Excerpt: ... are separate causes of action. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1016 [Willful misconduct “is a tort separate and distinct from negligence and involves different principles of liability and different defenses”].) Willful misconduct implies “the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intention...

Excerpt: ... is a nuisance under Civil Code section 3479, which defines a nuisance as “[a]nything which is injurious to health…so as to interfere with the comfortable enjoyment of life or property….” (Complaint, ¶ 112.) A nuisance may be either private or public. A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflict...

Excerpt: ...er based on uncertainty should be overruled Defendants argue the complaint is uncertain because plaintiff uses the terms “advances” and “loans” interchangeably within the pleading without explaining the difference. As noted above, a demurrer based on uncertainty must be so uncertain as to make it impossible for defendant to respond. (See Khoury, supra, at p. 616.) The demurrer based on uncertainty is rejected because there is nothing unce...

Excerpt: ...n matters embraced in" or "affected" by a pending appeal. The Banc argues that the claim made in the FAC that the court's setoff did not violate the Bank's rights as a secured creditor or under a Subordination Agreement signed by the Bank, E‐Commerce Trade, LLC and ECL encompasses the Bank's Third Cause of Action for Breach of Subordination Agreement at issue in the Bank's FAC and that adjudication of this cause of action in this proceeding cre...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: ...they are directed is not material to the Court's analysis. Actuant failed to meet its initial burden by failing to address all of products alleged to be defective in the operative complaints. A summary judgment motion must show that the “material facts” are undisputed. (CCP § 437c(b)(1).) The pleadings determine what issues are material in a summary judgment motion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto Blue ...

Excerpt: ...n matters embraced in" or "affected" by a pending appeal. The Banc argues that the claim made in the FAC that the court's setoff did not violate the Bank's rights as a secured creditor or under a Subordination Agreement signed by the Bank, E‐Commerce Trade, LLC and ECL encompasses the Bank's Third Cause of Action for Breach of Subordination Agreement at issue in the Bank's FAC and that adjudication of this cause of action in this proceeding cre...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: ...are to Sohal and Pham Dental Corporation dba Perris Modern Dentistry (“Dental Office”) on November 3, 2017, at which time defendant Sherly Sohal, DDS (“Dr. Sohal”) placed temporary dental crowns. Permanent crowns were placed several days later. He continued to experience dental pain. On February 12, 2018, he returned to the Dental Office, complaining of bleeding gums that were tender to the touch. He was diagnosed with chronic moderate to...

Excerpt: ... 310‐11 [judicial notice of release and reinsurance contract].) Plaintiff's Opposition Request for Judicial Notice Plaintiff requests that the court take judicial notice of orders issued in three lower state courts in North Carolina, Nevada and Ohio. (Exhibits A, C‐D), as well as a transcript of a proceeding in New Jersey state court (Exhibit B). The request is denied. While the court may certainly take notice of orders issues in any court of...

Excerpt: ... amend. The Court overrules Defendant Adriane Rodriguez's demurrer. The Court sustains Defendant Tsai's demurrer without leave to amend. The Court sustains Defendant Afifi's demurrer without leave to amend. The Court overrules Defendant Alomari's demurrer. Defendants Rodriguez to file answers within 30 days. FACTUAL / PROCEDURAL CONTEXT Plaintiff Troung Dinh Doung, M.D. alleges that he is a cardiologist with a certificate in Clinical Cardiac Elec...

Excerpt: ...laintiff Sears generally alleges that Defendant Fort CRE fraudulently and wrongfully refused to complete the sale of certain assets, including a senior loan and deed in lieu of foreclosure, for the Colony Palms Hotel. Sears was interested in buying a senior lien on the hotel property being sold at auction through Fort CRE's broker, Debt Exchange. Sears did not enter a bid at the auction that took place July 23, 2020. But after the action, Sears l...

Excerpt: ...al Motors, LLC (“Defendant”). Plaintiffs received an express written warranty, including, a 3‐ year/36,000‐mile express bumper to bumper warranty, a 5‐year/100,000‐mile powertrain warranty which, inter alia, covers the engine and transmission. Plaintiffs allege that the subject vehicle contains numerous defects, including a cooling system defect, which Defendant allegedly concealed. Plaintiffs delivered the subject vehicle to authoriz...

Excerpt: ...ey contend they are entitled to fees pursuant to CCP § 2033.420 as Plaintiff failed to admit that the FEHA claims were time barred. In actions brought under FEHA, “the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code § 12965(b).) It has been the ...

Excerpt: ...d on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Only TQL filed evidentiary objections, all of which are overruled. Motion A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (C.C.P. § 437c(p)(2...

Excerpt: ... or proceedings has been taken. In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The proofs of service filed on 9‐25‐20, show the date for service of the summons and complaint as 9‐22‐20. The Request for Entry of Default was filed on 11‐2‐20. The declara...

Excerpt: ... or petition for redress of grievances.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 311‐312 (“Flatley”).) Because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by the anti‐SLAPP statute. (Id. at p. 313.) To prevail on an anti‐SLAPP motion, the moving party must first make a prima facie showing that the claims arise from the defendant's exercise of free speech or petit...

Excerpt: ...f the court finds the following two things: (1) the admission resulted from mistake, inadvertence or excusable neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (CCP §2033.300(b).) \ The court finds mistake, inadvertence and/or excusable neglect. The motion is accompanied by the declaration of Plaintiff's Attorney Shelly Ziese who states she made an inadvertent t...

Excerpt: ... specificity.” However, there is no breach of contract action alleged so, the requirement is inapplicable. Uncertainty The Second Amended Complaint in this case is a prime example of an uncertain complaint. Plaintiff has not clearly alleged the conduct engaged in by the specific Defendants to support the causes of action alleged in the SAC. There are very few factual allegations, and a lot of references to statutes, which are not connected; the...

Excerpt: ... he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cannot reasonably discover them, and where the defendant actively conceals discovery from plaintiff. (Warner Con...

Excerpt: ...ment v. Alegra (2009) 177 Cal.App.4th 1277, 1294). Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. (Id.) Defendant complains that Plaintiffs sent a meet and confer letter at the last minute, only 8 days before the deadline to file a motion to compel, showing bad faith. Plaintiffs accuse Defendant of dumping documents on ...

Excerpt: ...on. To assure uniform results as to arbitrability of disputes subject to the FAA, conflicting state law is preempted under the Supremacy Clause. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352.) The FAA has been held to preempt a variety of types of employment disputes subject to arbitration agreements, e.g., Cal. Labor Code, §229 which authorizes lawsuits for unpaid wages “without regard to the existence of any private agreement to ...

Excerpt: ...inkle and Margaret Stutz (together, “Individual Defendants”). (DRMC and Individual Defendants are collectively referred to as, “Defendants”). Plaintiff alleges that on October 22, 2019, DRMC terminated her employment as a nurse in the Labor and Delivery unit at the hospital. (Complaint, ¶¶ 13‐20.) Plaintiff further alleges that her employment was wrongfully terminated in retaliation for Plaintiff's communication of complaints/concerns...

Excerpt: ... record or file. Notice is not taken of truth of matters stated. (Evidence Code, §452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Granted as to No. 2: judicial notice may be taken of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evidence Code, §452(b).) Plain...

Excerpt: ...arty establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of Civ. Proc., § 437c(c). A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa...