Excerpt: ...rd Amended Complaint (“TAC”) for (1) negligence, (2) elder abuse (Hanson), (3) negligence/willful misconduct and (4) elder abuse (Senior Care) is based upon allegations that Defendants (“Ds”), a company providing home care services to Plaintiff (“P”) and its employee Kaylen Hansen, failed to provide P safe home care and allowed P, who need assistance to walk because he was a “fall risk”, to go to the bathroom by himself, and that ...

Excerpt: ...ore, the problem is that these Defendants were not part of the first suit. “Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.' [Citation.] A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.'” (People ex rel. Garamendi v. A...

Excerpt: ...x. Q and R), and the amended bankruptcy schedule (Ex. U). All the remaining documents are irrelevant. Plea in Abatement: For plea in abatement, it may be made when there is another action pending between the same parties on the same cause of action. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) Plea of abatement requires “absolute identity of the parties.” (Id. at 788.) In addition, the causes of action must be th...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ...169; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 747.) The failure to label the second cause of action as one for “professional negligence” does not render the Complaint uncertain. Demurring Defendants can reasonably determine what issues must be admitted or denied and what claims are directed against them. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) ...

Excerpt: ....” (Vournas v. Fidelity National Title Insurance (1999) 73 Cal. App. 4th 668, 677.) “The scope and nature of the trustee's duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist.” (Kachlon v. Markowitz (2008) 168 Cal. App. 4th 316, 335.) The trustee acts at the direction of the original beneficiary or its assignee or that entity's agent. (Yvanova v. New Century Mortgage Corp....

Excerpt: ...ivil Procedure section 1019.5, forthwith. Defendant Duke Partners, LLC filed an Answer to the Second Amended Complaint (“SAC”) setting forth 12 affirmative defenses (“a/ds”). The demurrer is based upon the grounds each a/d fails to state a defense and is uncertain. For the following reasons, the demurrer is overruled as to the 1 st and 5th affirmative defenses; sustained with leave thirty (30) days to amend as to the 2nd through 4th affir...

Excerpt: ...s to orders, findings of action and judgments. (Ramsden v. Western Union (1977) 71 CA3d 873, 879. 2 nd Cause of Action for Breach of Lease: To state a cause of action for breach of contract, a party must establish: (1) the existence of a contract; (2) the party's performance or excuse of nonperformance; (3) the opposing party's breach; and (4) resulting damages. (Oasis West Realty v. Goldman (2011) 51 Cal. 4th 811, 822.) A contract will be enforc...

Excerpt: ....) Fourth Cause of Action (Declaratory Relief): A claim for declaratory relief requires a present controversy between the parties. None of the allegations in the First Amended Complaint challenge the validity of the Deed of Trust in favor of CommerceWest or state a basis for avoiding the Deed of Trust. Additionally, plaintiff Janaco cites no agreement or basis for the Court to substitute Janaco in place of defendant ZXCR as the obligor on the loa...

Excerpt: ...pts to obtain preliminary approval. It appears the time spent preparing client for deposition may be excessive. The Court cannot determine how much time was spent for that activity because it is lumped in with time in connection with the mediation process. The Court requires further information on this activity. Additionally, counsel has not adequately explained why a 1.9 multiplier is reasonable. The Court needs further, more detailed informatio...

Excerpt: .... The motion appears to be plaintiff's opposition to the motion for judgment on the pleadings. Even if consideration could be made of the motion, it does not contain a request for reconsideration of the ruling of December 8, 2017 under CCP 1008 nor does it seek a set a set aside of the ruling under CCP 473. ...

Excerpt: ... 26, 2018. Defendants are ordered to meet and confer with Plaintiffs for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the motion. As part of the meet and confer process, Defendants shall identify the specific cause of action that they believe is subject to the motion and identify with legal support the basis of the deficiencies. Plaintiffs shall provide legal support for their position...

Excerpt: ... of the “recovery by the average class member” if the settlement is approved, as required by Section E.1.c, or the estimated high and low range, in the event that recovery varies, which it does. Similarly, the notice to class members provides no such information. (E.19) There is no statement from plaintiffs' attorney in compliance with section E.1.d. There is a declaration from defense counsel but it fails to state that counsel made a “reas...

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Excerpt: ...er Responses are GRANTED. Defendant Alfa Business filed timely Motions to Compel Further Responses. Hence, the burden was on Plaintiffs to justify the objections they asserted to the subject Form Interrogatories, Special Interrogatories, Requests for Admission, and Requests for Production and/or to justify their failure fully to respond to the discovery. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220 ‐ 221.) Plaintiffs did not satisfy that...

Excerpt: ...the owners and property managers of the mobile home park where plaintiff resides, from enforcing liens based upon fines levied against Plaintiff for alleged construction on his space in violation of park rules and city ordinances. Essentially, Plaintiff claimed that he had a medical need to enclose his car port and that the park's actions constituted illegal disability discrimination/harassment. On 02/14/2013, Plaintiff filed his First Amended Co...

Excerpt: ...hat Mr. Perry has requested that the invoice be kept confidential. However, no evidence has been provided by Mr. Perry or the settlement administrator. There is no evidence supporting the assertion that this is proprietary information. Additionally, this information has already been made public. In connection with the motion for preliminary approval, a summary of costs was provided (this document was attached to Alan Vasquez's declaration). It in...

Excerpt: ...te he signed the May 2017 arbitration agreement or that an arbitration agreement exists between the parties. Plaintiff argues that the agreement is unenforceable. Both parties agree that the FAA applies to this case. The Federal Arbitration Act (FAA) (9 U.S.C. §§1 et seq.) generally governs arbitration in written contracts involving interstate commerce and authorizes enforcement of arbitration clauses unless grounds exist in law or equity for t...

Excerpt: ...473, subdivision (b) [6 months], subdivision (d) (2 years), or section 473.5 [2 years]. ...

Excerpt: ...tion 425.16(e)(1)(2)(4) because the Complaint concerns an underlying action between the parties, Hudack v. Siggard, et al., Riverside Superior Court Case No. RIC 450529. Plaintiff fails to meet his burden on the second prong of the analysis. Plaintiff presents no admissible evidence or argument that he has a reasonable probability of prevailing on his contention that the Judgment in Hudack v. Siggard, et al., is void despite the finality of the j...

Excerpt: ... Declaration. There is no indication that District Attorney Hestrin possesses personal knowledge related to any events or issues raised in the Complaint. Any information regarding the criminal investigation which is the subject of the Motion to Quash, including the interview by Detective David Smith of Defendant Rosie Quintana on or about December 11, 2016, is protected and beyond the scope of discovery. (Cal. Code Civ. Pro. § 1987.1(a); 2017.01...

Excerpt: ...guments relied on, and a discussion of the statutes, cases and textbooks cited in support of the position advanced.” ([CRC 3.1113(b); see Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934—trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”) ...

Excerpt: ...oration. If true, how can that entity have a current address, as represented in the motion? And why should the Court believe that a dissolved corporation has an account manager, as claimed in the proof of service? The declaration and the proposed order both state that the case is stayed. That is true as to the prosecution of the case against Skypatrol, LLC, in light of the bankruptcy petition filed by Skypatrol in December of 2017. What is the ba...

Excerpt: ...fendants are named on each cause of action. Each cause of action (or affirmative defense) should be separately stated, must be separately numbered, and must identify the parties asserting the claim and against whom it is asserted. CRC, rule 2.112. Thus, each separately stated cause of action should state: — its number (e.g., “FIRST CAUSE OF ACTION”); — the party asserting it if the complaint is filed on behalf of more than one plaintiff (...

Excerpt: ...nd in Flatley v. Mauro (2006) 39 Cal.4th 299 and its progeny. These cases have not required the exchange of money for the COA of Extortion. IIED: The extortion facts presented are sufficient to support this cause of action as well. Litigation Privilege: This is not applicable when the communication is not made in good faith. Here, Defendants threatened to report Plaintiff to the IRS and seek administrative and/or criminal penalties unless he succ...