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: ...� (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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ..., 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: ...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: ...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: ...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: ...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: ...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: ... (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...