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: ...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: ...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: ...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: ...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: ...; 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: ...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: ...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...