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: ...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...