Excerpt: ...f limitations. As such, the arguments and oppositions are essentially identical and the court will issue a combined ruling as to both Defendants' demurrers. Pursuant to Civ. Proc. Code SS 430.10(e) and 340.5, both demurrers are SUSTAINED without leave to amend. "A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer." (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal. Ap...

Excerpt: ...be performed by the parties. Defendant contends that Plaintiff's failure to specify the terms of the contract creates ambiguity as to what the agreement entails, making it difficult for Defendant to ascertain what the claims are as against Defendant and thus the claim is uncertain and unintelligible. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty ...

Excerpt: ...arity "plaintiff's efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort." To evaluate a demand futility claim in a shareholder derivative action, court must be apprised of facts specific to each director from which it can conclude that that particular director could or could not be expected to fairly evaluate claims of shareholder. (Shields v. Singleton (1993) 15 Cal.App.4th 1611.) Here, Pla...

Excerpt: ...asonably certain." (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1623.) With respect to claims premised upon a contract, a complaint must either: (a) set forth the terms of the contract verbatim; or (b) attach a copy of the contract and incorporate it by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307 ("If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the bo...

Excerpt: ...11, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Defendant bases this demurrer on the premise that "Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their offcial position, unless they participate in t...

Excerpt: ...g (hereafter, the "XDs") ("Motion 3" below); and (2) an additional Petiton to Vacate Arbitration Award, filed on 7/26/23 by Buyer ("Motion 4" below). For the reasons discussed below, Motion 1 is GRANTED; Motons 2 and 4 are DENIED; Motion 3 is thus MOOT. Motion 1 presents a request to confirm the underlying "Final Award," which comports with C.C.P. S 1285.4. The court thus must confirm that Award as made, unless "in accordance with this chapter it...

Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...at- will basis, which means that either you or the School may terminate the employment relationship at any time without cause or notice.” Plaintiff argues that the document also references execution of a contract of employment, making the terms of the contract ambiguous. However, she does not allege that a second employment contract as referenced was ever executed or that the terms of such a contract contradict the at-will provision she undispu...

Excerpt: ...mely filed within the six-month limitation period of the Gov't Claims Act Although CalOptima was not named in the caption of the original Complaint, it is clear from the allegations in body of the Complaint that CalOptima was the intended defendant in this matter. Plaintiff brought this action against “County of Orange, which includes its subdivision CalOptima.” (9/6/22 Complaint, Preamble Paragraph). Furthermore, the complaint alleges employ...

Excerpt: ...urrer First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.) Plaintiff's opposition ...

Excerpt: ...ices, Inc. (the “entity defendant”). With regard to the individual defendant, the motions are GRANTED. With regard to the entity defendant, the motions are GRANTED – subject to the filing of a supplemental declaration attaching the discovery requests and the proofs of service. According to the declaration of plaintiff's counsel, all three discovery devices were served on the defendants and no responses were received. California Code of Civi...

Excerpt: ...reach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) Plaintiff has pled the existence of a valid contract between it and defendant/cross- complainant Rezidential Development, Inc. ...

Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...

Excerpt: ... breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.) “It is fundamental that in order to take charge of a person in such a manner as will create a duty to control his conduct, one must possess the ability to control that...

Excerpt: ...ce documents responsive to subpoena request Nos. 4 – 7 at this time. Before the court is a request to order Plaintiff's current counsel of record to produce documents responsive to a subpoena duces tecum (“Subpoena”). (Civ. Proc. Code § 2031.240.) The basis for the Subpoena is that CST previously represented Plaintiff and his mother/bankruptcy attorney Amanda J. Potier in another action (“CTI Action”). Several of the Defendants in this...

Excerpt: ... Civ. Proc. Code § 405.38. (Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42-43.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (J&A Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42.) “The term prevailing party was not defined in the statute and, as a result, courts determine the prevailing party by taking a practical approach that ...

Excerpt: ...o matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3...

Excerpt: ...n other than the date, time, and length of calls made and received, redacted. This motion concerns Plaintiff's Request for Production No. 19, which seeks: “All bills and usage statements for the date of the INCIDENT (i.e., the 24-hour time period) for any mobile communications device (such as a cellular telephone) in YOUR possession, custody and/or control on the date of the INCIDENT.” (¶8 of Nikarjam Declaration and Exhibit B thereto.) As n...

Excerpt: ...tated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molina...

Excerpt: ...rst and fourth causes of action). The general demurrers of defendants Samantha Zehngut and Julia Mestas to the fifth cause of action are SUSTAINED with 30 fays leave to amend. First cause of action for gender and pregnancy discrimination. The first cause of action is for gender and pregnancy discrimination and is brought against all three defendants. A prima facie case for a discrimination requires a showing by the plaintiff of the following elem...

Excerpt: ...First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success…‘[C]laims with the requisite minimal merit may proceed.' ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, 205, fn. omitted.) “Assertions that are ‘merely i...

Excerpt: ...st produce evidence they were subjected to ‘offensive comments or other abusive conduct' that is (1) based on a ‘protected characteristic' (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.' (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) … Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically t...

Excerpt: ...itive damages. A. First Cause of Action – Hostile Work Environment Harassment “[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].” (Ortiz v. Dameron Hospital Assn. (2019) 37 Ca...

Excerpt: ...orber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment pursuant to Civ. Proc. Code § 483.010, which requires 1) an action on a claim or claims for money; 2) each of which is based upon a contract, express or implied; 3), where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fe...

Excerpt: ...unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042.) A. First Cause of Action – Harassment/Hostile Work Environment To establish a prima facie case of harassment/hostile work environment...

Excerpt: ... against him on summary judgment, they are not entitled to recover any costs, citing Labor Code § 218.5. Plaintiff contends that, under this code section, if the prevailing party in a court action is not an employee, attorney's fees and costs may only be awarded if the Court finds that the employee brought the action in bad faith, i.e., it finds that the action is unreasonable, frivolous, meritless, or vexatious. Plaintiff contends that the acti...

Excerpt: ...documents, and requests for admission are due 30 days after service (plus appropriate time for method of service). (CCP §§ 2030.260, 2031.260, and 2033.250.) With respect to the Requests for Admission, a propounding party may ask the court for an order that deems the matters contained in the requests for admission admitted if the receiving party fails to respond to the requests for admission. (CCP § 2033.280(b).) The court shall grant the orde...

Excerpt: ...rty's or one's own act or default.” (INDEMNIFY, Black's Law Dictionary (11th ed. 2019).) “Express indemnity refers to an obligation that arises “ ‘by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.' ” [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, i...

Excerpt: ... either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) NNA moves to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract ("RISC") attached as Exhibit 4 to the Maugeri Declaration. The RISC, dated 5/30/20, is between plaintiffs Yesenia Delao and Patricia Delao ("Plaintiffs") as "Buyer" and Buena Park Nissan as "Seller-creditor." NNA acknowledges that it is not a signatory...

Excerpt: ...he request for issue and terminating sanctions. As a threshold matter, defendants have met their burden of showing that plaintiff intentionally destroyed evidence after contacting a lawyer and while considering litigation. In her deposition, plaintiff admitted that, prior to turning in her computer to her employer, she downloaded certain files onto thumb drives and used a special program to entirely wipe the computer. Furthermore, although we do ...

Excerpt: ...e Lock Co. (2002) 101 Cal.App.4th 1443, 1449—1450.) Plaintiff seeks an injunction to prohibit defendants Ruth Anne Della Vedova ("Della Vedova" individually); Barbara A. Kerr; and Asset Default Management, Inc. ("ADMI" individually; 'Defendants" together with Vedova) from selling real property located at 19311 Oriente Drive in Yorba Linda ("Property"). 1) Likelihood of Prevailing On the Merits Plaintiffs' Complaint states various causes of acti...

Excerpt: ...s adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 cal.4th 1028, 1042.) A. First Cause of Action — Harassment/HostiIe Work Environment To establish a prima facie case of harassment/hostile work environment under the Fair Em...

Excerpt: ... moving defendants to pay $135,000 in exchange for a dismissal. It is conditional upon: (1) the entry of a final, non- appealable order granting the instant motion for an order determining the settlement to be in good faith; and (2) the supplemental production by settling defendants of documents responsive to plaintiff's requests for production. Responding co-defendants Sunil Kirit Mehta, Real Estate Xperts, Inc., and O.Rhyan Capital Management, ...

Excerpt: ...ction for Violation of Penal Code S 496(a), seeking treble damages under Penal Code 496(c). The Siry court is clear: "A plaintiff may recover treble damages and attorney's fees under section 496(c) when property has been obtained in any manner constituting theft." (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361.) The question is whether Plaintiff has adequately alleged that property has been obtained in a manner constituting t...

Excerpt: ....6(c), "If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgag...

Excerpt: ...t complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights...

Excerpt: ...e. "CA]II that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 'l g.53.1a.) Nonetheless, the Court will GRANT both parties' requests for judicial notice as to the existence of the following documents only: Fidelity's Complaint, Demurrer to FAXC, Demurrer to SAXC, the SAXC, Notice of Ruling Re: Plaintiff Fidelity National Title Insurance Company...

Excerpt: ... Apartment Homes, 500 Estancia, Irvine, CA 92602, involving Jiahan wu, DOB 9/19/2020." Defendants assert that the subpoena is overbroad, but provide no explanation or argument as to how the request is overbroad nor do Defendants offer any possible narrowing. Defendants argue that production of the requested items would violate Defendant Cruz's Fifth Amendment Rights. Defendants argue that Defendant Cruz's privacy rights are at issue, as he could ...

Excerpt: ...right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." "The moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activit...

Excerpt: ...her the court stated "Where, as here, a defendant's silence is constitutionally guaranteed, the court should weigh the parties' competing interests with a view toward accommodating the interests of both parties, if possible. An order staying discovery until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit while alleviating petitioners' difficult choice between defending either the civil or crimin...

Excerpt: ...sition date for 3/13/23. (Baghdassarian Decl. g, Ex. 8.) At that time, trial had been reset for 3/27/23 along with all related dates. (ld. at Tl 8, Ex. 7; see also M.O. of 2/9/23). Plaintiff served objections thereto on 3/7/23 and refused to produce the expert for the deposition. (ld. at g, Ex. 10.) None of those objections suffice to excuse the refusal to produce the expert for deposition on 3/13/23. Plaintiff argued that the date set was after ...

Excerpt: ...e is defined in Welf. & Inst. Code 515610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Neglect is defined in 515610.57(a) (1) as "the negligent failure of any person having the care or custody of an elder or a dependent adult to exerci...

Excerpt: ...f to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal. 5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is leqallv sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient t...

Excerpt: ...alue of legal services rendered in the case; or (3) the lawyer has obtained informed written consent from the client." "A comment to the rule clarifies that the informed-consent exception is not absolute: "Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or...

Excerpt: ...ed by CCP section 2032.220. (Code Civ. Proc. S 2032.310(a).) The motion to compel a physical or mental examination shall be qranted only for good cause shown. (Code Civ. Proc. S 2032.320(a).) A showing of good cause requires "that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence." (Vinson v. Superior C...

Excerpt: ...nd Written Discovery. For the reasons set forth below, Plaintiffs' motion is GRANTED and the Dunn Defendants' motion is DENIED. The parties are ordered to meet and confer regarding available dates for the deposition of the Dunn Group's PMK to be conducted within 45 days of the date of this order. The Dunn Defendants are ordered to provide responses to the written discovery at issue within 30 days of the date of this order. Plaintiffs' request for...

Excerpt: ...s been deemed a vexatious litigant as of 11/9/22, per OCSC Case No. 1600001283, and is therefore subject to the requirements and restrictions set forth in C.C.P. S 391 et seq. for this case and for all other filings subsequent to that designation. However, as Motion 1 was presented before that designation was entered, the Court has considered it here. Motion 1 (Plaintiff's Motion for Transfer. etc.) is DENIED. The Los Angeles Superior Court previ...

Excerpt: ...age of the proceedings, up to and including trial," absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Hi...

Excerpt: ... to conduct that would support recovery of punitive damages." (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) "The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglec...