Excerpt: ...l claim is that the Association Board violated the governing documents and breached its fiduciary duty when it jettisoned an existing common area deferred maintenance schedule in favor of completing repairs and deferred maintenance quickly, and that these repairs were paid for using proceeds from a substantial loan taken out on behalf of the Association. Plaintiffs assert that the loan was not properly approved, that the Board had an obligation t...

Excerpt: ...xists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bon...

Excerpt: ...non v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 (constitutionality upheld). The motion is made on the grounds that the plaintiff resides out of the state and that there is a reasonable possibility that the moving defendant will obtain judgment. §1030(b). The motion must be accompanied by an affidavit that sets forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur. The statute...

Excerpt: ...Id. at p. 387; Cal Sierra Const., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845.) The inquiry into probable validity does not go to the ultimate merits of the case but “to whether the contractor should be entitled to retain the security of the mechanic's lien… pending resolution of the matter.” (Id. at p. 850.) In essence, “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be ...

Excerpt: ...os Jr., operating a dump truck struck Plaintiff and his vehicle on the eastbound 60 freeway. Plaintiff also alleges that his vehicle, a Toyota Tacoma, had a defect in that the airbags failed to deploy. Plaintiff also named as defendants Dwayne Qualls, Sr., Dwayne Edward Qualls, Jr., Zacharia Smith, Jr., Barbara Smith, Jeremy Dennis and Pirate SVCS. The complaint does not identify their role in the case. The First Amended Complaint, filed 2/7/19, ...

Excerpt: ...on arises out of a construction project. Plaintiff Binnquist Development Inc. (“Plaintiff”) was the general contractor on a construction project at 1827 Atlanta Avenue in Riverside pursuant to a written contract (the “Contract”) with defendants Laguna Hills Allspace, Dennis French and Rick Tarnutzer (“Defendants”) in which Defendants promised to pay $2,459,532, inclusive of amendments and modifications by change orders. Of that amount...

Excerpt: ... to arrange the examination by stipulation. (CCP §2016.040.) The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. (Weil & Brown, Civ. Proc. Before Trial (TRG 2020), Ch. 8I, §8:1556.) “Often, the pleadings will put a party's mental or physical condition “in controversy.” For example, a personal injury complaint may allege that plaintiff is sufferi...

Excerpt: ...us franchise owner of the restaurant where Plaintiffs worked. Plaintiffs further argue that even if they executed the Arbitration Agreements, the Agreements are both procedurally and substantively unconscionable and thus unenforceable. As to substantive unconscionability, Plaintiffs specifically argue that the Arbitration Agreements do not provide for adequate discovery. Plaintiffs also filed an objection and motion to strike the evidence offered...

Excerpt: ...one Velma Frothingham to Defendant Bartolini in March 2019, more than seven years after Frothingham's death. Bartolini sold the property to NCEM, which alleges in its CrossComplaint that Rivera negligently represented that Frothingham appeared before her and executed the Grant Deed, when she knew or should have known that Frothingham did not personally appear before her. The Cross‐Complaint alleges that Rivera negligently performed her duties a...

Excerpt: .... Generally, new evidence is not permitted with reply papers. It should only be allowed in the exceptional case, and only on the condition that the opposing party should be given the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) No exceptional circumstances are shown in the Biondi declaration. After weighing the likelihood that the defendant will prevail at trial and balancing the relative harm to be suffered...

Excerpt: ...render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and...

Excerpt: ...facts demonstrating why Defendant obtained title by fraud, inequitable conduct, or that it was invalid. At most, she alleges an underlying action to which she was not a party to, and argues in opposition, that she was an indispensable party. From the allegations in the underlying action, RIC 1410237, Plaintiff Suntrust Mortgage, Inc. is the owner of property located at 1718 Hayden Ave. in Corona. Suntrust asserted that the property was formerly o...

Excerpt: ... §11019(b).) Harassment is something that communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.App.4th 686, 706.) FEHA liability for harassment extends to any employee of a covered employer, and thus individual employees can be named as defendants. (Gov. Code, §12940(j)(3).) An employer's liability for harassment by someone other than a manager or supervisor is based on negligence‐ i.e., the miscon...

Excerpt: ...ffs (i.e., still or video images recorded either on photographic film, on magnetic tape, digitally, or otherwise) and edited recordings. However, the plaintiffs did not thereafter argue that the distinction was significant in this instance. The defendant ignored that distinction entirely. Accordingly, the Court does not make that distinction either. To the extent that there were any unedited recordings that were not taken or created by or at the ...

Excerpt: ...s. While Plaintiff was using the ladder to look at kitchen exhaust/range hoods on Aisle 40 in Department 29 of the Mira Loma Home Depot store, his foot slipped and he fell. Plaintiff then brought the instant action against Home Depot. On August 7, 2020, Plaintiff served Defendant with 48 Requests for Production of Documents, 49 Special Interrogatories, 21 Requests for Admission, and Form Interrogatories. Prior to the September 21, 2020 due date, ...

Excerpt: ...cable standard of care and causation. Welf. & Inst. Code Section 15610.57(a); Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405‐ 407; Flatt v. Superior Court (1994) 9 Cal.App.4th 275, 293. CPA's expert, Karen Josephson has provided a declaration indicating that CPA's conduct did not breach its applicable standard of care or cause Plaintiff's injuries. (Karen Josephson's Declaration, ¶¶ 6.D. and 7.) Due to this, C...

Excerpt: ...anctions is also denied. The Estate's evidentiary objections are overruled. On 10‐19‐20, the Estate of Marsh served a Subpoena Duces Tecum (“Subpoena”) on Union Bank (“Bank”). The Subpoena requests all bank statements and documents relating to the deposits, wire transfers, ACH transfers and checks from 1‐1‐18 to present for the subject bank account of the Tatums (“Category 1”). The Subpoena also requests documents related to c...

Excerpt: ...A plaintiff may attack an answer via a demurrer on the following grounds: “(a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” C.C.P. § 430.20. Demurrers for uncertainty are disfavored and wi...

Excerpt: ... cars to obtain better mileage, greater reliability, and overall improved performance. Defendant Farrell operates Hyperfuel, Inc., which also designs and distributes aftermarket performance auto parts. Hyperfuel and FIT compete with one another in the market. In 2014, Farrell was appointed as FIT's General Manager. He held the position until November 2017, when he left the company, after FIT discovered he was working for another aftermarket autom...

Excerpt: ...herently dangerous about the stairway and Plaintiff tripped merely because it was dark outside. Failure to provide adequate lighting may create a dangerous condition on property. Defendants have not produced any evidence that the subject stairway was adequately lit. The only evidence offered by Defendant, Plaintiff's special interrogatory responses, indicate that the lights in the stairway were not working. (Exh. B, Response No.1) Defendants have...

Excerpt: ...ount of the past loss of earnings. In response, on 8‐8‐20, the Court ordered the plaintiff to file a CMS within 2 weeks that described both the nature and the amount of the damages being sought. The Court at the same time issued an order to show cause why sanctions should not be imposed for initialing filing an incomplete CMS, returnable on 9‐15‐20. On 9‐14‐20, having received neither a revised CMS or a declaration in response to the ...

Excerpt: ...ff alleges he was driving the subject vehicle on Highway I‐215, southbound, in the course of his employment when the left front tire exploded, causing him to lose control of the subject vehicle and sustain damages. Plaintiff alleges the following causes of action: 1. Strict Products Liability—Design Defect; 2. Strict Products Liability—Manufacturing Defect; 3. Strict Products Liability—Failure to Warn; 4. Negligence Product Liability. Non...

Excerpt: ... seek immediate review of the court's Ruling sustaining the Demurrer without Leave, nor was this issue raised on Appeal. The disposition on appeal was to reverse the judgment with directions to the trial court “to vacate its ruling on summary adjudication and enter a new order denying the motion on this issue.” (RJN iso Opposition, Exh.2.) The appellate court noted : “The body of the cause of action alleges intent to defraud, suggesting tha...

Excerpt: ...ecedent's home on 12/19/18 and ordered four prescriptions with Defendant Equanimity Hospice & Palliative Care, however, only three prescriptions were delivered on 12/20/18 and 12/22/18. Decedent suffered a stroke on 12/22/18 and died on 12/28/18. Plaintiffs filed the original complaint on 6/26/20. After Defendant Fukada demurred, Plaintiffs filed a First Amended Complaint (FAC) as a matter of right on 10/26/20 for professional negligence and wron...

Excerpt: ...he gravamen of this action for: (1) accounting, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) conversion, (6) constructive trust and (7) violation of Civil Code section 3344 is that Plaintiff has not received her share of the profits in the Brandini Toffee company. Plaintiff Leah Post alleges that in 2006, while in high school, she and Defendant Brandon Weimer, who were both m...