Excerpt: ...are not clearly stated and various agreements are referenced without specificity as to when the agreements were reached, the parties thereto, the material terms, and the manner in which they were created. The FAC then presents a list in ¶ 42 as the issues to be resolved, but without specifying the factual underpinning for each. COA 1 attempts to state a COA for conversion. A COA for conversion requires allegations of plaintiff's ownership or rig...

Excerpt: ...y on the seventh cause of action. The demurrer is sustained with 15 days leave to amend as to the first, second, third, fourth, eighth, ninth, and tenth causes of action – and as to Fay Servicing on the seventh cause of action. First Cause of Action for Negligent Misrepresentation The elements of negligent misrepresentation are: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be t...

Excerpt: ... ‘to out-of-state persons or corporations engaged in commerce.'” (Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 759.) “[S]ection 351 [does] not violate the commerce clause ‘when applied to a non-commercial defendant not engaged in interstate commerce.'” (Id. at p. 761.) The face of the FAC does not show any connection to interstate commerce. It does not allege defendants are nonresidents doing busine...

Excerpt: ...employee or any other person.” Under this section, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Thus, in California “sovereign immunity is the rule” and “governmental liability is limited to exceptions specifically set forth by statute.” (Id.) Under Gov't Code § 844.6(a), a public ent...

Excerpt: ...by the evidence. Requests for Judicial Notice: All Requests for Judicial Notice is GRANTED. Defendant ITCA's Objections to Evidence: Nos. 1 to 5: Overruled. Costs: In both motions, defendants sought to recover costs incurred in defending this action. However, on July 22, 2019, the Court entered an Order pursuant to the parties' stipulation. ITCA was awarded $8,042.75. The Tuckers were awarded $14,158.06. This Order foreclosures further litigation...

Excerpt: ...nt initial case management statement filed on August 2, 2019. While AAG objects to this request, CCP § 453 requires the Court to take judicial notice upon a request that complies with the statute, as Plaintiffs' request does here. AAG's objection is OVERRULED and the request for judicial notice is GRANTED, as the case management statement is properly noticeable under CCP § 452(d). AAG correctly notes, however, that the Court may not take judici...

Excerpt: ... The demurrer is OVERRULED as to Plaintiff's seventh cause of action for violation of Labor Code § 226(a). 3. The demurrer is OVERRULED AS MOOT as to Plaintiff's eleventh cause of action for PAGA, and this claim is DISMISSED WITHOUT PREJUDICE at Plaintiff's request. Defendant's motion to strike portions of Plaintiff's complaint is GRANTED IN PART and DENIED IN PART as set forth below: 1. As to item 1 in the notice of motion, the motion to strike...

Excerpt: ...ney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the “negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” The statute lists examples of neglect. (See, e.g., Welf. & Inst. Code, §§ 15610.57(b)(1) [failure to assist in personal hygiene, or in the p...

Excerpt: ...plaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Not every fact which ultimately supports a cause of action needs to be pled, and trial courts are obligated to accept as true even the most improbable factual averments without regard to the pleader's ability to actually prove those facts. See C.A. v. William S. Hart Un...

Excerpt: ...onnie Ortloff). (ROA 65.) Defendant's motion was based on an arbitration agreement contained in storage unit leases. While the Non- Signatory Plaintiffs were not party to these leases, the other named plaintiffs (“Signatory Plaintiffs”) were parties to the leases, and both the Signatory Plaintiffs and the Non- Signatory Plaintiffs alike sued for breach of the leases. The Court ordered the Signatory Plaintiffs to arbitration based on the arbit...

Excerpt: ...te Aerospace, Inc. is DENIED as set forth below. Adams Rite's Opposition Plaintiff argues that the Court should disregard the opposition because of late service. Because Plaintiff had the opportunity to brief a full reply on the merits and declined Adams Rite's offer to continue the hearing, the Court will exercise its discretion to consider Adams Rite's opposition. (See Cal. Rules of Court, rule 3.1300(d).) Grounds for Ruling I. Factual Backgrou...

Excerpt: ...t may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” In deciding whether to consolidate cases, the court can consider such factor as timeliness of the motion, complexity of the cases, and prejudice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2018) ¶ 12:362.) Here, Defendants move to consolidate Newport Harbor Offices & Marina ...

Excerpt: ...ntiff's claims against Defendants, reached at a mandatory settlement conference on April 13, 2018. In consideration for Plaintiff dismissing his case and providing a general release of his claims, Defendants, jointly and severally, agreed to pay Plaintiff a total of $36,600 according to the following schedule: 1. $5,000 on or before May 14, 2018; 2. $5,000 on or before November 14, 2019; 3. $5,000 on or before May 14, 2021; and 4. Beginning June ...

Excerpt: ...ones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. The burden falls on the party seeking to tax the costs to show that they were improper, unreasonable or unnecessary. 612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285. Here, Petitioner challenges the amount of Item 1 (filing and motion fees) and Item 9 (court-ordered transcripts). Filing and motion fees. Filing and motion fees are generally allowable costs. CCP 1033.5(a...

Excerpt: ...n by MFI. (Prasher Decl., ¶ 7, Ex. A.) The MSA contains a mandatory forum selection clause that states: “[t]his Agreement shall be governed by and interpreted according to the laws of the Province of Ontario and the laws of Canada applicable therein. The parties attorn to the exclusive jurisdiction of the courts in the Province of Ontario in respect of all matters arising out of or in connection with this Agreement.” (Prasher Decl., Ex. A, �...

Excerpt: ...roc., § 437c(b)(3)), the Court has exercised its discretion to excuse noncompliance with the Code of Civil Procedure and reach the merits of the motions. Finally, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty ….” (Code Civ. Proc., § 437c(f)(1); see also Dunn v. County of Santa Barbara (2006) 1...

Excerpt: ...ement is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The class definition excludes employees that “executed a release of all claims against Greenstone Materials, Inc.” (Settlement, ¶ A.4.) Does this refer to the release from the DOL settlement? If not, to what does it refer? If it does refer to the DOL settlement, that settlement only appears to release m...

Excerpt: ... leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section 2032.310 only for good cause sho...

Excerpt: ...tiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require specificity in the pleadin...

Excerpt: ...aintiff alleges that he was directed by the Defendants into the patient examination room where he lay down on the examination table awaiting a medical professional to see him. (Complaint ¶ 6.) The doctor opened the door to enter and apparently the door hit plaintiff's body, as he lay on the examination table. (Id.) Plaintiff alleges that the poor placement of the examination table in the examination room was a dangerous condition of the room. (C...

Excerpt: ...ept 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. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 15...

Excerpt: ...quest for monetary sanctions is DENIED. Defendant/Cross-Complainant Patricia Pisani's evidentiary objections to the Declaration of David Beavers are OVERRULED. Procedural Compliance: On 2-5-19, the Court and counsel held a discussion regarding progress made to resolve issues presented in this Motion. The parties agreed and the Court ordered that a motion may be re-filed as to any remaining issues. (See Minute Order dated 2-5-19 [ROA 386].) The Mo...

Excerpt: ... No. 2.5, the Motion is GRANTED. Defendant contends this is a dental malpractice case and any judgment will be paid out through insurance, so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion ...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ... Request/Demand for Production Nos. 3, 7-12, 15, 17, 22, 26- 29. Plaintiff also seeks sanctions relating to each motion. For the reasons set forth below, Plaintiff's motion to compel further responses to form interrogatories is DENIED as to No. 15.1 but GRANTED as to Nos. 16.1-16.7, 16.9, and 16.10. The motion to compel further responses to special interrogatories nos. 6, 7, and 8 is GRANTED, subject to the limitations detailed below. The motion ...