Excerpt: ...ement to enter into the contract, second cause o action or negligent misrepresentation, third cause o action or breach o written contract, ourth cause o action or breach o covenant o good aith and air dealing, tenth cause o action or recission and restitution ail, eleventh cause o action or intentional inßiction o emotional distress, and thirteenth cause o action or accounting. The Court rules as ollows: • The Demurrer to ...

Excerpt: ...822, 830. “An oral contract may be pleaded generally as to its e
¯ect, because it is rarely possible to allege the exact words.” Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616. However, the burden of establishing an oral contract exists is on the party alleging breach. Sully v. Kern Drilling Corp. (1954) 126 Cal.App.2d 651, 654. Moreover, there cannot be both an express (written or oral) contract AND an implied contract that c...

Excerpt: ...between the same parties on the same cause of action.” Id. First, defendant Mariners Escrow, named in the FAC, is not named in the Þrst Þled action (OCSC Case No. 30-2017- 00955138), so the parties are not the same. Defendant's arguments about unity of interest between an escrow company and a party litigating liability are not persuasive. (Demurrer at 8.) Second, the causes of action in the Þrst Þled action and the FACare not the same. The ...

Excerpt: ...which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities su
¯icient service literature and replacement parts to e
¯ect repairs during the express warranty period.” Civ. Code § 1793.2(A)(3). Plainti
¯ largely just parrots the language in the code, without making any actual factual allegations regarding what authorized service and repair facilities Plainti
¯ presented to ...

Excerpt: ...aint) the Request is denied, on the basis the attached exhibits are not Þle-stamped. As these documents give no indication they were Þled, it is unclear whether they constitute “court records” for purposes of Evidence Code section 452, subdivision (d). The remainder of the request is granted. The doctrine of res judicata has two aspects: claim preclusion and collateral estoppel. People v. Barragan (2004) 32 Cal.4th 236, 252. “The prerequi...

Excerpt: ...ate a reply separate statement. Defendant did not obtain prior permission from the court to file a reply to Plaintiffs separate statement. Accordingly, this document was not considered. A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc„ S 437c, subd. (c).) The scope of this ...

Excerpt: ...gful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in ...

Excerpt: ...enant of quiet enjoyment, and 8) nuisance. The court SUSTAINS in part, and OVERRULES in part, the demurrer. Entire FAC as to Plaintiff Hang Vu - SUSTAINED As Kona Kai notes, the FAC names Hang Vu as a Plaintiff but never alleges any facts about Plaintiff Vu. Plaintiffs did not address this issue in any Opposition. Indeed, the first page of the Opposition filed states only "that Plaintiff Tony Kennedy opposes the demurer and motion to strike." As ...

Excerpt: ...ion; and SUSTAINS defendants Bridgemed Solutions ("Bridgemed") and Tara Kupumbat's demurrer to the fourth, eighth, and tenth causes of achon with 20 days leave to amend. Entire Complaint (re Plaintiff's Capacity to Sue) — OVERRULED Defendants contend plaintiff lacks capacity to sue because Plaintiff failed to comply with the statutory requirements to do business in California by obtaining a certificate of qualification as described in Corporati...

Excerpt: ...Servicing, LLC, and PHH Mortgage Corporation, as to plaintiff's 13th cause of action for fraud by concealment / fraudulent misrepresentation, is DENIED. (Code Civ. Proc., S 1008 [authorizing reconsideration].) The only "new" facts set forth in the moving papers are: (1) defendants' filing a notice of ruling as to the 10-13-23 order; and (2) defendants' filing a crosscomplaint. (Exs. 1 and 2 to moving papers.) However, plaintiff has not shown why ...

Excerpt: ...ry Objections The court overrules the Garrett Defendants' evidentiary objections to the opinions expressed in paragraphs 7 and 8 of the Declaration of Albert G. Handelman, as well as the testimony that provides the basis for those opinions in paragraphs 9 and 10. The court liberally construes the declaration of Plaintiff's expert, and determines Handelman adequately states the matters relied on in expressing these opinions and also provides a rea...

Excerpt: ...tly note all three causes of action asserted against them sound in professional negligence and are therefore subject to Code of Civil Procedure secton 340.5. (See Larson v. UHS of Rancho springs, Inc. (2014) 230 cal.App.4th 336, 347; see also TAC 498- 508 [medical malpractice], 510-516 [battery by injection without informed consent], 517-525 [breach of fiduciary duty by failing to diagnose and inform].) As construed by case law, Section 340.5 bar...

Excerpt: ...sness/gross negligence. Defendant contends it cannot be held vicariously liable for acts that fall outside of the course and scope of Co-Defendant, Paul Alden Miller's employment, citing Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297 (Lisa M.) and Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005. In contending the conduct alleged against Miller fell outside the course and scope of his employ...

Excerpt: ... of motion and be repeated, verbatim, in the separate statement of undisputed material facts." Code of Civil Procedure section 437c, subdivision (f)(l) states, "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, if the party contends that the cause of action has no merit, that there is no affirmative defense...

Excerpt: ...f service of the signed order upon the clients and other parties. Ms. Birndorf shall give notice of the ruling. MOTION TO COMPEL PRODUCTION Plaintiff Craig Ziegler's motion to compel Defendant Joseph Del Signore's ("Defendant") further responses to his requests for production of documents, set one, is granted in part and denied in part as set forth below. Nos. 1-18, 27-32, 41, and 43 In addition to various objections, Defendant states in his resp...

Excerpt: ...vide a red- lined version of any revised papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration or brief simply asserting that the issues have been resolved. The proposed relea...

Excerpt: ...d or supplemental proof of service on the clients, to be filed no later than 5 court days before the continued hearing date of 1/26/24 (i.e., by 1/19/24). As of 1/25/24, counsel has not filed a new proof of service. 2. Motion for Summary Judgment The court GRANTS Plaintiff NATIONAL FUNDING, INC's motion for summary judgment on its Complaint. The Complaint alleges causes of achon for breach of contract (against defendant M&M Custom Builders, LLC) ...

Excerpt: ... any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (Code Civ. Proc, S 2025.450, subd. (a).) A motion to compel must: (1) "set forth specific facts showing...

Excerpt: ...ned to encourage the parties to work out their differences informally so as to awid the necessity for a formal order. This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293; Code Civ. Proc„ SS 2016.040, 2031.310, subd. (b)(2).) Defense counsel stated that...

Excerpt: ...e arbitration. Defendants' Request for Judicial Notice is denied as irrelevant. Zucchet v. Galardi (2014) 229 Cal. App. 4th 1466, 1474 n.5. The Case Management Conference set for today is ordered off calendar. A PostArbitration Review Hearing is set for July 25, 2024 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes tha...

Excerpt: ... Dev. LLC (2011) 191 Cal.App.4th 1047, 1068 sets forth the applicable test for determining whether a party waives attorney-client privilege and/or work product protection through use of a company-provided e-mail address. While Holmes sets forth the applicable standard for determining whether privilege has been waived, Moving Party fails to make the requisite factual showing that would demonstrate the attorney-client privilege has in fact been wai...

Excerpt: ...mplainants Michael Akpeke, MO, PL, dba Delta Internal Medicine Center and Michael Akpeke's Crosscomplaint for forum non-conveniens. A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc„ S 418.10, subd. (a)(l).) A par...

Excerpt: ...to do so. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574.) Code of Civil Procedure secton 761.020 provides that in any action to quiet title to real property "[t]he complaint shall be verified." Here, Plaintiffs Complaint is unverified. Accordingly, the motion to strike is granted with 15 days leave to amend. OSC RE: PRELIMINARY INJUNCTION The court grants Defendant's request to issue a preliminary injunction restraining Plaintiff and ...

Excerpt: ...tiff has shown that defendant failed to pay the $14,000 JAMS invoice, first sent on September 13, 2023, within 30 days of its due date. JAMS sent follow-up notices on September 14 and 27, and October 12, 2023. The email sent on September 14, 2023 said that the invoice was due on receipt. Defense counsel admits receiving the invoice and notices but admits not paying JAMS until October 26, 2023, one day after plaintiff served his letter saying he w...

Excerpt: ...llows: "(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." In ...