Excerpt: ..., 554) “Granting or denying an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion.” (Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458.) Although an OSC directs the party “to show cause, the burden is on moving party to show all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Superior Court (Valenzuela) (2006) 141 Cal....

Excerpt: ...ria Penley for: 1) elder financial abuse, 2) breach of fiduciary duty, and 3) attorney malpractice. Defendant Attorney Victoria Penley demurred to the first two causes of action. The court previously sustained that demurrer as to the 1st cause of action for elder financial abuse, with leave to amend. Plaintiff filed his First Amended Complaint on 10/8/20. Defendant once again demurs to the 1st cause of action for elder financial abuse on the grou...

Excerpt: ... Cal.App.4th 690, 697.) The court denies the motion as to Form Interrogatories (FROGs) 12.3 and 15.1 because Plaintiff did not meet and confer before filing the motion. The court finds that Plaintiff's meet‐and‐confer efforts were otherwise adequate. The court grants the motion as to FROGs 12.1, 12.2, and 12.6. (See Puerto v. Sup. Ct. (Wild Oats Markets, Inc.) (2008) 158 Cal.App.4th 1242 [no significant privacy invasion for discovery of names...

Excerpt: ...ff's favor. Injunctions are equitable in nature and the general purpose of prejudgment injunctive relief is to preserve the status quo pending a determination on the merits. The grant or denial of a temporary restraining order or preliminary injunction “does not amount to an adjudication of the ultimate rights in a controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial...

Excerpt: ...l Stamen. Hence, the hearing was continued to 8/21/20. On 8/12/20, plaintiff Matthew Tye filed a Statement of Disqualification under Code of Civil Procedure section 170.3. As a result, the hearing of this motion was repeatedly continued while the Statement of Disqualification was being considered by the San Diego Superior Court. On 10/15/20, the San Diego Superior Court denied the disqualification and its ruling was filed on Page 4 of 6 10/23/20....

Excerpt: ...y may, within five days of the receipt of the notice of determination, appeal the decision of the court or hearing entity of original jurisdiction.” (Food & Ag. Code §31622(a).) “If the original hearing held pursuant to Section 31621 was before a hearing entity other than a court of the jurisdiction, appeal shall be to the superior court.” (Food & Ag. Code §31622(a).) The administrative order was entered April 30, 2020. Therefore, pursuan...

Excerpt: ...paragraphs 7 and 9 of the Complaint cause it to be included in the cause of action. The label of the cause of action names only defendant Binnquist. Defendant Laguna Hills' contention is without merit. Defendant Laguna Hills also contends the Complaint fails to identify the individuals who agreed to sign the change orders. It cites no authority in support of this purported requirement. Finally, defendant Laguna Hills contends Plaintiff failed to ...

Excerpt: ...y of theories of recovery, including breach of contract, violation of due process, discrimination, slander, defamation, and obstruction of justice. Plaintiff argues the property was taken without just compensation and she is entitled to $1,800 per month until possession is returned. On 9/23/20, the court granted the County of Riverside's motion to quash and recommended that plaintiff seek legal advice for assistance, but plaintiff is still repres...

Excerpt: ...parties agreed to a Compromise and Release in the amount of $50,497.14, which was later reduced to an order. Part of the order provided NPG would pay $25,000 directly to Villalobos. In April 2020, NPG sent a check for $25,000 to Howser made out to “Nathan Howser Law Client Trust Account” and not Villalobos directly. Howser returned the check and asked NPG to comply with the order. On May 15, 2020, Howser filed the Petition for Sanctions, Cost...

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed ...

Excerpt: ...ges have been permitted in contract cases where a breach of duty directly causes physical injury, for breach of the covenant of good faith and fair dealing in insurance contracts, for wrongful discharge in violation of fundamental public policy, or where the contract was fraudulently induced.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551‐552, italics added.) “In each of these cases, the duty that gives rise to tort liability is either comp...

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ...ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleading or by matters that can be judicially noticed.” (Cloud v. Northrop Gruman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in are deemed admitted and given a reasonable interpretation. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal. App. 4th 194, ...

Excerpt: ...n this ground, or by affirmative defense in the answer.” (Weil & Brown, CPG: Civ. Proc. Before Trial (TRG 2020) §2:185, citing CCP §430.10(d); §2:196, citing CCP §430.80.) The Complaint was filed on 4/17/19. AHM filed its Answer on 9/17/19, which did not challenge the failure to join Alltizer. AHM did not demurrer to the Complaint based on a failure to join Alltizer. The Retail Installment Sale Contract (RISC) is attached to Mr. Dowling's d...

Excerpt: ...le because its adoption violated the CC&Rs, including but not limited to Paragraphs 3.15, 9.05(a)(4)(E) and/or 15.02 of those CC& Rs; 2. An injunction prohibiting Defendants and their agents, employees and/or anyone acting on their behalf, from enforcing Rule 6 and from enforcing any similar restriction and/or limitation on short‐term leasing and/or renting within the Development that has not been duly adopted as an amendment to the CC&Rs pursu...

Excerpt: ...ges have been permitted in contract cases where a breach of duty directly causes physical injury, for breach of the covenant of good faith and fair dealing in insurance contracts, for wrongful discharge in violation of fundamental public policy, or where the contract was fraudulently induced.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551‐552, italics added.) “In each of these cases, the duty that gives rise to tort liability is either comp...

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed ...

Excerpt: ...cient to invalidate the agreement. Procedural background as to this motion: This matter was originally heard on 9‐24‐20. Prior to the hearing, the court issued its tentative ruling to deny the motion based on Defendants' failure to meet their burden by the preponderance of the evidence that the electronic signature was the Page 4 of 7 “the act of” Plaintiff. At the hearing, the court granted defense counsel's request for a continuance to ...

Excerpt: ... action. The burden therefore was shifted on Plaintiff to show that a triable issue of one or more material facts exists as to the defense, but Plaintiff has not met her burden. FACTUAL / PROCEDURAL CONTEXT Plaintiff has brought the instant action against the County for the release of her medical records to a third‐party settlement adjustor in violation of HIPAA, alleging the causes of action for (1) Breach of HIPAA Violation and (2) Intentiona...

Excerpt: ...tled. The Court denies the motion and the request by Plaintiffs for sanctions. An attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied certification as to its legal and factual merit, and a violation of this implied certification subjects the attorney and/or party to sanctions. (Code Civ. Proc., §128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code C...

Excerpt: ...e motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice. CCP §452 provides that “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” If the motion for judgment on the pleadings is granted, it may be...

Excerpt: ... (2008) 162 Cal. App. 4th 68, 82, fn 8.) Motion for Judgment on the Pleadings: A defendant may move for judgment on the pleadings if the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Code §438(c)(1)(b)(i) and (ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, ...

Excerpt: ...f identifying class members. (Sotelo v. Medianews Group Inc. (2012) 207 Cal.App.4th 639, 648). To establish that a proposed class is ascertainable, the class definition must be precise, objective and presently ascertainable. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858). “Class certification is properly denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no ...

Excerpt: ...le because its adoption violated the CC&Rs, including but not limited to Paragraphs 3.15, 9.05(a)(4)(E) and/or 15.02 of those CC& Rs; 2. An injunction prohibiting Defendants and their agents, employees and/or anyone acting on their behalf, from enforcing Rule 6 and from enforcing any similar restriction and/or limitation on short‐term leasing and/or renting within the Development that has not been duly adopted as an amendment to the CC&Rs pursu...