Excerpt: ...§ 430.10(e). A) COA #2 – Accounting “An action for an accounting may be brought to compel the defendant to account to the plaintiff for money or [] property (1) where a fiduciary relationship exists between the parties, or (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. [Citation omitted.] “A cause of action for an accounting requ...

Excerpt: ...e Court would have benefitted from declarations from the engineers to discuss and illuminate their findings and verify the statements within their reports. The moving papers omitted this evidence. In the end, the insurer has the burden to show “the insured's loss was proximately caused by a peril specifically excluded from the coverage of the policy” and the court found the evidence on causation was insufficient at this time. (Vardanyan v. AM...

Excerpt: ...t billed until January 2019. Petersen Decl., Ex. 5. From January 2019 through January 2020, Plaintiff's sole bank account and asset contained money less than that amount at the end of each month with the exception of January 2019 and May 2019. See, Mackovska Decls. The Court notes that it was reasonable for Plaintiff not to pay the fees in either of those two months as defendant Ameron Pole Products, LLC (“Defendant”) represented to Plaintiff...

Excerpt: ...d by TIAA CREF. Robert and plaintiff separated in 2009 and divorced in 2010. As part of the divorce settlement, Robert retained his 403(b) retirement account as his sole and separate property. However, Robert never changed the beneficiary designation on the 403(b) account, which was subsequently split into two separate retirement accounts as follows: Annuity contracts remained with TIAA CREF and mutual funds went to Fidelity. Robert did not desig...

Excerpt: ...”) is barred by the statute of limitations. The court sustains the demurrers on both of these grounds. 1) FAC was untimely filed and is barred On 9/9/19, the Court sustained both defendants' demurrers and gave leave to file the FAC within 21-days of service of the notice of the ruling. On 9/10/19, defendants filed and served by mail the Notice of Ruling on the original demurrers and motions to strike. The FAC was required to be filed by 10/6/19...

Excerpt: ...ditionally, “[f]acts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” (Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4 th 1, 6). Within the First Amended Complaint, Plaintiff alleges he entered into a “Home Equity Conversion Mortgage Adjustable Rate Loan Agreement” with Defendant Pacific Residential. (¶5 of FAC). The Agreement, attached as Exhibit A to ...

Excerpt: ...aintiff has met its burden to show that those requirements are also satisfied. Minakov argues that probable validity is not shown because the contract with Plaintiff was modified or terminated in August 2016 based on an oral agreement. But the only evidence offered to support that claim is his own statement. (Minakov Decl. ¶ 6.) This statement is insufficient to defeat Plaintiff's showing of probable validity based on the written contract here. ...

Excerpt: ...all be increased by five days if the place of address is within the State of California.... The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise ....' (§ 437c, subd. (a), italics added.) “The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261–1262. Here, the not...

Excerpt: ... or previously. MPs shall give notice. Demurrer Regarding De Facto Partnership (overruled) Plaintiff attempts to plead facts to support having a stake or ownership interest in the LLC entity, which holds (or held) the title to various real properties. (See, e.g., SAC ¶16-17, 21-3, 27, 29, 34, 64.) Documentary evidence and testimony will likely aid a trier of fact to reach any conclusion about the appropriate relations of the parties. At the pres...

Excerpt: ...t to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as she did if she had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) Further, fraud must be plead with particularity rather than with “general and conclusory” allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) Thi...

Excerpt: ... and Mov. Ex. 11, p. 217-19, 214-15.) Regarding the asserted conversation with Dr. Kang, which happened perhaps in May of 2014, the attributed statements about the hospital being top notch, a good place, the best place, and having high standards (see Mov. Ex. 11 p. 206-207, 210-13, 214-15, 217; Opp. Ex. B, pp. 206-7, 252-53) are too general, vague, and nonspecific to form the basis of actionable fraud. (See Finch v. McKee (1936) 18 Cal.App.2d 90,...

Excerpt: ...(d) only permits recovery of “actual time expended” rather than estimates of time to be expended. Plaintiff posits 27.4 hours actually expended, and then estimates another 7.0 hours on future efforts (reviewing opposition, writing reply, appearing at hearing). The registry of action does not show any reply brief, and counsel has so far made all appearances by telephone. Thus, the best this Court can do is permit one hour of time digesting the...

Excerpt: ...20 days leave to amend. 1st COA: Gross Negligence Per Se Plaintiffs' first cause of action bears the label “gross negligence per se” – which counsel now admits was overstated. Outside the realm of express assumption of the risk, gross negligence is not a recognized standalone cause of action. See Hass v. RhodyCo Productions (2018) 26 Cal.App.5 th 11, 32; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 541. Moreover, negligence per se creates an...

Excerpt: ...quest for summary judgment, or in the alternative summary adjudication, as to Ritual Yoga Arts, LLC (“RYA”) and Stephen Levine, named only in causes of action 1 and 2, respectively. A plaintiff seeking summary judgment must produce admissible evidence on each element of each cause of action sufficient to demonstrate that he or she is entitled to judgment. (C.C.P. § 437c(p)(1).) If plaintiff meets that initial burden, the burden shifts to def...

Excerpt: ... relief in its absence).) Here, plaintiff provides no separate statement. Second, the moving party should propose a sanction that is tailored to the denied discovery (see Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389). Such tailored sanctions would entail some discussion of the content of the individual discovery requests. Because the motion does not contain any discussion of the content of the discovery requests, the reque...

Excerpt: ...hole Foods, “leading a team of 13,” and that he “Quit/Resigned” from that job. (McConnell Decl. ¶ 5 and Ex. 4.) In his application, he certified the truthfulness of the information provided and acknowledged that any material misrepresentation would be grounds for termination regardless of the time elapsed before discovery. (Id.) The information sought as to that former employment is relevant here to Costco's after-acquired evidence claim...

Excerpt: ...12. The trial court has broad discretion in selecting which discovery sanction to impose in the face of discovery abuses, but either way California readily adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4 th 1272, 1293. Only if lesser sanctions fail to curb misuse should a trial court consider something like a terminating sanction. Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516. A decision to or...

Excerpt: ...ied on by the defendant with a willful and conscious disregard of the...safety of others.” Civ. Code §3294(c)(1). The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) Plaintiff here pleads that Defendant was under the influence of three different narcotic medications which negatively affected h...

Excerpt: ...d, that TAM's motion was untimely and that TAM waived its motion by filing an unrelated motion to continue. Neither argument is availing. Initially, the TAM motion was timely filed. Per the Proof of Service, TAM was personally served on June 4, 2019. (See POS dated 06/10/19). Pursuant to C.C.P. §412.20(a)(3), TAM had 30-days therefrom to answer, resulting in a deadline of July 4, 2019. As July 4 th was a court holiday, this deadline was extended...

Excerpt: ...ef requested is thus moot as no writ may be issued on a sanction that has been paid. And the request for terminating sanctions fails on its face because a failure to timely pay discovery sanctions would not, in and of itself, be a sufficient basis to impose terminating sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never...

Excerpt: ...are not clearly stated and various agreements are referenced without specificity as to when the agreements were reached, the parties thereto, the material terms, and the manner in which they were created. The FAC then presents a list in ¶ 42 as the issues to be resolved, but without specifying the factual underpinning for each. COA 1 attempts to state a COA for conversion. A COA for conversion requires allegations of plaintiff's ownership or rig...

Excerpt: ...employee or any other person.” Under this section, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Thus, in California “sovereign immunity is the rule” and “governmental liability is limited to exceptions specifically set forth by statute.” (Id.) Under Gov't Code § 844.6(a), a public ent...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ...ture. The amount is explained in the Memorandum of Costs, and includes an IME, record review, and trial testimony. Defendant's showing is sufficient and the motion to tax costs is denied. The prevailing party in any civil action is entitled to recover costs as a matter of right. CCP §1032. To claim those costs, the prevailing party must file and serve a memorandum of costs within 15 days from the date the clerk (or any party) mails out notice of...

Excerpt: ...rule, and (3) the lack of any duty owed by Defendants. The Sham Pleading Doctrine: Under the sham pleading doctrine, a plaintiff may not avoid a subsequent demurrer or summary judgment by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts that prove the pleaded facts false, without explanation. (Womack v. Lovell (2015) 237 Cal.App.4th 772, 787; McClain v. Octagon...