Excerpt: ...to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Id.) The complaint does contain both references to implied warranty for fitness (Complaint ¶31) and merchantability (Complaint ¶32). The Song‐Beverly Act defines implied warranty of merchantability as: “(1) Pass without objection in the trade under ...

Excerpt: ...actual obligations, PNMAC Capital owed CitiMortgage a duty of care because, among other reasons, PNMAC Capital was the owner/beneficiary of the loan from at least March 19, 2010 to October 2010. Page 3 of 10 • As the prior owner/beneficiary of the loan, PNMAC Capital owed CitiMortgage a duty of care, including but not limited to, a duty to properly service the loan, a duty to notify the Wolfes that CitiMortgage had allegedly repurchased the loa...

Excerpt: ...ceive actual notice in time to defend the action. Defendants are ordered to file their responsive pleading within 30 days of the date of this order. The matter is set for Case Management Conference on 4‐12‐21 at 8:30 a.m., Department 5. Defendants were served on 5‐1‐19 with the First Amended Complaint (FAC) by substitute service, at 7407 Diamond Street in Riverside, with mailing the next day. Defendants' defaults were entered on 6‐12‐...

Excerpt: ...ranted as to the following requests: #13 as to years 2018 and 2019; #29 to the extent that the plaintiff has failed to identify the documents that are responsive to that request, as required by Code of Civil Procedure section 2031.280, subdivision (a); #30 as of May 1, 2019; and #31 from May 1, 2019, to April 21, 2020. In all other respects, the motion is denied. The defendant's request for sanctions is denied. The plaintiff's request for sanctio...

Excerpt: ... baseline amount. The contract also provided for an additional discretionary bonus based on the number of billable hours. In 2016, the Firm allegedly promoted Talkov to partner in order to avoid paying over a $28,000 bonus. Additionally, the Firm and Defendant Reid & Hellyer Employees 401(k) Profit Sharing Plan (“Plan”) failed to provide the employer‐matching component to the Talkov's 401(k) account. The Firm allegedly experienced significa...

Excerpt: ... remediate that infestation. The Waites seek an order compelling arbitration based upon the arbitration provision in the purchase/sale agreement. There is a possibility of conflicting rulings on common issue of fact or law. Novey does not dispute that he agreed to arbitrate the dispute, but argues, nevertheless that the motion should be denied because the HOA is not a party to the arbitration agreement and that simultaneously proceeding with arbi...

Excerpt: ...the deposition was to take place on 9/11/20, or 9/30/20. Thereafter, at an informal discovery conference on 9/25/20, the court amended its order to allow the deposition take place on 10/14, 10/21, 10/28, or 10/29. Plaintiff moves for terminating sanctions against Defendant as she failed to appear for any of these seven dates. She further requests monetary sanctions of $9,000. Defendant contends that her counsel has not received the motion, and di...

Excerpt: ...to Cross‐Defendant, decline to consider Cross‐Complainant's evidentiary objections because the evidence to which it objects was not considered in the court's analysis. The contract language is not clear or explicit. Pursuant to the indemnification provision, NRG agreed to defend Elite against claims arising out of Elite's performance of “services.” The term “services” is defined by the Contract to include “camera monitoring” and �...

Excerpt: ... Rose (“Plaintiff”) alleges on May 15, 2018, he was involved in a traffic accident with Defendant Gutierrez. After the accident, he proceeded to drive home. He alleges that after arriving home, he developed significant symptoms prompting paramedics to be called. He arrived at the Inland Valley Medical Center and met with doctors. Plaintiff alleges that the doctors told him that his injuries were minor, however, Plaintiff indicates that the do...

Excerpt: ...l Code § 2923.6 (letter denying modification); and 3) Civil Code §§ 2923.6 and 2923.11 (dual tracking). (FAC, ¶¶ 38‐46.) i. Single Point of Contact (“SPOC”) Civil Code § 2923.7 provides that upon request from a borrower seeking a foreclosure prevention alternative, the mortgage servicer shall promptly provide an SPOC and one or more direct means of communicating with the SPOC. Plaintiffs allege that their assigned SPOC gave them “in...

Excerpt: ...ourt in resolving the issues raised regarding the sufficiency of the allegations of the FAC. With regard to the second cause of action, Defendants argue that Plaintiff was not damaged by any alleged disclaimer of warranty because Plaintiff did not make a claim during the implied warranty period. (Memo in Support, p. 7:16‐22.) As to the third cause of action, Defendants argue that there is no allegation that the Motorcycle did not conform to the...

Excerpt: ..., pursuant to which LLR agreed to purchase products from MyDyer for resale by “independent fashion consultants” (“Consultants”). LLR and Defendant LulaRoe (“LulaRoe”) sell leggings through a direct sales multilayer marketing business. MyDyer alleges that LLR, Lularoe and other defendants breached the Sourcing Agreement by failing to pay for over $30 million in delivered product and continuing to order more product with no intention of...

Excerpt: ...rmitted to withdraw or amend an admission only if the court finds the following two things: (1) the admission resulted from mistake, inadvertence or excusable neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (CCP §2033.300(b).) If relief is granted, the court may impose whatever conditions are just. (CCP §2033.300(c).) Section 2033.300 is designed to eliminate ...

Excerpt: ...opment, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118.) Trinity also seeks judicial notice of the legislative status of AB‐828 as of 11/13/20, which forms the basis of plaintiff's allegation that the foreclosure violated moratoriums on foreclosures. (Exhibit 8.) The request is granted. Trinity also seeks judicial notice of Governor Newsom's Executive Order N‐28‐20, signed March 16, 2020. (Exh. 9.) The Executive...

Excerpt: ...se 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 nature, source and e...

Excerpt: ...lude an additional, Henry Garcia, on the class and PAGA claims. Defendant has waived any objection to service. Defendant argues that the motion was improperly served by electronic service. This argument is not a basis for denying the motion because Defendant has filed a substantive opposition and makes no claim that it was unable to file a complete opposition because of the alleged improper service. “This court understands the dilemma faced by ...

Excerpt: ...osure. (Administrative Record (“AR”) 20‐21.) On 2‐14‐19, the Employment Development Department (“EDD”) notified Petitioner that he was eligible for the Trade Adjustment Assistance (“TAA”) program of the federal Trade Act of 1974, and, as such, may also be eligible for the Trade Readjustment Allowance (“TRA”) benefits. (AR 4‐5.) The notice also stated that his eligibility for TRA benefits could not be determined until his u...

Excerpt: ...e Court has not received an update from Defense Counsel, but Plaintiff has not filed an opposition to this motion and nothing in the record demonstrates that Plaintiff Hwang has produced discovery. Indeed, instead of indicating that Plaintiff has in fact responded to the discovery request or this motion, Plaintiff Hwang filed a motion to reconsider the Court's order from 12/10/20. Regardless, if Plaintiff has produced the requisite discovery, the...

Excerpt: ...the motion for summary adjudication of the 3rd cause of action on the ground that Plaintiff failed to meet his initial burden. DENY the motion as to the 4th cause of action on the ground that Cor‐Ray has raised triable issues of material fact as to UMF Nos. 46‐48, 50, 52. Factual / Procedural Context Plaintiff, W.M. Lyles, alleges it is a licensed general contractor which was the successful bidder on a public works construction project referr...

Excerpt: ... Denzel Cooley (“Cooley”), which started at a restaurant owned and operated by Defendant T.G.I. Fridays, Inc. (“TGIF”) and Briad Restaurant Group, LCC (“Briad”), which owned the TGIF franchise located at the shopping center owned and operated by Defendants Tyler Mall, L.P., GGP‐Tyler Mall, LLC, and Growth Management, Inc. (collectively “Tyler”). The altercation was allegedly initiated by Cooley while Jermaine was at the restaura...

Excerpt: ...019, arguing that defense experts Dr. Karl Steinberg and registered nurse Sandra Higelin have determined Defendant did not breach the applicable standard of care. The original hearing on February 19, 2020, was continued multiple times due to numerous procedural mishaps by Plaintiff and due to the pandemic‐related court closure. Defendant subsequently re‐filed the MSJ re: Breach on September 2, 2020. On July 15, 2020, Defendant filed a second ...

Excerpt: ...isa Salisbury (Salisbury) and Ivan U. Cisneros. In an underlying suit entitled Barnum v. Aware Self‐Storage Inc. (BAC 1300908) alleging ADA violations, Plaintiff told its property manager, TNT Self‐Storage Management, Inc. (TNT), to handle the matter. TNT hired SGI who allegedly failed to respond to the complaint, resulting in a default judgment or a stipulated judgment, which Plaintiff was unaware of. On 7/28/20, Plaintiff filed its Second A...

Excerpt: ...2004) 32 Cal.4th 820, 829; Howlett v. Rose (1990) 496 U.S. 356, 365.) The Court further notes that on January 5, 2021, well after the demurrer in this case was filed, plaintiff Anthony Hernandez filed a request for dismissal of the first cause of action. As to the second cause of action, one alleging negligence, the Court's tentative ruling is to SUSTAIN WITH LEAVE TO AMEND defendant State of California's demurrer. The long‐standing rule in Cal...

Excerpt: ...Property”), which is the subject of this action, many of which have been dismissed, however. Ginsburg alleges that he obtained a judgment against Gloria in the amount of $581,817.14 and claims a superior right to the Property. (Complaint, ¶¶ 1‐3). As concerns the present demurrer, Ginsburg alleges that a January 29, 2018, deed of trust (the “DOT”) recorded against the Property reflecting a sale of the Property for $800,000 by Gloria to ...

Excerpt: ... 10 Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Y...

Excerpt: ...ased on impossibility, and there are no provisions in the contracts indicating Plaintiffs must resort to an alternate date. “The object of a contract must be possible and ascertainable by the time the contract is to be performed.” (Civ. Code, §§1595, 1597, 1596.) Where a contract has a single object that is wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. (Civ. Code, §1...

Excerpt: ...and breach of governing documents, but it did not eliminate all portions of those causes of action, substantial portions of which remain. The Flanagans now move for attorneys' fees and costs under the antiSLAPP statute. “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion…; or as part of a ...

Excerpt: ...ion against Defendant MercedesBenz USA, LLC for violations of the Song‐ Beverly Act and Magnuson‐Moss Act. Plaintiffs purchased a 2015 Mercedes‐Benz C‐400 on February 4, 2017. (Comp. ¶7.) Plaintiffs allege the vehicle did not conform to the express warranties as it had issues with the engine, transmission, HVAC, and electrical components. (Comp. ¶9.) Plaintiffs took the car in for repairs many times, but Defendant did not repair the veh...

Excerpt: ...nc. (2014) 231 Cal.App.4th 471, 505], the Individual Settlement in the present case is part and parcel to the settlement and abandonment of the PAGA cause of action. Under Lab. Code § 2699(l)(2), the court is required to review and approve any settlement of a PAGA claim. Because Plaintiffs took on a special responsibility by including a representative PAGA cause of action in their respective complaints, they owe a duty to other aggrieved employe...

Excerpt: ...atter. As with a demurrer, the party filing a motion to strike must meet and confer prior to filing the motion. C.C.P. §435.5. As is stated in the supporting Bridwell declaration, ¶¶3‐4, defendant's counsel both sent a letter regarding the subject of this motion and discussed the matter by phone. This is sufficient. The court may, upon a motion made pursuant to C.C.P. §435, or at any time in its discretion, and upon terms it deems proper st...

Excerpt: ... reference agreement exists between the parties: (a) To hear and determine any and all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to enable the court to determine an action or proceeding.” (Code of Civil Procedure § 638.) Section 9.2 of Plaintiff's employment agreement included the following language: Dispute Resolution. In the event of any contr...

Excerpt: ...2004) 32 Cal.4th 820, 829; Howlett v. Rose (1990) 496 U.S. 356, 365.) The Court further notes that on January 5, 2021, well after the demurrer in this case was filed, plaintiff Anthony Hernandez filed a request for dismissal of the first cause of action. As to the second cause of action, one alleging negligence, the Court's tentative ruling is to SUSTAIN WITH LEAVE TO AMEND defendant State of California's demurrer. The long‐standing rule in Cal...

Excerpt: ...will suffer the greater injury if the injunction is denied and their property is sold through foreclosure. (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.) The Court orders Plaintiff to post a bond in the amount of $15,000.00 within 60 days. FACTUAL / PROCEDURAL CONTEXT Plaintiffs WRF Investments, Inc. (WRF), Renfeng Wang (Mr. Wang), and Tao Sarah Wang (Mrs. Wang) (collectively, “plaintiffs”) allege that WRF was dissolved ...

Excerpt: ...defendant intentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware of the fact and would not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintif...

Excerpt: ...and wife from whom he bought the condo, David and Athena Waite, and against Defendant Estados South HOA based upon the Waites' failure to disclose the existence of and the HOA's failure to prevent and then adequately remediate an alleged rat infestation that caused damage to his property. Novey alleges a 4th cause of action for negligence and 5th cause of action for negligent hiring, retention and supervision of the Gaffney Group against the HOA ...

Excerpt: ...need not prove those facts at the pleading stage. Plaintiff complaint is adequate because it apprises the defendant of the factual basis of the complaint. On the second cause of action, Plaintiffs have alleged several theories as a basis for liability. Defendant only challenges the Peculiar Risk doctrine in its Demurrer. A Demurrer does not lie as to only parts of a cause of action; it must address the entire cause of action. Plaintiff has allege...

Excerpt: ...o follow, the statements in bold print are the information requested on 12‐8‐20 followed by supplemental information that was provided. Describe any adverse consequences actually suffered by the declarant as a result of prosecuting the action. A supplemental declaration has been provided by Plaintiff. It indicates that he has not suffered any actual adverse consequences as a result of prosecuting this action. (Joseph Forrest's Supplemental De...

Excerpt: ... §664.6, provides “if parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, 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 settle...

Excerpt: ...ition to the summary judgment. While it is true the motion may have been continued several times while the court was closed due to the coronavirus pandemic, eventually the hearing on the motion for summary judgment was vacated by a general order issued by the Presiding Judge of this court, which order vacated all law and motion hearings. The Court will not detail here the numerous implementation and general orders issued between March 17, 2020 an...

Excerpt: ...“The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to performance of that duty.” Keyes v. Bowen (2010) 189 Cal.App.4th 647, 657. Page 4 of 5 As the Department points out, the ministerial duty runs in exactly the opposite direction from that urged by the petitioner: the DMV has a mandatory duty to suspend th...

Excerpt: ...e is whether Plaintiff's response to Defendant's statements constitute a matter of public interest. There is no authority in this regard. It is Plaintiff's burden to show that it has met the first prong that this is a matter of public interest. To the court these statements are not so much a matter of public interest but rather to protect Plaintiff's reputation and business interest. However, the court will conclude that the first prong was met a...

Excerpt: ...ant, false, or improper matter inserted in any pleading. Additionally, the court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion...

Excerpt: ...(“Thompson”) and Cedric R. Stewart (“Stewart”). Plaintiff alleges that she was severely injured when Thompson negligently drove his vehicle causing it to collide with Plaintiff, who was a pedestrian. (Complaint, ¶¶ 8‐10.) On July 24, 2018, Thompson executed a sworn statement in which he denied owning any real property, and his insurance carrier tendered the policy limits of $20,000 to Plaintiff. (Id., ¶¶ 12‐13, Exhibit C.) Plainti...

Excerpt: ...ion was late it was responded to and is considered on its merits. There is no rule prohibiting an attorney‐party from representing another party; to the extent there may be a potential conflict between the attorney's interests under those circumstances and the clients, the opposing party would have no standing to intrude on the relationship to raise the conflict. DCH Health Services Corporation v. Waite (2002) 95 Cal.App.4th 829, 832. Thus, the...

Excerpt: ...nswer within 30 days. The court grants Defendant's request for judicial notice. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 fn.1.) Defendant demurs to the first, second, and third causes of action based on Plaintiffs' failure to comply with the Tort Claims Act. The 4AC references “Exhibit 1” (see, e.g., 4AC, ¶ 25), but Plaintiff attached a document marked as “Exhibit A.” For clarity, the court will use “Exhibit A/1.�...

Excerpt: ... strike is moot. The Court further recognizes that by granting leave it necessarily will mean that the matter will not be at issue by the time that the trial readiness conference is heard, which is on January 26, 2021. On its own motion, the Court shall continue the TSC to April 26, 2021, at 8:30 am, to be heard telephonically. FACTUAL / PROCEDURAL CONTEXT This is a medical malpractice matter. On August 25, 2017, Hannah Coates (“Hannah”) was ...

Excerpt: ...Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐755.) Defendant First American demurs to the tenth cause of action for slander of title and the eleventh cause of action for negligence for failure to state sufficient facts and for uncertainty. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e). In evaluating a demurrer, the court gives the pleading a reasonable interpreta...

Excerpt: ...san E. Holt (collectively, the “Original Defendants”). On September 9, 2009, the HOA filed the operative first amended complaint (“FAC”) which added the following defendants: Tony Lanza; Brett Gregor; Karen Gregor; Margaret Schramm; Susan Screen; Leslie Rutter; Carolyn Rutter; Drew Couto; Beth Ballerini; and Judith Myers (collectively, the “Added Defendants”) (the Original Defendants and the Added Defendants are collectively referred ...

Excerpt: ...just enrichment/restitution claim are the receipt of a benefit and the unjust retention of the benefit at the expense of another. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Shih alleges that ERC charged for repairs to the roof and attic that were never performed and that the request that Shih pay for such services unjustly enriches ERC. (Cross‐Complaint, ¶¶ 23‐26.) ERC's request for payment of its invoice is not a b...

Excerpt: ...against a governmental entity unless a formal claim has been presented to such entity, and has been rejected (or is deemed rejected by the passage of time). (Gov. Code, §§912.4, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) A claim must be filed with the governmental entity in substantial compliance with the statutory procedures. (Phillips v. Desert Hosp. Dist. (1989) 49 Cal.3d 699, 706.) A claim for personal injury, as...

Excerpt: ...of process, respectively. Defendants assert that these causes of action are barred under Government Code section 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The immunity conferred by Government Code section 821.6 is construed broadly and “in furth...

Excerpt: ...ness Interruption” coverage. The Policies were procured by Defendant Acrisure of California dba Brakke‐ Schafnitz Brokers (“Brokers”). On March 19, 2020, in response to the global COVID‐19 pandemic, Governor Gavin Newsom, issued an executive order closing all non‐essential business and requiring non‐ essential workers to shelter at home. (“Executive Order”). As a result of the order, Plaintiff's showrooms were closed and all man...

Excerpt: ...ARY SANCTIONS BY PHYSICIANS FOR HEALTHY HOSPITALS Tentative Ruling: The motion for further responses to form interrogatories is granted and sanctions imposed against plaintiff and her counsel in the amount of $975 in attorney's fees and costs of $90. The motion for further responses to special interrogatories is granted, except as to Special Interrogatory No. 34, and sanctions imposed against plaintiff and her counsel in the amount of $975 in att...

Excerpt: ...Motion to Strike. Statute of Limitations: In its Reply, Kia argues Plaintiffs' fraud claim is barred by the statute of limitations. The Reply states: “As set forth in [Kia's] moving papers, Plaintiffs' fraud‐by‐omission claim is facially time‐barred because Plaintiff purchased the subject vehicle in June of 2012 but did not file suit until October 8, 2020.” (Reply p.5:18‐20.) However, this argument is not set forth in Kia's demurrer. ...

Excerpt: ...into a purchase/sale agreement and escrow to sell trust property, a condominium in Palm Springs, to plaintiff Jonathan Evans for $175,000 but then attempted to cancel the sale because he received a better offer. Proposed intervenors, the beneficiaries of the trust (McClain Beneficiaries), seek leave to file a complaint in intervention for financial elder abuse based upon allegations that Defendant McClain, who is also a beneficiary of the trust b...

Excerpt: ...torms flooded Plaintiffs' homes and properties. In a prior action, the parties reached a settlement agreement that provided for Beazer to compensate Plaintiffs for the damage and to make necessary repairs. As part of the settlement agreement, Beazer was to prepare and submit plans for the repairs to the City for approval. To date, Beazer has submitted various plans to the City but none have been approved. Plaintiffs allege that their properties h...

Excerpt: ...Baker (1999) 20 Cal.4th 23, 33.) Under Welf. & Inst. Code, § 15610.07, abuse of an elder or dependent adult means either (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or (b) deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Neglect under the law is defined as the “negl...

Excerpt: ...% liable,” and “100% responsible.” (Decl. of David J. Mendoza, ¶ 3; Exhibit A [Requests for Admissions 1, 2, and 3].) “[R]equests for admission serve to narrow discovery, eliminate undisputed issues, and shift the cost of proving certain matters.” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353–354 [emphasis added].) Because Defendant has admitted liability, that fact is conclusively established and ...

Excerpt: ...ntiff”) was driving to work when his vehicle was struck by a 2007 GMC Sierra truck (“subject vehicle”) driven by Defendant Marco A. Manriquez, Jr. (“Driver” or “Marco Jr.”), who allegedly ran a stop sign. Marco Jr.1 was convicted of felony driving under the influence. The subject truck was registered to the Driver's father, Defendant Marco Manriquez, Sr. (“Marco, Sr.”). Driver's mother, Defendant Jacqueline Nunez‐Silva (“Mov...

Excerpt: ... October 27, 2018, Plaintiff Karen Gotschall slipped and fell near the Nitro Puff kiosk at the Galleria at Tyler Mall. On June 10, 2020, Plaintiff Karen Gotschall filed a Complaint for Negligence against Defendants Joshua Mitchell, individually and dba Nitro Puff Magic; Tyler Mall LP; Brookfield Properties, LLC; and the Millard Group. Defendant Joshua Mitchell dba Nitro Puff Magic (“Mitchell”) operated the Nitro Puff kiosk pursuant to a writt...

Excerpt: ...T BREWER'S LEDGE, INC.'S Tentative Ruling: The Court sustains the Regents of the University of California (“Regents”) demurrer as to the first and second causes of action with 30 days leave to amend. The Regents of the University of California's motion to strike is moot as to the first and second cause of action, but grants the motion with 30 days leave to amend as to paragraph 31. The Court grants Defendant Brewer's Ledge's motion to strike ...

Excerpt: ...Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, 39; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory”].) A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond �...

Excerpt: ...d nursing facility for postoperative care from July 11, 2016 until he was discharged in August 26, 2016. During this time, Defendant's staff allegedly left Decedent in the bed for hours and did not move him every 2 hours as medically required. In addition, they did not care for his personal hygiene as they left him in his urine and feces. As a result, he developed two stage IV bedsores. Plaintiff filed the original complaint on August 22, 2017 an...

Excerpt: ...irst document under Evid. Code §452(c) as it pertains to the official acts of the state. The court can properly take judicial notice of the second and third documents under Evid. Code §452(d) as they are court records. Defendants' requests should be granted. II. Meet and Confer CCP §§ 430.41(a) & 435.5(a) provide, in pertinent part, that before filing a Demurrer or Motion to Strike “the moving party shall meet and confer in person or by tel...

Excerpt: ... order which the court cannot enforce against any current and legal representative of PNMAC. Moreover, this court lacks jurisdiction. CitiMortgage asserts that this court has jurisdiction to enter discovery orders against PNMAC “even if PNMAC lacks capacity because lack of capacity is not a jurisdictional defect.” (See Am. Alternative Energy Partners 11 v. Windridge, Inc. (1996) 42 Cal. App. 4th 551, 559 "Lack of capacity is not a jurisdictio...

Excerpt: ... were aware of and failed to disclose. On 12/1/18, 12/14/18, 1/11/19 and 2/1/19, Plaintiffs brought their vehicle to an authorized dealer for repair and each time, the vehicle was never fixed. Plaintiff filed the Complaint on 7/16/20 and First Amended Complaint (FAC) on 11/3/20 asserting causes of action for: (1) Breach of Express Warranty—Violation of Song‐Beverly Act; Page 8 of 10 (2) Breach of Implied Warranty—Violation of Song Beverly A...

Excerpt: ...h 28 of the first cause of action is not alleged against her and paragraph 3 of the prayer does not seek any relief against her. As to the motion of the medical group, it seeks to strike paragraph 28 from the first cause of action and paragraph 3 of the prayer. Both assert the right to collect punitive damages from the medical group. In moving to strike those portions of the complaint, the medical group relies upon Code of Civil Procedure section...

Excerpt: ...anics, filed a derivative action against among others the three directors of SCOT, David Gash, Matthew Yamashita, and James Hammermeister, PSC2003199. Essentially, the Complaint alleges that the Director Defendants engaged in mismanagement and self‐dealing Page 3 of 4 and used corporate financial and personnel assets for their own and their businesses benefit. (Derivative Compl., ¶ 20.) In response, Defendants filed a Cross Complaint in which ...

Excerpt: ...30 am in D‐3, which shall be vacated if the Judgment is received and signed by the Court prior. ANALYSIS From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) For summary judgment purposes, “[i]n an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing e...

Excerpt: ...just, the court should award compensation for all of the hours reasonably spent, including those spent to recover attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) However, “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Here, the evidence tends to show that Plaintiff's fee request i...

Excerpt: ...e owner of the premises located at 130 Yale Drive Rancho Mirage, California 92270. Defendant is the Homeowners association of the Property. Plaintiff claims that based on the CC& Rs the HOA was responsible for the repair of her roof, but negligently failed to do so causing damage to her unit. Defendant's moving papers assert that Plaintiff wrongfully seeks to recover general damages and attorney's fees under cost of suit. Defendant asserts that P...

Excerpt: ...th convinced him to move to Palm Springs for a romantic relationship. Defendant was in the process of divorcing Vince Keenan, and Defendant used Plaintiff to improperly obtain money from. Defendant also lied about any diseases he had, etc. After the relationship ended, Plaintiff lost his property, was kicked out of school, lost his job and was suicidal. On 6/1/20, Plaintiff filed his complaint for fraud, intentional infliction of emotional distre...

Excerpt: ...ed Complaint. Plaintiff has not waived his right to object to the Answer's lack of verification as there has been no trial on the merits yet. Plaintiff must still establish that the Complaint states a sufficient claim upon which Judgment on the Pleadings can be rendered, in addition to showing that the Answer is defective. Here, Plaintiff only brings the motion on the first cause of action, for enforcement of an on ‐ the‐record settlement agr...

Excerpt: ...ornia, Inc. (1993) 14 Cal.App.4th 612, 616.) As to the general demurrer, Plaintiff's allegations of elder abuse are sufficiently particular for pleading purposes. Plaintiff alleges: (1) she was admitted to HGMC and was assessed to be a high risk for skin breakdown; (2) HGMC staff consistently and repeatedly failed to follow the skin integrity care plan created for Plaintiff; (3) HGMC failed, on enumerated days, to inspect and monitor Plaintiff fo...

Excerpt: ...d by a buyer of a real property for the sellers' alleged misrepresentations, seeking cancellation of the purchase agreement and damages. In the First Amended Complaint (“FAC”), which is the operative pleading, Plaintiff Buyer asserts four causes of action against Defendant Sellers for: (1) Intentional Misrepresentation Regarding Zoning; (2) Negligent Misrepresentation Regarding Zoning; (3) Intentional Misrepresentation Regarding the Addenda t...

Excerpt: ... duty, and 3) legal malpractice. Defendant demurred once again to the 1st cause of action, which this court is set to hear on 12/23/20. The court should sustain without leave to amend as the FAC added no additional facts, to show that Defendant took any property from Ms. Montage for any wrongful purpose or with the intent to defraud her, needed to support the cause of action. Defendant also moved to strike portions of the FAC as follows: Request ...

Excerpt: ...nst multiple defendants, including C.P.I. Properties, LP (erroneously sued as C.P.I. Properties, LLC) (“CPI”), Cerca Trova Restaurant Group Holding, Inc. (“Outback”) and Sunrise Restaurants, LLC dba Denny's Restaurant (erroneously sued as W.K.S. Restaurant Corporation dba Denny's Restaurant) (“Sunrise”). The City seeks to acquire property (Assessor Parcel Nos. 172‐420‐002 and 172‐420‐003) (the “Property”) by eminent domain...

Excerpt: ...t issue here authorizes the propounding party to compel responses without objection when the responding party has failed to serve a response. (Code Civ. Proc., §§ 2030.290[Interrogatories], 2031.300 [Production].) There is no requirement to meet and confer before bringing a motion to compel when there has been no response to the discovery. (See Code Civ. Proc., § 2030.290 [Interrogatories].) And, unlike a motion to compel further responses to ...

Excerpt: ...perates a wine bar in the City of Palm Desert, entered into a commercial lease (the “Lease”) with Defendant on March 30, 2018. (Complaint, ¶¶ 1‐2, 5.) Plaintiff commenced operation in January 2019 and remained in continuous operation until March 2020. (Id., ¶ 6.) On March 4, 2020, a state of emergency was declared for the State of California because of the threat of the COVID‐19 virus. (Id., ¶ 7.) On March 11, 2020, the World Health O...

Excerpt: ..., 554) “Granting or denying an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion.” (Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458.) Although an OSC directs the party “to show cause, the burden is on moving party to show all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Superior Court (Valenzuela) (2006) 141 Cal....

Excerpt: ...ria Penley for: 1) elder financial abuse, 2) breach of fiduciary duty, and 3) attorney malpractice. Defendant Attorney Victoria Penley demurred to the first two causes of action. The court previously sustained that demurrer as to the 1st cause of action for elder financial abuse, with leave to amend. Plaintiff filed his First Amended Complaint on 10/8/20. Defendant once again demurs to the 1st cause of action for elder financial abuse on the grou...

Excerpt: ...paragraphs 7 and 9 of the Complaint cause it to be included in the cause of action. The label of the cause of action names only defendant Binnquist. Defendant Laguna Hills' contention is without merit. Defendant Laguna Hills also contends the Complaint fails to identify the individuals who agreed to sign the change orders. It cites no authority in support of this purported requirement. Finally, defendant Laguna Hills contends Plaintiff failed to ...

Excerpt: ...y of theories of recovery, including breach of contract, violation of due process, discrimination, slander, defamation, and obstruction of justice. Plaintiff argues the property was taken without just compensation and she is entitled to $1,800 per month until possession is returned. On 9/23/20, the court granted the County of Riverside's motion to quash and recommended that plaintiff seek legal advice for assistance, but plaintiff is still repres...

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: ...y may, within five days of the receipt of the notice of determination, appeal the decision of the court or hearing entity of original jurisdiction.” (Food & Ag. Code §31622(a).) “If the original hearing held pursuant to Section 31621 was before a hearing entity other than a court of the jurisdiction, appeal shall be to the superior court.” (Food & Ag. Code §31622(a).) The administrative order was entered April 30, 2020. Therefore, pursuan...

Excerpt: ...l Stamen. Hence, the hearing was continued to 8/21/20. On 8/12/20, plaintiff Matthew Tye filed a Statement of Disqualification under Code of Civil Procedure section 170.3. As a result, the hearing of this motion was repeatedly continued while the Statement of Disqualification was being considered by the San Diego Superior Court. On 10/15/20, the San Diego Superior Court denied the disqualification and its ruling was filed on Page 4 of 6 10/23/20....

Excerpt: ...ff's favor. Injunctions are equitable in nature and the general purpose of prejudgment injunctive relief is to preserve the status quo pending a determination on the merits. The grant or denial of a temporary restraining order or preliminary injunction “does not amount to an adjudication of the ultimate rights in a controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial...

Excerpt: ... Cal.App.4th 690, 697.) The court denies the motion as to Form Interrogatories (FROGs) 12.3 and 15.1 because Plaintiff did not meet and confer before filing the motion. The court finds that Plaintiff's meet‐and‐confer efforts were otherwise adequate. The court grants the motion as to FROGs 12.1, 12.2, and 12.6. (See Puerto v. Sup. Ct. (Wild Oats Markets, Inc.) (2008) 158 Cal.App.4th 1242 [no significant privacy invasion for discovery of names...

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: ...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: ...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: ...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...