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...

Excerpt: ...utory premise for reconsideration. The court is consonant of the severity of the issue sanctions imposed by the making of Recommendation No. 11 an order. But reconsideration is a statutory remedy, permitted only where a proper showing is made, and the defendants have not made it here. Even were the court to address the issues raised, none have merit. As the Discovery Referee aptly pointed out in his statement as to why issue sanctions should be i...

Excerpt: ...and the trust deed was valueless because it was subordinated to a first trust deed that was for more than the property was worth. The plaintiff asserts it was defrauded into purchasing (in a non-judicial foreclosure sale) a subordinated, and worthless, trust deed because of the misrepresentations. The Basis for Defendant's Demurrer Most of the issues raised by the demurrer (the causes of action are duplicative of the second and third, plaintiff c...

Excerpt: ... appears that Tyner and Dubrovski are only charged in the third and fourth causes of action for retaliation against the plaintiff for requesting accommodations, and for creating a hostile work environment in violation of FEHA. As to the third cause of action, the plaintiff has raised a triable issue of material fact: she claims her termination was in retaliation to her request for a leave of absence, which could be considered a protected activity...

Excerpt: ...en. It provided undisputed evidence that the defendant asked for the ring; she knew she either had to pay for it or return it; the defendant did not pay for it and did not return it, claiming it had been misplaced in the house; and the diamond ring was CGL appraised at over $62,000. Without providing a declaration in opposition or a statement of disputed and undisputed facts (in violation of the Rules of Court), the defendant argues summary adjud...

Excerpt: ...The court exercised its discretion after reviewing the file and how the issues in the case affected those parties and the duty-to-defend question. Thus, the mere fact that the court denied the other motion is not necessarily informative here. The court must again review the issues in light of where the case stands now as to these parties. As a preliminary matter, at the end of its points and authorities in opposition Ninyo & Moore suggests it nee...

Excerpt: ... subpoenas appear to be identical and the arguments raised are the same as to each, the court intends to overlook the procedural problem and rule on the merits this time. Inadequate Meet and Confer The parties did not engage in a meaningful meet and confer as required by the discovery statutes. True, they had an oral conversation. But it is clear from the declarations that they did not engage in the type of meet and confer that is contemplated by...

Excerpt: ...ture of the action, the fact that the plaintiff's deposition has been, or should be, completed shortly (Query: Was it taken February 8?), and the court's lighter calendar in April and much heavier calendar in June of 2022. In its reply, defendant Prompt Delivery continues to fault the plaintiff's counsel for failing to notify it timely of the prior trial date. Given the defendant filed its answer to the complaint on October 8, 2020 (ROA 10)—wit...

Excerpt: .... Moreover, there is evidence from Jonathan Reynolds, an employee of cross-defendant Van Nuys Sheet Metal, that he did not sign the ticket until after the incident, and there is deposition testimony of Charles Kent, the Person Most Knowledgeable from Van Nuys Sheet Metal, that there was a custom and practice regarding the signing of these tickets which was not followed that night. If the ticket was not signed by an authorized agent, or was not si...

Excerpt: ... the opposition thereto. Demurrer A. First through Fifth Causes of Action The First Cause of Action is for Violation of the Fair Employment and Housing Act (“FEHA”). It alleges that the defendants discriminated against the plaintiff “based on gender, race, pregnancy and/or disability/perceived disability.” Each of the next four causes of action also allege violations of FEHA. The Second Cause of Action is for “harassment based on gender...

Excerpt: ...e was initially treated by defendant Dr. Lorraine Sunday. During physical therapy he suffered further spinal injury. He underwent a cervical MRI and was referred to Field, an orthopedic surgeon, for “failure to progress.” The MRI showed “several levels of disc protrusions with compression of the cord.” Field saw the plaintiff one time on October 27, 2016. He took a written and oral history, conducted a physical examination, and reviewed t...

Excerpt: ...s the motion, as to it, is GRANTED, as to the Fifth Cause of Action for breach of implied warranty. (See ROA 397, 2:3-5; 4:8-9; 7:3-5.) California Motorcycle Accessories, Inc. The plaintiff does not oppose the motion for summary adjudication as to defendant California Motorcycle Accessories, Inc., only insofar as it relates to the undisputed fact that this defendant did not issue any warranty. As to that issue, the motion is GRANTED. (See ROA 397...

Excerpt: ...n. I. Motion of Defendant Susan Su Chun Wu Defendant Susan Su Chun Wu filed a motion for summary adjudication of issues as to complaint filed by plaintiffs Yoshinori Senga, Sakiko Ogura, and Yasuhiro Senga. 1. First Cause of Action quiet title as to real property located at 203 Nashville Avenue, Huntington Beach. DENIED. Quiet title was pled as to three properties. (See Para. 159 of Second Amended Complaint.) The defendant fails to explain how th...

Excerpt: ...of the procedural posture of the case, the facts proved, and the court's final ruling. As the minute order makes clear, the court had concluded that the defendants were entitled to judgment as a matter of law on the summary judgment motion on the ground that the action was barred by the applicable one-year statute of limitations. Thus, the court's order after hearing was to grant summary judgment. However, the court recognized (as explained in it...

Excerpt: ...Fiber, LLC, breached the Pole License Agreement and refused to accept SCE's tender of defense. The motion is DENIED. Procedural Irregularities This is the second time that Southern California Edison Company has sought summary adjudication of issues on its cross-complaint as to this cross-defendant. The first time the summary adjudication of issues motion was denied without prejudice; there were numerous procedural errors. Although this second mot...

Excerpt: ...k Linskey M.D. made by any UCI Resident from August 1, 2017 to present. 3. IDENTIFY every Medical Executive Committee (MEC) Incident Report by IR number that involves Mark Linskey M.D. during the period January 1, 2015 through the present time. 4. IDENTIFY all facts that form the basis for each Incident Report involving Mark Linskey M.D. for the period beginning January 1, 2015 through the present time. 5. IDENTIFY all witnesses with knowledge of...

Excerpt: ...tter should be heard by him. But at the prior hearing the parties, without appearing and without argument, submitted on the tentative. The tentative did not offer an opinion on the merits but advised the parties that supplemental briefing on a point not raised by them in their briefs would be helpful. Under these circumstances, the court concludes that it may rule on the motion in the first instance.) Joslin argues that he is not a Member of the ...

Excerpt: ...e cross-complainant's motion for leave to file a second amended cross- complaint. The motion for leave to amend is also on this law and motion calendar, infra. It appears from the declaration of attorney Klein that the that the testimony of these witnesses may be relevant to the current first amended cross-complaint. The court has read and considered all the papers and finds the arguments of the plaintiff without merit. The motion for a protectiv...

Excerpt: ...4:9-10.) May has diabetes and uses a rolling basket. While the plaintiffs were shopping at the back of the store, a “security guard” named “Marie” approached and accused Drake of stealing. The security guard frisked him without his consent and tried to make him stand up, which he could not do. He injured his foot attempting to comply. When May approached to find out what was going on, the security guard accused her of stealing and went th...

Excerpt: ... Douglas Ames, or, in the alternative, to prioritize the liens is GRANTED in part and DENIED in part. The motion to amend the judgment to add costs (but not attorney fees) is GRANTED. To the extent the motion may not have provided adequate notice, the defect was waived by Ames when he filed opposition thereto. To the extent Ames argues the proposed amendment conflicts with this court's prior rulings, he is incorrect. The court awarded costs and d...

Excerpt: ... a question of law for the court to resolve. This is a close case. Although the three cases cited by the parties provide guidance, they are not dispositive. For example, in Fire Insurance Exchange v. Hammond (2000) 83 Cal.App.4th 313 the lease agreement did not include provisions for fire insurance. Here, on the other hand, the lease provides that both the lessor and the lessee are required to obtain fire insurance. A review of Paragraphs 1.7, 3....

Excerpt: ...appear to allow the proper discharge of water. The court is not persuaded that Buchanan v. Los Angeles County Flood Control Dist. (1976) 56 Cal.App.3d 757 controls here. The facts in that case are substantially different. Among other differences, there the Flood Control District artificially diverted water into a wash and allowed it to flow down it at 8 to 9 feet above grade. Here, the evidence suggests there was a “puddle” that the plaintiff...

Excerpt: ...re no allegations that the School District's conduct was directed toward the plaintiffs, and thus no cause of action has been stated. Although such allegation is a general element, there is an exception to that rule when the defendant is aware of the danger but acts in reckless disregard of the plaintiff while knowing the probability that such conduct will cause the plaintiff severe emotional distress. Here, the allegations are that defendant Sch...

Excerpt: ...4 Cal. App. 5th 1030(2d Dist. 2018)] Defendant's specific argument herein is that “where the only evidence is that the liquid or grape may have been on the floor for approximately 6 to 7 minutes or less, it must be held that it is insufficient to support an inference that the Defendants failed to exercise reasonable care.” See Motion page 17:17-20. In support of that argument, Defendant cites to Girvetz v. Boys' Market, Inc. (1949) 91 Cal.App...

Excerpt: ... had legitimate business reasons for the adverse employment action, and Plaintiff cannot show those reasons were pretextual. (Undisputed Material Fact Nos. 1-30.) In order to establish a prima facie case, Plaintiff must show that he was: (1) suffering from a disability; (2) otherwise qualified to do his job; and (3) subjected to an adverse employment action because of his disability. Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 344- 45 (2008)...

Excerpt: ...he responses contained objections. • 8-20-2021 Attorney Fasel sent to opposing counsel a meet and confer letter. • 9-17-2021 Plaintiff served Amended Responses which contained objections or were not answered. • 10-5-2021 Attorney Fasel sent another meet and confer. • 10-12-2021 Plaintiff's counsel responded. At issue herein are the following: RPDS Nos. 14-16, 26-52; RFAs Nos. 1, 2, 4-6, 10, 31; Form Rogs Nos. 17.1 as it relates to RFAS 1,...

Excerpt: ...f a statute. It alleges the basic elements of negligence and therefore the demurrer is overruled. Second Cause of Action for Negligence Per Se The violation of a statute, regulation, or ordinance that establishes standards of appropriate conduct may constitute negligence per se if the violation was the cause of the plaintiff's harm. However, this cause of action fails to identify the statute, regulation, or ordinance that the defendants violate�...

Excerpt: ...cause it cannot prove damages. The plaintiff cannot foreclose on the property to satisfy the monetary penalties/reimbursements imposed here under section 5725, subdivision (b), of the Davis-Stirling Act. This argument misses the mark. A statutory cause of action may be stated whenever a transfer is made by the debtor with the intent to hinder, delay, or defraud any creditor, and which causes the creditor actual harm. Here, the second cause of act...

Excerpt: ... their case. Simply by way of example, when counsel for the defendant finally paid the sanctions, it included on the receipt the case name as “Bonilla v. Balboa Inn, LLC, et al—fckyou.” Even so, as of the date the motion was filed the defendant had not complied with this court's prior order. Defense counsel offers numerous excuses as to why his office failed to comply; but generally, he pins the blame on others, including a former associate...

Excerpt: ...on which a party bases its contention that it is not an unqualified admission. Defendant Sourced Energy denied the Requests for Admissions. Its interrogatory responses are not evasive, and they are code compliant. As for Form Interrogatory No. 12, the motion attempts to force the defendant to admit that the mere lack of a driver's license, and not some other negligence, was the “cause” of the accident when, in fact, it could just be that Rios...

Excerpt: ...de section 68561 states that an interpreter in court proceedings (which includes oral depositions) must be certified by the California Judicial Council. Kartouche conceded on the record at the deposition in sworn testimony that he has not been so certified. That said, nothing here should be construed as a comment on Kartouche's general qualifications. It is apparent from the record that he is certified interpreter in federal court and has been al...

Excerpt: ... merits. It believes that if given an opportunity, Dr. Lee can correct this oversight. (In the reply, the court is advised that a correction to the declaration will be filed prior to the hearing.) The court overrules the remaining evidentiary objections, as well. 1. Declaration of Dr. Lee The defendants met their initial burden as to standard of care and causation, and thus the burden shifted to the plaintiff. Dr. Lee declares that based on his b...

Excerpt: ...ecause the parties understood the operative complaint to be the amended complaint, the court will consider the motion for summary adjudication on the merits.) Background This is an employment law case. The third cause of action is for age-based discrimination; the fourth cause of action is for failure to prevent discrimination; the fifth cause of action is for wrongful termination in violation of public policy; and the sixth cause of action is fo...

Excerpt: ...IED without prejudice. A motion for judgment on the pleadings is reviewed in the same manner as a demurrer. There is a liquidated damages clause in the agreement and thus each of the challenged counts states a cause of action. Moreover, the liquidated damages claim is only part of the damages sought, and thus the motion to strike impermissibly seeks to strike those causes of action that the motion impliedly admits are viable as to the other damag...

Excerpt: ...t meet his burden of proof. At best, he “believes” this defendant has had other monetary or financial transactions within this state and has visited here several times since 2007. b. Personal Jurisdiction The plaintiff asserts the court has personal jurisdiction over this defendant because Singh loaned money to defendant Global, a California corporation. Singh has received money in repayment from checks written in California and any enforceme...

Excerpt: ...dants may have had in the property was extinguished by payment in full of the underlying debt. This motion was originally calendared for August 12, 2021, but the court questioned whether a quiet title action could be determined on a summary judgment motion given that a quiet title action could not be determined on default by way of a 585 packet; a hearing was required. (ROA 707.) The parties were given the opportunity to file additional points an...

Excerpt: ...m they have the right to use Lot A as an access road to Stonehaven Drive, and that the city is frustrating that purpose. The plaintiffs claim that Lot A was never dedicated as open space but was set aside to prohibit the construction of residences on it. The city claims that Lot A was dedicated (and accepted) as open space and that an access road would be inconsistent with the 1987 approvals. The plaintiffs also claim they have an easement over i...

Excerpt: ...ny California (or Georgia) cases that have so held. (The reference to Georgia is based on the court's understanding that the business is located in Georgia.) Because this is a motion for summary adjudication of issues, the court's role is limited to determining if there is a triable issue of material fact. Impossibility of performance is a legal excuse, and a valid defense, to a cause of action for breach of contract if there are facts to support...

Excerpt: ...y incorporates the first 42 facts and evidence in support. Therefore, instead of analyzing each of the 18 issues, the court treats each cause of action as an issue for adjudication. First Cause of Action—Medical Leave Discrimination The plaintiff concedes this cause of action has no merit, and thus the motion is GRANTED. Second Cause of Action—Medical Leave Retaliation The plaintiff claims he was retaliated against for exercising his right to...

Excerpt: ...nknown what other water source there could be for that drain. There is also a factual dispute as to whether there are other contributing water sources, such as the many residences along the street upstream from where the plaintiff slipped and fell. But neither of these factual disputes appear material to whether the release of water into the street drainage system created a dangerous condition as to the plaintiff. For example: Is there any eviden...

Excerpt: ...ourt Delay Reduction Act, the parties should consider this trial date certain and firm. Discovery Requests The plaintiff requests a six-month continuance of all discovery matters. The plaintiff submitted to the court a letter from his physician dated February 9, 2021 (see ROA 156) wherein she states that the plaintiff, who is self-represented, “is suffering from multiple health problems at this time. He needs an accomodation [sic] to delay any ...

Excerpt: ... are not referenced in the supporting evidence, and in Nos. 19-21, 27-28, and 31, simply refer to the “Dabcevic Dec.” without identifying which portion of the declaration is relied on. b. Objections Oh's objections to the declaration of Matthew Bauer (Nos. 1-7) are not material to the disposition of the motion. Thus, the court declines to rule on them. Oh's objections to the declaration of Christina Cigliano (Nos. 8-13) are OVERRULED. Oh's ob...

Excerpt: ...go, depression and insomnia, and other relevant neuropsychiatric symptoms.” (Mot., 2:17-18.) The curriculum vitaes of Dr. Rosenberg and the psychologist, Dr. Filoteo, which are attached to the motion, indicate that Dr. Rosenberg is a neuropsychiatrist and that Dr. Filoteo is a neuropsychologist. In his opposition, the plaintiff objects—in part—to the motion to compel on the ground that he is not claiming any psychiatric (nor any unusual psy...

Excerpt: ...us they had not been placed on notice. The plaintiff put in evidence the fact that there had been several car break-ins in the complex parking area, there had been a domestic violence incident between residents in the same unit, and one resident (with a known mental illness) had threatened other residents, including pointing a firearm at another resident. He also suggested this area of the city was dangerous; other residential complexes had put i...

Excerpt: ...m of constructive termination.) Whether he was actually terminated is a question of fact that cannot be determined on demurrer—unless it is clear from the allegations made that, as a matter of law, he was never terminated. Here, when the allegations of the amended complaint are read as a whole they are sufficient to state a cause of action. Motion to Strike The motion of the defendant to strike portions of the first amended complaint is GRANTED...

Excerpt: ...ady agreed on a date and time (pursuant to the minute order of July 22, 2021, the parties agreed to take Vich's continued deposition on August 11, 2021), these depositions shall be set within 20 days. The deponents do not challenge the right of the cross-complainants to take their continued depositions. They only complain that the new deposition dates had not been mutually agreed upon. The court finds that sanctions would not be in the interest o...

Excerpt: ...joint statement was filed. But as pointed out by the plaintiff's counsel, and as acceded to by the counsel for the Wurzburg defendants, there were several mistakes in it caused by the Wurzbergs' counsel. The court has reviewed the declarations submitted by counsel. The court accepts the representations of counsel that these mistakes were inadvertent only, and she apologizes for them. The court concludes that no further action on its part is neces...

Excerpt: ... plaintiff asserts a claim for fraudulent transfer. Such a claim is a real property claim for the purposes of a motion to expunge a lis pendens. (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648-649.) 2. Probable Validity of Claim The court finds that the plaintiff established the probable validity of her claim for fraudulent transfer by the preponderance of the evidence. She presented sufficient evidence to support an inference of fraudulent...

Excerpt: ...ecause of his race and sex, that he was dismissed from his job because he disclosed and complained about unlawful activities within the Program, and that he was not afforded the full complement of due process rights and protections due to him. In his second amended complaint, he alleges six causes of action (listed by their cause of action numbers in the amended complaint; the first cause of action was dismissed by court order): 2. Discrimination...

Excerpt: ...s void].) Arguments made by the defendants and their counsel to undermine the holding in Moore are frivolous. The motion for attorney fees and costs against attorney Randy Vogel is DENIED. In his opposition to the attorney fees request against the plaintiff, Vogel suggests that the request for attorney fees against him is sanctionable conduct. However, Vogel is represented by counsel who did not make a request for an award of sanctions in Vogel's...