Excerpt: ... the weight and credibility of these matters, and rules as follows: Plaintiff Pure Dermatology's motion for preliminary injunction is denied. “A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to preva il on the merits at trial, and (2) the ‘interim harm' to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if t...

Excerpt: ...al.App.4th 267, 288 (Kim) [evidence of damages is required for default judgment]; see also ROA No. 356 –Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (201 6) 245 Cal.App.4th 89, 108, fn. 15.) Even if plaintiff had complied with the foregoing requirements, the request for default judgment would still be denied because the operat...

Excerpt: ...nd unintelligible. ” (Cal. Code Civ. Proc., § 430.10, subds. (e) & (f); see Cal. Code Civ. Proc., § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or cross -complaint has been fi led may, within 30 days after service of the complaint or crosscomplaint, demur to the complaint or cross -complaint.” (Cal. Code Civ. Proc., § 430.40, subd. (a)....

Excerpt: ...same].) Specifically, defendants failed to m eet their initial burden as to Noticed Issue No. 1 because the issue fails to completely dispose of any cause of action. (See Code Civ. Proc. § 437c, subd. (f)(1).) Defendants met their initial evidentiary burden as to Noticed Issues No. 3. & 5, Even if d efendants had met their initial burden as to each noticed issue, plaintiffs met their shifted burden to show triable issues of material fact. (See ...

Excerpt: ...[same].) Specifically, defendants failed to meet their initial burden as to Noticed Issue No. 1 because the issue fails to completely dispose of any cause of action. (See Code Civ. Proc. § 437c, subd. (f)(1).) Defendants met their initial evidentiary burden as to Noticed Issues No. 3. & 5, Even if defendants had met their initial burden as to each noticed issue, plaintiffs met their shifted burden to show triable issues of material fact. (See C...

Excerpt: ...ion, violation of Business and Professions Code section 17200 (UCL), and br each of implied warranty; and the 5th cause of action for violation of Consumer Legal Remedies Act (CLRA) to the extent it seeks any relief (see Compl. ¶¶ 77, 79 -80) other than public injunctive relief (id. ¶ 81). To be clear, the petition is DENIED to t he extent it seeks an order compelling arbitration of the 4th cause of action for liability on dealer bond, and the...

Excerpt: ...existence of duty/absolute duty]; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369 [“landlord does not owe a duty of care to protect a third party from his or her tenant's dog unless the landlord has actual knowledge of the dog's dangerous propensities”]; accord, Fraser v. Fa r v i d (2024) – Cal.App.5th – (Fraser) [2024 WL 510111, at *1]; see also Def. SSMF Nos. 3, 6 -9, 12 -16, 19.)“ ‘Under California law, ...

Excerpt: ...� 437c, subds. (a), (p)(2); SSUMF Nos. 18 -37 [COA 1], 48 -56 [COA 1], 68 -72 [COA 1]; 148 -160 [COA 2]; 339 -352; [COA 5]; and 357 -370 [COA 6].) Plaintiff has failed to meet her burden to identify a triable issue of material fact with admissible evidence. Plaintiff's attempt falls short as she seeks to establish a triable issu e through a self-serving declaration or citation to evidence that does not actually contradict the material facts Defen...

Excerpt: ...alif. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) Defendant's separate statement fails to comply with Calif. Rules of Court, rule 3.1350(b). Rather than deny the motion outright (CCP 437c(b)(1); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875), the court el ects to treat defendant's motion as one for summary judgment only. Defendants fails to meet their initial burden to show the e...

Excerpt: ... fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The reasonable hourly rate is that prevailing in the community for similar work. The lodesta r figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fe...

Excerpt: ...(Bohrer v. County of San Diego (1980) 104 Cal.App.3d 15 5, 164 [“[a]bsent a special statute, there is no authority for the court to take judicial notice … from a governmental document to establish the cause of death”].) Defendant's Reply Separate Statement (ROA 315) is not authorized and was not considered. (Na zir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) 1st cause of action: elder abuse / neglect. Moving party has not met...

Excerpt: ...ted protective order to the court. If the parties fa il to timely do so, the court will impose a protective order limiting the use of responses to the interrogatories in which a confidentiality/privacy right is claimed to this litigation and requiring that such information be surrendered or destroyed at the conclusion of this litigation. Upon entry of the protective order, Defendant John Marcin is ordered to serve complete, non- evasive further ...

Excerpt: ...e of damages is required for default judgment]; see also ROA No. 356 –Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 108, fn. 15.) Even if plaintiff had complied with the for egoing requirements, the request for default judgment would still be denied because the operative first amended complaint (FAC)...

Excerpt: ... second Hariri Decl., filed in support of cross- complainant's supplemental Opposition on 1 -5 -24, nor crossdefendants' objections to same. The original hearing was continued solely due to crosscomplainant's failure to provide an opposing separate statement, and the court specifically ordered that no new evidence was permitted. (See 12 -14 -23 min ute order continuing hearing (ROA 669).] 1st cause of action: professional negligence (Summary Ad...

Excerpt: ...such records. Thus, the subpoenas to the billing departments of A & S H ealthcare and Alta Vista Assisted Living are quashed in full, and the balance of the subpoenas are quashed to the extent that they seek billing records. The motion is denied as to the balance of the records subpoenas issued by defendant. While the plaintiff s may assert a claim under the physician -patient privilege (See California Consumer Health Care Council, Inc. v. Califo...

Excerpt: ...ouri (Doe 5) and Kouri Law Firm, APC (Doe 6) (together, the K houri defendants). (See ROA No. 401.) 5. San Bernardino County (Doe 4), erroneously sued as “County of San Bernardino.” (See ROA No. 322.) 6. Tushar Ramnik Doshi (Doshi) (Doe 9). All six demurrers are SUSTAINED as to the first amended complaint (FAC) in its entirety without leave to amend. The court on its own motion takes judicial notice of the following: 1. The 1/18/24 minute or...

Excerpt: ... had previously conducted an independent medical examination of Plainti
¯ in July 2021. Having failed to resolve this dispute informally, Defendant Sun now moves the Court for an Order requiring Plainti
¯ to make himself available for another independent medical examination. Defendant Sun argues that Cal. Code Civ. Proc.. §2032.220, subd. (a) provides “any party” with the right to take a single physical examination on demand without leave ...

Excerpt: ...ion of Labor Code sections 201, 202. The Þrst cause of action does not “clearly and a
¯irmatively” appear time-barred on its face. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232 (Lee) [a demurrer based on the statute of limitations is only permissible where the running of the statute appears “clearly and a
¯irmatively” from the dates alleged, it is not su
¯icient that the complaint might be barred].) The statute of limitations for an...

Excerpt: ...with the pleading rules governing statutory claims.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 496, 407 (citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790).) Here, while lengthy, the Complaint is hazy on the details when it comes to alleging how Moving Defendants' conduct constituted “neglect” within the meaning of the Act and how that neglect was a causal factor in the injuries alleged. Sp...

Excerpt: ...ing members/board o directors o POKI CAT INNOVATIONS, LLC ("POKI CAT" or "deendant LLC"), a Caliornia limited liability company ("LLC"), and its member managers/presumptive Board o Directors to pursue the below-described claims against POKI CAT, Does 1 to 25, inclusive, deendants, and each o them, and the various co-deendants or diversion, conversion, deception, embezzlement, tax raud, securities raud, breach o contract, sel-dealing,...

Excerpt: ... (See Cal. Code Civ. Proc., §437c, subds. ()(1) and (p)(2); Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850-851.) In support o their Motion, Plainti
¯s cite to Deendant's responses to various requests or admission and a corresponding Form Interrogatory No. 17.1. Plainti
¯s contend that Deendant's responses are devoid o actual content, evasive, and demonstrate that Deendant has no evidence to support the a
¯irmative deens...

Excerpt: ...intiff's complaint alleges that "Ryan Morris agreed to rent from Plaintiffs Insured, Ability Center / Arch Channel Investments, LLC, a 20 Toyota Sienna." (Comp'. BC-I) Plaintiff's evidnece only establishes the existence of a rental agreement between Ryan Morris and Ability Center. There is no evidnece of a rental agreement between Mr. Morris and Arch Channel Investments, LLC, or the plaintiffs other INSURED. Where a party seeking summary judgment...

Excerpt: ...�6th causes of action for breach of contract, negligence, breach of the covenant of good faith and fair dealing, wrongful foreclosure, cancellation of instruments, and declaratory relief. (See Mtn. P&As at pp. 5-12.) All six causes of action are based on the same set of factual allegations and the same alleged misconduct with respect to the foreclosure on plaintiff's second mortgage. (See, e.g„ Compl. 1, 4, 12, 15-21, 23 [general allegations], ...

Excerpt: ...f quantum meruit —that the plaintiff acted pursuant to an express or implied request for services by the defendant. LHS focuses on presenting evidence that it did not make an express request to Plaintiffs to provide any services to the non-party patients. However, LHS overlooks that a quantum meruit claim can arise where the services are provided pursuant to an implied request for services. (Ochs v. PacifiCare (2004) 115 Cal.App.4th 782, 794 ["...

Excerpt: ...'s discretion to deny motion on the basis of failure to comply with Rule 3.1350]. ) Summary judgment is denied because moving parties have not shown that there is no triable issue as to any material fact and that they are entitled to a judgment as a matter of law on plaintiff's entire operative Second Amended Complaint [SAC]. (Code Civ. Proc„ S 437c, subd. (c).) Specifically, as to the 1st cause of action, moving parties have not met their init...

Excerpt: ...ants provided pursuant to this Court's Order is inadequate because it does not contain sufficient detail to enable Plaintiff to evaluate the merits of Defendants' privilege objection. Upon review of Defendants' privilege log, the Court finds the privilege log to contain sufficient information to evaluate Defendants' claims of privilege and/or work product protection. Defendants have complied with the Court's Order that they produce a privilege lo...

Excerpt: ...uch records. Thus, the subpoenas to the billing departments of Saint Mary's and TNA Residential Care are quashed in full, and the balance of the subpoenas are quashed to the extent that they seek billing records. The motion is denied as to the balance of the records subpoenas issued by defendant. While the plaintiffs may assert a claim under the physician-patient privilege (See California Consumer Health Care Council, Inc. v. California Dept. of ...

Excerpt: ...ved informally. The party moving for a protective order bears the burden of showing good cause for issuance of the order by a preponderance of the evidence. (Stadish v. Superior Court (Southern California Gas Co.) (1999) 71 Cal.App.4th 1130 at 1145.) Ford seeks a protective order that restricts the disclosure of trade secrets. In order to show good cause for entry of such an order, Ford must present evidence that establishes the material it seeks...

Excerpt: ...ng a cause of action "...constituting the cause of action, in ordinary and concise language" The FAC also fails to identify each cause of action and which defendant is being asserted against. The FAC fails to allege facts sufficient as to breach of fiduciary duty. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101 [elementsl.) This cause of action is duplicative of the cause of action for legal malpractice and is subject to demurrer. (Couch v. San ...

Excerpt: ...lifornia, Case No. 8:23-cv-00103. (See Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804 (Caiafa) ["when a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action"; relevant considerations]; accord, Benitez v. Williams (2013) 219 Cal.App.4th 270, 276.) The hearing on this OSC...

Excerpt: ...n over defendant); Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 273.) Validity of Service Plaintiff has failed to establish that substituted service to George Hong or HJC America, Inc. is effective as to Moving Party. Plaintiff's argument that service was made to Moving Party's 'general manager' in California is not well taken. It is possible for service upon a wholly owned subsidiary or a contractor of a foreign entity defendant could be ...

Excerpt: ...mate decision to deny the Moton does not necessarily rely upon any point or authority raised in Defendant's filing. Plaintiff will be afforded an opportunity to respond to any argument raised in the Opposition at the hearing on the Mohon. Plaintiff's Meet and Confer Efforts A moton to compel further responses to a Request for Production of Documents "shall be accompanied by a meet and confer declaration under Section 2016.040." (Cal. Code Civ. Pr...

Excerpt: ...835,000.00 after completion of the LTRMN/UMBRLA transaction, breach of the obligation to give notice of the closing of the LTRMN/UMBRLA transaction, and by disparaging plaintiff in violation of section 10 of the separation agreement. Defendants only provide evidence that the term of the separation agreement did not require them to make the $835,000.00 payment, and fail to address the other two breaches that may require them to pay damages, and th...

Excerpt: ...audulent transfer and 5th cause of action for promissory estoppel/unjust enrichment are also MOOT, given the ruling on these defendants' motion to strike, discussed further below. Defendant Sheybani's demurrer to the 1st, 2nd, and 3rd causes of action are OVERRULED. The court takes judicial notice on its own motion of plaintiff's original complaint and attached exhibits. (Evid. Code, S 452, subd. (d) [court records].) 1st cause of action: breach ...

Excerpt: ...ecause the Cross-complaint does not attach the contract as an exhibit, set forth the material terms of the contract verbatim, or allege the legal effect of the contract. Responding Party does not dispute that a copy of the written contract that forms the basis of the first cause of action is not attached to the Cross-complaint, and the relevant terms are not set out verbatim. Instead, Respond-ng Party argues that the Cross-complaint sufficiently ...

Excerpt: ...motion is a renewed motion for summary judgment that was denied on 08/03/23. A renewed motion must be based upon" new or different facts, circumstances, or law..." (See Code Civ. Proc. 1008, subd. (b).) Dr. Perlman's moton is not based upon new or different facts, circumstances, or law, and therefore is denied on that basis. Where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theori...

Excerpt: ...yled as an "Amended Memorandum of Points and Authorities in Support of its Motion to Consolidate." (ROA No. 82.) Even if Plaintiff's Motion met the requirements of Cal. Rules of Court, Rule 3.350, Plaintiff has failed to establish good cause for consolidation of these matters. In assessing a motion to consolidate, courts will typically consider the following factors: (1) timeliness of the motion: i.e., whether granting consolidation would delay t...

Excerpt: ...8) The Motion to Compel Further Responses to Special Interrogatories (ROA No. 48), brought by Plaintiff David Ulises Castro Herrera, by and through his successor in interest Leslie Plascencia, is GRANTED, in part, pursuant to Code of Civil Procedure secton 2030.300. Defendant Grace Retirement Village, Inc. shall provide further verified responses, without objections, to Plaintiff's Special Interrogatories Nos. 26, 28, 30, 31, 32 and 33, within 15...

Excerpt: ...and 2, is GRANTED. Defendant Blum shall provide full, complete, and verified responses to Special Interrogatories, Set One, Special Interrogatory Nos. 1 and 2, without objection, within 20 days. Plaintiff Carno Law Group's motion to compel defendant Jack Blum to provide further responses to Requests for Production, Set One, is GRANTED in part and DENIED in part. (Code Civ. Proc., S 2031.310.) The motion is DENIED as to Request Nos. 10-12, which r...

Excerpt: ...ntitled to its post offer costs and fees. In a typical action, Moving Party would be correct. But this action is founded on discrimination and seeks the protections of the Fair Employment and Housing Act (FEHA.) Where, as here, the prevailing defendant seeks a post offer claim of attorney fees and costs, it must first show the action was "frivolous." Christiansburg Garment Co. v. EEOC (1978) 434 LIS 412. The Christianburg court affirmed that alth...

Excerpt: ... injury." (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.) Here, Cross-Defendant argues that the Crosscomplaint contains no allegation of a duty owed by Cross- Defendant, and as such, no claim for negligence can be stated against CrossDefendant. Review of the Cross-complaint itself confirms this argument. Cross-complainant's cause of action for negligence consists of a single paragraph that is nothing more than a conclusory statement th...

Excerpt: ...ROA 555] MOTION #7 of 9: Compel Further Responses to Special Interrogatories, Set Two [ROA 547, 559] MOTION #8 of 9: Compel Further Responses to Requests for Admission, Set Three [ROA 542, 546] MOTION #9 of 9: Compel Further Responses to Form Interrogatories, set Three [ROA 561] Plaintiff Charles S. Mosesian's ("Plaintiff") Motion to Compel Responses to his Demand for Production of Documents, Set One is GRAN ED. (See Code Civ. SS 2031.3Cü) Defen...

Excerpt: ... Court, rule 3.1346 [except under circumstances not applicable here, personal service required].) While defendants' proof of service claims that Sybilla Green Dorros (hereinafter, Ms. Green Dorros) was personally served, it states she was so served "via First Legal" and not by the declarant. This lacks personal knowledge and is insufficient to establish service. (See Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1215.) The messenger w...

Excerpt: ...than the offer at trial. (ROA No. 502; Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 453, 458 [subject 998 offer was valid, reasonable, and made in good faith; plaintiff failed to do better than the offer at triall.) Plaintiff can therefore recover only his preoffer attorney fees. "[A] valid and reasonable section 998 offer by the seller, where the buyer recovers less than the offer, precludes recovery by the buyer of postoffer at...

Excerpt: ...on, '1 7, Exh. J. Code of Civil Procedure secton 2030.300(c) states: "Unless notce of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories." Here, the emails between counsel st...

Excerpt: ...on, with the requisite specificity. (See Covenant Care, Inc. v. Superior Court (2Cu) 32 Cal.4th 771, 783 [elements of elder abuse based on neglect, S#cificity]; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152, 155 [caretaking or custtxlial relationship]; Welf. & Inst. Code, S 15610.57, subds. (a)(l), (b); Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349-1351 [knowing pattern and practice of chronic ...

Excerpt: ...port of motion, "1 5 and 7; Exs. 2 and 4.) Thus, moving party was required to file a motion to compel further responses by 10-11-23. (Code Civ. Proc., S 2030.31W, subd. (c) [45 days to file motion to compel further responses]; see also (Code Civ. Prcyc., S 1010.6, subd. [additional two court days for electronic service].) The instant motion was not filed until 11-2-23, and is thus untimely. Moving party contends the instant motion is timely based...

Excerpt: ...tion Agreement, before arbitration can be compelled. (See 9 U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an 'agreement to arbitrate the controversy exist.'" (lyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) "Because the existence of the agreement is a statutory prerequisite to granting the petition, the peti...

Excerpt: ...to Paras. 8 and 10 of the Suarez Decl. are SUSTAINED (relevance). Defendants' evidentiary objection no. 7 to Para. 13 is sustained in part, as to the portion reading "in order to avoid her" (lacks foundation) Defendants' remaining objections to the Suarez Decl. are OVERRULED. Defendants' objections to the Opstelten Decl. are OVERRULED. 1st cause of action: age discrimination. Moving parties' evidence includes direct evidence of unlawful discrimin...

Excerpt: ...fficient to constitute this cause of action, with the requisite specificity. (See Covenant Care, Inc. v. Superior Court (20!J4) 32 Cal.4th 771, 783 [elements of elder abuse based on neglect, specificity]; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152, 155 [caretaking or custodial relationship]; Welt & Inst. Code, S 15510.57, subds. (a)(l), (b); Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349-1351...

Excerpt: ...aton will be conducted for the purpose of determining, evaluating, and assessing plaintiff's physical condition and alleged injuries related to her spine/back. Claims of continuing, ongoing or permanent problems, if any, will be within the scope of the examination, including claims for future care and/or surgery. The examination will be consistent with the orthopedic practices in Southern California and consultations in connection with such pract...

Excerpt: ... the basis "[t]here is a defect or misjoinder of parties." (Code Civ. Proc., 5430.10, subd. (d).) Additionally, as explained by the Court in Time for Living, Inc. v. Guy Hatfield Homes/ All American Development Co. (1991) 230 Cal.App.3d 30, whether a crosscomplaint "come[s] within the provision of section 428.10, subdivision b), is a pleading issue" which is typically "raised by a demurrer on the ground of misjoinder... (ld. at 40-41.) Based on t...

Excerpt: ...ices of Haight Brown & Bonesteel LLP, 555 South Flower Street, Forty-Fifth Floor, Los Angeles, California 90071. The parties may agree in writing to conduct the deposition at a different date, time, and/or location, or to conduct the deposition by remote means rather than in person. The motion is DENIED as to of documents requested in the deposition notice, as moving party has not provided evidence showing cause. (Code Civ. Proc., S 2025.450, sub...

Excerpt: ...necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in this action and to report findings and make a recommendation thereon—with the sole exception of Pitchess motions (i.e., motions to obtain information contained in police officer personnel records brought pursuant to Evidence Code sections 1043-1046), which the court will retain and determine directly. (See Code ...

Excerpt: ...r failure respond. Plaintiffs have also shown that their failure to obey the discovery orders was not willful, but inadvertently caused by their counsel's staffing issues and calendaring mistakes. (See Panah Decl. "1 2-4, 7-10, Exs. 1-2 [responses served on 6/2/23 and 5/7/231.) As for plaintiffs' failure to pay the court-ordered monetary sanctions, "a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is ...

Excerpt: ...r v. Superior Court (1996) 12 Cal.4th 631, 645 [heightened pleading requirements]; Hahn v. Mirda (2007) 147 Cal. App.4th 740, 748 [elements for fraudulent concealment].). Plaintiff argues on opposition that his claim for fraud is fraudulent concealment, but his cause of acton refers to alleged misrepresentations in support of that claim, and states that Plaintiff "relied on [Defendant's] representations." (SAC, "1 21, 22, and 25). To the extent P...

Excerpt: ... suit between the same parties or parties in privity with them.' [Citation.) Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of the claim altogether." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; see also Grande v. Eisenhower Medical Ce...

Excerpt: ...urt (1992) 10 Cal.App.4th 1033, 1041-42, and Lehto v. Underground Construction Co. (1977) 69 Cal.App.3d 933, 944.) The facts alleged in the 2ndAC fail to allege fraud as defined in Civil Code section 3294, or an intent to cause plaintiff harm, or despicable conduct by defendant. (See Civ. Code S 3294, subd. "Despicable" conduct means "...conduct that is so vile, wretched, and loathsome that it would be looked down upon by decent people." (See Moc...

Excerpt: ... authorizes the court to issue a second order requiring a party comply with previous orders to provide discovery. As there is no authority for the requested relief, and as plaintiff has a series of motions to compel further responses based upon the disputed responses served in response to the court's orders pending, the court declines to issue a second order mandating compliance. The request for issuance of issue sanctions is denied without preju...

Excerpt: ...ract (tort), it is barred by the economic loss rule. (See Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922-923 ["there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties"]; Moore v. Centrelake Medical Group, Inc. (2022) 83 Cal.App.5th 515, 535 ["The economic loss rule applies, inter alia, where the parties are in contractual privity and the plaintiff's claim...

Excerpt: ... and negligence, and otherwise OVERRULED. Defendants shall answer the complaint without 10 days. 3rd cause of acton for breach of oral contract. The third cause of action for breach of oral contract is barred by the statute of frauds. An agreement to forebear from foreclosing on real property under a deed of trust must be in writing and signed by the party to be charged or it is barred by the statute of frauds. (See Secrest v. Security Nat. Mortg...

Excerpt: ...iled to produce and evidence in support of the same. Defendants had the right to file both their original answer, and first amended answer. (See Mustalo v. Mustalo (1974) 37 Cal.App.3d 580, 585; A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 542, 647; Code Civ. Proc. S 472, subd. (a).) The amended answer was filed before the opposition to plaintiffs motion to strike was due. Thus both answers were properly filed, precludi...

Excerpt: ...s were incomplete making a second subpoena necessary. A second subpoena for the same documents is not authorized under the CCP. If the response to the subpoena was incomplete, a motion to compel further response was necessary. The Motion as to Perfect Pregnancy, Inc. is GRANTED in part and DENIED in part. The court exercises fts discretion to modify the subpoena and impose a protective order. (ld.) The court orders that the custodians need only p...

Excerpt: ...or the following reasons, the motion for summary adjudication is DENIED as to Issue 1; and Issue 2 is treated as a motion for judgment on the pleadings and GRANTED with 15 days' leave to amend. ISSUE 1: The undisputed material facts establish that Plaintiff cannot recover noneconomic damages pursuant to Civil Code section 3333.4 because Plaintiff was an uninsured driver at the time of the subject automobile accident. Defendants' first issue is an...

Excerpt: ... a reasonable time after receipt of the subject discovery. (See Code Civ. Proc., SS 2031.060, subd. (a), 2030.090, subd. (a).) The County served the subject discovery on 2/2/23 (ROA No. 85—Mtn. at Exs. 4-6 [attached proofs of service)); plaintiff provided responses tothe same on or about 3/13/23, 3/20/23, and 3/27/23 (see id. at Exs. 1-3); and plaintiff did not move for a protective order until a month after he had already served responses. To ...

Excerpt: ...r constructive knowledge that serious injury was a probable (as opposed to a possible) result; or that moving defendant acted with deliberate indifference and conscious disregard of the peril/probable serious injury. (Dæ v. United States Youth Soccer Assoc. , Inc. (2017) 8 Cal.App.5th 1118, 1140 [elements]; Aubryv. Tri—City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [on demurrer, while the court is required to assume the truth of alleged facts,...

Excerpt: ...ving party presents evidence that it did not request plaintiff to provide any services, a quantum meruit claim can arise where the services are provided pursuant to an implied agreement, as well as an express one. (Ochs v. PacifiCare (2004) 115 Cal.App.4th 782, 794 [“To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or...

Excerpt: ...t BLD, made certain representations, either orally or in writing, to Plaintiff on either February 24, 2018 or March 23, 2018. The FAC also alleges that the representations made by Defendants were false and incorrect at the time they were made; that Defendants knew them to be false when the representations were made; that the statements were made with the intent to deceive and defraud Plaintiff in order to induce him to enter into and continue per...

Excerpt: ... appears to represent Enviro-Holdings. If Enviro-Holdings, LLC, has not retained representation the court will strike Enviro- Holdings, LLC's pleading. Moreover, “a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4t...

Excerpt: ...dants' demurrer as to the 1st and 4th causes of action with leave to amend and granted Loan Defendants' motion to strike as to punitive and emotional damages with 15 days leave to amend. Plaintiff did not amend the complaint. Thus, the operative complaint is the SAC with the 2nd, 3rd and 5th causes of action. The 1st and 4th causes of action were effectively stricken from the SAC. 2nd COA for Promissory Fraud The elements of a cause of action for...

Excerpt: ...and Recapitalization Agreement): Chart from Schedule 3.5 on CFG000086-87. 2. Exhibit F (Asset Contribution Agreement); Chart from Schedule 2 on CFG000008, Personal address on top left of CFG000005. 3. Exhibit G (Consulting Agreement): Consulting fee amount at para. 3 on CFG007349. 4. Exhibit J (Investment Memorandum): Bottom half of pages CFG001473-1480. The following documents and/or portions of documents, filed in support of plaintiff's opposit...

Excerpt: ... procedure requirements have been met: The instant motion was filed on March 27, 2023, in accordance with an agreed upon extension. (¶13 of Goldsmith Declaration and Exhibit 5 thereto; See also ¶6 of Shugart Declaration and Opposition: 2:16-20 [conceding the same.]) Thus, the motion is timely pursuant to Code of Civil Procedure section 2030.300, subdivision (c). Additionally, per the Declaration of Plaintiff's Counsel efforts were made to meet ...

Excerpt: ...Nguyen to parts of her body unrelated to the one she presented. If she received treatment for the part of the body for which she presented, her wrist, it was after she endured unwanted touching. Defendants offer no authority stating they cannot be held liable for a breach of the standard of care as a matter of law. The 4th cause of action states a claim for sexual harassment by a physician under Civil Code §51.9. Under the statute, the sexual ha...

Excerpt: ...facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; FAC, ¶¶ 2, 3, 5, 15 [existence of contract], 17 [performance], 12, 18 [breach], and 19 [proximately caused damages].) Failure to allege a specific dollar amount of damages is not fatal. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [specific damages allegations are only necessary when seeking a default judgment; otherwise, “the absence of a specific amount from ...

Excerpt: ...ed by the evidence. Plaintiff does not have to make an election at the pleading stage. The 3rd cause of action states a claim for sexual harassment by a physician under Civil Code §51.9. Under the statute, the sexual harassment must be either pervasive or severe. A single act of harassment may be severe enough to state a claim for harassment. [Ellison v. Brady (9th Cir. 1991) 924 F.2nd 872, 878] Under FEHA “the groping of plaintiff by itself c...

Excerpt: ...013) 222 Cal.App.4th 691, 697 (Beckley).) The court has reviewed the administrative record (AR) in the exercise of the court's independent judgment, giving due respect to respondent OCERS' administrative findings. (See Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99-100 [independent judgment standard]; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, 818 (Fukuda) [same]; Alberda v. Board of Retirement of Fresno County Employees' Retirement ...

Excerpt: ...and not by any state law concerning arbitration.” The parties do not dispute that the FAA applies. The FAA requires the existence of a valid arbitration agreement, before arbitration can be compelled. [See 9 U.S.C. § 2] In any event, California and federal arbitration law are identical for the purposes of this motion. Under the FAA, state law governs the question whether a nonsignatory party may enforce an arbitration agreement. [Kramer v. Toy...

Excerpt: ...11 Cal.5th 995, 1009 [burden]; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [same].) Specifically, cross-defendant contends that the subject claims arises from activity protected under Code of Civil Procedure section 425.16, subdivision (e)(3) and (e)(4). (See Motion P&As at pp. 3, 6.) To the extent cross-defendant relies on section 425.16, subdivision (e)(3)—cross-defendant fails to show his alleged statements that Jacobson is ...

Excerpt: ... signatory to the RISC. (See Maugeri Decl. at Ex. 4.) With limited exceptions, only a party to an arbitration agreement may enforce the agreement. (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1352-1353 [general rule, listing exceptions].) Defendant contends it may enforce the arbitration agreement under two exceptions to this general rule, i.e., as (1) a third party beneficiary; and/or (2) under an equitable estoppel theory, ...

Excerpt: ...on for reconsideration of “any order of a judge or court.” (Code Civ. Proc., § 1008, subd. (e) [“[t]his section specifies the court's jurisdiction with regard to applications for reconsideration of its orders ... and applies to all applications to reconsider any order of a judge or court, ... whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order ... may be considered by any jud...

Excerpt: ...tion is denied. Plaintiff failed to adequately tie the purportedly missing records to the sanctions requested. The request for terminating sanctions is denied. Terminating sanctions must be used sparingly. The purportedly missing records only address alter ego/piercing the corporate veil theories, and do not address the merits of plaintiff's claims, or the defendant's general denial and affirmative defenses. Granting terminating sanctions would g...

Excerpt: ... signatory to the RISC. (See Maugeri Decl. at Ex. 4.) With limited exceptions, only a party to an arbitration agreement may enforce the agreement. (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1352-1353 [general rule, listing exceptions].) Defendant contends it may enforce the arbitration agreement under two exceptions to this general rule, i.e., as (1) a third party beneficiary; and/or (2) under an equitable estoppel theory, ...

Excerpt: ...on for reconsideration of “any order of a judge or court.” (Code Civ. Proc., § 1008, subd. (e) [“[t]his section specifies the court's jurisdiction with regard to applications for reconsideration of its orders ... and applies to all applications to reconsider any order of a judge or court, ... whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order ... may be considered by any jud...

Excerpt: ...Sanctions are GRANTED in the amount of $2,400 in favor of SAS and against Navco, payable within 30 days of notice. 2. Motion to Compel Compliance with Responses to Requests for Production, Set One SAS's motion to compel compliance with responses to its first set of requests for production is GRANTED. (See Code Civ. Proc., § 2031.320.) Navco is ORDERED to electronically produce responsive documents in compliance with Code of Civil Procedure secti...

Excerpt: ...ned by the evidence. Plaintiff does not have to make an election at the pleading stage. The 3rd cause of action states a claim for sexual harassment by a physician under Civil Code §51.9. Under the statute, the sexual harassment must be either pervasive or severe. A single act of harassment may be severe enough to state a claim for harassment. [Ellison v. Brady (9th Cir. 1991) 924 F.2nd 872, 878] Under FEHA “the groping of plaintiff by itself ...

Excerpt: ...to provide the notice specified therein (¶25 of FAC); however, the cited provision appears to outline, at most, a defense to a request for contribution. Although not clearly specified by the language of the statute, the lack of sufficient notice would appear to constitute an “equitable factor” which the Court could consider in making a contribution determination. (Civ. Code, §841, subd. (b)(3)(E).) Here, there has been no allegation Defenda...

Excerpt: ...that they are entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is GRANTED as to Plaintiff's second cause of action for defamation per quod. Moving Parties have met their initial burden of presenting evidence showing that Plaintiff cannot establish the essential element of special damages. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Taus v. Loftus (2007) 40 Cal.4th 683, 720 [defamation el...

Excerpt: ...t. (See Ex Parte Memo. P&As at pp. 10-13.) Plaintiff has failed to demonstrate a probability of prevailing on these claims. (See Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 [to obtain a preliminary injunction, moving party must demonstrate, inter alia, a probability of prevailing on the merits]; O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481 [same].) Each of these causes of action depend...

Excerpt: ...mative defenses, one or more claims for damages, or one or more issues of duty..." (C.C.P. As the relevant provision does not permit adjudication of individual elements or theories of liability, this Court declines to rule on all 24-stated issues and, instead, interprets Defendants' motion as seeking adjudication of each of Plaintiff's causes of action, along with the request for punitive damages, consistent with C.C.P. S437c(f)(1). Summary adjud...

Excerpt: ...remainder of the demurrer is OVERRULED. Cross-complainants' request for judicial notice is GRANTED. (Evid. Code, S 452, subd. As to the 6th cause of action for implied indemnity, while such claim may still be asserted separately from an equitable indemnity claim (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157-1158), this cause of action is duplicative of both the 1st and 2nd causes of action for equitable indemnity, and the 5th...

Excerpt: ...aintiff seeks summary adjudication of the following issues: Issue 1: Defendants believe there is no triable issue of material fact as to the Complaint against Defendant KAISER FOUNDATION HEALTH PLAN as they do not provide medical care. Issue 2: Defendants believe there is no triable issue of material fact as to the Complaint against Defendant KAISER HOSPITALS as they do not employ the physicians and are not ostensible agents. Issue 3: Defendants ...

Excerpt: ...tion... For the purposes of this section, "attorney's fees" means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract." (Code Civ. Proc., S 1030, subd. (a).) "The motion shall be made on the grounds that the plaintiff resides out of the state... and that there is a reasonable possibility that the moving defendant will obtain judgment in the action... The motion shall be accompanied b...

Excerpt: ... claim for elder abuse/neglect as there are no allegations that PAK acted with knowledge that injury was substantially certain to befall Mr. Hull or that PAK acted with conscious disregard of the high probability of such injury in order to impose personal liability against her. Plaintiff pleads only legal conclusions (see e.g., 22, 23, 26, 41, and 45) and fails to plead the acts constituting elder abuse with particularity as required. A cause of ...

Excerpt: ...uest for judicial notice of Exhibits 1 through 11 on the grounds these documents are not relevant to the issues in this action or as to whether triable issues exist on Plaintiffs' claims. (See Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 ["Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed. 'But judicial notice, since it is a substitute for proof [citation], is always co...

Excerpt: ...y). Further, D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, is not applicable, as the portions of depo testimony cited do not contradict the statements in the declaration Cor at least, not in their entirety]. Finally, whether a matter is a trade secret may be a conclusion of law, but Declarant may properly testify as to the facts underlying the elements of a trade secret claim. 3. Overrule. [Same as Objection No. 2.] 4. Overrule. [Same...

Excerpt: ...oving Defendants is the First Cause of Action for Medical Negligence. Relevant to this claim, C.C.P. 5340.5 states: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occu...

Excerpt: ...ows. As to the 1st cause of action for elder abuse, this cause of action is not pled with the requisite specificity as required. Here, the crux of Plaintiff's elder abuse claim is based on Bermudez' physical therapist placing her on a "slippery mattress" and leaving "her unsupervised while moving her walker to the side" during which time Bermudez "fell and fractured her hip". (See FAC, '1 33.) Plaintiff further alleges that Defendants failed to i...

Excerpt: ... (See Leeper Decl. ¶ 19, Ex. L.) The motion is also granted as to subpoena #s 89-90, which are directed to Aloha Foot & Ankle Associates/Dr. Devon Glazer and seek all of plaintiff's medical and billing records from 10 years prior to the accident to date. (See Morris Decl. at Ex. 1.) These subpoenas are grossly overbroad and violate plaintiff's right to privacy in her medical records (see Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 (Vinson...

Excerpt: ...”].” (Devonwood Condominium Owners Assn. v. Farmers Ins. Exchange (2008) 162 Cal.App.4th 1498, 1505). The CAA was amended in 1961 to make clear that it extended to “agreements providing for valuations, appraisals, and similar proceedings.” (Code Civ. Proc. §1280, subd. (a) [defining “Agreement”]; see also, Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1130; Appalachia Ins. Co. v. Rivcom Corp. (1982) 130 Cal.App.3d 818, 824 [“As ...

Excerpt: ...ls to state a claim for either. (See Stansfield v. Starkey (Iggo) 220 Cal.App.3d 59, 72-73 [elements for fraudulent misrepresentation]; Lazar v. Superior Court (1 gg6) 12 Cal.4th 631, 645 [heightened pleading requirements); Hahn v. Mirda (2007) 147 Cal. App.4th 740, 748 [elements for fraudulent concealment).). Plaintiff argues on opposition that his claim for fraud is fraudulent concealment, but his cause of action refers to alleged misrepresenta...