Excerpt: ...treatments" (Compl., '1 33), • "negligently failed to warn Plaintiff' "of the dangerous effects of the laser hair removal procedure and that the procedure constituted a hazard to Plaintiff's health and safety" (Compl., 35) and • "failed to adequately train, educate, and supervise those persons operating under their supervision and control" (Compl., '1 36). The court finds that Defendants failed to meet their burden on summary judgment. First,...

Excerpt: ...on for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305). The two main elements that all moving Defendants raise are standard of care and causation. Defen...

Excerpt: ...se of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.... And the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-821, citations omitted.) He...

Excerpt: ...riminal remedies for the alleged contempt. To the extent, Plaintiff is requesting criminal remedies, the request is denied pursuant to Section 1385 of the Penal Code. It makes little sense to proceed with what was traditionally considered a "quasi-criminal" proceeding in order to recover discovery sanctions of $1,500, which were ordered to be jointly and severally paid by Defendant Niguel Pointe Homeowners Association and its counsel of record (S...

Excerpt: ...ts a pleading, motion, or similar paper to the court, the person filing the paper makes an implied "certification" that: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims . . and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of exist...

Excerpt: ...1 st C/A (breach of contract): "[Tlhe elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, Plaintiff established the existence of the contract (UMF 1), Plaintiffs performance (UMF 10-11), Defendant Cyprus Point'...

Excerpt: ... from those terms contained in written and oral communications with Defendant Valencia on 10/15/2018. (SAC 26- 27.) The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) On 3/10/2023, the court sustained NAF's demurre...

Excerpt: ...an unusual matter involving defaulted parties and related actions concerning the same real property and opposing requests to quiet title. Hung Do ("Do") filed the first action Do v. Dinh, 2019-01072630 (the "Lead Case") on 5/24/19 against Dinh, Nguyen and others. Before being served and before default was entered against Nguyen in the Lead Case on 2/8/22, Nguyen (along with others) filed a separate action on 4/15/21 against Do, Dinh (later dismis...

Excerpt: ...dered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See, e.g., Code Civ. Proc., S 2031.300(c) [requests for production].) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) In the cas...

Excerpt: ...dicial notice. Plaintiff moves for summary judgment as to the sole cause of action in complaint for partition by sale of the property located at 14821 Riata Street, Midway City, CA 92655 (the "Subject Property"). The Complaint prays for a judgment against defendants for partition by sale of the Subject Property. Parttion is an equitable action governed by statute to determine interests in real property. (Code Civ. Proc., SS 872.010 et seq.; see N...

Excerpt: ...r to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys' fees in addition to other costs. (See also Code Civ. Proc., S 1033.5(a)(10)(A).) Reasonable attorneys' fees shall be fixed by the court and shall be an element of the costs of suit. (Code Civ. Proc., S 1717(a).) O...

Excerpt: ...w, the Complaint contains suffcient allegations to overcome the general demurrer and the causes of action are also not uncertain. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 ["A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." l.) Re 2nd C/A (nuisance) To establish a private nuisance cause of a...

Excerpt: ...uncertainty. (Code Civ. Proc„ S 430.10(e), (f).) A prior demur by Shaw to the same causes of action (but in the Second Amended Complaint) was sustained with leave to amend. (See 9/1/23 Minute Order.) The TAC alleges the follow-ng: on 3/28/21, Decedent ERNEST ADAMS was struck and killed by Defendant ALEXIS GARCIA-LOPEZ ("Garcia- Lopez") while Garcia-Lopez was under the influence of alcohol and driving a black SUV Northbound on Irvine Avenue. Gar...

Excerpt: ...; and (3) the court's authority to determine arbitrability outside of the context of a motion to compel arbitration or a moton to confirm or vacate an arbitration award. The court also notes the following: "The contractual right to compel arbitration is not selfexecuting: the party asserting its right may do so by petition or affirmative defense in the trial court and by seeking a stay of judicial proceedings." (Williams v. West Coast Hospitals, ...

Excerpt: ...urden of showng all elements necessary to support the issuance of a preliminary injunction. (O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff shows the following: On 9/28/23, Defendant Lakeside notified its members that it would be voting on a set of Architectural Standards. (Chaudhary Decl., '1 15.) Plaintiff submitted an architectural application on 11/2/23. (Id„ 25.) On 11/3/23, Defendant sent a notice to members re...

Excerpt: ...Further Responses from Defendant MICHAEL CAO to Special Interrogatories (Set One). Plaintiff moves to compel further responses to Special Interrogatories Nos. 5, 5, 8, and 9 on the ground that any objections have been waived and the responses at issue are evasive and non-responsive. While this moton was pending, Defendant Cao served supplemental responses to the discovery at issue. The court finds the supplemental responses to Special Rog Nos. 5,...

Excerpt: ... is without merit. First, Plaintiff argues that the applicable discovery cutoff is based on the original trial date of 7/20/20 and should not be based on the current trial date of 12/18/23. The argument makes little sense given what has transpired in this action after the original trial date of 7/20/20 was set at the original CMC on 7/12/19. (See 7/12/19 Minute Order.) Trial was essentially delayed due to Covid, the appeal, amended pleadings, and...

Excerpt: ... or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (Code Civ. Proc., S 410.30(a).) "The doctrine of inconvenient forum (often referred to as forum non conveniens) allows courts to 'exercise their discretionary power to decline to proceed in those causes of action which they ...

Excerpt: ...stain a finding that, among other things, "the warning that is required by the settlement complies with sections 25249.5-25249.14." (Health & Sat Code, S 25249.7(f)(4), (f)(5).) Section 25249.6 provides, "No person in the course of doing business shall know-ngly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, exc...

Excerpt: ...NIES Defendant's Motion for Judgment on the Pleadings on the First Amended Complaint (FAC). A. Plaintiff Alieu M. Conteh Defendant first argues that Plaintiff ALIEU M. CONTEH is mentally incapacitated, lacks capacity to maintain this action, and failed to follow the for having a guardian ad litem apim-lted. Here, the FAC (filed back on 12/21/2020) concedes that Plaintiff Alieu M. Conteh has been deemed incompetent by the High Court of South Afric...

Excerpt: ... that there must text messages between Thauer and Ventura from 2017. Thauer however testified in deposition that he does not have any texts from before CREDE induced him to invest. (Verdegem Decl., Exh. 5 at 75:9-10.) He confirmed in deposition that he "searched for both Gene and Ventura text messages on [his) phone" and he "produced all text messages that [he has] with Mr. Ventura." (Verdegem Dec., Exh. 6 at p. 234:12-24.) He states he does not ...

Excerpt: ...e other party has refused to arbitrate. (Code Civ. Proc., S 1281.2.) Defendants' motion relies on an arbitration provision in a Consulting Agreement dated January 1, 2004, and executed by THEO MANOLELIS (Theo) and Defendant VICTOR TANON (Tanon). Plaintiff's Complaint appears to reference this agreement and alleges that Theo and Tanon, on behalf of Emplicity, entered into an agreement under which Theo would work for Emplicity on an hourly basis. (...

Excerpt: ...se causes of action are based on the alleged breach of the following agreements: • First Cause of Action: Business Loan Agreement 1: A written loan agreement between Plaintiff and Borrower, dated July 14, 2021, in which Borrower received a loan in the amount of but which provided for a total loan repayment obligation of $64,893.84. [Otero Decl., 4 & Exh. 1]. • Third Cause of Action: Guaranty 1: A written guaranty made concurrent with Business...

Excerpt: ...r excuse for non#rformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A written contract may be pleaded either by its terms— set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) T...

Excerpt: ...arty Jason Carlos Guzman, an adult, entered the Taft Elementary School premises and made contact with several Taft Elementary School Employees. (Compl. 2.) Apparently suffering from a mental health disorder, Guzman appeared "unkept, dangerous to others, suspicious, not well, and ready to do harm." (ld.) Taft Elementary School personnel knew or should have known that Guzman posed a danger to himself and others and should have guided him away from ...

Excerpt: ... demurrer states only a general demurrer (see Code Civ. Proc., S 430.10(e)), but in the moving points and authorities, defendants also argue that the 1 st cause of action fails for being uncertain (Code Civ. Proc., S 430.10(f)) and for failing to allege whether the contract is written, oral, or implied by conduct (Code Civ. Proc., S 430.10(g)). The court will this defect but cautons counsel to include all appropriate grounds in the notice of moti...

Excerpt: ...allegations against Defendant City do not constitute a taking. More specifically, Defendant contend that (1) the failure to issue a business license, (2) Defendant's interference with the ability to obtain funds related to Covid-19, and (3) Defendant's interference with the ability to obtain an alcohol license from the ABC do not constitute takings. To establish liability for inverse condemnation, the plaintiff must prove that: (1) there was a ta...

Excerpt: ... Code; S 3342) Civil Code section 3342(a) states in part, "The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." The Complaint is not clear whether the first cause of action is pleaded as to all Defendants. Pla...

Excerpt: ...tions. (ld.) Macco's counsel initiated the meet and confer process on 6/09/2023, sending a lengthy meet and confer letter regarding each plaintiff's deposition. (Counts Decl. re Born Depo., Ex. I; Counts Decl. re Sorensen Depo., Ex. E.) In that initial letter, Macco requested a response no later than 6/15/2023 as to whether Plaintiffs were amenable to a limited scope deposition on some or all of the issues addressed therein. (Counts Decl. re Born...

Excerpt: ... special Interrogatories (Set one), Nos. 2, 5, 8, 11, 12, 13, 14, 18, 21, 23, 24, 26, 27, 29, 30, 31, 32, 33, 34, 35, and 37; and 3. Request for Prtxluction of Documents (Set One), Nos. 144. Enclave also seeks monetary sanctions totaling $14,548.50 against Huynh or McNamara and their counsel of record, (i.e., $2,257.25 for each motion re form interrogatories, $2,673 m for each moton re special interrogatories, and for each moton re requests for p...

Excerpt: ... stated therein. Motion to Consolidate The court GRANTS Plaintiff Mordekah's Motion to Consolidate the two actions. When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated, or such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Code Civ. Proc. S 1048(a).) The semi...

Excerpt: ...ng six causes of action, asserted against both Teletron and Hoang: (1) breach of contract, (2) fraud, (3) breach of covenant of faith and fair dealing, (4) money had and received, (5) intentional infliction of emotional distress, and (6) violation of business and professions code et seq. The court notes that a demurrer to the 5th cause of action was previously sustained without leave and is thus not a subject of the instant motion. The FAC allege...

Excerpt: ...ecently filed for Romana Medina on 10/5/23, the court notes that the address for the purported substituted service stated in the proof of service differs from the address prov-ded for service of the instant motion. Compliance with the statutory procedures of service of process is essential to establish personal jurisdiction. (Code Civ. Prtw, S 410.50; Ellard v. Conway (2W1) 94 Cal.App.4th 540, 544.) Absent valid service of summons, the court does...

Excerpt: ...rtionment. Re Requests for Judicial Notice The Court GRANTS LREP's request for judicial notce of the Order from the United States Bankruptcy Court for the District of New Jersey. The Court GRANTS G Companies' request for judicial notice of (A) its Cross-complaint, (B) Plaintiff's operative Second Amended Complaint, and (C) the Court of Appeal's opinion in G Companies Management, LLC v. LREP Arizona, LLC (2023) 88 Cal.App.5th 342. The court DENIES...

Excerpt: ...s to join Coldwell and ring with them real estate agents, staff and confidential information/trade secrets and listings. Plaintiff alleges that, pursuant to this plan, Coldwell successfully enticed Defendants DEBRA LEWANDOWSKI, FARSHID KARAMZADEH and ALAN "DUTCH" KLEINDIENST (collectively, the "Individual Defendants") to leave Plaintiff and defect to Coldwell, taking with them confidential information and allowing Coldwell to cause other employee...

Excerpt: ...ing the motion to quash, Defendant has waived any such opposition. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see Wright v. Fireman's Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 ["it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a motion" l.) Plaintiff has presented evidence it objected to Defendant's deposition notices bas...

Excerpt: ..., not coercion a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 235 [internal quotations and citations omitted].) The existence of a valid agreement to arbitrate is a "question of arbitrability" to be decided by the court unless the parties expressly agree otherwise. (Garden Fresh Restaurant Corp. v. S...

Excerpt: ...et one, and (3) requests for production, set one. Defendant contends that this discovery was served on Plaintiff in 9/23/22 by email, but as of the date of the motions, no responses had served. The motions were unopposed and on 5/5/23, the court granted the motions to compel. The court had issued a tentative ruling granting the motions, and both sides telephonically accepted the tentative. As such, the court ordered Plaintiff to serve ctNle-compl...

Excerpt: ...0.10(e), Nguyen and Bui are named in the first cause of action (fraudulent inducement) and the third cause of action (rescission). 1 st C/A (fraudulent inducement) The Cross-complaint alleges the followng: Back Bay, Nguyen, and Bui signed a "Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate" ("Purchase Agreement" relating to 7782 Trask Ave., Westminster, California 92683 (the "Property"). The intent was for Nguyen and ...

Excerpt: ...e court disregards facts outside the pleadings. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiffv. GTE Cal. , Inc. 101 Cal.App.4th 1395, 1404-1405.) Questi...

Excerpt: ...al concealment: Both Guo and Sai knew of Defendant ZENGJIAN CHEN'S ("Chen") plan to improperly sell certain real property while Chen was in divorce proceedings with Plaintiff. Both Guo and Sai acted as dual agents and both may have encouraged Chen to sell the Property in 2021. Despite knowng that Chen and Plaintiff purchased the property jointly as husband and wife in 2021, both Sai and Guo concealed from Plaintiff that Chen planned to sell the p...

Excerpt: ...whole truth, and nothing but the truth in answering written interrogatories." (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76; see Code Civ. Proc., S 2023.010(f) [evasive response is ground for sanctions].) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide "deftly worded conclusionary answers designed to evade a series of explic...

Excerpt: ... sum, (2) the consideration, i.e., gtnds sold, work done, etc., and (3) nonpayment.' [Citation.]" (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) "A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness...." (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 585, 590, citing McBride v. Boug...

Excerpt: ...rty is allowed to recover its filing, motion and jury fees. (Code Civ. Proc., S 1033.5(a)(1); Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 400.) It can also recover "[flees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents." (Code Civ. Proc., S 1033.5(a)(14); Rozanova, supra, 68 Cal.App.5th at p. 406.) Attorney service charges for...

Excerpt: ...e.g., CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 ["[u]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can represent itself through a corporate officer, director or other employee who is not an attorney."]; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, n5 ["In California a corporation may not ...

Excerpt: ....) The plaintiff bears the burden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. (See Aquila, Inc. v. Su#rior Court (2007) 148 Cal. App. 4th 570.) The plaintiff must demonstrate by a prepnderance of the evidence that all jurisdictional requirements are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 205 Cal. App. 3d 1222, 1232.) If the plaintiff establishes that th...

Excerpt: ...clude an attorney on the correspondence and produce all relevant communications/documents labeled as privileged that are by and between Richard Watson and Gerson ("RWG") acting in a nonlegal capacity. The court DENIES AS MOOT the motion to the extent it seeks an order compelling City to submit a code-compliant privilege log in response to the Zola Subpoena. The court GRANTS the motion to the extent it seeks an order compelling City to submit a co...

Excerpt: ...zo") was employed by Orange County Public Works, which is owned, managed, and/or controlled by the County. Razo was injured while on a job site after he was instructed to use a modified hose/nozzle that was used to clean debris from various locations, including from subterranean tunnels. The County had re-manufactured, modified, altered, installed, assembled, replaced, and/or changed the nozzle that Plaintiff used. The operations manager, Joe Rue...

Excerpt: ...12.1, 12.3, 12.6, 12.7, 14.2, and 17.1. The responses are not complete and straightforward. Both plaintiffs either did not directly and separately respond to the interrogatories and/or did not respond to each interrogatory subsection. Plaintiffs ERANIO E. CORDOVA SR. and ERANIO E. CORDOVA JR. SHALL serve verified, code-compliant responses to Defendant ANDREW IMPARATO, M.D.'S Form Interrogatories, set one, Nos. 6.2, 6.3, 6.6, 9.2, 12.1, 12.3, 12.6...

Excerpt: ...on is denied as to Plaintiffs request to tax $1,245.70 in filing and motion fees. The "verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary." (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.) While Plaintiff objects to the filing and moton fees, plaintiff has offered no counterdeclaraton or other ev...