Excerpt: ...uest for judicial notice. The court sustains Plaintiff's evidentiary objection to Exhibit B of Daniel Hakhamzadeh's Declaration. Because the exhibit is an uncertified transcript, it cannot be cited. (Code Civ. Proc., § 2025.540, subd. (b).) The court sustains Plaintiff's evidentiary objections as to personal knowledge, foundation, and hearsay as to paragraphs 5, 7, 8, 9, and 10 of Robert E. Presby's Declaration. Presby declares that he maintains...

Excerpt: ...for 42 days during repairs before being returned to Plaintiff. All warranty periods on goods selling for $50 or more are tolled, from the date the buyer delivers the goods for warranty repairs or notifies the manufacturer or seller of their nonconformity until the date the repaired or serviced goods are returned or made available to the buyer. (Civ. Code, §1795.6(a).) This means each time the vehicle was kept at the repair facility for service, ...

Excerpt: ...tion 916 and the actions are barred by the statute of limitations under Civil Code section 896. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code of 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 established or that...

Excerpt: ...of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . . If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.” A stay must be granted “where a court of competent jurisdiction (in California or elsewhere) has already ordered arbitratio...

Excerpt: ...al neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) A claim of “neglect” by a person having the “care or custody” of an elder under the Act requires a caretaking or custodial relationship where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able‐bodied and fully competent adult would ordinarily be capable of managing without assistance, wh...

Excerpt: ...lic college). Further, plaintiff has failed to allege a statute upon which defendant's liability, if any, is based. This is also a well‐established requirement under California law, both statutory and decisional. (Gov. Code, § 815; Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) Finally, plaintiff has failed to allege facts sufficient to sustain a ...

Excerpt: ...in Department PS2. Plaintiff has failed to establish a right to a “new trial” on any basis asserted. Page 5 of 6 Plaintiff moves the court to vacate the judgment entered on December 8, 2020 after granting Defendant Proper Solutions' Motion for Summary Judgment on the grounds that the court's ruling was not supported by the law and evidence in this case. Specifically, Plaintiff alleges that the court erred 1) by finding that the declaration of...

Excerpt: ...iff/Cross‐Defendant CIP Indio, LLC. Kaval's SACC for (1) fraud‐Consent to Assignment, (2) fraud‐Business Purchase Agreement, (3) breach of contract, and (4) concealment is based on allegations that to have the lease assigned to him, Kaval had to fulfill several conditions, including the approval of his business plan focused on selling coffee, hot and cold sandwiches, and ice cream; that the Consent to Assignment, provided that Anderson and ...

Excerpt: ...on for conspiracy is sustained with 30 days leave to amend. The demurrer to the fifth cause of action for conversion is sustained with 30 days leave to amend. FACTUAL / PROCEDURAL CONTEXT This is a construction contract dispute. Plaintiff Binnquist Development Incorporated (plaintiff or Binnquist) alleges it is a general building contractor and that defendants Dennis French (French) and Rick Tarnutzer (Tarnutzer) were general partners in a genera...

Excerpt: ...aint. If the plaintiff does not agree to amend, the defendant shall file either an answer or a new demurrer no later than February 25, 2021. If the defendant fails to file either responsive pleading by that date, the plaintiff shall request entry of default promptly thereafter. The case management conference scheduled for 2‐4‐21 has been continued to 4‐5‐21. Analysis: “Before filing a demurrer . . . the demurring party shall meet and co...

Excerpt: ...wer plant located in Riverside County, California, when gas turbine technician Daniel Collins was killed after he was struck by a fuel filter cover that blew off the equipment he was working on. Plaintiffs Denise and Christopher Collins, Mr. Collins' widow and son, filed this lawsuit asserting, among other claims against various defendants, that moving Defendant Gemma, the contractor hired by Defendant CPV Sentinel Energy Center, LLC to build the...

Excerpt: ...imely filed but are deemed deficient by the requesting party (e.g., the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general), that party may file a motion compelling further responses. (CCP § 2031.310.) The motion to compel further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1); Kirkland v. Superior...

Excerpt: ...fered damages totaling $36,066.31. (Comp. ¶6.) Defendant Maradiaga was the registered owner of the car Mendoza was driving at the time of the accident. (Ibid.) Plaintiff brought this subrogation action against both defendants. Here is a summary of the relevant events: • December 5, 2013: Summons and Complaint filed. • January 20, 2014: Defendant Maradiaga served by substituted at 14541 Hartland St., Apt. 6, Van Nuys, CA 91405. • January 21...

Excerpt: ...promotion he was transferred to the Colorado River Station in Blythe/Blythe Jail until October, 2012. It is noted that in July, 2012 he was also assigned as interim Captain of Thermal Station until another captain took over Blythe. He continued as Captain of the Thermal Station, serving as its sole commander and highest ranking officer for several years. His duties included overseeing approximately 170 employees, planning, assigning, directing an...

Excerpt: ...y to an agreement to arbitrate, the court must grant a petition to compel arbitration unless it finds: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel...

Excerpt: ...Robinson Helicopter Co. Dana Corp. (2004) 34 Cal.4th 979.) However, Defendants have met their burden to produce evidence showing that Plaintiff cannot establish certain elements of fraud: Defendant's misrepresentation and Plaintiff's reliance. Consequently, Plaintiff cannot demonstrate that she is entitled to an award of punitive damages by clear and convincing evidence. Plaintiff fails to meet the shifted burden to produce evidence showing a tri...

Excerpt: ...ent of plaintiff's cause of action, specifically negligence and causation. The defendant fails to do so, because at least five of the facts he claims to be undisputed are not supported by the evidence on which he relies. SSUF#1: The defendant contends that the plaintiff filed a first amended complaint on 7‐9‐ 19. That assertion is disputed by the plaintiff and is not supported by Exhibit A to the Trobough declaration, the evidence cited by th...

Excerpt: ...late claim can be made, but it must be submitted no later than one year after the accrual of the cause of action. Government Code § 911.4(b). “In actions for damages against local public entities, the claims statues require timely filing of a proper claim as condition precedent to the maintenance of the action. Compliance with the claims statutes is mandatory; and failure to file a claim is fatal to the cause of action. City of San Jose Superi...

Excerpt: ...driving east on Hazel Drive, when Defendant Sergeant Michael Koehler caused an accident. Thereafter, another officer from another vehicle ordered Plaintiff out of his car, was handcuffed and sat on the curb while officers searched his vehicle. His top clothing was removed to reveal any tattoos he might have, and later placed inside a Sheriff's vehicle where he was interrogated about a suspect the officers were looking for. He was detained for an ...

Excerpt: ... work commenced on February 11, 2016. On March 12, 2016, the loan which was secured by the Project was recorded. Plaintiff alleges that the Project was nearly complete when Harris stopped paying Plaintiff, after which Plaintiff Page 9 of 11 ceased further work. On March 21, 2019, Plaintiff recorded two mechanic's lien (“Liens”) against the Project for $428,485 and $517,935. On February 3, 2020, Plaintiff filed the Complaint. After meeting and...

Excerpt: ...ion “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Civ. Code, § 1793.2, subd. (a)(3).) Page 3 of 3 The plaintiffs allege a violation of that section in their Third Cause of Action, but allege...

Excerpt: ...any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records disclose an absolute defense to the action or deficiency in the complaint, the...

Excerpt: ...NTEXT Plaintiff Clayton Blood (“Plaintiff”) contends that he was a guest of defendant Hyatt Place Riverside/Downtown. During his stay, he was attacked in the lobby by two other guests – Anthony Mora and Gilbert McGuire. Plaintiff asserts claims against Anthony Mora, Gilbert McGuire, Hyatt Place Riverside/Downtown, and Rui Xin, LLC (“Rui Xin”). His complaint asserts the following causes of action: (1) assault and battery, (2) negligence,...

Excerpt: ... costs. This language does not equate to a promise to pay attorney's fees and costs on all claims as Plaintiff alleges. Rather, the language clarifies that the amount offered was not inclusive of any statutory attorney's fees that Plaintiff might be entitled to if determined to be a prevailing party. The cases cited by Plaintiff do not say otherwise. Prevailing Party CCP §1032(b) provides that “Except as otherwise expressly provided by statute...

Excerpt: ...ction 425.16, subdivision (c), subsection (1), the court must award Plaintiff attorney fees if the court finds that Defendants' anti‐SLAPP motion was frivolous. If any reasonable attorney would agree that a motion is meritless, the motion is frivolous. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore).) One key consideration is whether the moving party failed to meet thee threshold burden of establishing that the challenged causes of actio...

Excerpt: ...in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” To consider those fact...

Excerpt: ...Avenue owns the adjacent development parcel. On 10/12/16, BH Avenue and Defendant Chick‐Fil‐A entered into a lease. On 2/2/18, Plaintiffs entered into a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements to govern the development, subdivision, etc. of the property; Defendant is identified as an intended third party beneficiary. The Declaration provides for non‐exclusive perpetual easements appurtenant. BH Central wo...

Excerpt: ...to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where the defendant is guilty of malice, oppression or fraud. “‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried o...

Excerpt: ...o was employed by Casco Equipment, negligently drove his vehicle into Plaintiffs causing injuries. With respect to punitive damages, Plaintiffs alleged that Defendant Christian was intoxicated after having consumed great quantities of alcohol and that he knew that he would be driving shortly thereafter. It further alleges that Casco was aware that Christian driving in this condition would probably result in great bodily harm or death to another p...

Excerpt: ...s purpose, because it ‘would impose a barrier on such actions that the state law enforcement agency does not fact when it litigates those cases itself.” (See also, Jordan v. NCI Group, Inc. (C.D. Cal., Mar. 22, 2017, No. EDCV161701JVSSPX) 2017 WL 1821122, at *3‐4.) [“[T]o hold a PAGA action cannot be maintained because individual assessments regarding whether a violation occurred would make the claim unmanageable at trial would obliterate...

Excerpt: ... seeking to establish that there is no ostensible agency, it relies upon evidence that it informed the plaintiff upon admission to the hospital that the doctors there are independent contractors. The hospital claims that its notice conclusively establishes the lack of ostensible authority. That argument fails. To establish ostensible agency, only two elements need be proven. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 144...

Excerpt: ...d tending to render the judgment ineffectual. Plaintiff asserts that CCP §731 expressly authorizes an injunction when a person's property is injuriously affected or personal enjoyment is lessened by a nuisance as defined in Civ. Code §3479. However, this motion is for a preliminary injunction, not a permanent injunction. As such these provisions have no application to the ruling on this motion. “[A]n injunction is prohibitory if it requires a...

Excerpt: ...rol, including documents from their banking accounts and/or held by banks or other institution under their control, but were not produced as of the date of this order, although this bar does not apply to documents held by third parties, including Yvonne Moore. Denied as to Evidence Sanction No. 2, issue and monetary sanctions. The Estate of Marsh seeks terminating sanctions, or in the alternative, evidence, issue and monetary sanctions against Pl...

Excerpt: ...urt does not lack jurisdiction. #2 Zazueta asserts that the FAC fails to allege facts sufficient to constitute a cause of action against a different defendant, the Zazueta Trust. Zazueta, is not the trustee of that trust or otherwise adversely affected by the existence of allegations against that trust. The Court is not aware of any authority for the proposition that one defendant may challenge the sufficiency of the allegations of a different de...

Excerpt: ...ree causes of action in the Third Amended Complaint, for breach of oral contract, promissory estoppel, and constructive trust. Aside from arguing that these causes of action are insufficiently pleaded, Wiese argues that the oral promises at the heart of the pleadings are covered by the statute of frauds and are, on their face, barred by the applicable statute of limitations. The Court agrees. It also finds that the new set of promises alleged in ...

Excerpt: ... cause of action on the grounds that they fail to state facts sufficient. For the warranty claims, it argues Plaintiffs have not pled the contract terms. For the concealment claim, it argues it is not pled with specificity as there are no allegations as to knowledge as to this specific car. There are no allegations that he saw any brochures, and there is no duty to disclose. It argues the economic loss rule applies. Plaintiffs contend that this i...

Excerpt: ...s hired by defendant Desert Community College District (“Defendant” or “District”) at the College of the Desert (the “College') in 2016 as an assistant professor in the physics department. (Second Amended Complaint filed on 11/20/20 (“SAC”), ¶ 13.) He was the first African‐ American in the history of the department. (FAC, ¶ 13.) Soon after he started, Plaintiff disagreed with Dean Tabor on her assessment of his performance. Plai...

Excerpt: ...anguage.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that Page 4 of 5 might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his claims.” (D...

Excerpt: ... of 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 established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts ...

Excerpt: ...make no mention of that. If parties intend to pursue release of FLSA claim, provide authority that the act of cashing a check is sufficient to conclude that the person opted in, particularly where there is no FLSA claim actually alleged. There is no definition of workweek or qualifying workweek. Does it include partial weeks? Counsel's declaration regarding the value of each claim if successful at trial and the reasonable likely recovery for each...

Excerpt: ...nd produce the documents within 30 days of the date of this order. Defendant is ordered to pay Plaintiff sanctions in the amount of $4620 as to both motions, which amount the court finds reasonable. The discovery at issue was served on Defendant Rockport on 7‐27‐ 20. On 8‐28‐20, Rockport served objection‐only responses to this discovery. Plaintiff asserts that, to date, Rockport has not provided any additional responses, including the r...

Excerpt: ..., or alternatively to, stay the pending action on the grounds a valid arbitration agreement (“Agreement”) exists between the parties, and Plaintiff's claims are of the type which are covered under the Agreement. In the Motion to Compel Arbitration (“Motion”), Defendant argues that Plaintiff agreed to arbitrate all claims asserted in the Complaint, and the agreement is enforceable both under the Federal Arbitration Act and California Law, ...

Excerpt: ...on for (1) Trade Libel, (2) Tortious Interference with Business Relations, and (4) Conspiracy. The Complaint alleges that Defendant Melissa Swauger along with her parents, moving Defendants Cathleen and Michael Marmon, harassed JLS and its clients, by discrediting JLS's director and sole shareholder Jonathan Swauger, who is Melissa Swauger's ex‐husband. According to JLS, this harassment ruined JLS's reputation and caused it to lose business. Mo...

Excerpt: ...ab the homes with loans from private investors, and sell the homes for profit. Plaintiff alleges that Justin Tye represented to their grandparents that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff alleges these representations were made t...

Excerpt: ...20. The notice is therefore untimely. Moreover, the notice of intention is deficient in that it fails to comply with the requirement that it state whether the motion “will be made upon affidavits or the minutes of the court, or both . . . .” (§ 659, subd. (a).) The memorandum in support of the motion is 22 pages long, and thus exceeds the maximum length of a memorandum in such a motion. (Cal. Rules of Court, rule. 3.1113(d).) On the merits, ...

Excerpt: ...urt to reconsider its ruling and reasoning in light of Malott under CCP section 1008(b). However, this matter is not like Malott. Petitioner did not fail to attend the public hearings held by Respondent, unlike Malott. Respondent held at least 8 hearings or meetings in which the issue was discussed and where Petitioner attended, presented evidence, had its representatives speak at each meeting, gave Power Point presentations at several meetings, ...

Excerpt: ... Memorandum of Points and Authorities is 32 pages long – more than double the allowable 15 pages under CRC 3.1113(d). A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late‐filed paper,” meaning the court in its discretion may refuse to consider it in ruling on the motion. (CRC 3.1113(g); CRC 3.1300(d).) The Court has exercised its discretion, and has read and considered the complete ...

Excerpt: ...not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667‐668.) Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Id. at 668, fn 12.) Plaintiffs allege they were present at the scene of the incident when their father/husband fell. They allege they were “simultaneously aware of Defendant's wrongdoing and negligence allowing [Rodriguez] to walk unassisted desp...

Excerpt: ...n ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his c...

Excerpt: ...constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the...

Excerpt: ...COMPLAINT FILED BY UNITED RENEWABLE ENERGY CO. LTD Tentative Ruling: The Court overrules all three demurrers in its entirety. Defendants to file answers within 20 days. FACTUAL / PROCEDURAL CONTEXT Plaintiff, United Renewable Energy Co., Ltd., alleges that it entered into a business relationship with Defendants, Sun Pioneer USA, Inc. (Sun Pioneer); Sunspark Technology, Inc. (Sunspark); and Steven Sun (Sun) in June of 2019. Plaintiff would issue w...

Excerpt: ...bute dietary supplements. In 2016, Tariq, Kahn, Defendant and Abdullah Kelker, who eventually transferred his shares to Tariq, executed a partnership agreement (“Agreement”) indicating the shares of Kelker owned by each partner and other rights and obligations of partnership, including involuntary separation. Kelker was not profitable through 2017, so Tariq loaned the business an additional $300,000. Because Kelker was unable to repay the loa...

Excerpt: ...ration of the analysis and recommendation on this Motion. Objections properly presented in compliance with CRC 3.1352, but not ruled on, are preserved for appeal. (CCP §437c(q); see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.) A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to tha...

Excerpt: ...endants have been evading service of the summons since the complaint was filed on June 1, 2020. On November 12, 2020, Plaintiff filed a proof of service showing defendant Alex Anders was personally served with the summons and complaint on November 7, 2020. Alex Anders now moves to quash the summons, arguing that the proof of service is false, and he was never served. Plaintiff opposes, arguing that the motion is untimely and that the facts show A...

Excerpt: ...if Defendant could not repair the defects or repurchase. (Complaint ¶30.) Defendant refused to repurchased but offered to extend the warranty if she would forgo making a Lemon Law Claim. (Id.) When Plaintiff returned the vehicle for repairs, Defendant refused to honor its promise and required her to pay for repairs. (Complaint ¶31.) She contends that Defendant is estopped from denying that the vehicle has defects rendering it unfit. (Id.) Here,...

Excerpt: ...ntional Interference with Prospective Economic Advantage, (3) Intentional Interference with Contractual Relations, (4) Unfair Business Practices, (5) Conversion and (6) Injunctive Relief. This action terminated in Cuevas‐Martinez' favor when the court granted his motion for summary judgement, essentially finding that SSS failed to present evidence to raise a triable issue of fact. Plaintiff has shown that there is a substantial probability that...

Excerpt: ...lied warranties and that the vehicle was negligently repaired. The complaint states the following causes of action: 1. Violation of Song‐Beverly Act—Breach of Express Warranty; 2. Violation of Song‐ Beverly Act—Breach of Implied Warranty; 3. Negligent Repair. On 2/21/20, defendants filed a motion to compel arbitration, set for 4/2/20. On 3/13/20, plaintiff filed an ex parte application to continue the hearing to conduct pre‐hearing disc...

Excerpt: ...e and Defendant and Cross‐Complainant Coachella Valley Association of Governments seek sanctions under CCP section 128.7 based upon Plaintiff's filing of its FAC. The FAC sets forth causes of action for: (1) breach of contract‐3rd party beneficiary, (2) Breach of contract, (3) violation of California Unfair Competition Law, (4) violation of California False Advertising Law, (5) cancellation of taxes and (6) declaratory relief. The central all...

Excerpt: ...ering sending only a shortform notice to class members and requiring class members to obtain a long‐form notice from the administrator. If the Court is satisfied there is a reason for only sending a short‐form notice, that notice must clearly advise the class members of any dates by which they must act, such as filing an objection or seeking exclusion. The Court doesn't understand why notice to be sent to class members needs to be in English ...

Excerpt: ...t parts not available are evidentiary facts which Plaintiffs ultimately need to demonstrate, but not at the pleading stage. 4COA (CC section 1791.2(a): The warranty need not be attached to the Complaint. “[I]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) 5COA (...

Excerpt: ...overruled as to the remaining causes of action. The defendant shall file and serve her answer within 10 days. The trial setting conference currently set for 6‐15‐21 is vacated. A case management conference shall be conducted on March 22, 2021. Page 3 of 5 Analysis: Because the plaintiff did not sign the declaration she filed on 1‐12‐21, it does not comply with Code of Civil Procedure section 2015.5. Accordingly, the Court does not conside...

Excerpt: ...re Overruled because the Declarant has provided the actual photographs of the scene. Defendants attack the causation element of a negligence claim (premises liability), which is the only cause of action asserted against these Defendants. The tragic accident occurred when Defendant Gall exited the Farmer Boys restaurant using the westerly exit, attempted to cross multiple lanes of westbound Van Buren, seeking to reach the left turn pocket on Van B...

Excerpt: ...nce Code§452(d) however, the Court does not judicially notice the truth of the findings. “[A]lthough the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Furthermore, only relevant evidence is admi...

Excerpt: ..., upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. A settlement in any action is a welcome resolution, because it is entered into voluntarily and not imposed on either party. Unfortunately, the present motion cannot be granted because there is no agreement on th...

Excerpt: ...hether a triable issue of fact exists. Moreover, sustaining defense objections based on the asserted grounds of lack of personal knowledge would necessarily require the court to weigh credibility. The court has considered all cases cited by the parties and admittedly the arguments of the defense are well presented, however, the arguments do not overcome the prohibition of a trial court's obligation to strictly construe the moving party's evidence...

Excerpt: ...ntiff was using the ladder to look at kitchen exhaust/range hoods on Aisle 40 in Department 29 of the Mira Loma Home Depot store, his foot slipped and he fell. Plaintiff then brought the instant action against Home Depot. On August 7, 2020, Plaintiff served Defendant with 48 Requests for Production of Documents, 49 Special Interrogatories, 21 Requests for Admission, and Form Interrogatories. Prior to the September 21, 2020 due date. Home Depot's ...

Excerpt: ...he vehicle, and based on that allegation, contends that she is a purchaser under the Song Beverly Act. No authority has been presented that states that she cannot pursue a claim on this basis. However, if this is the basis of her action against the defendants, she will also be bound by the arbitration provision in the purchase agreement. Generally, the rule is that a nonsignatory to an arbitration agreement cannot be compelled to arbitration. Cro...

Excerpt: ...l claim is that the Association Board violated the governing documents and breached its fiduciary duty when it jettisoned an existing common area deferred maintenance schedule in favor of completing repairs and deferred maintenance quickly, and that these repairs were paid for using proceeds from a substantial loan taken out on behalf of the Association. Plaintiffs assert that the loan was not properly approved, that the Board had an obligation t...

Excerpt: .... Generally, new evidence is not permitted with reply papers. It should only be allowed in the exceptional case, and only on the condition that the opposing party should be given the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) No exceptional circumstances are shown in the Biondi declaration. After weighing the likelihood that the defendant will prevail at trial and balancing the relative harm to be suffered...

Excerpt: ...one Velma Frothingham to Defendant Bartolini in March 2019, more than seven years after Frothingham's death. Bartolini sold the property to NCEM, which alleges in its CrossComplaint that Rivera negligently represented that Frothingham appeared before her and executed the Grant Deed, when she knew or should have known that Frothingham did not personally appear before her. The Cross‐Complaint alleges that Rivera negligently performed her duties a...

Excerpt: ...on arises out of a construction project. Plaintiff Binnquist Development Inc. (“Plaintiff”) was the general contractor on a construction project at 1827 Atlanta Avenue in Riverside pursuant to a written contract (the “Contract”) with defendants Laguna Hills Allspace, Dennis French and Rick Tarnutzer (“Defendants”) in which Defendants promised to pay $2,459,532, inclusive of amendments and modifications by change orders. Of that amount...

Excerpt: ... to arrange the examination by stipulation. (CCP §2016.040.) The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. (Weil & Brown, Civ. Proc. Before Trial (TRG 2020), Ch. 8I, §8:1556.) “Often, the pleadings will put a party's mental or physical condition “in controversy.” For example, a personal injury complaint may allege that plaintiff is sufferi...

Excerpt: ...us franchise owner of the restaurant where Plaintiffs worked. Plaintiffs further argue that even if they executed the Arbitration Agreements, the Agreements are both procedurally and substantively unconscionable and thus unenforceable. As to substantive unconscionability, Plaintiffs specifically argue that the Arbitration Agreements do not provide for adequate discovery. Plaintiffs also filed an objection and motion to strike the evidence offered...

Excerpt: ...os Jr., operating a dump truck struck Plaintiff and his vehicle on the eastbound 60 freeway. Plaintiff also alleges that his vehicle, a Toyota Tacoma, had a defect in that the airbags failed to deploy. Plaintiff also named as defendants Dwayne Qualls, Sr., Dwayne Edward Qualls, Jr., Zacharia Smith, Jr., Barbara Smith, Jeremy Dennis and Pirate SVCS. The complaint does not identify their role in the case. The First Amended Complaint, filed 2/7/19, ...

Excerpt: ...non v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 (constitutionality upheld). The motion is made on the grounds that the plaintiff resides out of the state and that there is a reasonable possibility that the moving defendant will obtain judgment. §1030(b). The motion must be accompanied by an affidavit that sets forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur. The statute...

Excerpt: ...xists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bon...

Excerpt: ...render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and...

Excerpt: ...Id. at p. 387; Cal Sierra Const., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845.) The inquiry into probable validity does not go to the ultimate merits of the case but “to whether the contractor should be entitled to retain the security of the mechanic's lien… pending resolution of the matter.” (Id. at p. 850.) In essence, “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be ...

Excerpt: ...anctions is also denied. The Estate's evidentiary objections are overruled. On 10‐19‐20, the Estate of Marsh served a Subpoena Duces Tecum (“Subpoena”) on Union Bank (“Bank”). The Subpoena requests all bank statements and documents relating to the deposits, wire transfers, ACH transfers and checks from 1‐1‐18 to present for the subject bank account of the Tatums (“Category 1”). The Subpoena also requests documents related to c...

Excerpt: ...ffs (i.e., still or video images recorded either on photographic film, on magnetic tape, digitally, or otherwise) and edited recordings. However, the plaintiffs did not thereafter argue that the distinction was significant in this instance. The defendant ignored that distinction entirely. Accordingly, the Court does not make that distinction either. To the extent that there were any unedited recordings that were not taken or created by or at the ...

Excerpt: ...cable standard of care and causation. Welf. & Inst. Code Section 15610.57(a); Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405‐ 407; Flatt v. Superior Court (1994) 9 Cal.App.4th 275, 293. CPA's expert, Karen Josephson has provided a declaration indicating that CPA's conduct did not breach its applicable standard of care or cause Plaintiff's injuries. (Karen Josephson's Declaration, ¶¶ 6.D. and 7.) Due to this, C...

Excerpt: ...s. While Plaintiff was using the ladder to look at kitchen exhaust/range hoods on Aisle 40 in Department 29 of the Mira Loma Home Depot store, his foot slipped and he fell. Plaintiff then brought the instant action against Home Depot. On August 7, 2020, Plaintiff served Defendant with 48 Requests for Production of Documents, 49 Special Interrogatories, 21 Requests for Admission, and Form Interrogatories. Prior to the September 21, 2020 due date, ...

Excerpt: ...facts demonstrating why Defendant obtained title by fraud, inequitable conduct, or that it was invalid. At most, she alleges an underlying action to which she was not a party to, and argues in opposition, that she was an indispensable party. From the allegations in the underlying action, RIC 1410237, Plaintiff Suntrust Mortgage, Inc. is the owner of property located at 1718 Hayden Ave. in Corona. Suntrust asserted that the property was formerly o...

Excerpt: ... §11019(b).) Harassment is something that communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.App.4th 686, 706.) FEHA liability for harassment extends to any employee of a covered employer, and thus individual employees can be named as defendants. (Gov. Code, §12940(j)(3).) An employer's liability for harassment by someone other than a manager or supervisor is based on negligence‐ i.e., the miscon...

Excerpt: ... seek immediate review of the court's Ruling sustaining the Demurrer without Leave, nor was this issue raised on Appeal. The disposition on appeal was to reverse the judgment with directions to the trial court “to vacate its ruling on summary adjudication and enter a new order denying the motion on this issue.” (RJN iso Opposition, Exh.2.) The appellate court noted : “The body of the cause of action alleges intent to defraud, suggesting tha...

Excerpt: ...he gravamen of this action for: (1) accounting, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) conversion, (6) constructive trust and (7) violation of Civil Code section 3344 is that Plaintiff has not received her share of the profits in the Brandini Toffee company. Plaintiff Leah Post alleges that in 2006, while in high school, she and Defendant Brandon Weimer, who were both m...

Excerpt: ...ecedent's home on 12/19/18 and ordered four prescriptions with Defendant Equanimity Hospice & Palliative Care, however, only three prescriptions were delivered on 12/20/18 and 12/22/18. Decedent suffered a stroke on 12/22/18 and died on 12/28/18. Plaintiffs filed the original complaint on 6/26/20. After Defendant Fukada demurred, Plaintiffs filed a First Amended Complaint (FAC) as a matter of right on 10/26/20 for professional negligence and wron...

Excerpt: ...herently dangerous about the stairway and Plaintiff tripped merely because it was dark outside. Failure to provide adequate lighting may create a dangerous condition on property. Defendants have not produced any evidence that the subject stairway was adequately lit. The only evidence offered by Defendant, Plaintiff's special interrogatory responses, indicate that the lights in the stairway were not working. (Exh. B, Response No.1) Defendants have...

Excerpt: ...ff alleges he was driving the subject vehicle on Highway I‐215, southbound, in the course of his employment when the left front tire exploded, causing him to lose control of the subject vehicle and sustain damages. Plaintiff alleges the following causes of action: 1. Strict Products Liability—Design Defect; 2. Strict Products Liability—Manufacturing Defect; 3. Strict Products Liability—Failure to Warn; 4. Negligence Product Liability. Non...

Excerpt: ...ount of the past loss of earnings. In response, on 8‐8‐20, the Court ordered the plaintiff to file a CMS within 2 weeks that described both the nature and the amount of the damages being sought. The Court at the same time issued an order to show cause why sanctions should not be imposed for initialing filing an incomplete CMS, returnable on 9‐15‐20. On 9‐14‐20, having received neither a revised CMS or a declaration in response to the ...

Excerpt: ... cars to obtain better mileage, greater reliability, and overall improved performance. Defendant Farrell operates Hyperfuel, Inc., which also designs and distributes aftermarket performance auto parts. Hyperfuel and FIT compete with one another in the market. In 2014, Farrell was appointed as FIT's General Manager. He held the position until November 2017, when he left the company, after FIT discovered he was working for another aftermarket autom...

Excerpt: ...A plaintiff may attack an answer via a demurrer on the following grounds: “(a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” C.C.P. § 430.20. Demurrers for uncertainty are disfavored and wi...

Excerpt: ...A plaintiff may attack an answer via a demurrer on the following grounds: “(a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” C.C.P. § 430.20. Demurrers for uncertainty are disfavored and wi...

Excerpt: ...bases of venue articulated in CCP §395.5. (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666.) CCP §395.5 provides that “[a] corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated." (CCP §395.5.) However, The Complaint is ...

Excerpt: ... cars to obtain better mileage, greater reliability, and overall improved performance. Defendant Farrell operates Hyperfuel, Inc., which also designs and distributes aftermarket performance auto parts. Hyperfuel and FIT compete with one another in the market. In 2014, Farrell was appointed as FIT's General Manager. He held the position until November 2017, when he left the company, after FIT discovered he was working for another aftermarket autom...

Excerpt: ...herently dangerous about the stairway and Plaintiff tripped merely because it was dark outside. Failure to provide adequate lighting may create a dangerous condition on property. Defendants have not produced any evidence that the subject stairway was adequately lit. The only evidence offered by Defendant, Plaintiff's special interrogatory responses, indicate that the lights in the stairway were not working. (Exh. B, Response No.1) Defendants have...

Excerpt: ...ff alleges he was driving the subject vehicle on Highway I‐215, southbound, in the course of his employment when the left front tire exploded, causing him to lose control of the subject vehicle and sustain damages. Plaintiff alleges the following causes of action: 1. Strict Products Liability—Design Defect; 2. Strict Products Liability—Manufacturing Defect; 3. Strict Products Liability—Failure to Warn; 4. Negligence Product Liability. Non...

Excerpt: ...ecedent's home on 12/19/18 and ordered four prescriptions with Defendant Equanimity Hospice & Palliative Care, however, only three prescriptions were delivered on 12/20/18 and 12/22/18. Decedent suffered a stroke on 12/22/18 and died on 12/28/18. Plaintiffs filed the original complaint on 6/26/20. After Defendant Fukada demurred, Plaintiffs filed a First Amended Complaint (FAC) as a matter of right on 10/26/20 for professional negligence and wron...

Excerpt: ...he gravamen of this action for: (1) accounting, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) conversion, (6) constructive trust and (7) violation of Civil Code section 3344 is that Plaintiff has not received her share of the profits in the Brandini Toffee company. Plaintiff Leah Post alleges that in 2006, while in high school, she and Defendant Brandon Weimer, who were both m...

Excerpt: ...s exist for the revocation of the agreement; or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v....