Excerpt: ...atters while Plaintiff was serving as a member of the board; concerns about the Association's decisions in addressing a conflict within its governing documents about how many directors the Association must have; objections to how the Association addressed the problem (by opting to not hold the 2018 election and allowing directors with unexpired terms to constitute the full board); alleged failures in presenting the issue to the Association member...

Excerpt: ...l notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (People v. Harbolt (1997) 61 Cal.App.4th 123; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875.) Therefore, the Court GRANTS Defendants' request for judicial notice of Exs. A-M and P. The Court DENIES Defendants' request for judicial notice of Exs. N and O since they d...

Excerpt: ... of time to respond, but never did. On 2/8/19, this Court heard plaintiff's motion to have unanswered RFAs deemed admitted. Attorney Dickerson did not attend the hearing, nor did he file any opposition to the motion. The motion was therefore granted, and the RFAs deemed admitted by operation of statute. On 8/19/19, this Court heard plaintiff's motion for discovery terminating sanctions (based principally on plaintiff's inability to secure deposit...

Excerpt: ...WITHOUT LEAVE TO AMEND). The court will take up each cause of action in turn. 1. 1 st COA: Wrongful Termination – Overruled as to CLG, Sustained without Leave to Amend as to Anna Carno Plaintiff's first cause of action is for wrongful termination. In his complaint, Defendant claims he was fired “because he performed and would continue to perform pro bono legal services on behalf of the community.” (FAC ¶ 39). As far as this court can tell,...

Excerpt: ...OAs have been dismissed prior to the hearing, the Demurrer as to COAs 1-3 is SUSTAINED, without leave to amend. For COAs 4 and 5, Plaintiff has made only conclusory allegations as to the basis for each. For COA 4, she asserts generally that she made complaints to management about staffing/census issues, and/or refused to participate in activities that would result in a violation of or noncompliance with a local, state, or federal statute, rule or...

Excerpt: ...ned inspections re same and had provided a guaranty as to the work performed (when, in fact, the work was performed by unlicensed cross-defendants). The XC further alleges that Genesis was defamed and wrongfully sued in this action. Based on the alleged fraud, these allegations are sufficient to support the punitive damages claim at issue. The claims as presented are also sufficient, for pleading purposes, to support the prayer for fees based on ...

Excerpt: ...forth below. This is Hooper's second attempt to set aside the default judgment first entered against him on 6/4/19. In Hooper's first attempt, the Court denied the motion without prejudice on 9/23/19 as Hooper did not file a proposed answer to the Complaint and failed to meet the minimal threshold requirement to show good cause for setting aside the default, such as a declaration as to why the default should be set aside. As both of those issues ...

Excerpt: ... implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4 th 437, 453. Precision or in haec verba is not required, nor is attaching the actual contract if in ...

Excerpt: ...ing demurrer attacks all nine causes of action. The motion to strike is directed at the 1 st cause of action, and claims asserted against individuals (named and unnamed). Initially, plaintiffs allege that there was no new pleading triggering the option of another demurrer, noting that the Master Complaint came about after two cases were consolidated. However, at the August 12, 2019 hearing, this Court did not order that no new responsive pleading...

Excerpt: ...ing demurrer attacks all nine causes of action. The motion to strike is directed at the 1 st cause of action, and claims asserted against individuals (named and unnamed). Initially, plaintiffs allege that there was no new pleading triggering the option of another demurrer, noting that the Master Complaint came about after two cases were consolidated. However, at the August 12, 2019 hearing, this Court did not order that no new responsive pleading...

Excerpt: ...aintiff alleged defect in F22 that, over time, resulted in slippage or dislodgment of front balancer shaft oil seal failed to state a valid CLRA claim because the allegations failed to identify any affirmative representations that the automobiles had any characteristic they do not have or are of a standard or quality they are not or allegations that manufacturer was bound to disclose defect]. See also, Bardin v. DaimlerChrysler Corp. (2006) 136 C...

Excerpt: ...aintiff alleged defect in F22 that, over time, resulted in slippage or dislodgment of front balancer shaft oil seal failed to state a valid CLRA claim because the allegations failed to identify any affirmative representations that the automobiles had any characteristic they do not have or are of a standard or quality they are not or allegations that manufacturer was bound to disclose defect]. See also, Bardin v. DaimlerChrysler Corp. (2006) 136 C...

Excerpt: ...stalled the allegedly-trespassing items. Indeed, from the pleading, it appears that the Plaintiff is also unsure. (See FAC ¶¶ 2, 5, 6.) This issue would be a matter for discovery and gathering of evidence. Judicial notice is reserved only for matters that are indisputably true or which could not be a subject of a reasonable dispute. (See Evid. Code § 452; Richtek USA, Inc., 242 Cal.App.4th 651, 660; Bounds v. Superior Court (2014) 229 Cal.App....

Excerpt: ...ute. The parties subsequently filed separate responses on 3/20/20. The 3/20/20 filings make it clear that the parties are arguing about a pleading which has not been filed with the Court. Both sides now agree that the dispute is as to a Second Amended Complaint which attempts to assert twelve causes of action (“COAs”), beginning with a claim for “Violation of the Ralph Civil Rights Act” as COA 1. However, the SAC which was filed with the ...

Excerpt: ...stalled the allegedly-trespassing items. Indeed, from the pleading, it appears that the Plaintiff is also unsure. (See FAC ¶¶ 2, 5, 6.) This issue would be a matter for discovery and gathering of evidence. Judicial notice is reserved only for matters that are indisputably true or which could not be a subject of a reasonable dispute. (See Evid. Code § 452; Richtek USA, Inc., 242 Cal.App.4th 651, 660; Bounds v. Superior Court (2014) 229 Cal.App....

Excerpt: ...ute. The parties subsequently filed separate responses on 3/20/20. The 3/20/20 filings make it clear that the parties are arguing about a pleading which has not been filed with the Court. Both sides now agree that the dispute is as to a Second Amended Complaint which attempts to assert twelve causes of action (“COAs”), beginning with a claim for “Violation of the Ralph Civil Rights Act” as COA 1. However, the SAC which was filed with the ...

Excerpt: ...s failed to file timely oppositions to the Motions. The Motions were originally scheduled to be heard on 1/13/20, which would have made any oppositions due no later than 12/30/19. CCP § 1005. Plaintiff did not file any oppositions to the Motions prior to the 1/13/20 hearing date. When the matter came before the Court on 1/13/20, the Court continued the hearing to 3/2/20 for Defendant's lack of meet and confer efforts with plaintiff Escotto, lack...

Excerpt: ...nagement, LLC (“Epsilon”), arguing that: (a) as MP had previously filed an action against Koulouras and Epsilon in Illinois which also concerns Koulouras' prior employment with MP, its first-filed case should be allowed to proceed in Illinois to address all of the issues re Koulouras' separation from MP; and (b) the claims at issue should be adjudicated in Illinois on forum non conveniens grounds. Both arguments are unpersuasive here. As a pr...

Excerpt: ...nagement, LLC (“Epsilon”), arguing that: (a) as MP had previously filed an action against Koulouras and Epsilon in Illinois which also concerns Koulouras' prior employment with MP, its first-filed case should be allowed to proceed in Illinois to address all of the issues re Koulouras' separation from MP; and (b) the claims at issue should be adjudicated in Illinois on forum non conveniens grounds. Both arguments are unpersuasive here. As a pr...

Excerpt: ...s failed to file timely oppositions to the Motions. The Motions were originally scheduled to be heard on 1/13/20, which would have made any oppositions due no later than 12/30/19. CCP § 1005. Plaintiff did not file any oppositions to the Motions prior to the 1/13/20 hearing date. When the matter came before the Court on 1/13/20, the Court continued the hearing to 3/2/20 for Defendant's lack of meet and confer efforts with plaintiff Escotto, lack...

Excerpt: ...flight from the scene, and (2) insufficiency of the evidence to support the amount of the damages award. Neither ground has merit. 1. There was no irregularity or error for admitting evidence of defendant's flight Before the trial, defendant moved to exclude defendant's post-accident conduct that consisted of defendant exiting his vehicle and yelling at the plaintiff then getting into his car and driving away. Defendant based his motion on Eviden...

Excerpt: ... signature is, in fact, the signature of the person the proponent claims it is. The statute states: ‘(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.' (Civ.Code, § 1633....

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: ...on” or “Trucking Corporation R” with the same counsel, the McNeil Tropp firm. The Court will ask its counsel to address the correct name of this party as well as to make any appropriate corrections of the name in the record. Motion to Consolidate The Court GRANTS the Motion to Consolidate the cases of Hernandez v. Guzman, 2019- 1079884, with Brown v. Valleguzman, 2019-1097580, for purposes of discovery and for trial. However, the cases will...

Excerpt: ...e of service of written notice of entry of judgment or dismissal, or (3) 180 days after entry of judgment. (CRC 3.1700(a)(1); Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 228.) The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. (CRC 3.1700(a)(1).) If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in C...

Excerpt: ... certain 911 calls and a missing person report of Camden Nicholson, and (3) confessions, witness statements and physical evidence. By agreement, plaintiffs have withdrawn the deposition subpoena for the cell phone. As such, only the depositions subpoenas for the 911 calls/missing person report and confessions, statements and physical evidence are at issue. City contends that the information and documents sought are part of the investigate police ...

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...