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...

Excerpt: ... reports by 5/29/23. Defendant met its burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Nguyen decl. ¶¶ 5-7 & Ex. 2.) To be sure, plaintiff has shown procedural unconscionability. The arbitration agreement is a contract of adhesion, presented on a take-it-or-leave-it basi...

Excerpt: ...uments showing state engineers approved the 1969, 2004, and 2015 plans. (See Gov. Code, §830.6 [“appropriate discretionary approval”; Dobbs v. City of Los Angeles (2019) 41 Cal.App.5th 159, 161 [plans bore city engineer's stamp; approval shown by expert opinion on agency custom and practice]; see also Def. SSUF # 1, 11, 13-16, 19-21, 23, 31-38.) Defendant showed the disputed third element of design immunity – design reasonableness – thro...

Excerpt: ... to constitute these causes of action. In their briefs, the parties dispute what the CC&Rs require and whether defendant actually complied with the CC&Rs. But the 2nd cause of action already alleges defendant breached the CC&Rs by failing to maintain the common area in “good . . . and attractive condition” by not trimming the trees. (Compl. ¶¶ 11, 14, 29.) Defendant has not demurred to this claim. Thus, because the complaint already states ...

Excerpt: ...titute this cause of action. (See Civ. Code, § 51, subd. (b) [Unruh Act]; Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854 [elements]; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [Unruh Act violations are injurious per se]; Minton v. Dignity Health (2019) 39 Cal.App.5th 1155, 1164-1165 [denying health care due to protected status violates Unruh Act]; see also TAC ¶¶ 14-30, 32, 37, 38.) This claim is not governed by the MI...

Excerpt: ...ant to statute. Plaintiff may also depose defendant about facts supporting the following statements in the Nguyen declaration supporting his anti-SLAPP motion, including defendant's knowledge thereof, and reasonable follow-up questions:  “I traveled to Vietnam and Thailand to meet with numerous refugees who were allegedly ‘passed on' by VOICE.” (Nguyen decl. ¶ 16.)  “it came to my attention through first-hand conversations with rea...

Excerpt: ...e this cause of action. (See 2/24/23 order.) While the SAC now alleges oral promises made before and after the leases (see SAC ¶¶ 24, 28), the integration clauses at Section 19.01 of the leases supersede prior oral promises and preclude future oral modifications. Plaintiff has not opposed the demurrer to explain how the oral promises are enforceable. 2nd cause of action, breach of written contract. The SAC now states facts sufficient to constit...

Excerpt: ...1281.4.) The court sets a status conference re: binding arbitration for 4/11/24 at 2 pm. Defendants have shown a written arbitration agreement exists that covers plaintiffs' claims. (Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Ex. A, § 10, subd. (g).) All of plaintiffs' causes of action “involv[e] the parties (or their affiliated persons or entities) directly or i...

Excerpt: ...arty in this case, defendants are entitled to recover their attorney fees. The parties agreed that “[s]hould either party institute suit . . . to enforce any of the provisions of the Subcontract, to protect its interests in any manner arising under the Subcontract . . . the prevailing party shall be entitled to recover reasonable attorneys' fees, costs, charges, and expenses (including expert fees and testing) expended or incurred.” Plaintiff...

Excerpt: ...ijin Inc. “are members of [USFR] owning a 50% interest in [USFR]”].) United Studio's tax filings do not affirmatively show otherwise. While the court may take judicial notice of documents filed with government agencies, “the truthfulness and proper interpretation of the documents [remain] disputable.” (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) Res judicata/claim preclusion. Defendant have not shown the FAC is ba...

Excerpt: ...� (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) As Roofing Warehouse correctly notes, the SAXC contains “myriad allegations” asserting the parties' contractual relationship. (Reply at p. 4.) As Linnert has not shown a reasonable possibility the defect can be cured by amendment, the demurrer is sustained without leave to amend. 2nd-3rd causes of action, apportionment/declaratory relief. T...

Excerpt: ...airmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [burden]). The gist of the term "INCIDENT" is reasonably discernable. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [requiring response where "the nature of the information sought is apparent"].) Defendant has neither made "a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations," such as the dealership (Code Civ. Proc., ...

Excerpt: ...ytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 297 [elements); Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 836 [reasonable particularity; more detail needed only in "highly specialized technical field"); see also FAC SITI 10 ["proprietary management tools, such as business analytics and productivity metrics . . . "J, 9-11, 21-30.) While Dowel/ "doubtCed] the continued...

Excerpt: ...6 [elements for medical negligence]. ) First, defendant's SSUF #2-12 rely on (1) medical records that have not been properly authenticated, and (2) expert declarations that impermissibly recounts case-specific hearsay from unauthenticated medical records. (See People v. Sanchez (2016) 63 Cal.4th 665, 676- 677; see also Deane decl. Ex. B, Brown decl. 10-20; Ferrante decl. 3-20.) After plaintiffs filed their opposition — and after the court denie...

Excerpt: ...laintiff to occupy the Property after the Closing Date." (Comp'. 14.) It is undisputed defendant sold the property to plaintiff and the sale closed, yet defendant remains in the property and has not let plaintiff occupy it. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; see also Tchaghlassian decl. 2-14 & Ex. A; Suppl. Tchaghlassian decl. 3-12.) Contrary to defendant's contention (see Opp. at pp. 2-3), the unconsumm...

Excerpt: ...ff may limit its responses and production as follows. Request #20: 1/1/18 to present. Request #21: documents or plans relating to roofing only f17)m 1/1/17 through 12/31/18. Request No. 22: communications between plaintiff and Robert McCarthy regarding the premises (excluding communications with the homeowner or other contractors) Motion to compel re RFAs Defendant's motion to compel is granted as to RFAs & 11-12 and otherwise denied. (See Code C...

Excerpt: ...under modern discovery procedures." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 7th cause of action. negligent misrepresentation {buyer's agent communication). The complaint states facts sufficient to state this cause of action by plaintiff April Arisian. (See Small v. Fritz Cos Inc. (2003) 30 Cal.4th 167, 173-174 [elements]; see also compl. 28, 79 [misrepresentation that "industrial zoning 'allows' a p...

Excerpt: ...ays. 1st cause of actiom breach of written partnership agreement. The FAC states facts sufficient to constitute this cause of action. It adequately alleges "the legal effect of the contract," including the terms that were allegedly breached. (Construction Protective services, Inc. v. TIG specialty Ins. co. (2002) 29 cal.4th 189, 198-199; see also FAC 17-22, 67.) The complaint does not show "'on its face that the action was barred by a statute of ...

Excerpt: ...nancial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st cause of action. negligence. Defendants Thomas Courtney Dubar and Skyler Lambert do not demur to this cause of action. As to demurring defendants Ella Dubar, David Skorheim, and Eric Michael Massimo, the FAC states facts sufficient to constitute this cause of action. (See Ladd v. County of San Mateo (1996) 12 cal.4th 913, 917 [elements]; FAC 74 [duty], 36, 38, 40, 41, 4...

Excerpt: ...fer, referring the court to "the Declaration of Tyson R. Smith dated February 14, 2023 . 32-41, Exs. 10-15." (Reply at unnumbered p. 2.) The cited exhibits address defendants' 12/15/22 objections in one sentence: "Defendant inappropriately objected to every single one of Plaintiff's matters of examination claiming Plaintiff's defect definitions are vague and ambiguous, yet they are the same definitions used in Plaintiff's requests for production ...

Excerpt: ...aordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment." (Molloy v. vu (2019) 42 cal.App.5th 746, 753, fn. 6.) There is no point in amending the superfluous 9/12/22 judgment, which does not materially modify the g/ 1/22 judgment. (See Civ. Code, S 3532.) Both adopt Option B. There is no material difference between (1) finding for petitioner in part and (2) finding ...

Excerpt: ...p.4th 1316, 1324 [addressing demurrer).) (Flores Defendants have shown the complaint alleges facts showing they have statutory immunity under the EMS Act (Health & Saf. Code, SS 1797 et seq.), which "created a comprehensive system to govern virtually every aspect of prehospital emergency medical services." (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 398.) The EMS Act provides statutory immunity for personnel providi...

Excerpt: ...sentation. The SAC still fails to state facts showing plaintiff complied with or is exempt from the Government Claims Act. (See 8/12/22 order [sustaining demurrer to FAC, citing authorities]; see also SAC 35-38, 42, 43, 48, 55 [seeking restoration of all consideration "advanced" to defendants], 57 [seeking "cancellation of the contracts and resulting taxes"] & Ex. C [g/ 12/16 HERO Assessment Contract requiring plaintiff to "pay for the solar pane...

Excerpt: ...responsive documents within 30 days. Within the same 20 days, defendant also shall either (1) identify which documents it produced in response to Requests #33-34 (Code Civ. Proc., § 2031.280, subd. (a)) or (2) serve a complete, code-compliant, verified amended response stating it is unable to comply with those requests (Code Civ. Proc., §§ 2031.210, subd. (a)(2), 2031.230). If defendant withholds any document responsive to Request #40 for atto...

Excerpt: ...st Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Holland v. Morse Diesel Int'l. (2001) 86 Cal.App.4th 1443, 1447 [exhibits control over inconsistent allegations].) Plaintiffs do not allege any contract between themselves and Suk. (See FAC ¶¶ 24, 41-43 [alleging contract with defendant Thomas] & Exs. A, B1, B2 [written contracts to which Suk is not a party].) Notably, Suk is excluded from the FAC's definition of “defendants.”...

Excerpt: ..., as of a particular date. (Civ. Code, § 3287.) Plaintiffs' notice of motion also refers to prejudgment interest pursuant to Section 988 offers, but plaintiffs have not shown that they made any “offer . . . which the defendant [did] not accept” and subsequently obtained a more favorable judgment. (Civ. Code, § 3291.) Plaintiffs' attorney fee request is also denied. Plaintiffs “move pursuant to Civil Code § 1717 for an order directing Def...

Excerpt: ...ndant met its initial burden to show a written arbitration agreement exists that covers plaintiff Sosa's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Marden decl. ¶ 3 & Ex. B.) Defendant may compel arbitration although it is a “third party nonsignator[y] to the sales contract.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 497.) In Felisilda, a...

Excerpt: ...ts initial burden to show a written arbitration agreement exists that covers plaintiffs' claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Lambert decl. ¶ 2 & Ex. A.) FCA may compel arbitration although it is a “third party nonsignator[y] to the sales contract.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 497.) In Felisilda, a non-signatory manufa...

Excerpt: ... they “fail[] as a matter of law because Plaintiff resigned his employment.” (Notion of Motion at p. 2 [Issue Nos. 1, 3].) These issues fail as phrased because they do not address the material allegations of the second amended complaint. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744 (Schmidlin) [“A motion for summary adjudication tenders only those issues ... specified in the notice of motion, and may only be grant...

Excerpt: ...all have leave to file a fifth amended cross-complaint no later than 2/21/23. The scope of leave to amend is limited to alleging facts adding particularity to the allegation that a Cynosure representative misrepresented that cross-defendants could cancel the EFA at any time. (See 4AXC ¶ 16.) Procedural Issues. While the court is reviewing a 4th amended cross-complaint, this is only the second demurrer – and it challenges allegations that had n...

Excerpt: ...Defendant met its initial burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also 9/2/22 Polyakov decl. ¶¶ 2-3 & Ex. 1; 1/27/23 Polyakov decl. ¶¶ 2-3 & Exs. 1-2.) Defendant met its initial burden to offer “a copy of the arbitration agreement purporting to bear [plaintiff's] ...

Excerpt: ...ffirmative misrepresentation – Issues A1-A2 & B1-B2. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [elements]; RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1102 [“misrepresentation requires an affirmative statement, not an implied assertion”]; see also SSUF Issue A1 ¶¶ 1-2, Issue A2 ¶¶ 1-4, Issue B1 ¶¶ 1-2, Issue B2 ¶¶ 1-4.) Cross-defendants further showed cross-complainants cannot show reliance...

Excerpt: ...ists that covers plaintiffs' claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Tang decl. ¶¶ 4-8 & Ex. 3 at pp. 2 [signed “Agreement to Arbitrate”], 3 [signed form 553-CA-ARB; signers acknowledge “the arbitration provision on the reverse side”], Ex. 4 [model form 553-CA-ARB containing complete arbitration terms].) Defendant need only offer “a copy ...

Excerpt: ...serve a 4th amended complaint within 10 days. Standing/Capacity. The TAC still fails to allege facts showing Nexus Health Management's standing. While plaintiffs correctly note the assignee of a claim has standing to pursue that claim (see Opp. at pp. 9-10), the TAC does not allege any such assignment. It merely alleges Nexus Health Management can “manage and direct” litigation (TAC ¶ 1), which is insufficient. Corporations always act throug...

Excerpt: ...ng to her. (See Code Civ. Proc., § 377.60, subd. (a); Compl. ¶ 1.) The complaint also states facts sufficient in support of plaintiff's standing to maintain the survivor claims. (See Compl. ¶ 1.) Code of Civil Procedure section 377.32 “‘does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.'” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614.) A failure “to immediately file [her...

Excerpt: ...uty of care (see 12/13/21 order) is different that proving it to obtain summary judgment. A duty flows from statute, contract, or analysis of the Biakanja factors. (Sheen v. Wells Fargo Bank N.A. (2022) 12 Cal.5th 905, 920, 937-938.) Plaintiff has not shown any such basis for the alleged duty. Plaintiff asserts defendant owed it a duty “to inform [plaintiff] that it should pay the models immediately after the shoot or . . . . to inform [plainti...

Excerpt: ...ve Fault Between Tortfeasors.” (Opp. at p. 3.) “[I]ndemnification is not automatically available to a tortfeasor who, with another, injures the same plaintiff. Courts are obligated to make an evaluation of the case to determine if the application of the remedy is appropriate.” (Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116, 1131-1132.) “To state a claim for indemnification, a defendant must allege that the same harm for which ...

Excerpt: ...0 days. [Note that plaintiff's motion for leave to amend the complaint to add a defendant and a new cause of action is already set for hearing on 4/14/23. That motion raises different issues than those presented on demurrer. The court is not now expressing any opinion on that motion.] Defendant Roman. The first amended complaint fails to state facts sufficient to constitute a cause of action against Roman. The FAC contains no allegations against ...

Excerpt: ... (Ibid.) 3rd cause of action, public nuisance. The cross-complaint states facts sufficient to constitute this cause of action, whether based on the “noxious odor” or the allegedly unpermitted rentals. (See Civ. Code, § 3493 [allowing public nuisance claim by private individual]; Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352 [elements]; see also Cross-compl. ¶¶ 12-14 [alleged nuisance conditions], 28-32 [nuis...

Excerpt: ...ts approximately 5% of plaintiff's total damages. (See Samaniego decl. ¶ 13; see also Opp. at p. 6.) That would pencil out to at least $37,500. (See Reply at p. 3 [plaintiff alleges $744,387 in past medical expenses].) This 5% approximation of Stater Bros.' potential liability to plaintiff is adequately based on the state of the evidence. (See Samaniego decl. ¶ 11 & Ex. A.) As the court noted in granting the food truck's MSJ, responsibility for...

Excerpt: ...nts for attorney-client privilege or work-product protection, it shall serve a privilege log within the same 30 days. The motion was timely filed and served on 6/29/22, within 45 days of defendant's 6/23/22 supplemental responses. (See Code Civ. Proc., § 2031.310, subd. (c) [motion due “within 45 days of the service of . . . any supplemental verified response”]; see also Hanks decl. ¶ 5 & Ex. A].) Defendant fails to substantiate its objecti...

Excerpt: ... commences. All parties are ordered to comply with the department pretrial order, which is available on the department website Arbitration Motion Defendants The Habit Restaurants Inc. and The Habit Restaurants LLC's motion to compel arbitration is denied. (See Code Civ. Proc. § 1281.2.) Defendants met their burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v....

Excerpt: ...ng on 12/2/20. (See 9/3/19 motion.) It was continued to 3/23/20. (See 10/24/19, 12/5/19, & 1/13/20 minute orders.) Plaintiffs' opposition was thus due on 3/10/22, but plaintiffs filed it on 3/16/20. The court was still conducting business as usual when plaintiffs filed the opposition. It had not yet issued any pandemic-related orders. After plaintiffs filed their untimely opposition and two days after any reply brief was due, the court continued ...

Excerpt: ...t. As the opposition notes: “Whether or not Stein individually spoke with either of the plaintiffs makes no difference to Stein's liability . . . . Stein, as a co-conspirator, is responsible for the actions, misrepresentations, false promises, etc. of each and every co- conspirator in pursuit of the alleged fraud.” (Opp. at p. 8; accord IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652 [conspiracy is “a form of vicarious liability by ...

Excerpt: ...fendants used excessive force by (a) deploying a service dog and (2) firing rubber bullets. (See Compl. ¶¶ 8, 14.) On one hand, the excessive force allegation regarding the service dog would negate an element of his convictions for obstructing the dog's handler and causing injury to a police animal. In pleading guilty to those charges, plaintiff admitted he “obstructed the investigation by Officer Mullen and unlawfully harmed a police animal ...

Excerpt: ...ode Civ. Proc., § 659a [10 days to file supporting documents]; Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342 [this deadline is not jurisdictional].) Nonetheless, plaintiffs have not shown grounds for new trial. Whether the Jan. 16 Restatement (Ex. 25) required amendments to be in writing, is a separate question from whether the closing date was waived by Marc Spizzirri; Mach-1 presented evidence at trial supporting the latter. (See...

Excerpt: ...esentation. As to all causes of action, the FAC fails to state facts showing plaintiff complied with – or is exempt from – the Government Claims Act. (See Gov. Code, §§ 905, 910, 911.2, and 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [complaint failing to “allege “facts demonstrating or excusing compliance” fails to state cause of action]; Lozada v. City & Cty. of San Francisco (2006) 145 Cal.App.4th 1139...

Excerpt: ...s met their initial burden “of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.] The moving party ‘can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.'” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see also Costa Decl. ¶ 2.) “For purposes of a petition to comp...

Excerpt: .... Morse Diesel Int'l. (2001) 86 Cal.App.4th 1443, 1447 [exhibits control over inconsistent allegations]; see also Compl., Exs. A, B1, B2.) Second, with one exception, none of the alleged breaches (Compl. ¶¶ 15-25) are of any terms in the integrated written lease agreements. (See Compl. Exs. A, B1, B2, at § 19.01 [integration clause]; Code Civ. Proc., § 1856, subds. (a), (b) [parol evidence rule].) The exception is defendants' alleged failure ...

Excerpt: ....4th 116, 134; Banke & Segal, Cal. Practice Guide: Civ. Proc. Before Trial, Statutes of Limitations (The Rutter Group 2022) ¶ 4:131.) Here, the undisputed facts show plaintiff filed this case on 11/4/20, more than 4 years after the 9/12/13 delivery. (See Def. SSUF #1, 28.) Plaintiffs have not met their shifted burden to show a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) 2nd cause of action, breach of expres...

Excerpt: ...(Ms. Contreras) negligent supervision and training of the “Seniors on the Go!” drivers. (See Opp. at pp. 5- 6.) This theory is adequately pleaded. (See Compl. ¶27; cf. Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 303.) Nor did defendant “affirmatively negate the existence of a duty.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849.) It is reasonably foreseeable that someone requesting a “door to door” ride from ...