Excerpt: ...driving east on Hazel Drive, when Defendant Sergeant Michael Koehler caused an accident. Thereafter, another officer from another vehicle ordered Plaintiff out of his car, was handcuffed and sat on the curb while officers searched his vehicle. His top clothing was removed to reveal any tattoos he might have, and later placed inside a Sheriff's vehicle where he was interrogated about a suspect the officers were looking for. He was detained for an ...

Excerpt: ...late claim can be made, but it must be submitted no later than one year after the accrual of the cause of action. Government Code § 911.4(b). “In actions for damages against local public entities, the claims statues require timely filing of a proper claim as condition precedent to the maintenance of the action. Compliance with the claims statutes is mandatory; and failure to file a claim is fatal to the cause of action. City of San Jose Superi...

Excerpt: ...to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where the defendant is guilty of malice, oppression or fraud. “‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried o...

Excerpt: ...Avenue owns the adjacent development parcel. On 10/12/16, BH Avenue and Defendant Chick‐Fil‐A entered into a lease. On 2/2/18, Plaintiffs entered into a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements to govern the development, subdivision, etc. of the property; Defendant is identified as an intended third party beneficiary. The Declaration provides for non‐exclusive perpetual easements appurtenant. BH Central wo...

Excerpt: ...in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” To consider those fact...

Excerpt: ...ction 425.16, subdivision (c), subsection (1), the court must award Plaintiff attorney fees if the court finds that Defendants' anti‐SLAPP motion was frivolous. If any reasonable attorney would agree that a motion is meritless, the motion is frivolous. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore).) One key consideration is whether the moving party failed to meet thee threshold burden of establishing that the challenged causes of actio...

Excerpt: ... costs. This language does not equate to a promise to pay attorney's fees and costs on all claims as Plaintiff alleges. Rather, the language clarifies that the amount offered was not inclusive of any statutory attorney's fees that Plaintiff might be entitled to if determined to be a prevailing party. The cases cited by Plaintiff do not say otherwise. Prevailing Party CCP §1032(b) provides that “Except as otherwise expressly provided by statute...

Excerpt: ...NTEXT Plaintiff Clayton Blood (“Plaintiff”) contends that he was a guest of defendant Hyatt Place Riverside/Downtown. During his stay, he was attacked in the lobby by two other guests – Anthony Mora and Gilbert McGuire. Plaintiff asserts claims against Anthony Mora, Gilbert McGuire, Hyatt Place Riverside/Downtown, and Rui Xin, LLC (“Rui Xin”). His complaint asserts the following causes of action: (1) assault and battery, (2) negligence,...

Excerpt: ...any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records disclose an absolute defense to the action or deficiency in the complaint, the...

Excerpt: ...ion “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Civ. Code, § 1793.2, subd. (a)(3).) Page 3 of 3 The plaintiffs allege a violation of that section in their Third Cause of Action, but allege...

Excerpt: ... work commenced on February 11, 2016. On March 12, 2016, the loan which was secured by the Project was recorded. Plaintiff alleges that the Project was nearly complete when Harris stopped paying Plaintiff, after which Plaintiff Page 9 of 11 ceased further work. On March 21, 2019, Plaintiff recorded two mechanic's lien (“Liens”) against the Project for $428,485 and $517,935. On February 3, 2020, Plaintiff filed the Complaint. After meeting and...

Excerpt: ...rol, including documents from their banking accounts and/or held by banks or other institution under their control, but were not produced as of the date of this order, although this bar does not apply to documents held by third parties, including Yvonne Moore. Denied as to Evidence Sanction No. 2, issue and monetary sanctions. The Estate of Marsh seeks terminating sanctions, or in the alternative, evidence, issue and monetary sanctions against Pl...

Excerpt: ...ree causes of action in the Third Amended Complaint, for breach of oral contract, promissory estoppel, and constructive trust. Aside from arguing that these causes of action are insufficiently pleaded, Wiese argues that the oral promises at the heart of the pleadings are covered by the statute of frauds and are, on their face, barred by the applicable statute of limitations. The Court agrees. It also finds that the new set of promises alleged in ...

Excerpt: ...urt does not lack jurisdiction. #2 Zazueta asserts that the FAC fails to allege facts sufficient to constitute a cause of action against a different defendant, the Zazueta Trust. Zazueta, is not the trustee of that trust or otherwise adversely affected by the existence of allegations against that trust. The Court is not aware of any authority for the proposition that one defendant may challenge the sufficiency of the allegations of a different de...

Excerpt: ...s purpose, because it ‘would impose a barrier on such actions that the state law enforcement agency does not fact when it litigates those cases itself.” (See also, Jordan v. NCI Group, Inc. (C.D. Cal., Mar. 22, 2017, No. EDCV161701JVSSPX) 2017 WL 1821122, at *3‐4.) [“[T]o hold a PAGA action cannot be maintained because individual assessments regarding whether a violation occurred would make the claim unmanageable at trial would obliterate...

Excerpt: ...d tending to render the judgment ineffectual. Plaintiff asserts that CCP §731 expressly authorizes an injunction when a person's property is injuriously affected or personal enjoyment is lessened by a nuisance as defined in Civ. Code §3479. However, this motion is for a preliminary injunction, not a permanent injunction. As such these provisions have no application to the ruling on this motion. “[A]n injunction is prohibitory if it requires a...

Excerpt: ... seeking to establish that there is no ostensible agency, it relies upon evidence that it informed the plaintiff upon admission to the hospital that the doctors there are independent contractors. The hospital claims that its notice conclusively establishes the lack of ostensible authority. That argument fails. To establish ostensible agency, only two elements need be proven. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 144...

Excerpt: ...o was employed by Casco Equipment, negligently drove his vehicle into Plaintiffs causing injuries. With respect to punitive damages, Plaintiffs alleged that Defendant Christian was intoxicated after having consumed great quantities of alcohol and that he knew that he would be driving shortly thereafter. It further alleges that Casco was aware that Christian driving in this condition would probably result in great bodily harm or death to another p...

Excerpt: ... 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 Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts ...

Excerpt: ...s hired by defendant Desert Community College District (“Defendant” or “District”) at the College of the Desert (the “College') in 2016 as an assistant professor in the physics department. (Second Amended Complaint filed on 11/20/20 (“SAC”), ¶ 13.) He was the first African‐ American in the history of the department. (FAC, ¶ 13.) Soon after he started, Plaintiff disagreed with Dean Tabor on her assessment of his performance. Plai...

Excerpt: ...anguage.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that Page 4 of 5 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.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his claims.” (D...

Excerpt: ... cause of action on the grounds that they fail to state facts sufficient. For the warranty claims, it argues Plaintiffs have not pled the contract terms. For the concealment claim, it argues it is not pled with specificity as there are no allegations as to knowledge as to this specific car. There are no allegations that he saw any brochures, and there is no duty to disclose. It argues the economic loss rule applies. Plaintiffs contend that this i...

Excerpt: ...make no mention of that. If parties intend to pursue release of FLSA claim, provide authority that the act of cashing a check is sufficient to conclude that the person opted in, particularly where there is no FLSA claim actually alleged. There is no definition of workweek or qualifying workweek. Does it include partial weeks? Counsel's declaration regarding the value of each claim if successful at trial and the reasonable likely recovery for each...

Excerpt: ...nd produce the documents within 30 days of the date of this order. Defendant is ordered to pay Plaintiff sanctions in the amount of $4620 as to both motions, which amount the court finds reasonable. The discovery at issue was served on Defendant Rockport on 7‐27‐ 20. On 8‐28‐20, Rockport served objection‐only responses to this discovery. Plaintiff asserts that, to date, Rockport has not provided any additional responses, including the r...

Excerpt: ..., or alternatively to, stay the pending action on the grounds a valid arbitration agreement (“Agreement”) exists between the parties, and Plaintiff's claims are of the type which are covered under the Agreement. In the Motion to Compel Arbitration (“Motion”), Defendant argues that Plaintiff agreed to arbitrate all claims asserted in the Complaint, and the agreement is enforceable both under the Federal Arbitration Act and California Law, ...