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: ...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Excerpt: ...e motion for summary judgment that was ultimately withdrawn.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...

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...