plaintiff's business. As for Hire Well Screening Solutions, Inc., the complaint alleges that although it is a...

Excerpt: ...mplaint is that the cross-defendant failed to comply with that part of the Business Agreement involving the collection of insurance information. The demurrer to the First Cause of Action for Breach of Contract is OVERRULED. The court rejects the argument that the cross-complaint advances an “unreasonable” interpretation of the contract. Section II(1)(a)(6) of the Business Agreement states, among other things, that the cross-defendant is oblig...

Excerpt: ...Civ. Proc., § 367.) Although the demurrer claims the cross- complainant does not have standing to bring this action because her property was not foreclosed on, it does not cite any case to support such a proposition under similar facts. But she alleged she was an owner of a one-half undivided interest in the property and that had she been given notice of the foreclosure she could have protected her one-half interest from foreclosure and partitio...

Excerpt: ...re to permit rest periods, (7) failure to pay wages due upon separation, (8) failure to provide access to payroll records, (9) retaliation in violation of FEHA, (10) wrongful termination in violation of public policy, and (11) violation of Business and Professions Code section 17200. A review of the entire amended complaint reveals the plaintiff alleges she was injured in June 2019 while lifting a heavy keg of beer. When she reported the incident...

Excerpt: ...scharge, (10) retaliation in violation of Labor Code section 1102.5, (11) age discrimination, (12) harassment, (13) intentional infliction of emotional distress, and (14) unfair business practices. The plaintiff alleges that on or about November 1, 2017, he was promoted to president of the entities named in the amended complaint. (See Para. 30.) But he says his compensation was changed by defendant Heidler resulting in a significant reduction in ...

Excerpt: ...ery board member and the claims made in this amended complaint were raised with the board at the November 8, 2019 annual shareholders meeting. The demurrer as to these causes of action is OVERRULED on this ground. b. The Other Claims The Third and Tenth Causes of Action are for conversion, but they fail to allege the specific amount of money converted, simply alleging instead that it is at least $1 million and the amount will be proven at trial. ...

Excerpt: ...t demonstrated a right to the funds in the Reserve Account. But the court must accept as true at the demurrer stage the allegation that “cross-complainants own [] the fund in the Reserve Account.” However, a conversion claim must allege a specific and identifiable amount, which the cross-complaint does not do. The demurrer is SUSTAINED with 10 days leave on this last ground alone. Second Cause of Action—Breach of Contract The cross-complain...

Excerpt: ...t is alleged delivery of the vehicle occurred February 5, 2015. But the lawsuit was not filed until March 23, 2021, and this specific cause of action would be barred by the four-year statute of limitations unless the complaint adequately pleads delayed discovery. Paragraphs 17-24 of the amended complaint detail the various times the plaintiff presented the vehicle for repairs beginning in October 2019, or more than four years after delivery. Para...

Excerpt: ... employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences. . . . If the evidence is undisputed, the question becomes one of law . . . . The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349 [citations omitted].) The general test ...

Excerpt: ...suant to written questions. The court notes that the defendants filed a notice of appeal as to this court's order adopting the Referee's Report and Recommendation No. 11. (See G061287.) They also filed a petition for writ of mandate wherein they sought a stay of the entire action pending resolution of the appeal. (See G061287.) The writ petition, and request for a stay, was denied on May 5, 2022. (ROA 1351.) The appeal remains pending. The perfec...

Excerpt: ...s Granted Punitive Damages The motion for summary adjudication is granted as to the claim for punitive damages. There is simply no evidence to support any claim that the defendant acted with malice, oppression, or fraud; and no evidence that rises to the level of proof by clear and convincing. Issues for which Judgment is Denied First Cause of Action – Disability Discrimination There is a triable issue of material fact as to whether the plainti...

Excerpt: ...ertion that Green is liable on an alter ego theory is insufficient to state a cause of action against him individually. Demurrer (Casas and MSC Physician) The demurrer of defendants Melinda S. Casas and MSC Physician Billing Services, Inc., to the First Amended Complaint, specifically the Fourth and Fifth Causes of Action is SUSTAINED with 30 days leave. This is similar to the demurrer by Green. There are no specific allegations of any misreprese...

Excerpt: ...antage. [] It is quite literally the element that causes the interference to be a tort.” The same element applies to claims for negligent interference. (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1006 (disapproved on other grounds in Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130).) The California Supreme Court has held that, “to state a claim for interference with an at-will contract by a third party, the plaintiff mus...

Excerpt: ...esponses under oath. Here, a name is given but nothing in the served verification identifies who this individual is and his capacity. The defendant suggests that everyone knows who is; the plaintiff even took his deposition for 11 hours as the Person Most Knowledgeable for the corporation. That may be so, but each discovery verification must be complete within itself. The propounding party (and the trier of fact) must not have to look to other so...

Excerpt: ...aint alleges that Grace Coleman had a history of driving under the influence: three months prior to this accident she was arrested for driving under the influence of alcohol, and around the same time she was involved in a single-vehicle, hit- and-run accident where she struck a parked vehicle, allegedly while intoxicated. In each case, Grace Coleman was driving the same vehicle with the permission of her parents. The complaint also alleges that h...

Excerpt: ...8.) Here, the same allegations regarding poor workmanship pled in the negligence cause of action also undergird the nuisance cause. The cross-complainants' argument that nuisance causes of action are permitted in construction cases is not supported by any of the cases cited. The court finds the nuisance cause of action duplicative of the negligence cause. Fourth Cause of Action—Fraud Fraud causes of action must be pled with particularity as to ...

Excerpt: ...everity of the sanctions imposed under the order. But a motion for reconsideration is a statutory remedy, permitted only where a proper showing is made, and the defendants have not made such a showing here. Even were the court to address the issues raised, none have merit. As the Discovery Referee pointed out in his statement as to why issue sanctions should be imposed for the repeated discovery abuse, the defendants have consistently acted as th...

Excerpt: ...ally, from the prior motion. It is agreed that no one knows when the leak occurred, what caused it, and who caused it. What the available evidence does show is that when the area was opened up to find where the leak was, the pipe was found cracked and leaking and an electrical conduit was found being used to funnel water escaping from the leak to a nearby bog. It is also undisputed that after the pipe was first installed an electrical line was in...