Excerpt: ...ity (2012) 208 Cal.App.4th 1125, 1135.) 2rd cause of action, breach of lease. The complaint states facts sufficient to constitute this claim. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The complaint does so. (Compl. ¶¶ 4, 22-24.) 3rd cause of action, bad ...

Excerpt: ...sition? The court ordered plaintiffs to serve their opposition and file proof of service no later than 5/7/19. (See 4/29/19 minute order and notice of ruling.) They failed to file proof of service as ordered. But they must have served their opposition because defendants reply to it. The court will proceed to the merits. Standing. Neither the SAC nor anything the court can properly notice shows on its face that plaintiff Susan Hersey lacks standin...

Excerpt: ... any documents in their possession, custody, or control that refer to the privileged emails. Plaintiff is barred from using or disseminating the privileged emails or any information obtained thereby. David L. Brault shall reimburse defendant for reasonable attorney fees and costs incurred with this motion. (See Code Civ. Proc., § 2023.010, subd. (c).) Defendant may file and serve an attorney fee declaration no later than 5/24/19. Attorney Brault...

Excerpt: ...as due 4/30/19. (See Cal. Rules of Court, rule 3.1300(d).) Even if the court did consider the untimely opposition, plaintiff fails to show defendant's “‘affiliations with [California] are so “continuous and systematic” as to render it essentially at home'” here – for example, that California is defendant's “place of incorporation and principal place of business” – thereby subjecting defendant to general jurisdiction. (Daimler AG...

Excerpt: ...n, conversion. The FAC fails to state facts sufficient to constitute this claim. “‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.'” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) Or as plaintiffs correctly note, conversion requires only “the intent to ...

Excerpt: ... (See Willis v. City of Los Angeles (9th Cir. 2000) 57 Fed. Appx. 283, 289.) The U.S. District Court has already dismissed the § 1983 claim with prejudice. And the alleged conduct is protected by qualified immunity. (See Gov. Code, § 815.2; see also Via v. City of Fairfield (E.D. Cal. 2011) 833 F.Supp.2d 1189, 1195.) Plaintiff fails to meet her burden to show any reasonable possibility of curing the defects by amendment. (See Blank v. Kirwan (1...

Excerpt: ...ng, and concealing funds. (See Cross-compl. ¶¶ 10-12.) The filing of the cross-complaint was just “the means of communicating that action or decision” or “evidence of that action or decision.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275-1276 [complaint based on termination of tenancy, not unlawful detainer action].) Cross-defenda...

Excerpt: ...127; see also Def. Opp. SSUF ¶ 25; Pl. Opp. SSUF ¶¶ 6, 9, 19-21.) George Murai's deposition and declaration are not so flatly contradictory that the declaration is inadmissible. These discrepancies go the weight of his testimony. Plaintiff's request for judicial notice is granted. The court will “take notice of [the document's] existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova v. New Century Mortg...

Excerpt: ...r 11/18/19 at 10 am in Dept. C-15. 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 Zia decl. ¶¶ 3-4 & Ex. 1 § 19.6.) Plaintiff has not shown any exception to compelling arbitration. Arbitration Fee Motion Plaintiff's motion to require defendant to adva...

Excerpt: ... may reasonably extend some period before June 2013. The motion is otherwise denied. Assuming the subpoenas present serious intrusions into defendants' legally protected privacy interests, over which defendants have reasonable expectations of privacy, those interests are outweighed by plaintiff's legitimate litigation need for the requested information. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants shall pay $2250 in disc...

Excerpt: ...& 3rd causes of action, fraud/negligent misrepresentation. Plaintiff may assert these claims even if the alleged promise would be unenforceable as a contract due to the statute of frauds. (See Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29-31; accord Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1052.) Moreover, the alleged agreement for plaintiff to buy the boat and retain ownership “off title” is capable of being performed within...

Excerpt: ...e inaccurate. Recorded documents contradict the allegation that defendant lacks the power to foreclose. (See Def. RFJN Ex. C; see also Scott v. JPMorgan Chase Bank, NA (2013) 214 Cal.App.4th 743, 751). The assignment of a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). To the extent this claim is based upon Civ. Code § 2024.12, as of 2017 no such private right of action existed. 2nd caus...

Excerpt: ...(Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59.) Defendant failed to present such facts regarding its alleged vicarious liability for defendant Stephanie Ricci's alleged failure to obtain informed consent. (See Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133–1134 [informed consent]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 [vicarious liability]; see also SAC ¶¶ 4, 6.) Plaintiff Aneta Michen...

Excerpt: ...entify any specific repair facility, literature, or replacement part. 4th cause of action, breach of express warranty. The complaint states facts sufficient to constitute this cause of action. (Cal. Civil Code, § 1794; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 [“plaintiff may plead the legal effect of the contract”]; Compl. ¶¶ 7, 74-77.) 5th cause of action, breach of implied warranty o...

Excerpt: ...4th 631, 638, 645).) 4th cause of action, negligence. This claim alleging “wrongful conduct . . . while providing medical treatment, surgery and other healthcare services” is duplicative of the 1st cause of action for professional negligence. (See Code Civ. Proc., § 340.5(2); see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000.) Motion to strike Defendant Quang T. Vo's motion to strike is granted without ...

Excerpt: ...gful use with the intent to defraud or by undue influence, or causation or harm. (See Welf. & Inst. Code, §§ 15610.30.) The claim is also time-barred by the 2-year statute of limitations. (See Code Civ. Proc., § 335.1.) Decedent was aware of the underlying facts and her damages by 12/23/13. (See Def. RFJN, Ex. A.) But this action was not filed until 1/4/18. 2nd Cause of Action, Deceit. The SAC fails to state facts sufficient to constitute this...

Excerpt: ...AC asserts claims for money. Even the 4th and 5th causes of action for specific performance and constructive trust would not change defendant's legal title or right to possession. Defendant's request for judicial notice is granted. Demurrer The matter is abated. “[F]amily law cases should not be allowed to spill over into civil law.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) Defendant has shown the family law department holds “...

Excerpt: ...t in Santa Ana] with Demurrer Ex. B ¶ 3 [2015 auto accident in Laguna Niguel involving different people].) The FAC is hopelessly untimely. It was filed on 9/11/18 and alleges personal injuries suffered on 12/31/15. It is barred on its face by the 2-year limitations period. (See Code Civ. Proc., § 335.1; see also Mitchell v. California Department of Public Health(2016) 1 Cal.App.5th 1000, 1007.) Plaintiff has not shown any reasonable possibility...

Excerpt: ...v. Frank (1990) 217 Cal.App.3d 94, 98- 99.) The delay appears to have been caused by unsuccessful settlement efforts, not by hiding the ball. While an earlier motion may have been more convenient, the court find no bad faith. Even if some or all of the proposed cross-claims were permissive, trying them with the complaint serves the interests of justice. (See Code Civ. Proc., § 428.50, subd. (c).) The parties should be prepared to discuss a conti...

Excerpt: ...But the FAC fails to state facts sufficient to constitute this claim. “‘[C]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another's injury.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 131.) That is exactly what the FAC alleges. It asserts plaintiff Angelique Lynch “suffer[ed] severe emotional distress upon seeing the body of [her h...

Excerpt: ...etermined whether to consider it. (See Cal. Rules of Court, rule 3.1300(d).) 2. Reviewing only the moving papers thus far, plaintiffs' respective responses to the 12 document demands are sufficient. Plaintiffs verify they produced all responsive documents. Defendant doesn't believe that. But its incredulity doesn't entitle it to sanctions. It offers no contrary evidence that plaintiffs actually have possession, custody, or control of any withheld...

Excerpt: ...nk of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527; see also Hassan decl. ¶ 4; Ocwen's RFJN Ex. 9.) Plaintiffs' attempt to relitigate these claims is also untimely. Plaintiffs knew or reasonably should have known of their claims by the time they filed their 2012 case, if not by their 2009 default or the 2006 loan. And plaintiffs have not alleged how they have been injured. Their loan is still outstanding; the ba...

Excerpt: ...nts to an incorrect address – where someone signed for them. Had no one signed for the documents, the agent would have been on notice to confirm defendant's address – as it did when its subsequent mail to defendant was returned as undeliverable. While defendant could have better ensured its agent had the correct address in the first place, it had no control over its FedEx package being accepted and signed for by a stranger. Defendant's neglec...

Excerpt: ...act Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1262.) In their briefs, each party recognizes different ways in which the subpoena might be limited. They should continue exploring the specific information that defendants seek and plaintiff's exact concerns about that specific information. There is reasonable middle ground here. The court is confident the parties can find it. The court anticipates this matter will be resolved before Mond...

Excerpt: ...leged documents in its possession, custody, or control within 20 days. Defendant Kindred Healthcare Operating Inc. shall serve complete, code-compliant, verified further responses -- without objection other than attorney-client privilege, work-product protection, third-party privacy, or Evidence Code section 1157 -- to plaintiff's requests for production #14 and 23 within 10 days, and shall produce all responsive, nonprivileged documents in its p...