Excerpt: ...ed Third- Party D ispute Resolution Process" affirmative defense. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590 -591 [relevance broadly defined]; Kwan v. Mercedes -Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184 -1 85 [willfulness]; Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 346- 347 [civil penalties affirmed where manufacturer knew its repair was intentionally inadequate]....

Excerpt: ...dentified a ny witness nor denied knowledge of any witness. In its further response, it should do one of these. Sanctions were not noticed; none are imposed. Motion to Compel: Anaheim Healthcare Form Rogs (ROA #67) Plaintiff's motion is denied as moot except as to sanctions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409; Cal. Rules of Court, rule 3.1348; see also Ho decl. [ROA #100] �...

Excerpt: ...“Hirson” an d crossdefendants as “Korpivaara.” Defect/misjoinder of parties. Korpivaara has not shown Niral Patel is an indispensable party. “An agent is not an indispensable party in litigation between his principal and a third party over the subject matter of the a g e n c y .” (Writers Guild of America, West, Inc. v. Screen Gems, Inc. (1969) 274 Cal.App.2d 367, 374.) 1st cause of action, declaratory judgment -partner disassociation...

Excerpt: ...onte ntion that it is entitled to insurance coverage for a judgment in an underlying action.” (Dem. at pp. 1 -2.) But defendant has not shown “two exclusions in the insurance policy issued by ANV apply to exclude coverage for Plaintiffs' claim.” (Dem. at p. 1 .) First, the Bankruptcy Exclusion does not bar coverage because it is unenforceable. The Bankruptcy Exclusion purports to exclude coverage for any claim involving “any Wrongful Act ...

Excerpt: ...use of action. The 2nd cause of action premises negligence on a breach of statutory duties: The CARES Act, the FFCRA, and Health & Safety Code section 1342.2. (See FAC ¶ 118.) The 9th cause of action alleges a violation of Section 1342.2 But “the CARES Act do es not grant a private right of action to a provider of COVID -19 diagnostic testing to enforce § 3202.” (Saloojas, Inc. v. Aetna Health of California, Inc. (9th Cir. 2023) 80 F.4th 10...

Excerpt: ...of the defendant's allegations as being true.'” (People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499.) Here, as in Becerra, defendant has “denied all of [plaintiff's] allegations . . . . This alone should have precluded judgment on the pleadings.” (B ecerra, supra, 29 Cal.App.5th at p. 499; accord 8/14/23 answer at p. 2. [defendant “denies generally and specifically each and every cause of action and allegation”...

Excerpt: ...intiff. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [Biakanja factors], 406 [auditor's liability “is confined to the client”]; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 580- 586 [accountant to partnership owed no professional duties to individual partners ].) Plaintiff asserts Welch is liable for aiding and abetting the other defendants' breaches of fiduciary duty, not for breaching any fiduciary duty of ...

Excerpt: ...e is also a judgment against the general partner.” (Corp. Code, § 15904.05, subd. (b); accord Wyo. Stat. Ann. § 17 -21 -307, subd. (c).) Even “[w]here a judgment has been obtained against both the partnership and a general partner, the judgment creditor may not levy against the general partner's assets based on a claim against the partnership unless the general partner is personally liable for the claim” and at least one of several speci�...

Excerpt: ... can be clarified under modern dis covery procedures.” (Ibid.) 1st cause of action, trespass. The complaint states facts sufficient to state this cause of action. “‘The essence of the cause of action for trespass is an ‘unauthorized entry' onto the land of another . . . . regardless of the actor's motivation.'” (Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1355.) Here, the complaint alleges the subsidence of d...

Excerpt: ....) The Village has shown it gave effective notice to defend ant Garfield Beach CVS LLC of its change of address by the 4/30/18 email. The Village has shown CVS waived the lease's notice provisions by accepting the 4/30/18 emailed notice. (See Irving v. Sunset Mut. Life Ins. Co. (1935) 4 Cal.App.2d 455, 460 [ins urer's acceptance waived policy's notice provisions]; Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 [implied waiver]; see a...

Excerpt: ...v. California Department of Public H ealth (2016) 1 Cal.App.5th 1000, 1007.) The complaint does not allege the date that the plaintiffs discovered the alleged defects with the vehicle's transmission. (See Code Civ. Proc. § 338, subd. (d).) “[W]hen the relevant facts are not clear such that the cause of action might be, but is not necessarily, time- barred, the demurrer will be overruled.” (Coalition for Clean Air v. City of Visalia (2012) 20...

Excerpt: ... Company's antiSLAPP motion is granted. These allegations are stri cken: • General allegations ¶¶ 21, 22, 23, 24 and 25. • 2nd cause of action ¶¶ 35(f) and (g), 38 -39. • 3rd cause of action ¶¶ 41 at 12:17 -18 (“PIIC attached a copy of its 2014/2015 policy as Exhibit 4 to its April 4, 2018 Complaint against TSRI and Vi lagut in the federal action”), 42(a), (b) & (h), 45. • 5th cause of action ¶ 55 at 15:25 (“and the PIIC fede...

Excerpt: ...urden to show any challenged cause of action has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 -851 [same].) Defendant has “the burden to show that it [is] entitled to judgment with respect to all theories of liability asserted by ” plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717; accord Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [m...

Excerpt: ...o v. Owens -Corning Fiberglas C orp. (1971) 22 Cal.App.3d 116, 124 -125 [property right required]; Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 67 [lodger has no property right]; see also Compl. Ex. A [hotel receipt].) On the other hand, defendants have not shown plaintiff can not assert a public nuisance. Plaintiff adequately “alleges facts showing special injury to himself in person . . . of a character different in kind from that ...

Excerpt: ...ng charging order – it is needed only to create a prehearing lien. (Code Civ. Proc., § 708.320.) It is not clear whether the court prematurely awarded attorney fees on the cross -complaint while the complaint was still pending. “A cross -complaint is generally considered to be a separate action from that initiated by the complaint.” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134 [allowing postjudgment costs on cr...

Excerpt: ...uires an employee to prove ‘severe or pervasive' harassment.” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878.) While “‘[a] single incident of harassing conduct'” may be sufficient, the conduct still must have “‘unreasonably interfered with the plaintiff's work perfo rmance or created an intimidating, hostile, or offensive work environment.'” (Ibid.) Here, the complaint alleges a single meeting at wh...

Excerpt: ...fense]; CACI No. 4552 [same].) Virzi shows its work at the property was completed and accepted on 9/18/19. (See Def. SSUF # 13, 15, 17.) The alleged defect consists of a raised wheel stop/parking block in the blue-striped pedestrian access aisle next to a parking space for persons with disabilities. (See Def. SSUF #2; Def. Evid. (ROA #185), Ex. B [Pl. Depo. 39:9-40:9, 44:1-14]; see also Compl. ¶¶ 10-11; Pl. Evid. (ROA #213), Ex. A.) This is a p...

Excerpt: ...6) 177 Cal.App.3d 792, 802 [“the statute or ‘enactment' must at the very least be identiÞed” in the complaint].) Here, the 4th cause of action identiÞes Government Code section 815.6, which codiÞes the negligence per se doctrine against public entities who violate mandatory statutory duties. (FAC ¶ 142.) The speciÞc statues allegedly imposing mandatory duties on defendant are then identiÞed as Education Code section 32261, 32280-32282...

Excerpt: ...tly note all three causes of action asserted against them sound in professional negligence and are therefore subject to Code of Civil Procedure secton 340.5. (See Larson v. UHS of Rancho springs, Inc. (2014) 230 cal.App.4th 336, 347; see also TAC 498- 508 [medical malpractice], 510-516 [battery by injection without informed consent], 517-525 [breach of fiduciary duty by failing to diagnose and inform].) As construed by case law, Section 340.5 bar...

Excerpt: ...view granted 2/1/23 ["we decline to hold plaintiffs' claim is barred on the ground there was no relationship requiring Nissan to disclose known defects"]; OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 851 ["a vendor has a duty to disclose material facts ... to subsequent purchasers when the vendor has reason to expect that the item will be resold"]; see also FAC 65-68, 72, 75.) The FAC adequately a...

Excerpt: ...es of Court, Rule 3.1320, subd. (a).) The parties did meet and confer, but defendant did not file the required declaration until the reply. (See ROA #77.) As it is only the signature block that pushes the brief past the page limit, the court excuses the violation. Future overlength briefs may be stricken. (See Cal. Rules of Court, rules 3.1113(g), 3.1300(d).) Uncertainty. The complaint is not "so incomprehensible that a defendant cannot reasonabl...

Excerpt: ...vered the alleged defects with the vehicle's transmission. (See Code Civ. Proc. S 338, subd. (d).) "[Wlhen the relevant facts are not clear such that the cause of achon might be, but is not necessarily, time-barred, the demurrer will be overruled." (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.) he FAC adequately alleges a basis for imposing a duty to disclose — defendant's sole knowledge of the transmission defect...

Excerpt: ...ies outside the administrative agency s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the agency is incapable of granting an adequate remedy, and when resort to the administrative process would be futile"); see also Am. Pet. at pp. 8:28-9:28.) Second, "a demurrer must be overruled if the moving party has alleged facts entitling him to some form of relief." (Woods v. Superior Court (1981) 28 Cal.3d 6...

Excerpt: ... in the complaint are admitted for purposes of the motion, and the court determines whether those facts constitute a cause of action. The court also may consider matters subject to judicial notice"" (Harris v. Grimes (2002) 104 Cal.App.4th 180, 185.) The complaint alleges defendant violated the California Voting Rights Act by diluting the votes of Latino residents through unlawful at-large elections in November 2020 and 2022. (See Compl. "1 1, 3....

Excerpt: ...how the types of HIPAA violations that give rise to terminations and those that require lesser disciplinary acton (contrary to defendant's asserted zero- tolerance policy), as well as defendant's investigation of HIPAA violations." (ld. Ex. 4 at p. 3.) In turn, this information would reasonably assist plaintiff in evaluating both her own retaliation claims and defendant's assertion that it would have fired plaintiff for the HIPAA violation regard...

Excerpt: ...arties may agree in writing to take the deposition remotely or ata different date, time, or location. Plaintiff has shown the deposition was properly noticed, that defendant failed to timely serve objections, and that defendant failed appear for the deposition or produce documents. (Code Civ. Proc., SS 2025.410, 2025.450, subd. (a); see also Goldsmith decl. "1 4-8, Exs. 1-3.) Plaintiff has also shown and adequate meet-and-confer about the nonappe...

Excerpt: ...aliation for ethics reports by plaintiff to Kaiser (id. '1 9); (iii) failed to respond to plaintiff's complaints about Liu improperly using Kaiser equipment at home (id. '1 14); (iv) Kaiser employee Acevedo calling plaintiff a "stapler" (id. 915); (v) Kaiser employee Acevedo assisting Liu with his child custody dispute on company tme (id. '1 15); (vi) found plaintiff's complaints to Kaiser be without merit (id. '1 21); (vii) falsely claimed that ...

Excerpt: ...ense"], 31 ["additional costs and salary"].) A plaintiff or cross-complainant cannot "establish a prima facie entitlement to summary judgment without showing both the fact and the amount of damages." (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1105, original emphasis.) The party seeking summary judgment "cannot get judgment 'in an amount of damages to be determined later.'" (Paramount Petroleum Corp. v. Superior...

Excerpt: ... Superstores California (2018) 19 Cal.App.5th 1234, 1261 [UCL claims must be stated with "reasonable particularity"]; Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 ["simply parroting" statutory language is insufficient]; see also Compl. "1 53-54 [conclusory allegations of alleged false advertisementsl.) In addition, this cause of action is time-barred. (See Bus. & Prof. Code, S 17208 [four-year limitation period); s...

Excerpt: ...CL claims must be stated with "reasonable particularity"]; Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 456, 478 ["simply parroting" statutory language is insufficient]; see also Compl. 53-54 [conclusory allegations of alleged false advertisements].) On the other hand, the complaint adequately alleges that plaintiff "lost money or property," giving her standing and a basis for restitution. (Bus. & Prof. Code S 17204; accord...

Excerpt: ..."'The practice of forcing trial counsel to testify as a witness has long been discouraged .. and recognized as disrupting the adversarial nature of our judicial system...." (Spectra- Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494.) Consequently, "California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is ...

Excerpt: ...and federal civil rights and employment statutes." (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 18 Cal.App.5th 525, 545, cleaned up; see also Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1388 [fees should not be awarded against FEHA plaintiff "unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so"]; USS-Posco Industr...

Excerpt: ...ty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; see also X-Compl. 6-10.) It adequately alleges damages, despite Daniels' invocation of the prepaid rent. (Compare Reply at p. 5 with X-Compl. 10.) If nothing else, SIB- Monaco's liability to return the prepaid rent is damage enough. 2nd cause of action, breach of implied covenant. The crosscomplaint fails to state facts sufficient to constitute a cause of action. "If the allegations do not...

Excerpt: ... facts sufficient to consttute this cause of action with the requisite specificity. (See Gov. Code, SS 835 [elements of dangerous condition], 835.2 [notice]; Taxpayers for Improving Public Safety v. Schwarzenegger (2W9) 172 Cal.App.4th 749, 758 ["a demurrer tests the adequacy of the complaint's allegations, not whether plaintiffs can produce evidence to support those allegations"]; Miles v. Deutsche Bank National Trust Co. (2015) 235 Cal.App.4th ...

Excerpt: ...al.5th at pp. 796.) Cynosure's evidence shows its place of incorporation and principal place of business is Delaware. (See Roma decl. 4- 7.) Having a California agent for service of process or California end-users is insufficient. (See Bristol-Myers, at pp. 797-798.) Cross-complainants do not assert specific jurisdiction in their 10/23/23 opposition. They raise that issue for the first tme in their untimely 10/24/23 amended brief. (See 10/13/23 s...

Excerpt: ... be conditioned on payment of any judgment and costs the claimant recovers on the lien. (Civ. Code, S 8424, subds. (a), (b).) Mechanics lien amount. The court previously denied defendants' moton to expunge lis pendens and mechanics lien. (8/5/22 Minute Order, p. 2.) The court stated it would, however, "set [anl undertaking on a properly noticed motion." (Ibid.; accord Vought Construction Inc. v. Stock (2022) 84 Cal.App.5th 522, 637 ["if a lien is...

Excerpt: ... plaintiff's performance. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178 [elements]; see also Opp. at p. 14 [conceding defect].) As plaintiff alleges breach of a Partnership Settlement Agreement (and ground leases), there is no need to attach any other contract. (See TAC 60-63; Dem. at p. 8.) While the Partnership Settlement Agreement states it is conditioned upon another settlement agreement, "the performa...

Excerpt: ...t said, defendant isn't wrong to say the FAC is a bit of a "mess" due to plaintiff's lengthy notice of errata purporting to correct several major errors over 17 consecutive pages of the pleading. (Compare FAC with 5/4/23 Notice Ex. 1 [attaching "corrected" pages 8-24 of the FACI.) Thus, plaintiff shall combine the relevant portions of the old FAC (ROA #2) and corrected portions of the same in the notice of errata (ROA #15) at the time he amends h...

Excerpt: ...d complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action." (Pointe San Diego Residential Community, L.P. v. Prc„copio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276—277.) Here, plaintiff is still suing defendant over the same work on the same project pursuant to the same construction contracts. (Compare 2/5/...

Excerpt: ... 1st cause of action, negligent hiring etc. The FAC states facts sufficient to constitute this cause of action. (See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139- 1140 [elements]; Lopez v. Southern California Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [same]; see also FAC 20-26, 43-47, 51-55, & 58-60.) The FAC adequately alleges that defendant's employees knew or should have known defendant Jose Garcia "was/is a sexual pred...

Excerpt: ...n. (See Korea Supply Co. v. Lockheed Martin corp. (2w3) 29 cal.4th 1134, 1153-1154 [elements); see also SAC 23, 30(a), 30(h), 43-46, 50.) Plaintiff need not name the prospective client in the complaint; "[i]t is sufficient that he is identified in some manner. ..." (Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1133.) Plaintiff has done so. (See SAC '1 30(a) ["Fifteen government contracts diverted away from 5G...

Excerpt: ...) 17 Cal.4th 599, [voluntarily dismissed defendant is entitled to costs]; Cano v. Glover (2006) 143 Cal.App .4th 326, 331 [dismissed defendant prevails, regardless of whether the dismissal is voluntary or involuntary and "regardless of whether the dismissal is with or without prejudice"]; see also ROA #927 [voluntary dismissal], 948 [judgment of dismissall.) Code of Civil Procedure "section 1032 provides for recovery of costs as a matter of right...

Excerpt: ...t this claim is barred by the statute of limitations. The alleged oral contract to pay a bonus or vacation pay was breached no later than when plaintiff resigned on 7/11/16. (See Church v. Jamison (2006) 143 Cal.App.4th 1568, 1576 [failure to pay vacation pay accrues on termination]; see also Compl. 15, 17, 25-29, 40; Opp. at p. 5 ["all wages were due on July 14, 2016" l.) The statute of limitations on breach of oral contract is 2 years. (See Cod...

Excerpt: ... state these causes of action. The FAC adequately alleges Green Flags' valid contracts with the Irvine Company. (See Quelimane Co. v. Stewart Title Guaranty co. (1998) 19 cal.4th 26, 55 [elements]; see also FAC 12, 18, 20, 33-34.) Any "ambiguities can be clarified under modern discovery procedures." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; accord Ludgate Ins. Co. v. Lockheed Martn Corp. (2(M) 82 Cal.A...

Excerpt: ... Los Angeles (2015) 61 Cal.4th 1099, 1105 [elements]; see also FAC, 10-14, 22, 23 [excessive tree root growth causing dangerous condition of public property], 15, 16, 26 [dangerous condition caused by negligent or wrongful act or omission of an employee of the public entity within scope of employment], 12-14, 22-25 [tree root growth causing reasonably foreseeable risk of the kind of injury which was incurred], 13, 14, 18, 19, 27, 28 [proximately ...

Excerpt: ...tten arbitration agreement exists that covers plaintiff's claims and is governed by the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; McCachern decl., Ex. 5 ¶ 17.) All plaintiffs' causes of action “arise[] out of” or are “related to” plaintiff's use of Lyft's ride- share service. (McCachern decl., Ex. 5 ¶ 17(a); accord EFund Capital Partners v. Ples...

Excerpt: ...elevant statute prohibits employers from discharging or discriminating against an employee who is the parent of a child in K-12th grade for taking time off “to participate in activities of the school . . . of his or her child, if the employee, prior to taking the time off, gives reasonable notice to the employer of the planned absence of the employee.” (Lab. Code, § 230.8, subd. (a)(1)(A), emphasis added.) Plaintiff offers evidence of one in...

Excerpt: ...of action. It fails to allege “facts demonstrating the nature, extent or duration of [his] alleged emotional distress.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) The complaint otherwise adequately alleges the elements of this claim. When “liberally construed” (Code Civ. Proc., § 452), the complaint alleges defendants schemed together to create the false record. (Compl. ¶¶ 6-7, 10, 14.) Agency may be pleaded as an u...

Excerpt: ... substantive response is warranted. Plaintiff granted numerous extensions to defendant provide both the initial responses and further responses. (Chapin decl. ¶¶ 3, 11-13 & Exs. 8, 10-15.) Plaintiff appropriately waited to file this motion until the last day to which the parties had agreed in writing. (Code Civ. Proc., § 2030.300, subd. (c).) Although defendant stated he would provide further responses by 7/10/23 “or perhaps earlier,” this...

Excerpt: ...e Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206-1211 [“[w]hether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury”]; Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 308-309 [notice shown where defendant “knew that it was raining, that water from the customers' shoes and clothing or umbrellas would inevitably be deposited on the floor as they entere...