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: ...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: ...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: ...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: ...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: ...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: ... (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: ...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: ...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: ...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: ... 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: ...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: ...h 556, 569 [only relevant material may be noticed].) Respondent's Request for Judicial Notice is granted pursuant to Evidence Code § 452(b). RLAFCO is a quasi‐legislative body [Sierra Club, supra, 21 Cal.4th at 495; Southcott v. JulianCuyamaca Fire Protection Dist. (2019) 32 Cal.App.5th 1020, 1026], and judicial notice of the Certificate of Termination is appropriate under Evidence Code § 452(b). The Administrative Record (“AR”) consists ...

Excerpt: ...rata re: supplemental points and authorities. The court sustains Plaintiff's objections to the declaration of Mark S. Algorri. Defendant moves to set aside the default based on extrinsic fraud. The court should grant such relief only under extraordinary circumstances. (Rappleyea v. Campbell (19974) 8 Cal.4th 976, 981–982.) The court finds no extraordinary circumstances here. Extrinsic fraud occurs when something or someone deprives a party of p...

Excerpt: ..., resulting in over 1 million dollars in damages. CVWD brings this Motion for Summary Judgment/Adjudication, arguing that an express written release, executed by the County in favor of CVWD, operates as a complete defense to County's claims against CVWD. County argues that the hold harmless clause at issue is conditional on CVWD consulting with the County prior to the work on the channel being performed and that no consultation took place. Paragr...

Excerpt: ...in Violation of Public Policy (Cal. Gov. Code § 12940, Et Seq.); 5. Failure to Prevent Harassment And Retaliation (Cal. Gov. Code 12940, Et Seq.); 6. Disparate Treatment (Cal.Gov. Code §12940, Et Seq.); 7. Intentional Infliction of Emotional Distress; 8. Negligent Infliction Of Emotional Distress; 9. Sexual Battery; 10. Sexual Assault; 11. Negligent Hiring, Supervision, Or Retention of Employee; 12. Failure to Provide Personnel File (Cal. Gov. ...

Excerpt: ...ally, a court may take judicial notice of the fact of a document's recordation, the date it was recorded and executed, the parties to the transaction and the legally operative language as long as there is no genuine dispute regarding the document's authenticity. (Scott v. JP Morgan Chase Bank (2013) 214 Cal. App. 4th 743, 755.) The court may take judicial notice of the legal effect of a recorded document. (Poseidon Development v. Woodland Lane Es...

Excerpt: ...f $313.74 is denied. Plaintiff's Request for Judicial Notice Nos. 1‐15 is granted to the extent these records exist as part of a court record or file. They are not accepted as true matters which are inadmissible hearsay (unless the matters are indisputably true). (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) FCA's Request for Judicial Notice Exs. E, F & H is granted to the extent these records exist as part of a cour...

Excerpt: ... are legal questions for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465.) In general, a person has no duty to control the conduct of another, unless “the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.” (Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 435.) Generally, there is no duty to...

Excerpt: ...tiff's allegations do not amount to the type of egregious conduct to meet the standard for “neglect” under the Elder Abuse Act. Plaintiff lists various conduct which Defendants' committed “recklessly.” (Complaint, ¶15.) However, WIC section 15657.2 requires specific allegations of recklessness as to how Defendants' acts involved more than mere inadvertence or incompetence, but rises to the level of conscious choice of a course of action ...