Excerpt: ...iary duty causes of action o n the grounds they are not sufficiently pled. Plaintiff did not file an Opposition. Whether the Action is Barred by the Statute of Limitations? Page 18 of 33 Defendant contends that the gravamen of Plaintiff's action is for negligence despite the fact that he asserts causes of action for misrepresentation, breach of written contract, and breach of fiduciary duty. Defendant contends that Plaintiff “reframed” his ...

Excerpt: ...d on case law have no application to the facts of this case and thus the demurrer should be sustained without leave to amend. Code of Civil Procedure section 430.20 authorizes a demurrer to an answer where the answer does not state facts sufficient to constitute a defense or is uncertain. Whether an answer states a defense is generally governed by the same principles which are applicable in determining if a complaint states a cause of action. (So...

Excerpt: ... declaration in accord ance with the Court's January 11, 2024 Minute Order. Said declaration provides that the parties met and conferred via telephone on February 7, 2024, per the Court's ruling, and that they were unable to come to an agreement as to any issue. (Declaration of Jason M. Fodrini, ¶¶ 5 -8.) First Cause of Action for Breach of Contract Defendant contends that the Complaint is brought on behalf of five plaintiffs living in three s...

Excerpt: ...ing pool. The allegations are insufficient as to whether this was intentional on the part of defendants or just mere negligence on the part of the construction/demolition crew. Motion to Strike The motion of defendants to strike portions of the first amended complain t is GRANTED in part and DENIED in part. As to Item No. 11, the court is aware of no legal authority allowing a claim for punitive damages in a declaratory relief cause of action. T...

Excerpt: ... state law, (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 883.) While municipalities may be held liable for causing a constitutional deprivation inflicted by its employee s or agents, Monell v. Department of Social Services (1977) 436 U.S. 658, 690, neither a state nor its officials acting in their official capacities can be held liable under it, Wi...

Excerpt: ...udicial notice of three d irectives issued by CalSTRS (in 2019, 2022, and 2023) are denied. All three directives are directed at fiscal years after the time period at issue in the SAP (2017 -18 fiscal year) and do not appear relevant to the allegations in the SAP. (Bell v. Greg Ag ee Construction, Inc. (2004) 125 Cal.App.4th 453, 459, fn. 2.) District's unopposed request for the Court to take judicial notice of District's Board policy number 33...

Excerpt: ...without le ave to amend. Analysis A. Standard on Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.  When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or v ia ...

Excerpt: ...ed to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complain...

Excerpt: ...n which t he attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc., § 484.090(a)(1) -(4).) If an action is against a defe...

Excerpt: ...ntic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (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 that cause of action or a defen se thereto. The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall se...

Excerpt: ...gations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no d efense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no...

Excerpt: ...- 77. The court is inclined to deny as to the remaining RFAs. Motion to Compel Further Responses to RFPs Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible t hings, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. Proc., § 2031.01...

Excerpt: ... to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (Code Civ. Proc., § 1985.3, subd. (g).) “Personal records” include “any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness' which is a physician, …, hospita...

Excerpt: ...arties.” (Pl easant Hill Bayshore Disposal, Inc. v. Chip -It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance of a preliminary injunction. (Code Civ. Proc., § 527, (a); O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481.) Although an OSC re: Preliminary Injunction directs the responding party ...

Excerpt: ... set the M otion to Strike to b e heard on A pril 29, 2024. ( S ee ROA #59 .) The court also ordered that “[t]he Ex -Parte Application will stand as the moving papers” and “Plaintiff to serve the moving papers on all parties”. (Ibid.) Further, Civil Procedure Code section 1005 requires that all moving papers be served on all parties at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (d).) In addition, “[p]roof o...

Excerpt: ...sagrees. I nterrogatory No. 13.1 asks whether Defendant has conducted surveillance. Defendant responded “no.” Interrogatory No. 13.2 asks if a written report has been prepared on the surveillance. Defendant responded, “not applicable.” These responses are full respon ses. Accordingly, the court DENIES the motion as moot insofar as it seeks further responses. The motion is GRANTED as to sanctions. Sanctions of $1,260 are issued against Def...

Excerpt: ...applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied- Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) Here, HMA moves to compel arbitration under a: (1) Owner's Handbook & Warranty Information (“Warranty”), and (2) Motor Vehicle Lease Agreement (“Lease”). Both the Warranty and the Lease provide that the agreement to arbitrate will be g...

Excerpt: ...e total length of both days of the deposition of Andy Phillips shall not be less than the total length of both days of the deposition of John Hynes, and the second day of the deposition of Andy Phillips shall be held in the same location as the first day of the de position. Defendant Capital Managers, LLC may ask questions at the second day of the deposition of Andy Phillipos on any subject matter allowed by the Evidence Code, the Civil Procedur...

Excerpt: ... any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Simply put, “[i]f a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgmen...

Excerpt: ...d in the Decl aration. Plaintiff presents no reason to believe that the applicable standard of care changed in this short time period. Plaintiff's objections to Exhibits 3- 5 are OVERRULED. “A party may move for summary judgment in an action or proceeding if it is conten ded that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).) In a medical malpractice action, when a defendant...

Excerpt: ...TTORNEYS' FEES The successful defendant on an anti -SLAPP motion is entitled to recover its attorney fees and costs as a matter of right. (Code Civ. Proc., § 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, 104 Cal.Rptr.2d 377, 17 P.3d 735 [“any SLAPP d efendant who brings a successful motion to strike is entitled to mandatory attorney fees”].) Unless the results of the anti - SLAPP Motion were so insignificant that defenda...

Excerpt: ...allegations relat ed to punitive damages and attorney fees. The demurrer is OVERRULED. First, the court finds that the allegations alleged in the First Amended Complaint are sufficient to plead a cause of action for elder abuse and neglect pursuant to Elder Adult and Depend ent Adult Civil Protection Act - Welfare and Institution Code §§ 15600, et seq. Plaintiff has alleged that Defendant was aware of Ms. Sperling' to provide the requisite ser...

Excerpt: ...s of fraud based on false promises and/or misrepresentations and concealment, respectively. “‘The elements of fraud that will give rise to a tort action for deceit are: '(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsi ty (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' ” (Engalla v. Permanente Medical Group, Inc. ...

Excerpt: ...h the moving papers. [CRC 3.1320(c).] While the Court's ruling is not based on these defects, the Court reminds Defendants to comply with the CCP and CRC, moving forward. Notably, the fact that plaintiffs are in pro per does not afford them special treatment. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246- 1247.) Pro pers must also abide by the same procedural rules – e.g., the Code of Civil Procedure and the California Rules of Court. (See Ga...

Excerpt: ...e facts of defendan t's oppression, fraud, or malice. (CC § 3294(a).) “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. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disreg...