Excerpt: ...elow. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. ...

Excerpt: ...em because they were not parties to the written agreement and no basis has been pled by which to impute liability upon them. They contend that the attempt at pleading an alter ego theory of liability fails because the FAC only pleads conclusions with no facts. Detailed pleading is not required to allege an alter ego theory of liability. Indeed, "[i]t is not even essential, apparently, that the alter ego doctrine always be specifically pleaded in ...

Excerpt: ...aint within 10 days of the expiration of the period of time to amend. (See Cal. Rules of Ct. rule 3.1320(j).) Defendant Wells Fargo Bank, N.A.'s Request for Judicial Notice is GRANTED. (See Evid. Code, S 452 subds. (d), (h).) Defendant Wells Fargo Bank, N.A. demurs to the 1st through 5th Causes of Action of the First Amended Complaint (FAC) filed by Plaintiff Saloomeh Moazed. Standard for Demurrer A demurrer challenges only the legal sufficiency ...

Excerpt: ...ntions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) Defendant demurs to the second cause of action for violation of Civil Code S 52.1, which states, in part: "(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of...

Excerpt: ...facts are true, but the court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff alleges two causes of action against Chapman—i.e., the third cause of action for negligence and the fourth cause of action for violation of Title IX of the Education Amendments of 1972. The demurrer contends Plaintiff has failed to plead sufficient facts to state either of thes...

Excerpt: ... ruling. For COAS 1, 2 and 4, each asserts a variation of a negligence claim. Under the Tort Claims Act all governmental tort liability is based on statute, so those COAS must be pleaded with particularity: "to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiff has not...

Excerpt: ...g Defendant Pacific Green Energy, LLC from introducing evidence or facts supporting any of fts thirty affirmative defenses at trial, and for monetary sanctions for failure to comply with the Court's June 9, 2023 Order. UPCOMING EVENTS: Motion to Compel Production — March 15, 2024 FACTS/OVERVIEW: This is a putative wage-and-hour class action and PAGA matter. On July 15, 2022, Plaintiff William Watson, individually and on behalf of all similarly ...

Excerpt: ...es of Court, Rule 3.1320, subd. (a).) The parties did meet and confer, but defendant did not file the required declaration until the reply. (See ROA #77.) As it is only the signature block that pushes the brief past the page limit, the court excuses the violation. Future overlength briefs may be stricken. (See Cal. Rules of Court, rules 3.1113(g), 3.1300(d).) Uncertainty. The complaint is not "so incomprehensible that a defendant cannot reasonabl...

Excerpt: ...cial elder abuse action. On April 15, 2022, Plaintiff Dennis Cooper ("Plaintiff") filed a Complaint in Los Angeles Superior Court (Case No. 22L8CV00174) against Defendants Tyler Morgan Cooper, Jessica Naughton, Loren Castro, and "All Persons unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff Dennis Cooper's Title or Any Cloud On." (ROA 2.) The Complaint a...

Excerpt: ...ses of action for fraud and concealment is sustained with leave to amend on the basis that the causes of acton (Specifically the elements of duty to disclose and damages) are not alleged with the level of specificity required to allege a cause of achon sounding in deceit. (See Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 557.) The demurrer to the fourth cause of action for breach of contract is sustained with leave on the basis t...

Excerpt: ...the plaintiff's damages or injuries." (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) "Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 621 (cleaned up).) Plaintiff has alleged (1) Defendant had a duty to maintain the common areas near where Plaintiff was injured, including the intersection of Sceptre...

Excerpt: ...ance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; accord, JRK Property Holdings, Inc. v. Colony Ins. Co. (2023) 96 Cal.App.5th 1, 13.) "'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. [Ci...

Excerpt: ...ore of the follow-ng grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Cal. Code Civ. Proc., S 430.10, subds. (e) & (f); see Cal. Code Civ. Proc., S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of achon stated thereinl.) "A person against whom a complaint or...

Excerpt: ...s or to the prevailing party... " (Civ. Code, S 1717, subd. (a).) However, section 1717 does not apply to tort claims. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708.) "As to tort claims, the question of whether to award attorneys' fees turns on the language of the contractual attorneys' fee provision, i.e., whether the party seeking fees has 'prevailed' within the meaning of the provision and whether the type of claim i...

Excerpt: ...wn behalf, on behalf of the putative class, and in their representative capacities pursuant to the Private Attorneys General Act, move for leave to file a Consolidated First Amended Class and PAGA Action Complaint in this coordinated action. UPCOMING EVENTS: None FACTS/OVERVIEW: This is a coordinated proceeding comprised of three putative class action cases involving alleged wage-and-hour violations. On March 24, 2023, the Court granted the Petit...

Excerpt: ...view granted 2/1/23 ["we decline to hold plaintiffs' claim is barred on the ground there was no relationship requiring Nissan to disclose known defects"]; OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 851 ["a vendor has a duty to disclose material facts ... to subsequent purchasers when the vendor has reason to expect that the item will be resold"]; see also FAC 65-68, 72, 75.) The FAC adequately a...

Excerpt: ...l times in my individual capacity", and otherwise overruled, '17 —sustained, 98 — overruled. Plaintiff's Evidentiary Objections as to the original Daniel Nguyen Declaration are: 92 — overruled, "3 overruled as to sentences 1-2, and sustained as to sentences 3-4, 94 — overruled. Plaintiff's Evidentiary Objections as to the supplemental Huynh Declaration are: 94 — overruled as to sentences 1-2 and 4-5, and sustained as to sentence 3, 95 a...

Excerpt: ...ary 3, 2018 to the present. Defendant's original response consisted of objections, but its supplemental response, as set forth in plaintiff's Separate Statement, cited payroll summaries containing payroll and contact information for non-exempt employees who did not opt out through the Belaire-West notice process, and identified the documents as Bates Nos. 69-1709. Plaintiff's Separate Statement then went on for two pages about defendant's objecti...

Excerpt: ... to stipulate to the filing of the FAC, which then added Defendant Sunrise to the 1st cause of action for disability discrimination and the 9th causes of action for unlawful medical inquiry in violation of FEHA. While the filing of a FAC would normally moot a summary judgment motion, the parties' stipulation for the FAC noted Defendant Sunrise's motion and Plaintiff "waive[d] the filing requirements under CCP S 437c(a) and stipulate[d] to allow S...

Excerpt: ...the deposition subpoena was not personally served on Burton. But since plaintiff provided proof of personal service in his opposition and Crawford did not refute that evidence in reply, Crawford's motion to quash is denied. Crawford also seeks a protective order requiring that any deposition of Burton take place only after expert witness designations based on the March 11, 2024 trial date. However, plaintiff contends that his deposition subpoena ...

Excerpt: ...3, Plaintiff Gladys Navarro ("Plaintiff") filed a Complaint against Defendant Bailey Food and Beverage Group, LLC ("Defendant"). (ROA 2.) The Complaint alleges the following eight causes of action: 1. Failure to Pay Minimum Wages; 2. Violation of Labor Code S 226(a) — Improper Wage Statements; 3. Violation of Labor Code S 221; 4. unlawful Taking of Tips and Diversion Kickback; 5. Failure to Reimburse for Business Expenses; 6. Violation of Labor...

Excerpt: ...th 1054, 1062. When determining whether California courts have specific jurisdiction over a nonresident defendant, the question of whether the defendant purposefully availed itself of the benefits of conducting activities in this state focuses on defendant's intent. In re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 122. Nonetheless, a plaintiff may establish purposeful availment based on the effects of the defendant's out-of-s...

Excerpt: ...f motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground"]; ROA No. 39— Mtn. P&As at pp. 4-5 [citing and quoting Code Civ. Proc., S 2030.300].) Defendant/cross-complainant Cesar Quintana (defendant) is ORDERED to provide verified further responses without objections to form interrogatory Nos. 12.2—12.7, within 15 days. The term "INCI...

Excerpt: ...broad but said that Plaintiff "will produce all responsive, nan-privileged documents in his possession, custody or control." Plaintiff then produced redacted portions of a 1998 agreement between Plaintiff and nonparties Peter Bowie and GV-Newport and portions of a Schedule of Notes Payable. Plaintiff apparently redacted portions of the documents because he deems those portions irrelevant to this lawsuit and states the information at issue contain...

Excerpt: ... authority as to whether an arbitration clause in a Retail Installment Sales Contract (RISC), can be enforced by a nonsignatory car manufacturer under the doctrines of third-party beneficiary and equitable estoppel. (Cf. Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486; Ford Motor Warranty Cases (Ochoa) (2023) 89 Cal.App.5th 1324 (Ochoa), review pending; Montemayor v. Ford Motor Company (2023) 92 Cal.App.5th 958 (Montemayor).) In such a situatio...

Excerpt: ...ta Ana, California. Defendant's "actions or inactions caused a dangerous condition for pedestrians like Plaintiff," and "the condition was created by employees of the defendant public entity." Defendant had "constructive notce of the existence of the dangerous condition in sufficient time prior to the injury to have corrected it." Defendant is a public entity. Except as prov-ded by statute, a public entity is liable for injury caused by a dangero...

Excerpt: ...mmary judgment meets his burden of showing there is no defense to a cause of action that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc„ S 437c(p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (ld.) Plaintiff's Complaint a...

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: ...te of Limitations A demurrer on limitations grounds will not lie where the action may be, but is not necessarily barred: it must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). under California law, the statute of limitations for a fraud claim is three years. (Code Civ. Proc., S 338(d)). Plaintiff argues delayed discovery. The delayed d...

Excerpt: ... either Government Code S 815.2 or 815.4. (Code Civ. Proc., S 430.10, subd. (e).) 2. Plaintiff failed to allege sufficient facts to state a statutory basis for a claim of breach of a mandatory duty for direct liability against the County under Government Code S 815.6. (Code Civ. Proc., S 430.10, subd. 3. Plaintiff failed to allege sufficient facts to state a claim against the County because Plaintiff did not comply with and does not allege compli...

Excerpt: ...tion before the Fair Political Practices Commission into the same incident. However, the statutory framework provides for private enforcement after the FPPC and local authorities have been afforded suffcient tme to address the allegations. Moreover, once those basic time limits have passed, nothing in the statutes prohibit concurrent enforcement. The demurrer then makes a facial and an as-applied constitutional challenge to the private enforcemen...

Excerpt: ...at the blow caused her personal injuries, including traumatic brain injury. Although her husband, Christopher Atkins, did not see his wife being struck, he alleges he has suffered emotional distress and loss of consortium due to defendants' negligence. Demurrers to the third amended complaint were filed by defendants City of Newport Beach, Morrow-Meadows Corporation, and TLH Enterprises, Inc. A motion to strike portions of the amended complaint w...

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: ...ter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (Carter), provides, "From the statutes and cases discussed above, we distill several factors that must be present for conduct to consttute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defe...

Excerpt: ...lank v. Kirwan (1985) 39 Cal.3d 311, 318.) As to the claim that the entire complaint is uncertain based on the fact that the causes of action do not state which Plaintiff is asserting which claim, the parties have been conducting discovery based on a nearly identical complaint for four years. Any confusion as to parties and claims should have been clarified in that time, as the FAC does not add any substantive facts or changes. Accordingly, the g...

Excerpt: ... amount is based on the lodestar value totaling $999,200, and a requested adjustment of the lodestar through the imposition of a multiplier of 1.25. plaintiff/Cross-Defendant Jae Pak ("Pak") contends that the motion should be denied outright in its entirety, or alternatively, that the hours claimed should be apportioned and that the Court should award no more than 500 hours, or 25% of the total hours claimed for the employment FEHA harassment cla...

Excerpt: ...(Code Civ. Proc. S 1033.5(a)(10)(A), (B) & In an action to enforce a contract authorizing an award of fees and costs to one party, the party "prevailing on the contract" is entitled to reasonable fees. (Civ. Code S 1717.) Here, there is no dispute that Dorber is the prevailing party under contract. There is also no dispute that the operative agreements contain attorney's fees provisions for a prevailing party. A court assessing attorneys' fees be...

Excerpt: ...amount of $342,000 was reached at a mediation on 11/11/22. Although Medina had been invited to attend, and had recently filed her answer, Medina opted to not participate in the mediation. (Dorr Decl. 912) The settlement agreement is attached to Dorr's declaration and states that it is "expressly conditioned on court approval of Petitions for Minor's Compromise." (ROA 70, Exh. 1, 913) Section 877.6 allows a settling defendant or crossdefendant to ...

Excerpt: ...eserve evidence for another's use in pending or future litigation. While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions." (Willaims v. Russ (2008) 167 Cal.App.4th 1215, 1223.) CCP S 2023.030 provides as follows: Misuses of the discove...

Excerpt: ...ction. However, no credible evidence is presented to support that position. At best, it is argued that because he could have, and should have, checked on the corporate status of his clients first, then he is liable for sanctions for filing various pleadings and documents with the court for close to a year. But there is no evidence that he knew about the issue and concealed this information from the plaintiff or the court. To the contrary, former ...

Excerpt: ...(1) conversion and (2) unjust enrichment. l. SECOND, THIRD, AND FOURTH CAUSES OF ACTION IN THE COMPLAINT Defendant/cross-complainant moves for summary adjudication as to the second cause of action for meal period violations, third cause of action for rest period violations, and fourth cause of achon for pay stub violations in the operative Complaint. As established in the first, second, and third issues presented in Defendant/crosscomplainant's s...

Excerpt: ...ion 1102.5, subdivision (b), fails as a matter of law. This has to do with plaintiff's claim he engaged in protected activity. 3. Whether plaintiff's cause of action for violation of Health & Safety Code section 1278.5, fails as a matter of law. This has to do with a claim that he suffered an adverse employment action because of a purported patient safety complaint. Code of Civil Procedure secton 437c, subdivision (h) Plaintiff initially opposes ...

Excerpt: ...e Notice of this Motion in the Wrongful Death Case. On 12- 14-23, Defendants filed Notice of Motion in the wrongful Death Case, which includes a copy of the instant Motion. The Court finds that this complies with California Rules of Court, rule 3.350. Merits Consolidation is provided for by Code of Civil Procedure section 1048, which provides that when there are actions "involving a common question of law or fact are pending before the court, it ...

Excerpt: ...e of Summons filed on June 14, 2023, by Cross-complainants reflects service of the summons and Cross-complaint on Wonderland Nevada's registered agent for service of process on May 31, 2023, which is over the three-year maximum time limitation from the filing of the Cross-complaint on November 14, 2019, for the service of summons and complaint under Code of Civil Procedure secton 583.210(a). Wonderland Nevada also contends that none of the condit...

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: ...ings and discovery 'is unacceptable and should be eliminated.'" (Ibid.) "Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases." (Ibid„ citing Gov. Code, 568607.) "Even where the civil discovery process is directed against an individual defendant who is also a defendant in a related criminal case, the Ninth Circuit has held that '[t]he Con...

Excerpt: ... upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading." In this instance, Defendant Westport Construction Inc. seeks to strike out the prayer for consequential damages in Plaintiff's Complaint, arguing that the subject contract, which is attached to the FAC contains a waiver of consequential damages (see Secti...

Excerpt: ... entered into after mediating a prior lawsuit between them. Defendants contend that the action arises from activity "in furtherance of" their right to petition or free speech, which makes it subject to being stricken through an antSLAPP motion under section 425.16. They also contend that they are entitled to an award of attorneys' fees under subdivision (c) of section 425.16 for bringing a successful ant-SLAPP motion. Plaintiff opposes the moton....

Excerpt: ...icolas Gonchar, a selfrepresented litigant, ate a hotdog at a Costco location, became ill, and that when he complained to Costco he was ignored. According to the declarations of these defendants, Raikes, Galant, and Jelinek are, and were at all relevant times, residents of the State of Washington. Denman is a resident of the State of Colorado. Raikes has no connection with California and does not consent to jurisdiction in this state. He has live...

Excerpt: ...e S 452(d).) This action was filed by Plaintiff Cottons Investment Group, LLC against SCE for fire damage caused to Plaintiff's commercial property. Plaintiff alleges that SCE started the fire that caused the damage. In a separate action against Rancho Mesa, Plaintiff alleges that Rancho Mesa, acting as an insurance broker, failed to properly procure the property insurance policy requested. (RJN, Ex. A, 7, 17- 18.) SCE's Cross-complaint asserts c...