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...

Excerpt: ...s, which includes injunctive relief, monetary damages, and in certain circumstances, exemplary damages and attorneys' fees. Civil Code §§ 3426.1‐3426.4. The UTSA preempts common law claims for misappropriation, this includes causes of action for conversion and negligence. K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 955. Common law claims that are “based on the same nucleus of facts as t...

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 ...

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: ...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: ...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: ...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: ..., 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: ...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: ...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: ...une 1, 2020, against defendants Yvonne D'Sylva, M.D. Yvonne D'Sylva, M.D., Inc. (together, “Dr. D'Sylva”), Elena B. Jackson, M.D. (“Dr. Jackson”), State of California (Department of Health Care Services), California Department of Health and Human Services (together, the “State”) and Inland Empire Health Plan (“IEHP”). Plaintiffs are the parents of the decedent child, Natalie Franchini (“Natalie”), who was born on June 1, 2015....

Excerpt: ...Para. 13), amounts to a judicial admission that cannot now be contradicted. When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee's activities, a “special employment relationship” arises between the borrowing employer and the employee. Caso v. Nimrod Productions, Inc. (2008) 163 Cal. App. 4th 881, 888. If a special employment relationship exists, the employee ...

Excerpt: ...ithout leave to amend unless Plaintiff requests oral argument and can articulate at the hearing how she can cure the defects described below. With respect to leave to amend, the Court notes that on 11/5/20, the Court sustained Urban Park's demurrer and granted 60 days leave to amend. The District's demurrer and motion to strike was originally scheduled to be hear on December 1, 2020, but because the Opposition was not filed the Court continued bo...

Excerpt: ... Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1280‐1281, fn. 11. The evidence provided by Defendants appears to indicate that the agreement is a contract of adhesion. Quest's Senior Director of Human Resource Business Partner states that as part of the new hire paperwork for all, all new hires are given the arbitration agreement to sign. The arbitration agreement has no opt out provision. As such, it appears that all new hires...

Excerpt: ...o as Exhibit 43,” and, if so, the dosage, method of administration, and who administered the drug. Defendant responded by objecting because the “interrogatory does not include ‘Exhibit 43'. The document speaks for itself. Plaintiffs correctly argue that neither objection is well‐ taken. First, the interrogatories each sought information from defendant as to whether a particular drug was administered and a reference to Exhibit 43 must be s...

Excerpt: ...ct or omission of the public entity or a public employee or any other person.” (Gov. Code § 815.) Thus, the complaint must specifically identify the statutory basis for liability against a public entity, including citing the statute. (Gov. C. § 815; Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) Since all liability under the Act is statutory, each tort cause of action must be specifically alleged and every element of...

Excerpt: ...d Complaint (“SAC”) and the City of Beaumont's Second Amended Cross‐Complaint (“SAXC”) are SUSTAINED WITH 20 DAYS LEAVE TO AMEND. Defendants' Request for Judicial Notice is granted as to the existence of the pleadings, but not as to the truth of the contents. Request for Judicial Notice Defendants' Request for Judicial Notice is granted as to the existence of the pleadings but, not as to the truth of the contents. (Evidence Code §452(d...

Excerpt: ...against both Armcon and Fernandez, again for breach of a settlement agreement. Polanco then moved for and the court entered an order allowing Polanco to file a Second Amended Complaint. The SAC was again brought against Armcon and Fernandez. However, the cause of action asserted in the SAC changed to specific performance of a contract to convey real property. The parties then stipulated to Polanco filing the instant Third Amended Complaint agains...