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: ...tled. The Court denies the motion and the request by Plaintiffs for sanctions. An attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied certification as to its legal and factual merit, and a violation of this implied certification subjects the attorney and/or party to sanctions. (Code Civ. Proc., §128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code C...

Excerpt: ...e motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice. CCP §452 provides that “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” If the motion for judgment on the pleadings is granted, it may be...

Excerpt: ... (2008) 162 Cal. App. 4th 68, 82, fn 8.) Motion for Judgment on the Pleadings: A defendant may move for judgment on the pleadings if the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Code §438(c)(1)(b)(i) and (ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, ...

Excerpt: ...f identifying class members. (Sotelo v. Medianews Group Inc. (2012) 207 Cal.App.4th 639, 648). To establish that a proposed class is ascertainable, the class definition must be precise, objective and presently ascertainable. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858). “Class certification is properly denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no ...

Excerpt: ...le because its adoption violated the CC&Rs, including but not limited to Paragraphs 3.15, 9.05(a)(4)(E) and/or 15.02 of those CC& Rs; 2. An injunction prohibiting Defendants and their agents, employees and/or anyone acting on their behalf, from enforcing Rule 6 and from enforcing any similar restriction and/or limitation on short‐term leasing and/or renting within the Development that has not been duly adopted as an amendment to the CC&Rs pursu...

Excerpt: ... 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: ...f $313.74 is denied. Plaintiff's Request for Judicial Notice Nos. 1‐15 is granted to the extent these records exist as part of a court record or file. They are not accepted as true matters which are inadmissible hearsay (unless the matters are indisputably true). (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) FCA's Request for Judicial Notice Exs. E, F & H is granted to the extent these records exist as part of a cour...

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

Excerpt: ...tiff's allegations do not amount to the type of egregious conduct to meet the standard for “neglect” under the Elder Abuse Act. Plaintiff lists various conduct which Defendants' committed “recklessly.” (Complaint, ¶15.) However, WIC section 15657.2 requires specific allegations of recklessness as to how Defendants' acts involved more than mere inadvertence or incompetence, but rises to the level of conscious choice of a course of action ...

Excerpt: ... are legal questions for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465.) In general, a person has no duty to control the conduct of another, unless “the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.” (Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 435.) Generally, there is no duty to...

Excerpt: ...in Violation of Public Policy (Cal. Gov. Code § 12940, Et Seq.); 5. Failure to Prevent Harassment And Retaliation (Cal. Gov. Code 12940, Et Seq.); 6. Disparate Treatment (Cal.Gov. Code §12940, Et Seq.); 7. Intentional Infliction of Emotional Distress; 8. Negligent Infliction Of Emotional Distress; 9. Sexual Battery; 10. Sexual Assault; 11. Negligent Hiring, Supervision, Or Retention of Employee; 12. Failure to Provide Personnel File (Cal. Gov. ...

Excerpt: ...ally, a court may take judicial notice of the fact of a document's recordation, the date it was recorded and executed, the parties to the transaction and the legally operative language as long as there is no genuine dispute regarding the document's authenticity. (Scott v. JP Morgan Chase Bank (2013) 214 Cal. App. 4th 743, 755.) The court may take judicial notice of the legal effect of a recorded document. (Poseidon Development v. Woodland Lane Es...

Excerpt: ...rata re: supplemental points and authorities. The court sustains Plaintiff's objections to the declaration of Mark S. Algorri. Defendant moves to set aside the default based on extrinsic fraud. The court should grant such relief only under extraordinary circumstances. (Rappleyea v. Campbell (19974) 8 Cal.4th 976, 981–982.) The court finds no extraordinary circumstances here. Extrinsic fraud occurs when something or someone deprives a party of p...

Excerpt: ...h 556, 569 [only relevant material may be noticed].) Respondent's Request for Judicial Notice is granted pursuant to Evidence Code § 452(b). RLAFCO is a quasi‐legislative body [Sierra Club, supra, 21 Cal.4th at 495; Southcott v. JulianCuyamaca Fire Protection Dist. (2019) 32 Cal.App.5th 1020, 1026], and judicial notice of the Certificate of Termination is appropriate under Evidence Code § 452(b). The Administrative Record (“AR”) consists ...

Excerpt: ..., resulting in over 1 million dollars in damages. CVWD brings this Motion for Summary Judgment/Adjudication, arguing that an express written release, executed by the County in favor of CVWD, operates as a complete defense to County's claims against CVWD. County argues that the hold harmless clause at issue is conditional on CVWD consulting with the County prior to the work on the channel being performed and that no consultation took place. Paragr...

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

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

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

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

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

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

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

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

Excerpt: ...ty and Defendants discriminated against her by requiring her to wear a headset. In addition, Plaintiff alleges that during her employment, she complained about unethical billing practices regarding deep cleanings as well as the office manager's flagging of patient files of HIV positive patients. On 10/25/18, Plaintiff reported a cumulative trauma neck injury to Defendant caused by repetitive motion at work. Plaintiff went on leave but was release...

Excerpt: ...s and the Court that documents had been filed and served, but did not show on the Court's register of actions as either images or entries. Following the hearing, that situation was resolved. The Court now rules as set forth below. Supplemental Tentative Ruling of December 11, 2020 The documents filed in reply do not change the Court's Tentative Ruling of November 18, 2020. Defendants' evidentiary objections 4, 5, 6, 7, 8, and 9 are sustained (res...

Excerpt: ...ozner's request for sanctions. While the right to discovery is broad, there is a right of privacy. Article 1, section 1 of the California Constitution explicitly recognizes a right to privacy and California courts have recognized the right as supplying a qualified privilege to a discovery demand. “[T]he right to privacy protects the individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. ...

Excerpt: ... However, as to request nos. 43 and 44, ECL has not overcome the tax return privilege. As ECL states, “[t]he tax return privilege is not absolute. (Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 721.) The privilege is waived, or inapplicable, where the "gravamen of [the] lawsuit is so inconsistent with the continued assertion of the taxpayer's privilege as to compel the conclusion that the privilege has in fact been waived." (Id., citing Wil...

Excerpt: ...lement Agreement (“SA”), one settlement check is being provided to Plaintiff in the amount of $5,200, which represents “claimed penalties.” (Dec.Rose, Ex. “A”, SA, ¶2.(4).) Plaintiff Page 3 of 3 assessed Labor Code penalties other than PAGA at $0 [wage statement penalties; waiting time penalties], and Plaintiff's other claims seek premium pay, reimbursement, or restitution. So, what specific claims are being settled in the $5,200 che...

Excerpt: ...ntative ruling, regardless of whether either side requests oral argument, the Court orders all parties to be present at the time of the hearing. STATEMENT OF FACTS AND PROCEDURAL HISTORY This is a wrongful foreclosure action. Plaintiff Yi Fu Hwang (“Plaintiff”) alleges that he obtained a Home Equity Line of Credit (“HELOC”) from defendant Cathay Bank on September 22, 2006, in the amount of $150,000, which is secured by a deed of trust on ...

Excerpt: ... action, the Motion to Strike is denied without prejudice as moot. The Court denies Defendants' request for judicial notice, which was to take judicial notice of their responses to Plaintiff's Form Interrogatories. The request does not cite any statute on which the request is based. When ruling on a demurrer, a court may take judicial notice of inconsistent statements in plaintiff's own affidavits and unequivocal discovery responses based on plai...

Excerpt: ... actions or injunctive relief. Plaintiff's Request for Judicial Notice is denied. Defendants' objection to paragraph 3 of the Declaration of Kelsey R. Eberly is sustained. Plaintiff requests judicial notice of an order granting Plaintiff's Motion for Summary Judgment in Caru Society for the Prevention of Cruelty to Animals v. Anthony, FCS049705 in the Superior Court of Solano County. Defendants object. Court records may be judicially noticed purs...

Excerpt: ...negligence. The agreement provides in relevant part: “Tenant acknowledges that the use of this space is at tenant's sole risk and responsibility, and owner, and owner's partners, employees and agents, shall have no liability to tenant for any damage or loss to the property stored by tenant…from any cause, including acts or omissions as well as active or passive negligence by owner or its agents.” (SAC Ex. 1, ¶5.) Under this express languag...

Excerpt: ... and fourth causes of action with 30 days leave to amend. However, the Court shall sustain the demurrer without leave to amend as to the first cause of action for negligence unless the Plaintiff requests oral argument and can articulate why there should be a cause of action for negligence and gross negligence when considering Health & Safety Code sections 1799.106, 1799.107, and 1799.108. Motion to Strike: Because the Court is granting leave to a...

Excerpt: ...endant Mancha Development Company LLC (“Defendant”). In November 2018, he suffered a workplace injury to his fingers. Plaintiff alleges he was thereafter harassed, discriminated against and ultimately terminated. Plaintiff filed the Complaint on June 20, 2019, alleging various violations of the Labor Code and the Fair Employment and Housing Act (“FEHA”), as well as violation of Bus. & Prof. Code § 17200 et. seq. (“UCL claim”). On Nov...

Excerpt: ...ulation between Plaintiff and the K. Hovanian defendants. The TAC did not add the 9th cause of action for elder abuse. The elder abuse claim was pled in the Second Amended Complaint, to which Defendant did not demurrer. “Once filed, an amended pleading making substantive changes supersedes the original.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, §6:688 (Rutter Group 2020).) Defendant does not point to substantive changes made b...

Excerpt: ...oom availability. In‐Person Jury Trials Defendant's unopposed motion argued that a jury trial conducted remotely will unconstitutionally affect Defendant's right to jury trial. To be sure, Defendant is absolutely correct that the trial courts have a duty to ensure the right to a jury trial. As cited by Defendants, Article I, section 16, of the California Constitution and the Sixth Amendment to the United States Constitution ensure the right to ...

Excerpt: ...ominal Defendant Southern California Organic Treatment (SCOT), a marijuana retailer doing business as Green Pearl Organics, brought this derivative action against, among others, the three directors of SCOT, David Gash, Matthew Yamashita, and James Hammermeister. Essentially, the Complaint alleges that the Director Defendants engaged in mismanagement and self‐dealing and used corporate financial and personnel assets for their own and their busin...

Excerpt: ...s a food server at their Palm Desert restaurant. During the course of her employment, Avilez alleges she was subjected to unwanted sexual harassment and sexual assault by her supervisor, Defendant Greg Wilson. Avilez further alleges she was retaliated against when she complained about the unlawful behavior. Ultimately, Avilez alleges she was forced to leave her position. Defendants bring the instant motion seeking to compel arbitration pursuant t...

Excerpt: ...ays before the hearing date. For Plaintiff Esparza, the court grants the motion, but the order becomes effective after the court resolves the issue of standing for Plaintiff Moralez. The court denies Plaintiff's request for judicial notice. The contents of amicus curiae letters are not judicially noticeable. (Evid. Code, § 452.) Moreover, on November 24, 2020, the Supreme Court denied review for Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ...

Excerpt: ...to show the settlement is fair, adequate and reasonable. 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1165‐1166. The Court has broad discretion in determining whether the settlement is fair and normally considers the following factors: strength of the plaintiff's case; risk, expense, complexity and likely duration of further litigation; risk of maintaining class action status through trial; amount offere...

Excerpt: ... Farm Fire contends Plaintiffs (Lazaro heirs) lack standing to challenge any determination made by it concerning the workers' compensation death benefits claimed by Ruiz on behalf of the Marcial heirs. The plaintiff must be the real party in interest as to the claim sued on “except as otherwise provided by statute.” (CCP §367.) The real party in interest is “the person who has the right to sue under the substantive law. It is the person wh...

Excerpt: ...arsen, E. Larsen Bruce, Erick Bruce Larson, Erick Larson and Larsen Bruce F) for a line of credit debt owed to its predecessor Wells Fargo Bank based on a written contract entered into on 4/13/2004. Plaintiff alleges it purchased the debt from Wells Fargo and is the sole owner of the debt. Plaintiff alleges that defendant defaulted on 1/1/2007, and that $31,967.99 is owed, along with interest of 23.99 percent per annum. Defendants were served by ...

Excerpt: ...urt adopted its tentative ruling and ordered Defendants to provide further responses to interrogatories and produce responsive documents within 45 days. For the form interrogatories, Defendant Brower simply reincorporated its prior objections and responses. Defendant Brower failed to justify his objections in the first motion, therefore, they are no longer appropriate and Brower cannot use this second chance to justify his prior objections. Furth...

Excerpt: ...ave to amend within 30 days. This shall be the final leave to amend. As to Defendant Tsai's demurrer, the Court sustains the demurrer with one final leave to amend within 30 day. As to Defendants Afifi's and Alomaris' demurrer, the Court sustains the demurrer with one final leave to amend within 30 days to the 1st cause of action as to both Afifi and Alomaris, and to the 2nd‐5th causes of action as to Afifi. Factual / Procedural Context as to a...

Excerpt: ...cause of action, for unjust enrichment, is sustained without leave to amend as to Miramontes but otherwise overruled. The demurrer to the third cause of action, for declaratory relief, is overruled. Analysis: The District's unopposed request for judicial notice filed 10‐28‐20 is granted. The District's second request for judicial notice, submitted with its reply, is denied. Generally, a Court will not consider evidence submitted with a reply ...

Excerpt: ...ell, along with defendants Douglas and Jones, agreed to form Green America with each party receiving 25% of the business, sometime in 2017. SAC, ¶21. This relationship was reflected in the dispensary application (SAC, ¶22) and a business plan that was drafted (SAC, ¶23). On 6‐12‐17, Jones and Douglas submitted a modified application to the City that removed Shively from the application and changed Campbell's role from director to manager. ...

Excerpt: ...ion on the grounds that the Complaint in its entirety is uncertain, vague, and ambiguous as to Defendant Healthy Living and fails to allege facts with sufficient particularity to support each cause of action against it. As to the 1st cause of action, Healthy Living asserts that the elder abuse claim is uncertain as to Healthy Living and fails to state facts sufficient to constitute a cause of action for elder abuse as to Healthy Living. As to the...

Excerpt: ...mple, in a medical malpractice claim for wrongful death of a newly‐born child, the doctor's declaration that he delivered a “still‐born” baby, was insufficient since the declaration fails to provide the evidentiary facts supporting the medical conclusion that the baby was still‐born. (Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113.) Declarations submitted by the party opposing, once found admissible, are liberally construed, while the mo...

Excerpt: ...nder the CLRA, plaintiff must notify the potential defendant of the alleged violations and demand correction. (CC. § 1782.) Plaintiff must plead and prove that proper notice was given. (Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 564‐565.) Defendant has not shown delay or prejudice. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an ab...

Excerpt: ...mmary judgment as to Plaintiff Wide West Services under the Barton doctrine and as there are no damages identified as to this Plaintiff; and, 3) Grants summary judgment as to Plaintiff Valley and Mountain as there are no damages as to this Plaintiff and the claims are barred by the statute of limitations. Additionally, the Court declines to rule on Plaintiffs evidentiary objections. They are not objections to the evidence, but rather a separate s...

Excerpt: ...of 5 Code section 1102.5, (2) disability discrimination, (3) failure to engage in the interactive process, (4) failure to accommodate, (5) disability harassment, (6) failure to prevent discrimination and retaliation, and (7) intentional infliction of emotional distress. According to Ross, the relevant facts are that: (1) he was retaliated against when he repeatedly raised issues and concerns as to whether the evidence in the Robert Wayne Parker m...

Excerpt: ...ation regarding his direct supervisor, Sergeant Epps. After his removal, he filed a demand for an administrative appeal to challenge his removal. A full evidentiary administrative appeal was heard before Hearing Officer Anthony Miller (administrative law judge or “ALJ”) The ALJ upheld Petitioner's transfer and found that Petitioner failed to provide any evidence to support his assertion that his transfer was retaliatory. Petitioner argues in ...

Excerpt: ...Murphy and the “Maxim Defendants”. MVUSD correctly asserts that Murphy has not provided any evidence of Plaintiff's total damages; the allocation of settlement proceeds among plaintiffs; or the financial condition/insurance policy limits of the settling Defendants per Tech‐Bilt. Neither the Application nor the Oppositions discuss Murphy's (or Maxim's) proportionate share of liability. Her reliance on MICRA caps is misplaced as the cap on no...

Excerpt: ...of the declaration. Objections 1 and 3‐8 are overruled. Objections 2 and 9 are sustained. Defendants object to evidence submitted by Plaintiff. Because Defendants fail to carry their initial burden, the burden never shifted to Plaintiff and Plaintiff's evidence was not considered. The Court declines to rule on Defendants' evidentiary objections. Discussion The elements of a negligence claim are: (1) legal duty owed to plaintiffs to use due care...

Excerpt: ...al date is continued. In light of the grant of the motion, the trial status conference and trial will be continued. Counsel to appear to discuss a new trial date. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. Under CCP § 473(a), the “court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (See also CCP § 576.) Since judicial policy favors th...

Excerpt: ...regarding res judicata is that Plaintiff Linn previously litigated all of the issues in this case in case PSC1405184. A request for judicial notice filed in support of the motion contains an unfiled, unsigned, and undated document purporting to be a “fourth amended complaint” by Plaintiff and the entity International Apparel in that case. This document is not part of the Court's record and not subject to judicial notice. Furthermore, as point...

Excerpt: ... Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.) Here, both sides rely on outside facts to attack or defend the truth of the allegations in the Second Amended Complaint (SAC). The court has disregarded both sides' external evidence. The court denies Defendant's request for judicial notice. The fact that the subject property i...

Excerpt: ...58.070 pursuant to Evid. Code §§1280 (record by public employee), 1531 (certification of copy for evidence), and 1532 (official record of recorded writing. The unopposed request for judicial notice is granted. Standing: Scheinker contends GAI lacks standing because the lease agreement contains four other parties who are not named in the Complaint and that they are indispensable parties. The rule is that plaintiff must be the real party in inter...

Excerpt: ...6) failure to prevent discrimination, harassment and retaliation; (7) retaliation (Labor Code §6310); (8) wrongful termination in violation of public policy; (9) violation of Labor Code §1102.5; (10) intentional infliction of emotional distress; (11) assault; (12) battery; and (13) negligent hiring, retention and supervision. Defendant Hinds demurs to the 9th cause of action on the grounds that it fails to state facts sufficient, because she is...

Excerpt: ...t for punitive damages, therefore the motion is granted as to those items. There is no evidence to support that plaintiff filed this lawsuit in bad faith and without reasonable cause. Defendant's request for costs is denied. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time to file a demurrer has expired. C.C.P. §438(c). Lack of jurisdiction and the failure to state facts sufficient to...

Excerpt: ...ocedure section 2025.230, a corporate party deponent must designate and produce for deposition those officers, directors, managing agents, employees or agents who are most qualified to testify on its behalf as to matter on which the examination is requested. The deposition notice must describe “with reasonable particularity the matters on which examination is requested.” (Ibid.) A request for documents may be made in connection with the PMQ d...

Excerpt: ...notice in time to defend. Lopez seeks relief under CCP section 473(b) based upon mistake. Page 3 of 4 The Camaras: Relief under section 473(b) was not timely sought. Defendant may seek discretionary relief from default under CCP § 473(b) on grounds of “mistake, inadvertence, surprise or excusable neglect.” The application for discretionary relief under CCP § 473(b) must be made “within a reasonable time … ” and “in no case exceeding...

Excerpt: ...rom a dangerous condition of public property. In its demurrer, the County argues that Second Amended Complaint fails to state facts sufficient to constitute a cause of action against the County for a dangerous condition of public property because the County did not have a legal duty to close Box Canyon Road or to warn of the possibility of flooding in anticipation of an approaching storm/hurricane. In addition, the County asserts that the operati...

Excerpt: .... Defendant is to provide the further responses within 30 days of this order. Defendant's evidentiary objections numbers 20, 21, and 22 are overruled. The court declines to rule on the remaining objections as they are immaterial to the present motion. Most of the objections are to statements setting up the factual situation of the case and are not relevant to this motion. The only objections relevant to this motion are numbers 20, 21, 22. Defenda...

Excerpt: ... on the ground that it sufficiently alleges facts to support an actual controversy. Defendant Nexus' Request for Judicial Notice: Is unopposed and granted pursuant to Evidence Code § 452 (d), (g), and (h). Plaintiff's evidentiary objection is sustained. As to the issue of timeliness of the motion: While CCP §438 imposes time limits, they “may be meaningless because a nonstatutory motion for judgment on the pleadings apparently survives withou...

Excerpt: ...n and Dianne Van Loon, but were dismissed early on in litigation. Two of the cross‐complaints that were filed went to trial – one brought by Winchester‐ Wesselink, LLC (“LLC”) and one brought by Richard Van Loon. LLC asserted in its cross‐complaint that two of its members, Richard and Dianne Van Loon (collectively “Van Loons”), had refused to allow the majority shareholders to act, had engaged in meritless litigation, and had inte...

Excerpt: ...iverside regarding property owned by defendant 1445 University Avenue, LLC at 1445 University Avenue in Riverside. The City alleges numerous Health and Safety Code violations at the property and seeks appointment of a receiver under Health and Safety Code section 17980.5. The City alleges the property is a vacant commercial building and has been in substandard condition dating to at least March 2019. There are transients at the property, homeless...

Excerpt: ...and that the State of Oregon issued a Salvage Certificate Title. (Compl., ¶16.) He alleges the subject vehicle was then bought and sold by each of the defendants between 2010 to 2018. (Id. at ¶19.) At some point, one of the owners altered the driver side airbag and seatbelt pretension system and added foam to the steering wheel to give the appearance that an airbag was present. (Id. at ¶ 29.) These allegations are sufficient to show that the s...

Excerpt: ...7 Cal.App.4th 72, 77.) A special demurrer, other that subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or implied by conduct. The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If there is any valid cause of a...

Excerpt: ...e both its legal description and its street address or common designation, if any.” C.C.P. §872.230(a). The cross‐ complaint alleges the legal description by incorporation of the description in a property profile, Exhibit “A” to the cross‐complaint. This description includes the tract number (2257), the lot number (417), the map book (42), and the map page (15), and is essentially the same as the one given in the recorded deed (RJN “...

Excerpt: ...urvivor action brought on behalf of the estate of the decedent, Ying Chi “Eddie” Wong (“Decedent”) against the decedent's spouse, Defendant Lu Li, involving disputes over rights to certain real and personal properties. Plaintiff is Decedent's daughter from his first marriage which ended in a divorce in 2012, who is also the executor of the Decedent's estate. The real properties at issue are located in Riverside County, and are referred to...

Excerpt: ...f contract between the plaintiff and defendant is ordinarily essential to recover in actions for breach of warranty. Any affirmation of fact or promise by seller to buyer that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise. (Com. Code, §2313(1).) Implied warranties arise from the contract. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 117.; Com. C...

Excerpt: ...use of action for cancellation of instruments in the Cross‐Complaint is directed to Page 3 of 3 Omega Paving's petitioning activity. As to Carlisle's 5th cause of action for slander of title, the motion is moot. Carlisle dismissed that cause of action from the Cross‐Complaint. Omega Paving contends the act in furtherance of its right of petition is recording the mechanic's lien and the amended mechanic's lien, which form the basis of Omega Pa...

Excerpt: ...ed States Constitution ensure the right to jury trial. Defendant cites no authority that guarantees parties in a civil action the right to have jurors in the same room during trial. Defendant argues that jurors must occupy the same space as the court, the lawyers, the litigants, and the witnesses because "the constitutional right to jury trial is the right as it existed in common law." (Notice of Motion and Motion (Motion), at p. 4 [emphasis in o...

Excerpt: ...and second causes of action, Plaintiff lacks standing. Plaintiff fails to allege that he listed the first, second, and sixth causes of action in his bankruptcy petition. When a person files for bankruptcy, any causes of action that person previously possessed belong to the bankruptcy estate. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1001 (Cloud).) "Causes of action are separate assets which must be formally listed…. Simply lis...

Excerpt: ...er that cause of action is brought by Silvia Hernandez, Sissi Perez, or both. Any Third Amended Complaint shall fully comply with California Rules of Court, rule 2.112(3). Analysis: The plaintiff has failed to allege facts giving rise to a duty of care. “‘[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.' " (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal...

Excerpt: ...d 11‐4‐20. The motion is granted. Analysis: “Plaintiffs' Evidentiary Objections to Declaration of Betsy Lanza,” etc., filed 10‐1‐20 is not considered. Although the title indicates that the objections are directed to a declaration of Lanza, the heading of the chart of objections indicates that, to the contrary, the objections are directed to a declaration of Urrutia. As will be seen, the plaintiffs repeated – and sometime enlarged up...

Excerpt: ...that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) The conduct of nurses, however, is measured by that of other nurses under similar circumstances. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the...

Excerpt: ...ears from the date of the wrongful act which could not be later than the actual breach of contract by the person who was wrongfully induced. However, Plaintiff contends he did not have the opportunity to discover the facts until 2/23/18 as stated in his Complaint. The “discovery rule” is an exception to the general rule that an action accrues when appreciable harm occurs. (Fox v. Ethicon Endo‐Surgery (2005) 35 Cal.4th 797, 807.) The discove...

Excerpt: ...omplaint 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.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the co...

Excerpt: ...issed by Plaintiffs leaving only the 1st cause of action for negligence still asserted against Proper Solutions. Proper Solutions is alleged to be liable under the basis that Brown was acting in the course and scope of his employment with Proper Solutions when the accident occurred. Proper Solutions moves for summary judgement on the grounds that there is no triable issue of fact that Brown was not acting within the course and scope of his employ...

Excerpt: ...hin 10 days after service of written notice of entry of the order and must be “based upon new or different facts, circumstances, or law” than those before the court at the time of the original ruling. (CCP § 1008(a).) It must also be accompanied by a declaration stating “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown...

Excerpt: ... case, which is attached to the TAC as Exhibit C, states that judgment is rendered against “Cross‐defendants Marianne S. Hudack, and Larry J. Hudack, individually and as trustees of the Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” The Judgment also states that judgment is rendered against “Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” Under Portico Mgmt Group LLC v. Harrison (2011) 202 Cal.App.4th 464, 474, ...

Excerpt: ...issed by Plaintiffs leaving only the 1st cause of action for negligence still asserted against Proper Solutions. Proper Solutions is alleged to be liable under the basis that Brown was acting in the course and scope of his employment with Proper Solutions when the accident occurred. Proper Solutions moves for summary judgement on the grounds that there is no triable issue of fact that Brown was not acting within the course and scope of his employ...

Excerpt: ... case, which is attached to the TAC as Exhibit C, states that judgment is rendered against “Cross‐defendants Marianne S. Hudack, and Larry J. Hudack, individually and as trustees of the Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” The Judgment also states that judgment is rendered against “Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” Under Portico Mgmt Group LLC v. Harrison (2011) 202 Cal.App.4th 464, 474, ...

Excerpt: ...e carrier; 2) the judge presiding over the trial (Judge Holmes) refused to recuse himself under CCP section 170.3 or follow the proper procedure for considering such a challenge; 3) family trusts cannot be sued; and, 4) judgments against married couples as a unit are void. The Court previously determined the four basic claims made by Plaintiff in the SAC were not directed to the County and stated no basis for the County's liability. In the TAC, P...

Excerpt: ...h cause of action. First through third causes of action (breach of oral partnership agreement, specific performance, and quiet title): All three causes of action are based on plaintiff Chaffey's allegation of an oral agreement between the parties that plaintiff Chaffey take an interest in the subject property. Community property assets may be liable for the debts incurred by either spouse during the marriage. (Family Code §910). It is neither ne...

Excerpt: ... he took a heated mud bath at Defendants' spa. The motion is based upon the grounds that Plaintiff signed a release that covers his claims. As a preliminary matter it should be noted that Plaintiff does not dispute that the subject release extends to Defendants' actions because those actions were reasonably related to the operation of its spa. (See Paralift, Inc. v. Sup.Ct. (Levin) (1993) 23 Cal.App.4th 748, 756‐757.) However, Plaintiff claims ...

Excerpt: ... HISTORY Plaintiff Luvy Leal (“Plaintiff”) filed the complaint (the “Complaint”) in this action on July 27, 2018, against defendants Sabadell United Bank, N.A. (“Sabadell”); Aztec Foreclosure Corporation (“Aztec”); VirtualBank, a division of IberiaBank (“VirtualBank”); and IberiaBank (“IberiaBank). Plaintiff, who is the owner of property located in Corona, California (the “Property”) alleges multiple violations of the Ho...

Excerpt: ...pp. 4th 399, 414.) The allegations must “include facts showing a unity of interest and a resultant injustice, prerequisites to an alter ego theory.” (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 74.) The court grants the motion with 30 days leave to amend for the third, fourth, sixth, eighth and ninth causes of action. The court grants the motion without leave to amend for the first, second and seventh causes of action. Plaintiff has agr...

Excerpt: ... Cal.App.4th 1253, 1255.) Here, the motion seeks to strike punitive damages allegations from the First Amended Complaint. Such a motion lies where the facts alleged in a pleading do not rise 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 t...

Excerpt: ...sent lawsuit is in the relatively early stages of discovery and investigation, but at this point in time, and for purposes of this Motion For a Good Faith Settlement Determination only, KPS' alleged damages total $145,593.94”)(emphasis added).) Given that Plaintiff's injuries total $145,593.94, the settlement amount of $29,000 (i.e., 20%) plus non‐monetary terms, is within the ballpark of PWI's proportionate share of liability. It is irreleva...

Excerpt: ...responding to lemon law complaints. The responding party is required to “make a reasonable and good faith effort to obtain the information from other natural persons or organizations, except when the information is equally available to the propounding party.” (CCP§ 2030.220(c); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) As to No.12.1: It requires the responding party to provide the...

Excerpt: ...arns. There is a triable issue of material fact as to whether the assignment to Rescon was proper. Defendants failed to meet their initial burden regarding punitive damages. Defendants seek summary judgment, or in the alternative, summary adjudication of several contentions asserted by plaintiff Citrus El Dorado, LLC (“Plaintiff”) in the one cause of action for wrongful foreclosure of the third amended complaint (TAC) (i.e., Rescon is not lia...

Excerpt: ...ing on the prayer to the 1st cause of action for Breach of Contract‐Page 18 (Line 5): "For a declaration that the Lease is terminated;” and Page 18 (Line 6): "For Tenant to return possession of the Property to Landlord" and from the prayer to the 6th cause of action for Waste‐Page 18 (Line 26): "For punitive damages (Cal. Civ. Code § 3294)." The breach of contract claim properly requests termination and return of possession. Defendants arg...

Excerpt: ...thirteen causes of action, seeking to recover damages and return of business assets for various wrongful acts, including breach of contract and financial elder abuse. Defendant Gastelum demurs to the second and fourth causes of action alleged against her, respectively for Aiding and Abetting Financial Abuse of an Elder and for Aiding and Abetting Conversion. In 1981, Plaintiff founded the business providing firearms and security training, using t...

Excerpt: ...on to compel as to special interrogatories, set one, special interrogatories 4‐6. Defendant Stephenson is Ordered to serve verified further responses to those special interrogatories within 20 days. Sanctions are imposed on defendant Stephenson in the amount of $1,539. The sanctions shall be paid to Plaintiffs within 30 days. Defendant Stephenson objects to the special interrogatories on a number of grounds. In particular, the Court notes the g...