Excerpt: ....) Factual background: This is a personal injury action based on premises liability. Plaintiffs Alex Engel and Monica Engel (collectively, “plaintiffs”) allege that plaintiff Alex Engel was an unlicensed contractor hired by defendant to install a zip‐line on the premises of defendants Victor Medina (Medina) and Leticia Valizan (Valizan) (collectively, Medina and Valizan are referenced as “defendants”) located at 2401 Moonridge Circle in...

Excerpt: ...ure to prevent claim is properly predicated on the sexual harassment claim. (Complaint, ¶ 82.) Although Defendant contends no cause of action for “discrimination” (as opposed to “sexual harassment”) is alleged, Plaintiff states a valid cause of action for failure to prevent sexual harassment, thereby surviving general demurrer. (Quelimane Co. Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38‐39 (“If the complaint states a caus...

Excerpt: ...hat is subject to the demurrer or motion to strike. The moving party is required to file a declaration with his or her demurrer indicating that a meet and confer occurred, or that Page 4 of 10 the moving party made a good faith attempt to meet and confer and received no response from the other party. C.C.P. §§ 430.41(a)(3). Defendant filed a declaration that stated that he sent a letter to Plaintiff outlining concerns as to the original Complai...

Excerpt: ...o not aid in the resolution of the demurrer or motion to strike. Plaintiff's Request for Judicial Notice is granted as to the Kohler v. Presidio Int'l, Inc. (C.D. Cal. 2016) 782 F.3d 1064 case and the Stipulation for Dismissal filed in the Federal Action; otherwise, denied as duplicative of Defendant's request for judicial notice. Demurrer is Overruled on the grounds of uncertainty. Demurrer is Sustained without Leave to Amend as to Irene Mitsos,...

Excerpt: ...udicial notice. Page 3 of 6 First Cause of Action – Violation of Civ. Code §2923.6(c) (failure to rescind foreclosure efforts after loan modification filed): If a borrower submits a completed first lien loan modification application at least five business days before a scheduled foreclosure sale, a notice of default shall not be recorded and a trustee's sale shall not be conducted while the application is pending. (Civ. Code § 2923.6(c).) A l...

Excerpt: ...lly. Vantage is ordered to file an updated motion that contains the relevant unredacted information that is consistent with the ruling below. The Court orders Vantage to file that updated document within 10 days of today's hearing. FACTUAL / PROCEDURAL CONTEXT Plaintiffs Michael Franchini and Kelsey Garcia's (collectively “Plaintiffs”) minor daughter, Natalie Franchini, died due to cancer on 5/31/19. They contend that defendants Yvonne D'Sylv...

Excerpt: ...ating Plaintiff at the jail). A court may allow the amendment of any pleading, at any time, in furtherance of justice. (Code Civ. Proc., §§ 473(a)(1), 576.) Although there is a policy favoring leave to amend, it should be denied where it will be meaningfully prejudicial to an opposing party or where a party has inexcusably delayed in seeking leave. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) A court may permit an amendment to a ple...

Excerpt: ...quest for attorney's fees. The Court denies the remainder of the motion. * * * The Court shall note one procedural issue: C.C.P. §§ 430.41(a) and 435.5(a) requires that before filing a demurrer or a motion to strike, the moving party must meet and confer in person or by Page 7 of 11 telephone with the party who filed the pleading that is subject to the demurrer or motion to strike. The moving party is required to file a declaration with his or ...

Excerpt: ... action are intentional torts. As such, unless Plaintiff requests oral argument and can articulate facts that would demonstrate viable causes of action, the demurrer is sustained without leave to amend. If Plaintiff can allege facts, the demurrer is sustained with 20 days leave to amend. The Court grants the motion to strike portions of the complaint related to punitive damages, with 20 days leave to amend. The Court grants the motion to strike a...

Excerpt: ...harles Cass (“Plaintiff”) was struck by a vehicle driven by Defendant Douglas Bonilla (“Bonilla”) during the course of his employment by Defendant Lincoln Transportation Services, Inc. (“Lincoln”). Plaintiff alleges that Bonilla was speeding and following too closely at the time of the accident. Plaintiff alleges he suffered serious injuries, including traumatic brain injury and head, neck, back and knee pain as a result of the accide...

Excerpt: ... filed the complaint (the “Complaint”) in this action on June 17, 2020, against defendants Paul Blanco's Good Car Company Inland Empire (“Inland Empire”), Paul Blanco (“Paul”), Putu Blanco (“Putu”) and Jon Balogh (“Balogh”).1 Plaintiff was employed by Inland Empire as a salesperson from August 2016 until his termination on or about March 5, 2019. (Complaint, ¶¶ 20, 34.) Paul and Putu are alleged to be owners, directors, offi...

Excerpt: ...tuting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that Page 7 of 8 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 wi...

Excerpt: ...stop discrimination and harassment) causes of action in the First Amended Complaint. The First Amended Complaint alleges, in pertinent part: • Plaintiff Funkhouser was hired by Defendant Desert Sands Unified School District in August of 2010 as an English teacher. • Funkhouser started experiencing urological issues, including frequent and painful urination. After examination, Dr. Faulkner concluded that these urological issues would be a perm...

Excerpt: ...is not allegation of a relationship giving rise to a duty to disclose. The elements of a cause of 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 Page 3 of 4 must hav...

Excerpt: ...d by Plaintiff located at 1430 W. Wilson Street in Banning (the “property”). In 2013, Defendant agreed to loan Plaintiff the amount of $55,000 to help finish his construction project on the subject property, with a deed of trust recorded against the property to secure the loan. Plaintiff agreed to issue a grant deed transferring a 5% interest in the property, which he could repurchase from Defendant. Plaintiff alleges he paid off the loan, an...

Excerpt: ...ndant Cara Goldberg's demurrer to the 4th cause of action is overruled and the demurrer to the 6th cause of action sustained with 30 days leave to amend. This FAC for (1) Dissolution, (2) Accounting, (3) Breach of Fiduciary Duty and Constructive Fraud, (4) Conversion, (5) Unfair Business Practices and (6) Conspiracy arises out of the operation and later 2019 distress sale of Plaintiff A#1 Services Heating and Air Conditioning, Inc.'s assets and g...

Excerpt: ...al was performed by Defendant Hla May Latt (“Dr. Latt”). Latt also placed a temporary crown. Plaintiff did not return for a permanent crown until January 2017. The permanent crown was prepared and implanted by moving Defendant Michael C. Oh (“Dr. Oh”). The crown did not fit initially and Plaintiff followed up with Dr. Oh on several occasions. Additionally, Plaintiff asked Dr. Oh to replace silver filling in Teeth Nos. 14, 15, 18 and 19 (�...

Excerpt: ...se (Judicial Council form CM‐200) ON 6/24/20, in violation of H.2 of the CMO. The Notice of Settlement of Entire Case is ordered stricken and the hearing on 4/15/21 vacated. 2. The declaration of Kevin Mahoney fails to comply with H.3a.iii.D of the CMO. 3. The declaration Kevin Mahoney fails to comply with H.3.iv of the CMO by providing an estimate of the high and low range of possible recoveries. 4. The declaration of Kevin Mahoney does not co...

Excerpt: ...aterial to the Court's analysis. The Court overrules MJB objections 1 and 2 to Plaintiff's evidence and sustains objections 3‐6. a. The complaint states a cause of action against MJB. Plaintiff has not alleged a breach of duty against MJB based on a theory of liability arising from an exception to the Federal Motor Carrier Safety Regulations (FMCSRs) that provides that a shipper who assumes the responsibility of loading becomes liable for the d...

Excerpt: ...from the Federal District Court and instead only provided the Federal District Court's docket. This docket showed Metropolitan was not a party to the lawsuit and insufficient information was provided by the parties to establish that this action and the Alabama action pertain to the same issues. There remains no pending litigation in Alabama to which Metropolitan is a party. Nevertheless, in the case before the Northern District of Alabama (2:18�...

Excerpt: ... to avoid a ladder on the road and rear ended another vehicle. Her husband, Plaintiff Nathan Joseph Drake (“Drake”) was asleep in the passenger seat. After this collision, a semi‐truck driven by Defendant Jose Luis Cuellar Beltran (“Beltran”) and owned by Defendant Barrillas Trucking, Inc. (“Barrillas”) collided with Manthey's car forcing it into the adjacent lane where it collided with a vehicle driven by Defendant Daniel Armand Pa...

Excerpt: ...y move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall order the parties to arbitrate if it determines that an agreement to arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; (b) Grounds exist for the revocation of the agreement; or (c) A party to the arbitration agreement is also a party to a pending court action or special proceedi...

Excerpt: ...nts Salisbury Group, Inc. (SGI), Lisa 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 manager of the property, 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. ...

Excerpt: ...s fees and costs to be filed by Releasors' counsel. Plaintiffs shall be considered the prevailing party for purposes of said fee motion.” (Motion, Ex 6, ¶ 3.) Under the settlement, Plaintiff is deemed to be the prevailing party for purposes of seeking an award of attorney fees in accordance with Civ. Code § 1794(d). The California Supreme Court has indicated that attorney fee awards “should be fully compensatory.” (Ketchum v. Moses (2001)...

Excerpt: ... demurrer to the original complaint. The fourth cause of action is not challenged by their successful challenge to the original complaint, defendants seek to hold plaintiffs. As to the First Cause of Action for private and public nuisance under the common law and under Civil Code section 798.87: A public nuisance is defined as a nuisance which affects a considerable number of people, while any other nuisance is a private nuisance. (Civil Code (CC...

Excerpt: ...and treatment of a decubitus by Plaintiff Maria Almanza, a comatose quadriplegic patient, while in the care of Defendants Desert Regional Medical Center, Inc. and Indio Nursing and Rehabilitation Center, Inc. after an automobile accident that rendered Almanza quadriplegic. Plaintiff refers to Defendant Desert Regional Medical Center, Inc. (DRMC), Defendant Desert Regional Medical Center Staff, Inc. (Medical Staff), and Defendant Tenet Healthcare ...

Excerpt: ... in the complaint and that it, and not Aspects, Inc. contracted for and performed all of the work at issue. The motion also asserts that Aspects, Inc. did not comply with the legal prerequisites to bring an action on a stop notice release bond or payment bond. Triable issues of material fact exist as to these issues and preclude summary judgment or adjudication. Summary judgment is granted when a moving party establishes the right to entry of jud...

Excerpt: ... must remove the following language from paragraph 3 on page 4 of the proposed order: The Court further finds that the terms of the Settlement have no obvious deficiencies. The court finds that the risks of further prosecution are substantial and include the risks that (1) penalties would be reduced after evaluation of the totality of the circumstances, or (2) that no penalties would be awarded for some or all of the alleged violations. The movin...

Excerpt: ...ial date was vacated by general orders issued by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motions on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 10, 2020. DRMC has actually been litigating this matter outside of arbitration since 2016, when named Respondent ...

Excerpt: ...ion, pro bono attorney panel, or other legal entity; or to seek private legal counsel to obtain legal representation for this lawsuit. Further, that Plaintiff should contact the Litigation Coordinator and or Ombudsman at the Wasco State Prison for information regarding lawyer referral services and/or information regarding affecting service of his legal documents. Plaintiff has not provided adequate information to establish that he is being denied...

Excerpt: ...ed Plaintiff for having leased the Subject Properties to them which was on Native American land, and were filled with anger, hatred and ill will towards Plaintiff. As part of such intentional malice, and with the intent to vex, injure, annoy Plaintiff, and/or with a conscious disregard of Plaintiffs rights, Defendants stole Plaintiffs property, damaged Plaintiffs property, and vandalized Plaintiff's property in a purposeful attempt to cause monet...

Excerpt: ...nt's motion for summary judgment has been granted. “[W]hether a matter is ‘embraced' in or ‘affected' by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal.” [Citation.] “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 ...

Excerpt: ...e undisputed facts indicate that defendant the dog did not have dangerous propensities and that even if it did, defendant neither knew nor should have known of such dangerous propensities. (UMF Nos. 31, 33‐37.) A defendant moving for summary judgment meets its initial burden on summary judgment by the following: 1. Presenting affirmative, admissible evidence negating an essential element of plaintiff's causes; 2. Showing a complete defense with...

Excerpt: ...ment to a pleading, leave to amend must be liberally, granted.” (Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 596.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010)184 Cal. App. 4th 1422, 1428.) However, leave to amend may be denied where inexcusable delay and probable prejudice to the opposing party is shown.” (Magpali v. Farmers G...

Excerpt: .... (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) A public entity is liable if the property was (1) in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and (4) a negligent, wrongful or omission of a public entity employee created the dangerous condition or (5) the public enti...

Excerpt: ...of action. The Court finds that the motion to strike is moot. The Court notes that on 12/1/20, Lake Hemet Municipal Water District also has a demurrer and a motion to strike. Although this Court normally grants a Plaintiff leave to amend 20‐30 days from the hearing date, in order to avoid any confusion, the Court grants Plaintiff 60 days leave to amend. This is only done in order to not have multiple amended complaints; the Court takes no posit...

Excerpt: ...and ninth causes of action. Court finds no reasonable possibility that Cross‐ Complainant can cure the defect. (Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240.) For the second cause of action, breach of contract, the Second Amended Cross Complaint (SACC) fails to state the terms of the oral contract between Cano and Cross‐Defendants. (Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1149; see also Daniels v. Select Portfolio Serv...

Excerpt: ...cts showing a unity of interest between Arbid and Power Brokers to show a unity of interest between the two and alleged that injustice would result if they were considered wholly separate. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, ...

Excerpt: ...of trust based upon the three Purchase and Sale Agreements and Business Purchase Agreements. However, according to Plaintiffs, the purchasers and their agents instead prepared a false set of loan documents to Cardenas by which Cardenas loaned $3,055,000 to Defendant Zenith Homes, LLC and submitted to escrow a double escrow in which Urwell purportedly conveyed the properties to Zenith for fake private hard money loans. According to Plaintiffs, the...

Excerpt: ...ations. First, by making this request in its reply, Plaintiffs have not given the adverse parties sufficient notice of the request. Second, Plaintiffs have not given the court enough information to take judicial notice of the matter. The request for judicial notice does not give enough context to interpret the table in the request. A court may take judicial notice of official acts and public records, but not necessarily the truth of the matters r...

Excerpt: ...ludes watching a baseball game at the university campus. Defendant has not met its initial burden of showing that the undisputed facts support each element of this affirmative defense. There is no question that being struck by a foul ball is an inherent risk of watching a baseball game, and that primary assumption of the risk bars claims for injuries common to baseball. While there is generally no duty to protect plaintiff from risks inherent in ...

Excerpt: ... School District (the District) is a free charter school district that operates the Nuview Bridge Early College High School (Bridge High School). (Office of Administrative Hearings Clerk's Record (“AR”) 791.) Petitioner was hired by the District as a U.S. Government and Economics teacher at Bridge High School in August 2014. (AR 5.) As part of the class, Petitioner conducted debates on political issues. Petitioner generally received positive ...

Excerpt: ...n conveniens – an equitable doctrine that invokes the discretionary power of the court to decline the exercise of jurisdiction “when it believes the action may be more appropriately tried elsewhere.” (Stangvik vs. Shiley (1991) 54 Cal.3d 744, 751). Neither Plaintiff nor any of the 16 Defendants are domiciled in California. (FAC ¶¶3‐21.) The “Relevant Non‐Parties”, ssiirrii, Inc. and Ander Schreiner are also not domiciled in Califo...

Excerpt: ...ceipt for reservation of the motion. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. (CCP §2031.310.) “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) Requ...

Excerpt: ...ng the venue for arbitration in Los Angeles County. For this reason, plaintiffs filed a motion to compel arbitration on 11‐18‐19. That motion was denied on 12‐16‐19 because the evidence did not show that Defendants were refusing to arbitrate but only resisted having venue in Los Angeles County. The 12‐16‐19 order directed the parties to adhere to the arbitration rules of the Alternative Dispute Resolution Services, Inc. (“ADR”) fo...

Excerpt: ...sation insurance company) initial decision finding Clausman's injuries were not work related. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of Civ. Proc., § 437c(c). A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action ...

Excerpt: ...ployees employed during the PAGA period. The court has issued a CMO to guide a future motion. Specifically, the motion does not include any information from which the court can determine that the Settlement is reasonable – the motion lacks information with respect to the number of aggrieved employees, the number and nature of Defendants alleged PAGA violations, the total amount of penalties for which the Defendants are potentially liable and th...

Excerpt: ...lleges that the subject vehicle was then bought and sold by each of the Defendants between 2010 to 2018. (Id., at ¶19.) Plaintiff alleges that 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 subject vehicle was reconditioned, which constitutes a c...

Excerpt: ...ase No. PSC1606284) and provide him with competent legal services. (Second Amended Complaint (“SAC”), ¶ 14.) On May 23, 2017, the Newport Defendants brought in attorney Christopher Beckom (“Beckom”) to assist in the case, without Plaintiff's knowledge or consent. Plaintiff alleges Beckom was associated with Newport Law. On February 1, 2018, Beckom became lead counsel in the underlying case, without Plaintiff's knowledge or consent. (SAC,...

Excerpt: ...ity over the employee, when the employee discloses a violation of the law (i.e. whistleblowing). (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) To establish a prima facie case of retaliation under whistleblower retaliation statute, Plaintiff must show: (1) the plaintiff engaged in protected activity, (3) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two. (Ross v. C...

Excerpt: ...not that the plaintiff will obtain judgment against the defendant on that claim.” CCP § 481.190. There is no dispute that cross‐defendants entered into a Commercial Lease and Personal Guaranty, and that rent and other charges are due and owing. Unless Plaintiffs can show that the loan evidenced by the Baker Note was repaid or somehow forgave the obligations of other parties to the lease (by Novation, for example), the rent is still due by th...

Excerpt: ...o the County from Plaintiffs' negligence claims, but it does not apply to the individual Defendants. For the individual Defendants, Plaintiffs cannot recover for Defendants' failure to summon immediate medical care under Government Code section 845.6 or failure to provide adequate facilities, equipment, and personnel under Government Code section 845.2, but those immunities do not apply to Plaintiffs' other allegations that support their negligen...

Excerpt: ...the supplemental declaration of Wakeman are sustained as to Nos. 1 and 3, but otherwise overruled. The plaintiff's evidentiary objections filed 10‐22‐20 to the declaration of Sanchez are sustained. The plaintiff's evidentiary objections filed 9‐23‐20 to the declaration of Nagata are overruled as to No. 1 and sustained as to No. 2. The Court does not consider the second supplemental declaration of Anderson, filed with the reply. Therefore,...

Excerpt: ...he CMO. The court has considered and rejected defendant's request to expand the release to include parent companies and the officers and directors of those companies. Other than speculation that such companies and individuals may be exposed to liability, there is no citation to California authority, or a reference to a factual circumstance in this action, which would hold the parent companies, or its officers and directors, responsible for the La...

Excerpt: ...mily, net profits derived from all operations of BST Family, any profit and loss statements prepared by BST, assets of BST, liabilities of BST, and money used to pay expenses incidental to the formation and incorporation of BST Family. None of these documents are relevant to the claims asserted by Plaintiffs. Plaintiffs' hired BST Family to work on their home. They allegedly failed to do the work contracted for, did not perform work in a workman ...

Excerpt: ...egarding Courtroom 20 Law & Motion Procedures: The law and motion calendar in Courtroom 20 before Judge Matthew P. Guasco starts promptly at 8:30 a.m. Ex parte applications will be heard at the same time as matters on the law and motion calendar. Parties appearing by Court Call must check in with the Judicial Assistant by 8:20 a.m. No notice of intent to appear is required. Parties wishing to submit on the tentative decision must so notify the Co...

Excerpt: ...e Sunniva Cultivation Campus on Ramon Road in Cathedral City, and turned left onto the westbound Ramon Road where she was struck by a speeding vehicle driven/owned by Defendants Ruby Rodriguez and Oscar Avalos. Construction was ongoing on the premises and there were no warnings, barriers, signs or markings for drivers traveling eastbound onto the road. Defendants Prestige International Security, Orr Buildings, Barker Pacific Group, Inc., Sunniva ...

Excerpt: ...is apartment as a result of the step not being properly secured. Plaintiff alleges that the stairs provide the only access to his unit and that after he fell, he notified Defendant, but Defendant did not fix the stairway; Plaintiff fell again later when another step came loose and flipped up and that he notified Defendant again but that Defendant has still not fixed the stairs. Plaintiff's 2nd cause of action is based upon Cal. Code of Regulation...

Excerpt: ...ation (Lab. Code § 6311); (10) failure to pay meal period compensation; (11) failure to pay rest period compensation; and (12) adverse action in violation of public policy. * * * Defendants now demur to first through eleventh causes of action and argue: (1) the first cause of action fails because Plaintiff did not have a qualifying purpose to take leave and did not actually request leave; (2) the second cause of action fails because Plaintiff wa...

Excerpt: ...invested in Crossley, or other entities, in connection with a “build out” of numerous lease properties. CrossComplainants allege two causes of action, one for fraud and deceit and one for negligent misrepresentation. With respect to Cross‐Complainant King, the individual, both causes of action are uncertain. As pleaded, the Cross Complaint does not plead any individual claim for fraud or deceit or negligent misrepresentation, and appears to...

Excerpt: ...r facts that can overcome these procedural barriers, the demurrer is sustained without leave to amend. Page 3 of 7 The Court sustains the demurrer as to the FEHA claims (4th through 6th causes of action) because Plaintiff fails to allege the wrongful conduct was based on a discriminatory motive or protected activity, however the Court grants Plaintiff 30 days leave to amend. FACTUAL / PROCEDURAL CONTEXT This is an employment discrimination action...

Excerpt: ... action for conspiracy or tortious interference with contractual relationship. Plaintiff contends that the cause of action was erroneously titled and that it seeks to recover for conspiracy or, alternatively, for tortious interference with the Settlement Agreement and the Lease, neither of which demurring Defendants are party to. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actua...

Excerpt: .... Gilbert (2011) 196 Cal. App. 4th 1495; Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967.) Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Rutledge v. Hewlett‐Packard Co. (2015) 238 Cal. App. 1164, 1193; Young v. Rosenthal (1989) 212 Cal. App. 3d 96, 118.) The Court may impose a monetary sanction ...

Excerpt: ...administrator regarding the administrator's experience; the fee, whether the fee is fixed, hourly, or fixed with a cap; and how the fee was calculated. Abigail Schwartz of Rust Consulting submits a declaration, who indicates that the cost is estimated at $8,743. She does not state whether the fee is fixed, hourly or fixed with a cap. It appears however, to be based on an hourly rate, but it is unclear. ¶H.3.e requires the release to be limited t...

Excerpt: ...medical malpractice. Although a tentative was posted, a final ruling was not made and hearing was continued to 4‐14‐20. The hearings were further continued but ultimately vacated due to the court's closure due to the COVID pandemic and issuance of General Order 2020‐15, dated 4‐22‐ 20. Plaintiff filed a motion to amend the Complaint which was granted on 8‐17‐20. The operative pleading is the First Amended Complaint (FAC). The FAC pe...

Excerpt: ...s forfeited by a defendant if the defendant fails to request arbitration within 30 days of receipt of the notice. The undisputed evidence establishes that the plaintiff mailed the notice was sent to Tumbrello at 26142 Williams Way #A, Murrieta, CA 92563. Plaintiff has shown proof that it was mailed on January 13, 2018, pursuant to a Certificate of Mailing issued by the United States Postal Service. (Karas Dec., Ex. 1; Declaration of John Karas, �...

Excerpt: ... television (CCTV) information and the Standard Operating Procedures (SOPs) on the storage and use of firehoses. The court orders the parties to meet and confer to prepare a stipulated protective order, to be submitted to the court within 10 days. Defendant must provide the requested CCTV and SOP information within 20 days. Plaintiff seeks the home addresses and phone numbers of three store employees: one who took Plaintiff's statement, another w...

Excerpt: ...urally or substantively unconscionable. Per the Agreement, this matter is to be submitted to the American Health Lawyers Association Alternative Dispute Resolution Service. Parties are ordered to submit this matter to the AHLA ADRS within 15 days from the date notice of this order is served by Defendants on Plaintiffs. This matter is stayed with respect to Dr. Solof only, per Code of Civil Procedure section 1281.4 Page 5 of 6 and an OSC re comple...

Excerpt: ...by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of act...

Excerpt: ...rant abdominal pain and was cared for by Dr. Nguyen, one of the Moving Defendants. (Moving Defendants' Separate Statement of Undisputed Facts [“SUF”], ¶2.) Repeated CT scans of the abdomen and a colonoscopy showed lower quadrant inflammatory changes suspicious for cancer and also showed that Plaintiff had gallstones. (SUF, ¶¶3‐6.) Based on these findings, Dr. Nguyen's treatment option was to perform a resection surgery, which was discuss...

Excerpt: ...ember 30, 2016. Thereafter, Heller defaulted and did not make additional payments on the balance owing. A balance of $6,675.15 remained on the account when it was charged‐off on February 28, 2017. Bank of America filed the instant suit in August 2019 to recover the balance due on the account. In September 2019, Heller filed a Cross‐Complaint asserting one Intentional Infliction of Emotional Distress cause of action. On December 26, 2019, the ...

Excerpt: ...s Dennis French (French) and Rick Tarnutzer (Tarnutzer) were general partners in a general partnership known as Laguna Hills Allspace (Laguna Partnership) (collectively, French, Tarnutzer, and the Laguna Partnership are referenced as “defendants”). Plaintiff alleges that defendants owned property in Riverside at 1827 Atlanta Avenue (subject property) at which it performed general contracting work under a written contract for which it was not ...

Excerpt: ...negligence . . . includes the negligent permission of allowing the person responsible for the foregoing acts and/or omissions.” A general demurrer under Code of Civil Procedure section 430.10(a)(e) attacks the complaint for failing to state sufficient facts to state a cause of action or lack of subject matter jurisdiction. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) A special demurrer, other that subsections (a) & (e...

Excerpt: .... Negligent Infliction of Emotional Distress; 7. Breach of Contract; and 8. Breach of Covenant of Quiet Enjoyment. Defendant previously demurred to the 2nd cause of action, which this court sustained with leave to amend. The court also previously granted Defendant's motion to strike punitive damages allegations and prayer for relief with leave to amend. Thereafter, Plaintiff filed a FAC. Defendant once again moves to strike portions of the FAC re...

Excerpt: ...h Defendant showed Plaintiff was aware Cavco may be a joint employer, it failed to show Plaintiff was aware of Cavco's culpability and liability in this action. Plaintiff's evidentiary objections are overruled as to nos. 1‐ 3, 5, 6, 8, 9, 11‐13 and sustained as to no. 4, 7, 10. The court declines to rule on Defendant's evidentiary objections. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence....

Excerpt: ...s indemnity and equitable indemnity. (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal4th 1151, 1157 (Prince).) Where a complaint seeks recovery for the same right under several different legal theories, there is really only a single “primary right” and hence only one cause of action. (Barrett v. Sup. Ct. (Paul Hubbs Const. Co.) (1990) 222 Cal.App.3d 1176, 1182.) However, the presence of separate counts stating duplicative causes of action are...

Excerpt: ... issue of the good faith of a settlement . . . .” The court “does not adjudicate the issues of liability or damages”, but determines whether the settlement reflects a reasonable range of potential liability. (Pruyn v. Agricultural Ins. Co. (1995) 36 Cal.App.4th 500, 527.) In Tech‐Bilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499, the Court stated that pursuant to CCP §877.6, several factors are to be considered in determining whether a ...

Excerpt: ... (CCP § 437c(a).) The court must determine from the evidence presented that “there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (CCP § 437c(c)). A moving plaintiff has the initial burden of showing that there is no defense to a cause of action and to meet such burden must prove each element of his cause of action. (CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Mari...

Excerpt: ...r Code of Civil Procedure section 437c, subdivision (h), or otherwise, nor has it provided the Court with any explanation for why the opposition was untimely and served it a way unlikely to ensure that moving defendants would receive it before the hearing. The Court will not consider the late‐filed and served opposition or any of the related filings. As to the merits of the motion, there are no triable issues of material fact. Moving defendants...

Excerpt: ...cken. However, in support of the motion defendant merely cites to the elements of plaintiff Wolf's (“plaintiff”) causes of action, without explaining the manner in which the challenged words or phrases are improper. The complaint alleges facts regarding the breakdown of a business relationship with a family that has extended over 20 years. The allegations support the basis for a dissolution of the most recent venture together, as well as plai...

Excerpt: ...ponding paperwork, the Court shall deny the request for sanctions. On its own motion, the Court notes that there have been prior discovery motions filed in this matter. Thus, the Court orders that before filing a discovery motion that requires a meet‐andconfer declaration, the moving party must first request an informal discovery conference (IDC). (Code Civ. Proc., §§ 2016.080, subd. (a).) FACTUAL / PROCEDURAL CONTEXT This is an underinsured ...

Excerpt: ... ground that both “declarations, including the exhibits thereto, are new evidence.” Without specificity as to the portions of the Block declaration, the court declines to rule. The latter declaration contains Page 3 of 6 statements described in the former declaration. With regard to the Bailey declaration the objection is sustained. An admission cannot be amended or withdrawn except by leave of court after noticed motion. (CCP §2033.300(a).)...

Excerpt: ...acturing aftermarket fuel injection systems for automobiles. In 2016, Farrell was appointed to the positions of President and General Manager for Fitech. (Cross‐complaint, ¶11.) In February of 2017, Fitech and Farrell entered into a contract, entitled External Trade Sales Agreement (“ETSA”), to allow Farrell to independently develop and “market accessories or brands of performance autoparts” during his employment as Fitech's general ma...

Excerpt: ...urt declines to rule on Defendant's evidentiary objections. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence. Page 4 of 6 The court declines to rule on Plaintiff's request for judicial notice. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence. The elements of a claim for wrongful discharge in violation of public policy include 1) an employer ‐...

Excerpt: ...s. (Code Civ. Proc., § 1010.6(a)(4).) The notice should have been served no later than 9/29/20, presuming the parties had a valid agreement to serve by email. (Ibid.) Also, the declaration of Christopher Olsen was rejected by the clerk on 10/1/20, and was not filed until 10/15/20. Further, the Proof of Service indicates there was a declaration of Fessenden served with the motion, but no such declaration was filed with the court. Regardless if de...

Excerpt: ...on paragraph 17(e) as it is immaterial to the Court's ruling. FACTUAL / PROCEDURAL CONTEXT This is a medical malpractice case brought by Plaintiff Sheri Proskow against Defendants Inland Valley Medical Center, Adrian Campo, M.D., and Matthew T. Wilson, M.D., for professional negligence. Plaintiff was admitted to Inland Valley Medical Center's Emergency Department on November 1, 2017. Dr. Campo was the admitting physician who ordered various labor...

Excerpt: ...ate facts constituting a cause of action. Jurado asserts that the first and second causes of action are barred by the applicable statute of limitations, which is either 1 year or 3 years under Code of Civil Procedure section 338, subdivision (f), in an action brought against a notary acting in an official capacity based on misfeasance or malfeasance. Based on the allegations in the complaint, it appears that Plaintiff Sanchez's first and second c...

Excerpt: ... Ordinarily, an employee's rights against his or her employer or any fellow employee for on‐the‐job injuries lie solely under the worker's compensation law, and the worker's compensation is the injured employee's “exclusive remedy.” (Lab. Code, §§3600, 3601, 3602(a).) In such actions involving a worker injured on the job, the superior court and the Workers' Compensation Appeals Board (WCAB) do not have concurrent jurisdiction, and one o...

Excerpt: ...s speculative/lacks foundation. Defendant's objections to Weinberg declaration, court declines to rule on 11, 12, and 13. Plaintiff's objections to Coon declaration are overruled as to no. 1, 2, and 3 and the court declines to rule on no. 4. “The purpose of the summary judgment procedure is not to try the issues but merely to discover … whether the parties possess evidence which demands the analysis of trial.” (Colvin v. City of Gardena (19...

Excerpt: ...tive and does not comply with the safe harbor provisions of CCP § 128.7(c). If construed as a motion for reconsideration, the motion likewise fails, as Plaintiff fails to present any new or different facts, circumstances or law to support reconsideration. Plaintiff purports to being the present motion pursuant to Rules of Professional Conduct, the Rules of Judicial Ethics, 18 U.S.C. § 1001 [federal statute imposing criminal liability for making...

Excerpt: ...reement and directing Defendant Beatrice Cervantes to execute the papers required by the City of Coachella to process the tentative parcel map so that the subject property partition can be completed. Plaintiff asserts that Defendant has withheld her signature on the Application for Planning Approval and insists that Plaintiff agree to modify the settlement agreement so that Defendant can avoid some very modest septic tank modification or relocati...

Excerpt: ...fs, the Court now DENIES the motion to strike. Defendant relies on outside evidence. The grounds for a motion to strike must appear from the pleading or from matters which the court may take judicial notice. (CCP §437.) Thus, the court does not consider the outside evidence. Plaintiff filed the Second Amended Complaint on 8/13/19, which was served by mail on the same day. Plaintiff did not submit the Third Amended Complaint (“TAC”) until 9/2...

Excerpt: ...eady been fully litigated before the Labor Commissioner with the full participation of DRMC. Stated otherwise, the letter allegedly agreeing to arbitration does not constitute new or different facts or circumstances to explain why DRMC repeatedly engaged in actions inconsistent with its right to arbitrate and otherwise failed to take steps necessary to preserve its right to arbitration. On August 7, 2019, appellant Desert Regional Medical Center,...

Excerpt: ...eceptively induced him to enter into a number of written and oral contracts in an effort to obtain control and custody of his 300 show pigeons. Plaintiff further alleges that Defendants stole and sickened several of the pigeons while failing to adequately pay him for the sale of 130 of the pigeons. Finally, Plaintiff alleges that Defendants converted 30 handpicked pigeons and several widowhood carrying cages. The operative FAC was filed on 3/10/2...

Excerpt: ...rer is filed, or after demurrer and before trial. (Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102, 1105.) Otherwise, amendment of any pleading requires prior order of court. CCP §473 provides that following a noticed motion, the court may allow an amendment to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in permitting amendments at any stage of the proceeding.” (Rocky Mountain Expo...

Excerpt: ...ithout leave to amend only as to the minor Plaintiffs, who lack standing to pursue those causes of action. The demurrer to those causes of action is overruled as they relate to Plaintiffs Manuel Dominguez and Marisella Benavidez. The demurrer to the 5th (nuisance), 6th (battery), and 7th (intentional infliction of emotional distress), causes of action is sustained with 30 days leave to amend as to all Plaintiffs. The demurrer is overruled as to t...

Excerpt: ...nistrative Record to determine whether the weight of the evidence supports the Hearing Officer's finding that Petitioner engaged in misconduct. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.) However, the administrative decision has a strong presumption of correctness. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811–812, 817.) The evidence supporting the Hearing Officer's finding of misconduct is overwhelming. The Hearing ...

Excerpt: ... cross‐complaint filed by Donica B. Simmons and Epsten APC originally heard after a request for oral argument was made by Ms. Baranowski on July 10, 2020. This hearing was reset to allow the parties to request oral argument, and if so requested, be given an opportunity to be heard on the court's tentative ruling entered as a final Order on July 10, 2020. In evaluating a demurrer, the court gives the pleading a reasonable interpretation by readi...

Excerpt: ...urly rate of $650.00 requested for attorney Williams is unreasonable and does not represent the prevailing rate for attorneys within this geographical area and for the nature and extent of the work performed and reduces the rate to $450.00 per hour. The moving party is awarded reasonable attorney fees and costs against the responding party in the amount of $12,471.51 for violation of the Local Rule, for failing to appear at the December 06, 2019 ...

Excerpt: ... they are fatally uncertain and that Plaintiff Jeanne Gonzales lacks standing to sue on decedent Ana Gutierrez's behalf. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plainti...