Excerpt: ...alleges subsequent wrongful conduct, it fails to plead the alleged misrepresentation with particularity or to allege plaintiff's justifiable reliance. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [particularity]; see also Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [plaintiff must plead her own reliance].) 2nd cause of action, wrongful foreclosure. The complaint fails to state facts sufficient to constitute this cau...

Excerpt: ...Corp. (2003) 109 Cal.App.4th 739, 761.) The prejudice to proposed defendant Laguna Crest is not substantial. Laguna Crest has not been relying on the original complaint for 19 months; it first came to this case as a cross-defendant in July 2017. It has presumably been preparing to defend itself against the cross-complaint for the last 9 months. Laguna Crest has not explained how the proposed FAC raises any new issues that were not already raised ...

Excerpt: ...'s demurrer is SUSTAINED without leave to amend as to the 6th cause of action and otherwise OVERRULED. Zwerling shall file and serve an answer, if at all, within 10 days. 1st cause of action, breach of contract. The FACC states facts sufficient to constitute this claim. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [elements].) Zwerling has not shown the FACC fails to adequately allege his liability on the note as the alter ego of I...

Excerpt: ...e or in person with plaintiff's counsel in a good-faith effort to resolve the issue. (Code Civ. Proc., § 4310.41, subd. (a).) Other motions Motion to strike complaint is taken off calendar. (See 11/16/17 FAC.) Demurrer and motion to strike FAC taken off calendar at parties' request ...

Excerpt: ...7-930107 – especially if the cases are consolidated. Denying the motion would not seem to prejudice plaintiffs, who are already identical claims in identical capacities against identical defendants in Case No. 30-2017-930107. Can we have just one civil action here? ...

Excerpt: ...ably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 5th cause of action, fraudulent concealment. The FAC states facts sufficient to constitute this cause of action. (See Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131; see also FAC ¶¶ 58-66.) The claim is not incomprehensibly uncertai...

Excerpt: ... plaintiff consented to one procedure (tubal ligation) but defendants performed another (bilateral salpingectomy). (See Cobbs v. Grant (1972) 8 Cal.3d 229, 242; Conte v. Girard Orthopaedic Surgeons Medical Group (2003) 107 Cal.App.4th 1260, 1267; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324-325; see also FAC ¶¶ 11-12.) The FAC can be “liberally construed” (Code Civ. Proc. § 452) to allege plaintiff did not understand she was even bein...

Excerpt: ...o constitute this cause of action. Plaintiff has sufficiently identified the trade secrets. (See Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1453 [standard]; see also FAC ¶ 12; accord 11/28/16 order [granting preliminary injunction].) 2nd-6th causes of action. The California Uniform Trade Secrets Act preempts the causes of action as currently alleged for interference with prospective economic advantage, interference with contract, bre...

Excerpt: ...omplaint within 14 days. 2nd-3rd causes of action, negligence per se. This is an evidentiary presumption, not a cause of action. (See Quiroz v. Seventh Ave. Center(2006) 140 Cal.App.4th 1256, 1286.) 4th-5th causes of action, gross negligence. “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jiminez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3.) 6th cause ...

Excerpt: ...ntion raised.”'” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 [declining to apportion plaintiff's attorney fees claim-by- claim].) “‘“[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts.”'” (Ibid.) Here, plaintiff presented related workplace discrimination claims and recovered $176,000. He should recover all of his reasonably necessary f...

Excerpt: ...Group 2018) § 5:420.) Obtaining relief under that statute does not require plaintiff to re-serve. It merely allows defendant “to defend the action” (Code Civ. Proc., § 473.5, subd. (c)) by way of an answer or other response that must accompany the motion. (Code Civ. Proc., § 473.5, subd. (b).) Defendant shall give notice. ...

Excerpt: ...counsels' emails is that defendant agreed to extend plaintiff's time to respond only to other written discovery. The parties agreed to “a reciprocal extension regarding Plaintiff's responses to Defendants' Third Set of Discovery.” (Stone Decl. Ex. 2, emphasis added.) They “agreed Plaintiff's deadline to respond to the subject discovery is continued from Aug. 15th to Aug. 23rd.” (Ibid., emphasis added.) On August 23, plaintiff's counsel so...

Excerpt: ...2nd cause of action, Civil Code 2923.7. The FAC states facts sufficient to constitute this cause of action. 3rd cause of action, Rosenthal Fair Debt Collection Practices Act violation. The FAC fails to state facts sufficient to constitute this cause of action. The statute is inapplicable to the foreclosure activity alleged in the FAC. (See Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1264; Fontenot v. Wells Fargo Bank, N.A...

Excerpt: ...d [they] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Plaintiffs may have shown some likelihood of prevailing to some extent on their claims. But their alleged losses could be “adequately compensated by a judgment for money damages.” (Abrahms v. St. Johns Hosp. & Health Ctr. (1994) 25 Cal...

Excerpt: ... the merits of the case.'” (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 251.) Defendants filed written opposition and appeared at the hearing without stating they were making only a special appearance. Nor did they otherwise contest personal jurisdiction. And they did not file this motion to quash until 21 days after the 10/30/17 hearing. The clerk shall give notice. ...

Excerpt: ...s that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413.) In fact, the parties seem prepared to stipulate to binding arbitration on these terms:  the arbitrator shall be Judge Russell Bostrom (ret.) with Judicate West  the arbitration will be “conducted in the same manner as a bench trial and the California Code of Civil Procedure shall apply ...

Excerpt: ...e protected or permissive phase at the time of the accident. If the traffic signal was in the protected phase, then the City's use of a “protected-permissive” signal instead of a “protected-only” signal may not be a substantial factor in causing the accident. Moreover, defendant failed to show no triable issue exists as to all pleaded dangerous conditions. Its motion does not address the contribution of the “roadways” to the accident....

Excerpt: ...cause of action for contractual indemnity. “This ruling finally adjudicates this case. The complaint was previously dismissed. (See 10/7/15 requests for dismissal.) Cross-complainant has now obtained judgment on the pleadings on the sole remaining cause of action. “Cross-complainant shall prepare, served, and submit a proposed judgment.” ...

Excerpt: ...e ambiguous. Its initial responses imposed unilateral limitations. Its supplemental responses do not fully clarify whether other documents responsive to the original, unqualified requests are in its possession, custody, or control. Defendant shall pay $1500 in discovery sanctions to plaintiffs within 30 days. The motion is otherwise DENIED. Requests #1-2, 5-9, 13, 16-20, 23-24, 34-36, 39, & 43. Defendant's supplemental responses fully clarify it ...

Excerpt: ...f met his burden to show the arbitration agreement is too unconscionable to be enforced. (Code Civ. Proc., § 1281.2(b).) Plaintiff showed the arbitration agreement is procedurally unconscionable because it was obtained under duress. (See AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1746 [FAA preserves generally applicable state law contract defenses]; Civil Code, §§ 1567 [unconscionability], 1670.5(a) [duress].) Plaintiff credibly de...

Excerpt: ...that unless properly scheduled (Cusano v. Klein (9th Cir. 2001) 264 F.3d 936, 945- 946). A debtor who files bankruptcy is no longer the real party in interest, and lacks standing to proceed on claims belonging to the bankruptcy estate. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) Finally, plaintiff failed to show the underlying judgment awarded contractual attorney fees. (See Code Civ. Proc., §§ 685.040, 1033.5(a)(10)(A); ...

Excerpt: ...§§ 1792, 1791.1, 1791(a); Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1335-1337 [implied warranty generally inapplicable to components that are not “‘stand-alone product[s]'”]; see also Def. SSUF #4-5, 19-26, 28; Pl. Opp. at 12:23 [slide out and steps], 14:4 [same].) The complaint states the 1st cause of action is asserted only against another defendant, Evergreen Recreational Vehicles. But even if the complaint is construed a...

Excerpt: .... (b).) If full information is not yet available, plaintiff must “reveal all information then available to” him. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.) He may not simply “assert[] [his] inability to respond.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) And plaintiff has not met his burden to justify his objections. (Coy v. Superior Court (1961) 58 Cal.2d 210, 220-221...

Excerpt: ...87.2.) At the outset, defendant failed to show it properly served the subpoena on Orange Coast Women's Medical Group. (See Code Civ. Proc., §§ 1985.3, subd. (b)(1), (3), 1013, subd. (a).) More basically, both subpoenas are woefully overbroad and unjustifiably seek protected private information. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) Defendant failed to show the...

Excerpt: ... SETS a status conference re binding arbitration for 9/10/18 at 10 am in Dept. C- 12. Defendant Roth Staffing met its burden to show a written arbitration agreement exists that covers plaintiff's claims against it and provides for arbitration pursuant to the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 C...