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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...