Excerpt: ...n the dealer was later dismissed, the motion for change of venue was (for reasons which are unclear) withdrawn.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: ...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: ...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 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: ... 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: ... 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: ...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: ...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: ...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...