Excerpt: ...ecessarily time-barred. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) None of the three documents upon which defendants rely shows on its face when plaintiff Dawn Thorson knew of the alleged misconduct. Exhibit 4 shows when plaintiff was appointed special administrator of the Posner estate, but it does not show what she knew. Exhibits 2 and 8 show what the other three plaintiffs knew, but they do not show what this p...

Excerpt: ...ied on by the defendant with a willful and conscious disregard of the...safety of others.” Civ. Code §3294(c)(1). The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) Plaintiff here pleads that Defendant was under the influence of three different narcotic medications which negatively affected h...

Excerpt: ...ion commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Barris v. County of Los Angeles (1999) 20 Cal.4 th 101, 108; Tortorella v. Castro (2006) 140 Cal.App.4 th 1, 3. As this Court previously pointed out, pharmacies have a duty to reject facially non-compliant prescriptions, a...

Excerpt: ...n is overruled. “‘Promissory fraud' is a subspecies of the action for fraud and deceit.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a cause of action for promissory fraud: (i) the defendant made a false promise; (ii) with intent not to perform; (iii) intent to induce reliance; (iv) justifiable reliance by the plaintiff; and (v) resulting damages. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638; Beckwith v. Dahl (2...

Excerpt: ...erba or according to its legal intendment and effect.” Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640. Plaintiff failed to allege the terms of the oral contract. Third Cause of Action for Breach of Implied-in-Fact Contract: Since there was an existing express contract, there cannot be an implied-in-fact contract covering the same subject matter. “[I]t is well settled that an action based on an implied-in-fact or quasi-contract cannot lie wh...

Excerpt: ...(“HSBC” together). Although the OSC directs the responding party to show cause why the preliminary injunction should not issue, the burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481. The moving party has the burden to show that it is reasonably probable it will prevail on the merits. San Francisco Newspaper Printing Co. v...

Excerpt: ...e Civ. Proc. § 1008(a).) Specifically, the Court finds good cause exists to reconsider the order denying the previous motion on the grounds that Plaintiff's counsel, through inadvertence, failed to appear at the hearing, resulting in its denial. Moreover, since that time, the parties have met and conferred and Defendant has confirmed it does not oppose the sealing and joins in the instant motion. Unless confidentiality is required by statute or ...

Excerpt: ...ally, as conceded by Defendant within this Motion, the instant Complaint sought recovery of “attorneys' fees and investigation costs, and/or penalties from Defendants, their successors, and assigns, as provided by California Civil Code Section 3496, and/or as otherwise permitted by law.” (See §4 of Prayer of Complaint; See also Motion: 4: 17- 19). While Counsel declares that Defendant Ohio House voluntarily vacated the subject premises in Au...

Excerpt: ... are overruled. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Civ. Proc. Code, § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 2...

Excerpt: ...ef requested is thus moot as no writ may be issued on a sanction that has been paid. And the request for terminating sanctions fails on its face because a failure to timely pay discovery sanctions would not, in and of itself, be a sufficient basis to impose terminating sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never...

Excerpt: ...d, that TAM's motion was untimely and that TAM waived its motion by filing an unrelated motion to continue. Neither argument is availing. Initially, the TAM motion was timely filed. Per the Proof of Service, TAM was personally served on June 4, 2019. (See POS dated 06/10/19). Pursuant to C.C.P. §412.20(a)(3), TAM had 30-days therefrom to answer, resulting in a deadline of July 4, 2019. As July 4 th was a court holiday, this deadline was extended...

Excerpt: ...bout deterioration in his vision subsequent to obtaining his license. But that still does not suffice to demonstrate willful and despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable' and ‘willful.'”].) The FAC also cites to Veh. Code §21954(b). But that provision pertains to pedestrian ri...

Excerpt: ...vincing evidence that the defendant has been guilty of oppression, fraud, or malice. Malice is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superio...

Excerpt: ...12. The trial court has broad discretion in selecting which discovery sanction to impose in the face of discovery abuses, but either way California readily adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4 th 1272, 1293. Only if lesser sanctions fail to curb misuse should a trial court consider something like a terminating sanction. Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516. A decision to or...

Excerpt: ...19 Minute Order.) The Court has now considered both Plaintiff's opposition and Defendant's further reply. Defendant moves for an order striking paragraphs 11-16, 19, 20, 22- 28, 30, and 31, and portions of paragraphs 18, 21, and 74, on the ground they contain “irrelevant and improper matters.” Code Civ. Proc. § 436. Defendant contends, to the extent these matters are the basis for Plaintiff's FEHA claims, they are time-barred due to the one-...

Excerpt: ...motions in limine and motion for bifurcation of damages should be disallowed because the parties had already agreed on the merits of those motions before they were filed, so they were not necessary, and Defendant provided evidence of such an agreement. Plaintiff did not respond to this argument. The motion is granted as to these costs ($180 for 3 motions to compel, $60 for request for judicial notice, $120 for motions in limine, and $120 for the ...

Excerpt: ...fenses to be bifurcated, not the propriety of bifurcation itself. Insofar as the motion concerns Defendants Gary Kanter and Denise Stiles-Kanter's (referred to as “Gary” and “Denise” for clarity) fourth affirmative defense (entitled “Indemnity and Contribution”) that Armony's claims are barred by operation of Paragraph 9 of a January 2011 agreement between Armony and Gary (the “Mediation Agreement”), the Court is inclined to treat...

Excerpt: ...se allegations, plaintiffs' claim for fraudulent omission is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [plaintiff is required to “demonstrate harm above and beyond a broken contractual promise,” in order to recover tort damages].) Other than the absence of allegations as to damages other than those related to their warranty claims, the court finds that plaintiffs' concealment cla...

Excerpt: ... exercise reasonable care and skill in undertaking to perform legal services for Plaintiffs”), and Para. 16 (“Had Defendants exercised proper care and skill in providing legal services to Plaintiffs, Plaintiffs would not have lost money in their investments”).] The SAC also alleges the existence of an attorney-client relationship. (SAC at Paras. 10, 12, 17.) The SAC also now alleges more facts as to how exactly MPs failed to adequately / pr...

Excerpt: ...gatories (set one) as to Donald Grammer and Richard McGrath 5. Plaintiff Baer's Motion to Compel Production (set one) as to Richard McGrath and Donald Grammer 6. Plaintiff Baer's Motion to Compel Response to Request for Admissions (set one) as to Richard McGrath, Dennis Hartmann and Donald Grammer 7. Status Conference 1. The Demurrer Defendants Hartmann, Grammer, McGrath, Banyan LP, Orange Blossoms LP and Pear Tree LP (“the Grammer parties”) ...

Excerpt: ...ck's desire to take discovery from non-party Sound Point relating to an offering of securities by Gruppo Waste Italia S.p.A. (“Waste Italia”). Rimrock purchased certain of those securities from Defendants and alleges that Jeffries' representations made in connection with the marketing of the securities violated California's Blue Sky laws. In its moving papers, Rimrock states that in the course of Waste Italia's concordato proceedings (the Ita...

Excerpt: ...2003) 109 Cal.App.4th 739, 761 [where no prejudice is shown to the adverse party, the liberal rule of allowing amendment prevails]; Code Civ. Proc., § 473, subd. (a)(1).) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson, supra, at p. 761.) ...

Excerpt: ...s of concern. Any supplemental briefing shall be filed on or before September 3, 2019. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions, and additions must be submitted as well. As to the Settlement: 1. The class period for Laborers begins on December 20, 2012 because, per the Rodriguez FAC, the parties entered into a tolling agreement on December 20, 2016. Per the Kles complaint, an ide...

Excerpt: .... (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bent...

Excerpt: ...ntly stand. At the hearing on this motion, however, Plaintiff shall state on the record whether he waives his claims for underpaid wages and any other individualized relief. If Plaintiff agrees to such a waiver, then the motion will be denied. I. Factual Background Plaintiff was employed by TIC-AC as a Service Technician and Assistant Service Manager at two TIC-affiliated apartment properties in Mission Valley, California. (Compl. (ROA 2), ¶ 6; ...