Excerpt: .... There are triable issues of fact as to all causes of action and issues. See Plaintiff's Separate Statement. Defendant has not met his burden to show he owed no duty to the decedent under all the circumstances presented which may include recommending the number and type of lifeguards for a possibly district student function. . (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747.) Further, there are material questions of fact reg...

Excerpt: ... crossdefendant in the ULMAN's cross‐complaint for Indemnity and Declaratory Relief, and thus has a stake in the outcome of this motion: if MAGNON would obtain judgment against plaintiff's claims, then POLYMER would have more exposure to liability in the ULMAN's Cross‐Complaint. Just because plaintiff chose not to oppose the motion does not mean that POLYMER must sit silently and allow MAGNON to obtain a judgment that will prevent POLYMER fro...

Excerpt: ...otion to include a copy of the proposed complaint in intervention. (§ 387, subd. (c).) Although the moving (and opposing) papers are voluminous, it does not appear that they include a copy of the proposed complaint in intervention. ...

Excerpt: ... was corrected and clarified. (Dec.Dossey, ¶21, Exs. Page 3 of 3 “12”, “13”.) The parties have engaged in extensive meet and confer efforts, which led to Plaintiff correcting its responses. No discovery abuse has been established. As to the sanctions for Plaintiff's erroneous responses to RFAs. The statute contemplates having to prove the truth at trial, or in a dispositive motion for summary judgment. Neither situation has occurred here...

Excerpt: ...mmary judgment as a matter of law. For the following reasons, the motion is denied: Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code 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 est...

Excerpt: ...l amount of reduction is $4,607.15. Mr. Camarena's memorandum of costs was filed one day late. However, the Court exercises is broad discretion to allow relief from the late filed memorandum of costs because there is no showing of prejudice to Mr. Conkwright. (Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485.) Filing Fees: The motion is denied as to these costs. Service of Process Costs: The motion is granted as to these costs o...

Excerpt: ...of fact. Dr. Auerbach has submitted substantial evidence that he performed no dental work on plaintiff personally and never supervised or reviewed any such work and never met the plaintiff. The moving parties have submitted evidence that all work was performed by independent contractors who were licensed dentists. No evidence has been submitted that would make the corporation liable for the work of the independent contractors. Plaintiff has not s...

Excerpt: ...here is no genuine dispute regarding the document's authenticity.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (overturned on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 n. 130). 1st & 2nd Causes of Action – Violation of 15 USC §1692f(6) & 15 USC 1692 et seq: California has determined that engaging in activities leading to a foreclosure do not constitute debt collection. (Fonte...

Excerpt: ...e entitled to attorney's fees, but argue that the amount requested is unreasonable. Daniel Kessler indicates that 2,757.14 hours were spent on this litigation by his firm of Burkhalter Kessler Clement and George (BKCG) for a total of $1,081,788.60, with an average hourly billing rate of $392.36. (Decl. of Kessler, ¶28, p. 19.) He states that his hourly billing rate throughout the year of litigation ranged from $495 to $545, while the hourly rate...

Excerpt: ...applies to all of the causes of action in this case. They concede that the LLC was the prevailing party and are entitled to reasonable attorney fees. There is no dispute that under Code of Civil Procedure Section 1032 and Civil Code Section1717 that the prevailing party on a contract shall be entitled to attorney fees. The Van Loons contend that the amount of attorney's fees requested is unreasonable because the majority of the work was performed...

Excerpt: ...llege a demand or other facts showing futility. To reiterate, derivative actions are equitable. From an equitable standpoint it must be asked whether there is some reason that, if the allegations are true, Tortoris should be allowed to avoid liability for allegedly stealing $1,600 from Carpet Depot? The answer is maybe because the State has an interest in collecting its Franchise taxes. What the court must balance is the State's interest in colle...

Excerpt: ... in the OBGYN department. Finally, Plaintiff alleges that Parkview attempted to discourage her from making the complaint and once she made it, Dr. Nurick (Vice Chief of all Medical Staff) trivialized her complaint suggesting Plaintiff was just not used to the interactions. These allegations are sufficient at the pleading stage. Plaintiff alleges facts supporting a claim for punitive damages based on the allegation of sexual harassment by Salazar....

Excerpt: ..., Dean and Simone Walsh, owned the vacation home where Riley and Jack were staying as guests of the Walshes with co‐defendants Kehly and Lance Sloan. (¶¶ 7‐11.) (Although the SAC also names Chad and Jeanie McQueen as codefendants, they have now been dismissed.) As to the Walshes, Plaintiff alleges that: (1) they negligently stored and secured a modified golf cart that they owned, despite knowledge that children would be staying at their hom...

Excerpt: ...s former resident Patricia Jenkins.” Answer, p. 2, ln. 10‐12. Defendant concedes that the failure to obtain an admission agreement is a violation and states that “t]his factual admission alone forms the basis for Defendant's violation of section 1430(b).” Answer, p. 2, ln. 17‐18. Beyond that, defendant does not admit and denies all other allegations of the complaint. The violation that Ramona has admitted to—not obtaining an admission...

Excerpt: ...ailed to challenge the detailed time records and invoices, the declarations submitted, and the hourly rates based on experience. Civil Code §1717 contains both an entitlement clause (prevailing party) and a discretionary clause (the court can determine there is no prevailing party). (De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1292.) “A simple unqualified win (on a contract, of course) takes a case out of the discretion clause and puts...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐ 12‐18. ...

Excerpt: ...fore considering the matter on the merits. It is noted that on February 20, 2018, this court granted Mission and Chin's motion to compel arbitration pursuant to an arbitration provision in the Employment Agreement. “The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fac...

Excerpt: ...111, 131. If an item is not expressly allowed under the statute, the burden is on the party seeking said expense to provide evidence that the fees are reasonable or necessary. Id. at 132. Filing Fees: Defendant seeks first appearance fees incurred by it and J. Velarde, Inc. However, everyone agrees that J. Velarde, Inc. waived its right to costs. Defendant argues that it should still is entitled to these costs because it paid for these fees on J....

Excerpt: ...of Parke, ¶3.) The POS clearly shows that Parke was not personally served. Dayn Holstrom indicates that he is the designated agent for service of process for Holstrom, which is a professional law corporation. (Decl. of Holstrom, ¶1 and 2.) He states that Ms. Leon is not the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller ...

Excerpt: ...eviewing a disqualification motion, the court balances competing interests to ensure the parties are not denied substantial justice. (People ex rel. Dept. of Corps. v. Page 7 of 8 SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144‐1145.) “Depending on the circumstances, ‘a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial b...

Excerpt: ...n particular, Defendant produced evidence it was contractually limited in providing HAMP relief to Plaintiffs. The burden shifted to Plaintiffs, but Plaintiffs failed to produce sufficient evidence showing a triable issue of fact. 3rd cause of action (Issue No. 4): DENIED. Defendant met its initial burden that it did not breach any duty of care; however, Plaintiffs produced sufficient evidence showing a triable issue of fact as to whether Defenda...

Excerpt: ...leging 4 causes of action for: 1) Fraud, 2) Negligent Misrepresentation, 3) UCL Violation, and 4) Breach of Contract. Defendants demurred to all four causes of action. This court on 1/8/18 sustained with leave to amend as to all four causes of action. On 2/7/18, Roseian filed its First Amended Complaint (“FAC”) alleging the same four causes of action. Defendants once again demur to all causes of action. 1 st Cause of Action for Fraud (Intenti...

Excerpt: ...unities, Inc. Brookdale Senior Living, Inc. and Brookdale Rancho Mirage during which time he was defined as an “elder” under the Welfare and Institutions Code sections 15610.23 and 15610.27. During the time he resided at their facility they failed to ensure there were the necessary number of adequately trained staff on duty at all times and failed to care for him in a non‐reckless manner. That the actions committed by Defendants were ratifi...

Excerpt: ... is that the parties entered into a commercial lease for Cross‐Complainant's medical practice for the operation of a sleep center to assist patients with sleeping disorders. That Defendant Dr. Vuthoori breached Dr. Holt's quiet use and enjoyment of Page 2 of 3 the premises by continuously entering without an appointment or notice, constantly knocked on windows and doors, demanded frequent meets, threatened to “take care” of Dr. Holt, chased...

Excerpt: ...inez), O'Reilly Auto Parts, and O'Reilly Auto Enterprises, LLC. Moving party Cross‐ defendants have no authority to represent the interests of O'Reilly or Martinez. ...