Excerpt: ... Civ. Proc., §§473, subd. (a), 576, 422.10 [pleadings in civil action include answers].) “Leave to amend a pleading, including an answer, is entrusted to the sound discretion of the trial court.” (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it has been held as an error to refuse permission to amend and where the...

Excerpt: ... is overruled for unfair competition, and Plaintiff Lisa Esparza's standing to pursue the fifth cause of action for unfair competition. Defendants' motion to strike is taken off calendar as moot to the extent it seeks to strike Plaintiffs' claims for punitive damages. Defendants' motion to strike Plaintiffs' claims for attorney fees is granted without prejudice. Order to Show Cause is set for 3/28/2023, AGAINST LISA ESPARZA AND HARLAN BARTLETT KI...

Excerpt: ...d $1,500.00 or dismissal should not be imposed for Failure to file request for entry of default of all defendants pursuant to CRC 3.110(g). A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. ...

Excerpt: .... (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (Daa...

Excerpt: ...tained with 20 days' leave to amend. The plaintiff has leave to assert a new claim for relief under Business and Professions Code section 17200, but only against defendants Quistorf and Inland Empire Latino Lawyers Association. Analysis: First cause of action, for negligent misrepresentation The plaintiff acknowledges that a plaintiff alleging negligent misrepresentation must allege “a misrepresentation of a past or existing material fact.” (...

Excerpt: ...ition or free speech” … includes … any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or … any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP § 425.16(e)(3)‐(4).) Importantly, however, “[t]he...

Excerpt: ...cheduled for September 28, 2023, at 8:30 A.M. Analysis: The Court had questioned the request for reimbursement of the “$3,150 paid to Rust Consulting to issue Belaire West notices. That appears to the Court to be unreasonably expensive. Given that Phoenix is conducting the entirety of settlement administration for $5,750, it is difficult to understand how it reasonably cost nearly 55% of that sum just to send out a letter. The Court requires a ...

Excerpt: ...Turner and DPP was in effect until August 12, 2022. Plaintiff seeks leave to remove allegations relating to its claims against the developer defendants, Coachillin and Kenneth Dickerson, and to add new allegations to support its claims for negligence and breach of fiduciary duty asserted against Turner and DPP. Plaintiff also proposes to include an additional cause of action against these defendants for constructive fraud (Civil Code, § 1573). P...

Excerpt: ...laintiff cites no authority for overruling the demurrer. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896. Thus, if a plaintiff prevails in an action, “the cause is merged into the judgment and may not be asserted in a subsequent lawsuit.” Ibid. A judgment in the defendants' fa...

Excerpt: ...Interrogatories: granted as to Nos. 7, 8, 12, 13, 14. As to Request for Production of Documents: denied as overbroad 10l, 11, 12, 13, 14 (also vague and ambiguous), 15, 16, 19. Given the mixed results, the request of each party for sanctions, is denied. Factual and procedural background: Plaintiff alleges that he suffered injury when he was hit on his bicycle by Defendant Juan Mancilla while in the course and scope of his employment with Defendan...

Excerpt: ...inspect the books and records of Cherry Hills as set forth in the Operative Operating Agreement and Corporations Code §§ 17704.10 and 17701.13. Cherry Hills' manager, Stephen M. Tapley (who is also a shareholder), has allegedly failed to comply with this request. Stephen Tapley has also called a special meeting to vote on whether shareholders should be required to pay $600,000 to cover the necessary operating costs for Cherry Hill, even though ...

Excerpt: ...g interests” to civil cases as in criminal, relied not only on CCP section 124 but on the state and federal constitutions, emphasizing “The need to comply with the requirements of the First Amendment right of access…” [Id. at 1226.] That decision was then codified in the California Rules of Court, at Rule 2.550: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an ov...

Excerpt: ...t bowel obstruction. As part of his after‐surgery care and prior to his discharge, a “wound vac” was placed over the abdominal wound, with sponges inside the wound. Plaintiff's spouse removed the wound vac around the end of December 2020. In March of 2021 plaintiff sought treatment from defendant Anibal Gauto, M.D., as the post‐surgical wound was not healing. This care was provided at defendant Eisenhower Medical Center. In June of 2021, ...

Excerpt: ...grounds for a plea in abatement have also been met. The two cases share a common threshold issue of whether the named plaintiff in each case is an employee or an independent contractor. This threshold issue must be resolved before either plaintiff has standing to assert claims for violations of their rights as employees under the Labor Code and the IWC Wage Order. Both the plaintiff in the Quinn Action and Plaintiff in this action are alleging th...

Excerpt: ...‐22, the plaintiff filed a second motion for approval. That was heard on 12‐16‐ 22 and continued to this date. 1. Enhancement: The motion seeks a $1,000 enhancement for the plaintiff. (Memo., pp. 19‐20.) That request was denied on 6‐30‐22. As the Court explained at the time: “The CMO, at § F.7.c., requires a declaration from the plaintiff providing an evidentiary basis for an enhancement award, such as the time spent on litigation ...

Excerpt: ...giving rise to the amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). Since judicial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of th...

Excerpt: ...admissible evidence showing a triable issue of fact. Plaintiffs' warranty claims fail because the Song‐ Beverly Warranty Act is inapplicable to used vehicles under Rodriguez v. FCA US,LLC (2022) 77 Cal.App.5th 209 and Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385. The fact that Rodriguez had not been published at the time this action was filed is of no import. Judicial decisions are generally given retroactive effect. (Abramson v. Jupiter Netwo...

Excerpt: ...otions were to be heard. Oppositions to the motions at issue were required to be filed and served at least nine court days prior to the scheduled hearing per Code of Civil Procedure section 1005, subdivision (b). Further, the Court posted a tentative ruling for both motions on Friday November 23, 2022, granting the motions and stating that no oppositions had been filed. Plaintiff did not timely request oral argument per Local Rule 3316 or Rules o...

Excerpt: ...2) Violation of Song‐Beverly Act – Breach of Implied Warranty (against BMW NA); and (3) Violation of Song‐Beverly Act, Civ. Code § 1793.2(b) (against BMW NA); and (4) Negligent Repair (against Beverly Hills BMW). The action is based breach of warranties and other violations related to the condition of the vehicle. The Defendants move to compel Plaintiffs to arbitrate their claims under the Lease Agreement. BMW NA. Defendants contend that a...

Excerpt: ... Plaintiff. Plaintiff contends the “alleged agreement is missing the necessary markings that would be included if it were electronically signed.” (Opp. P.5.) Plaintiff's declaration contends the agreement presented by Defendant is missing Defendant's information (name, real estate office information at the bottom of the form) and envelope numbers which are needed in a digital signature. (Honeyfield Decl. p.2.) Plaintiff contends if the agreem...

Excerpt: ...ant responded by stating “responding party will fully comply and produce the surveillance video and incident report.” Following the response, defendant informed plaintiff that the actual video was destroyed as part of routine procedure, but produced a video of the surveillance video taken using a cellphone. Plaintiff argues that the video produced is not usable and that the original video is in the possession of Cal‐OSHA and that defendant ...

Excerpt: ...d to pay his share of expenses, and both acquired title. Plaintiff had loaned Defendant $22,000 to pay off personal debts, and Defendant provided the down payment which represented the repayment of the loan. Defendant never paid the property taxes, despite his obligation. After their relationship ended, Defendant sought to evict the tenant and move in with his new partner. On 11/6/19, Plaintiff filed her complaint for: (1) partition by sale; (2) ...

Excerpt: .... Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Plaintiff has failed to show the threshold showing of the probable validity of its mechanic's lien by demonstrating that it complied with the requisite statute governing the preparation and service of the lien. First, the mechanic's lien fails to state the name of the owner or reputed owner which was admittedly known to Pl...

Excerpt: ..., which renews as a matter of law. Plaintiffs allege that Defendants failed to maintain/repair the property making it uninhabitable under California law. They allege that their units were infested with insects; and generally dilapidated or improperly maintained. Plaintiffs allege they constantly complained, but nothing was done to correct the uninhabitable conditions, which have caused injuries and damages including severe emotional distress. Pla...

Excerpt: ...ld have stayed; and, that Plaintiff suggested to one witness that if the witness testified favorable for Plaintiff, he would “make it worth his while.” (Id. p. 4:17‐26.) The Award states that Defendant admitted it violated Labor Code § 226. (Id. p. 5:2.) The arbitrator noted the main defense to violations of this statute was a class action settlement entered in 2017, but that the defense lacked merit. (Id. p. 5:3‐4.) The arbitrator found...