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...

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...