Excerpt: ...excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) The FAC sufficiently alleges the elements of a breach of contract claim. The demurrer to the first cause of action is OVERRULED. Second, Third and Fourth Cause of A ction - Breach of Oral Contract: Commercial Code section 2201(1) states: “Except as otherwise provided i...

Excerpt: ...o v. Owens -Corning Fiberglas C orp. (1971) 22 Cal.App.3d 116, 124 -125 [property right required]; Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 67 [lodger has no property right]; see also Compl. Ex. A [hotel receipt].) On the other hand, defendants have not shown plaintiff can not assert a public nuisance. Plaintiff adequately “alleges facts showing special injury to himself in person . . . of a character different in kind from that ...

Excerpt: ...1. All demurrers to the first amended complaint based on Civil Procedure Code section 583.210 are overruled; 2. Lake's demurrer to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 is overruled; 3. Diamond PEO, BZ Resources, VL Best PEO aka VL PEO, and Skyhigh PEO's demurrers to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 are sustained without leave to amend; 4. Lake's demurrer to the first amended ...

Excerpt: ... hearing on March 7, 2024. [ROA ## 69 & 70.] The Non- Attorney Defendants also filed a special motion to strike (antiSLAPP) to the complaint, which is set for hearing on April 18, 2024. Plaintiff filed a first amended complaint on February 14, 2024. [ROA # 98.] The court's ruling analyzes th e interplay and effect of all of these filings by the parties. Under California Code of Civil Procedure section 472: (a) A party may amend its pleading o...

Excerpt: ... fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The reasonable hourly rate is that prevailing in the community for similar work. The lodesta r figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fe...

Excerpt: ...l be withheld or augmented as provided in this section…[¶] (c)(1) If an off er made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer…(2)(A) In determining whe ther the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer c...

Excerpt: ...e of damages is required for default judgment]; see also ROA No. 356 –Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 108, fn. 15.) Even if plaintiff had complied with the for egoing requirements, the request for default judgment would still be denied because the operative first amended complaint (FAC)...

Excerpt: ...ot state the three declarations were served on the LWDA. Was the Orde r Granting Preliminary Approval (ROA 114) served on the LWDA? See ROA 125. Plaintiff must file a proof of service reflecting service of the declarations and the Order Granting Preliminary Approval on the LWDA. 2. How many class members are there? The Is las Declaration (ROA 128, ¶ 13) states there are 1,360 class members. The motion (ROA 127) states in one place there are 1,...

Excerpt: ... defendants filed the instant motion for reconsider ation which is largely the same as the papers filed on 10/18/23. Defective Service of Motion The Proof of Service attached to the motion fails to comply with CCP § 1013b. The proof of service for the motion does not list the electronic service address of the person making the electronic service. Instead, only the business physical address and not the email or electronic service address is pro...

Excerpt: ...se to a request for reasonable accommodation by an employee or app licant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perfo rm his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the fai...

Excerpt: ...an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception. It is undisputed that Plaintiff was hired by Defendant to perform housekeep ing work at the subject property and that Plaintiff was a self- employed independent contractor (UMF 3, 7). In the course of completing that work, Plai...

Excerpt: ...ewise time -barred as they arise from the same contract. Defendant co ntends that Plaintiffs' counsel wrote to Defendant on October 1, 2018, outlining the claims they had against Defendant, but that the Complaint in this action was not filed until October 14, 2022, 13 days beyond the four -year statute of limitations imposed by Code of Civil Procedure section 337(a). Plaintiff has not filed an opposition. “A party may move for summary judgmen...

Excerpt: ...(Bohrer v. County of San Diego (1980) 104 Cal.App.3d 15 5, 164 [“[a]bsent a special statute, there is no authority for the court to take judicial notice … from a governmental document to establish the cause of death”].) Defendant's Reply Separate Statement (ROA 315) is not authorized and was not considered. (Na zir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) 1st cause of action: elder abuse / neglect. Moving party has not met...

Excerpt: ...alif. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) Defendant's separate statement fails to comply with Calif. Rules of Court, rule 3.1350(b). Rather than deny the motion outright (CCP 437c(b)(1); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875), the court el ects to treat defendant's motion as one for summary judgment only. Defendants fails to meet their initial burden to show the e...

Excerpt: ...discovery and disobeying a court order are misuses of the discovery process. (C CP § 2023.010(d) and (g).) Here, Plaintiff failed to provide further responses, produce the component parts, and pay the sanctions within 30 days as ordered by this Court. Plaintiff argues that it has since complied with the 11 -9 -23 order, however, the dec laration does not contest that Plaintiff failed to comply within the 30 days required by the order. Thus, Plai...

Excerpt: ...Page 7 of 23 an individual, under Code of Civil Procedure section 187. Defendants contend that Mr. D'Al essio is the owner, sole member, manager, president, and alter ego of NHV and VMG; that there is a unity of ownership; that Mr. D'Alessio refers to them interchangeably with himself; that NHV and VMG have not adhered to corporate formalities for years and have been suspended multiple times during this litigation; that Mr. D'Alessio testified h...

Excerpt: ...�lessee,” and Norm Reeves Honda Superstore is identified as “les sor (dealer).” Below that, in a separate area, it states that, “‘Lessor' refers to the Lessor (‘Dealer') named above and Assignee,” which is identified as “Honda Lease Trust.” Pertinent here, paragraph 15 on the first page of the agreement states that “p arties agree that any unresolved disputes shall be submitted to arbitration in accordance with the Arbitrat...

Excerpt: ...y must contain an answer with the information sought, an exercise of th e party's option to produce writings, or an objection. Each response must be “complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be ans wered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220 subd. (b).) If a tim...

Excerpt: ... to Civ. Proc. Code § 2031.310. As to relevance of d ocuments, “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the dis...

Excerpt: ...ted protective order to the court. If the parties fa il to timely do so, the court will impose a protective order limiting the use of responses to the interrogatories in which a confidentiality/privacy right is claimed to this litigation and requiring that such information be surrendered or destroyed at the conclusion of this litigation. Upon entry of the protective order, Defendant John Marcin is ordered to serve complete, non- evasive further ...

Excerpt: ...earing shall name as respondents all parties to the arbitration, and othe rs bound by the award (Civ. Proc. Code, § 1285), and must set forth the grounds on which the request is made. (Civ. Proc. Code, § 1285.8). The petition must also set forth the substance of the arbitration agreement or have a copy attached, name the arbitra t o r, and set forth or have attached a copy of the award and the arbitrator's written opinion, if any. (Civ. Pro...

Excerpt: ...hysical and mental condition. (ROA 491, Exs. 1 -4.) Riemann here asserts that because Plaintiff had obtained trial continuances and a temporary stay on certain discovery based on neurosurgeries performed in 2022 and her subsequent recuperation requirements, these subpoenas were justified and appropriate. However, the records sought are plainly confidential records subject to substantial privacy protections. Where privacy rights are at issue in ...

Excerpt: ...der Code of Civil Procedure section 1032. However, Defendants also seek to recover expert witness fees under Code of Civil Procedure section 998. Plaintiff contends Defendants' Code of Civil Procedure section 998 offers were unreasonable. Defendants served a 998 offer of $5,000 on 9/28/20 and a s econd 998 offer of $25,000 on 12/6/21. The second offer was served after Defendants' expert Dr. Kiester conducted an examination of Plaintiff and prepar...

Excerpt: ...party may give notice that he or she will not appear at a law and motion hearing and submi t the matter without an appearance unless the court orders otherwise. The Court must rule on the motion as if the party had appeared.” The Court ORDERS Plaintiff's counsel to appear at the hearing on February 29, 2024. Plaintiff's counsel contends that counsel failed to appear at the May 11, 2023 order to show cause hearing where the instant action was or...

Excerpt: ... the doctrine of issue preclusion, and failure to state suff icient facts. Statute 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 b arred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). Under California law, the statute of limitations for a fraud claim is three year...