Excerpt: .... He sought relief from the Labor Commissioner regarding alleged violations and obtained an award in his favor. Medical Center now appeals said decision. It contends that the Labor Commissioner lacked jurisdiction because Fernandez never complied with the grievance procedure found in Fernandez' union's collective bargaining agreement (“CBA”). Medical Center has filed this petition for arbitration. It contends that under the CBA, Fernandez is ...

Excerpt: ...bits B and C. Defendant Objections: Exhibit B is not authenticated by sworn declaration and the verification fails to identify the relationship of the affiant to the County, therefore a lack of foundation. Defendant notes that the verification signed by Erik Collier does not state Mr. Collier's title or position with the County. CCP §2031.250(b) requires that discovery responses for a government agency shall be signed by one of the agency's offi...

Excerpt: ...1) wrongful termination in violation of public policy, 2) retaliation against whistle blowing, and 3) UCL violations. Plaintiff seeks an order compelling three of Defendant's employees, Christopher Turner, Don Matthews and Nathan Beyler, to appear for deposition. Plaintiff also seeks sanctions of $4,040 for unnecessarily delaying these depositions. Plaintiff asserts that since December 2019, he has unsuccessfully attempted to schedule these three...

Excerpt: ...s were negligent as follows: On March 18, 2018, decedent THOMAS JASKULSKI was performing an annual certification swim test at Palm Desert Aquatic Center, 73751 Magnesia Falls Drive, Palm Desert, CA, pursuant to the requirements of the National Park Service ("NPS"), as set forth in the Diving Safety and Operations Manual ("Manual"). See Manual, § 3. 4. 3 ii. Defendants, and each of them, did not obtain the required Palm Desert Aquatic Center ("PD...

Excerpt: ...st Commonwealth Partners LLC (“West Coast”) and Defendant Traditions Senior Management, Inc. (“Traditions”) is OVERRULED. Reche Canyon, West Coast, and Traditions (sometimes “Defendants”) are Ordered to file and serve Answers to the Fifth Amended Complaint (“5AC”) of plaintiffs Tim Brockus, Carie Brockus, and the Estate of John Brockus (collectively “Plaintiffs”) within 30 days. Defendants demur to the first and fourth causes ...

Excerpt: ...n multiple occasions from the District to stop engaging in unprofessional behavior. Petitioner continued to do so, either because Petitioner Page 6 of 10 failed to recognize the District's expected standards or because he willfully disregarded those standards. Petitioner failed to meet his burden to convince the Court that the Commission's administrative findings and decision upholding the dismissal were contrary to the weight of the evidence so ...

Excerpt: ...ny pickup truck. Plaintiff filed the first action, Long v. McCarty et al. (RIC 1720939) (the “Prior Action”), on November 11, 2017, against McCarty and his employer, Digital Networks Group (“DNG”). Page 6 of 12 McCarty was dismissed from the action without prejudice on May 25, 2018, and the Prior Action proceeded against DNG only. Plaintiff filed the present action, Long v. McCarty (RIC 1901478), on February 13, 2019, against McCarty. The...

Excerpt: ...ssary for Special Interrogatory No. 35. The Court awards sanctions in the amount of $2,500 total for this discovery motions and the prior discovery motion that was continued. FACTUAL / PROCEDURAL CONTEXT This is a lemon law case. On December 26, 2015, Plaintiffs Donald and Connie Deever (“Plaintiffs”) purchased a new 2017 Ford F‐150 (“Subject Vehicle”), which was manufactured and distributed by Defendant Ford Motor Company and sold by D...

Excerpt: ...ainst the County of Los Angeles (“County”) and its subcontractor, Northwest Pipe Company (“NPC”). On April 03, 2017, Minco filed its original complaint against the County only, and later file the First Amended Complaint (“FAC”) on December 11, 2017, including NPC as a defendant, which is the operative complaint. The FAC alleges against NPC the causes of action for (i) Breach of Subcontract, (ii) Breach of Warranty, (iii) Contractual I...

Excerpt: ... and the Cross‐Complaint of Century 21 Masters, Karen Myatt, and Todd Myatt filed on 7‐12‐19. Moving parties' (referred to herein as moving parties or Secured Income parties) Request for Judicial Notice is granted pursuant to Evidence Code § 452 (c). Objections of Realty Services to paragraph 24 of the McDermott Declaration are sustained. Court declines to rule on remaining objections. In order to obtain a summary judgment, “all that the...

Excerpt: ...d on the asserted errors or omissions of the attorney. A prior adjudication, judgment or settlement is not a necessary precursor to “actual injury”. Based on the facts alleged, Plaintiff sustained an actual injury by November 2016 when Wayne Dixon filed the Underlying Petition seeking to invalidate the 2016 Trust. As a result of Defendant's alleged negligence in failing to ascertain Ronald Dixon's mental capacity by communicating with him alo...

Excerpt: ...er party to the contract jointly interested with such party. (Cal Civ Code § 1689(b)(1).) “A prerequisite to any claim for rescission is a contract between the parties. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 542, p. 668.) This is because rescission requires each party to the contract to restore to the other everything of value received under the contract.” (Viterbi v. Wasserman (2011) 191 Cal. App. 4th 927, 935.) One who is no...

Excerpt: ...aintiffs waited over 13 years after purchasing the subject vehicle and more than 8 years after the end of the warranty period before filing suit. The statute of limitations for Plaintiffs' 1st, 3rd 4 th and 6th causes of action for common law intentional misrepresentation and concealment, and violation of CLRA is three years. (CCP § 338(d); Civil Code § 1783.) The statute of limitations for Plaintiffs' 2 nd cause of action, for negligent misrep...

Excerpt: .... On June 25, 2020, Plaintiff served a deposition subpoena for production of business records on Pacific Life & Annuity Company. Pacific Life is related to Ridgeview Owner LLC, the prior owner of the subject property. In response to requests for production, Defendant identified Pacific Life as a non‐party that might have documents relevant for requests specifically related to the subject mirror and its installation and maintenance. The SDT seek...

Excerpt: ...610 because Mailing Problem.” (Emphasis in Original.) Plaintiff Riverside County Transportation Commission (RCTC) filed oppositions to these documents on August 12, 2020. On August 17, 2020, Defendants Chang and Young Kim filed additional documents, also that were similarly entitled as above: (1) “Defendants propose Plaintiff lose case because Plaintiff's 8/12/2020 File Exhibit “A” Form CIV‐100 is manipulate. Young H. Kim did not receiv...

Excerpt: ...bability of prevailing on the claim and as such the Motion should be denied. The matter is not summarily decided on the issue of illegality. Defendant does not concede the extortion and because there are competing declarations regarding the alleged extortion. So the evidence does not conclusively establish the actions of Defendant were illegal as a matter of law. In contrast in Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, the court found that ex...

Excerpt: ...rts two cause of action for negligence. Plaintiff brings this motion seeking to have matters deemed admitted because Defendant failed to provide responses to his request for admission. He seeks sanctions in the amount of $2,160.00. Defendant contends that verified responses have now been provided. He asserts that timely responses were not provided due to a calendaring error at his attorney's office. Due to this, he contends that this motion is mo...

Excerpt: ...oduction (“RFP”) on Max, who was then three years old. At the time, no guardian ad litem had been appointed by the Court. On 5‐19‐20, Max served responses objecting that he could not comprehend the discovery requests. The parties exchanged emails and met and conferred telephonically, but could not resolve the issues. On 6‐ 1‐20, Oscar Magana (Oscar) was appointed Max's guardian ad litem (GAL). The requisite meet and confer occurred. T...

Excerpt: ...in 5 court days. The Petition to grant arbitration is granted. The matter is stayed pending the resolution of arbitration. The Court shall on its own motion set a Hearing re: Status of Arbitration on May 7, 2020, at 8:30 am, to be heard telephonically. FACTUAL / PROCEDURAL CONTEXT This an attorney‐client dispute. Plaintiffs Sherry Lee Collins and her firm Sherry Lee Collins, Attorney at Law, APC (“Plaintiffs” or “Collins”) filed the ori...

Excerpt: ...1 Cal.App.3d 447.) The Court denies the request for sanctions. FACTUAL / PROCEDURAL CONTEXT State Farm moves for a protective order to prohibit the deposition of its claim adjuster, Karen E. Johnson, on the grounds that the deposition testimony provided by Ms. Johnson would be protected by attorney‐client privilege and work product doctrine, and would not be admissible or reasonably calculated to lead to the discovery of admissible evidence. In...

Excerpt: ...ty” (id., subd. (a)) and states the general rule that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding” (id., subd. (b)). In proceedings under the Probate Code, cost recovery is within the discretion of the court: “Unless it is otherwise provided by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to ...

Excerpt: ...AC) is not a sham pleading. The allegations in the Complaint, Notice of Errata and FAC are essentially the same. The FAC using the same transactional facts alleged new theories. The recharacterization of Kyle's claims against Defendant and the omittance of Irina's claims does not result in a sham pleading. The FAC states sufficient facts sufficient to constitute causes of action for breach of fiduciary duty; breach of partnership/joint venture ag...

Excerpt: ...d contacted her former servicer, Bank of America, and obtained a loan modification agreement which names Bank of America as the lender, when it was merely the servicer. She disputes Bank of America was the lender and any subsequent assignment. She alleged that Defendant Nationstar is a debt collector with no standing to foreclose and that Defendant Ceja, who purchased the property, is also liable under similar theories. Plaintiff filed this actio...

Excerpt: ...int (“FAC”) and the City of Beaumont's First Amended Cross‐Complaint (“FAXC”) are SUSTAINED WITH 20 DAYS LEAVE TO AMEND. DOE/ROE 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 DOE/ROE 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 ...

Excerpt: ...to the Lease. As a matter of background, trial on this matter was completed on 11‐30‐18. On 5‐31‐19, the court issued an interlocutory judgment ordering partition. A Partition Referee was appointed. The lease which is the subject of this motion was not presented during the trial. On or about 12‐ 20‐19, Defendant disclosed a commercial lease (the “Lease”) to the referee. The Lease, executed by Defendant in 2014 as both Lessor and L...

Excerpt: ...eenth cause of action) without leave to amend. 11th, 12th and 13th Causes of Action: Regardless of the source of the settlement payments or how those payments are characterized in the Settlement, IWIA's requirement to make payments was a contractual obligation created by the Settlement and does not arise from any employment relationship. [See Settlement, ¶ 5(b) [general release].) The parties explicitly acknowledged the termination of any employ...

Excerpt: ...ung's vehicle. Mr. and Ms. Tung (collectively “Plaintiffs”) allege that Defendant was looking at her cellphone when she went through the intersection during a red light at a high rate of speed. On June 5, 2019, Plaintiffs filed their Complaint, in which they assert two causes of action for: (1) Motor Vehicle; and (2) General Negligence. On May 15, 2020, Plaintiff moved for leave to file a first amended complaint (FAC) to add a claim for punit...

Excerpt: ...er manager for the Rancho Mirage health center, supervising approximately 26 employees. Beginning in January 2018, Plaintiff alleges she was subjected to ageist comments in the workplace and she was placed on a performance improvement plan (“PIP”) even though she had only ever received excellent prior work reviews. On January 12, 2018, a note was left at Plaintiff's home that said “Quit or Die Bitch.” (FAC ¶12.) On January 9, 2019, Plain...

Excerpt: ...e the issue of enforceability of arbitrability to the arbitrator. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891‐892.) To be effective, the language “must be clear and unmistakable” and that there is no “contract defense such as fraud, duress, or unconscionability.” (Id. at 892, 894.) The arbitration agreement contains a delegation clause that provides: “The Arbitrator shall have exclusive authority to resolve any dispute ...

Excerpt: ...he general public to enjoin unfair or fraudulent business practices under Bus. & Prof. Code, §17200. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 14:226.1; Bus. & Prof. Code, §§17204, 17535.) The UCL now limits standing to sue to persons who have sustained “injury in fact and lost money or property as a result of such unfair competition.” (Bus. & Prof. Code, §17204, see In re Tobacco II Cases...

Excerpt: .... Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546. However, 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: ...xist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and ...

Excerpt: ...repaid at 3% interest, except for $1,000 which would be used to acquire a 40% membership interest. Thus, Gabrio owned 40% while the Trust owned 60%, and the Pierattonis managed PizzaVino. On 6/30/13, the parties executed an amended operating agreement and a separate letter agreement. Gabrio assigned his membership to Plaintiff Stafano Casati on 1/1/14; on 1/1/18, Stefano assigned his interest to Plaintiff Carla Nutini. PizzaVino has breached paym...

Excerpt: ...ablishes 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 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 (...

Excerpt: ...x. 3), the Design‐Build Contract (Ex. 4), Assembly Bill 2098 (Ex. 6), State regulations (Ex.7), and Index to Plans and Construction Sequence (Ex. 9). It is denied as the Falsework Manual (Ex. 5) and the Bridge Construction Manual dated April 30, 2008 (Ex. 8). Page 3 of 9 EVIDENTIARY OBJECTIONS Plaintiffs' objections are sustained as to Nos. 2, 42, 44‐62, 71, 72, and 80, and overruled as to Nos. 1, 3‐41, 43, 63‐70, 73‐79, and 81‐89. Ac...

Excerpt: ...a complaint do not include the presence or absence of separate counts stating separate causes of action. (See Code Civ Proc., §430.10.) The Legislative Committee Comments for this section mentions that, following the repeal of the former statutory Page 6 of 9 provision, improper joinder of causes of action is no longer a ground for objection. (Stats. 1971, c. 244, p. 383, §29, operative July 1, 1972.) Thus, Demurrer is overruled based on the re...

Excerpt: ...action against defendant Nathan Mubasher (“Defendant”) on December 20, 2017, and the operative fourth amended complaint on September 3, 2019. Motion to Compel Appearance at Deposition: After several attempts to set Plaintiff's deposition, Defendants served a Notice of Continuance of Taking Deposition on January 23, 2020 and unilaterally set Plaintiff's deposition for February 27, 2020. Plaintiff failed to appear for the February 27, 2020, dep...

Excerpt: ...arty shows the date of 8‐7‐20. Moving party filed a Reply addressing the timing of the document and addressing the arguments stated in the Opposition. The court exercises its discretion to consider the Opposition. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202; Kapitanski v. Von's Grocery Store (1983) 146 Cal. App. 3d 29, 32.) Defendant's Request for Judicial Notice of Declaration of Al Northrup and its exhibits: Denied...

Excerpt: ...f bed bug bites allegedly suffered by Plaintiff after she purchased a sectional couch from Defendant Bob's Discount Furniture, LLC. 2 nd c/a‐ The legal basis for the cause of action is unclear. As Defendant correctly states: “Plaintiff' s Second Cause of Action for "Negligence and Failure to Warn" is a hodgepodge of partially made claims for no less than five different theories of liability. Specifically, the Second Cause of Action contains l...

Excerpt: ...ough shifts, stuck gears and causes the transmission to drop into neutral, stalling and other safety concerns. Defendant demurs to the 3rd cause of action on the grounds that it fails to state facts sufficient and is uncertain. It argues that there is no duty to disclose as there is no fiduciary relationship. It states that there is no basis for damages as a result of the concealment. It contends that it is not pled with the heightened standards....

Excerpt: ...ncial elder abuse, the court must award plaintiff reasonable attorneys' fees and costs. (emphasis added.) This is a unilateral fee‐shifting provision under which fees may be awarded to a prevailing plaintiff but not a prevailing defendant in order to encourage the effective enforcement of an important public policy. (Wood v. Santa Monica Escrow Co. (2007) 151 Cal. App. 4th 1186, 1191.) Such unilateral fee‐shifting statutes reflect a considere...

Excerpt: ...the property would be transferred from Defendant's name to the name of Plaintiff's children, Norma and Damien, not in Plaintiff's name. This argument is untenable. Under Civil Code § 3050, Plaintiff has an equitable interest in the property as security for the reimbursement of any consideration paid, including any down payment and consequential expenditures for improvements, taxes and insurance. (Civil Code § 3050; McCall v. Sup. Ct. (1934) 1 C...

Excerpt: ...and (4) dangerous condition of public property. IID's motion argues summary judgment or adjudication should be granted because IID Regulation 14 bars liability as a matter of law as to the fourth cause of action for dangerous condition under Government Code section 835. The motion does not address any other cause of action. IID Regulation 14, provides that “[t]he District will exercise reasonable diligence and care to furnish and deliver a cont...

Excerpt: ... BRIGHT FUTURES ACADEMY, LLC (f.k.a. MOJAVE RIDGE ACADEMY).” Complaint, ¶2. Defendant Universal Health Services (“defendant Universal Health”) specially appears in order to move to quash the service of summons. Defendant Universal Health contends that it is a holding company incorporated in Delaware, with a principal place of business in Pennsylvania, with no presence in California, and thus no minimum contacts in this state. To the extent...

Excerpt: ...��19 shutdown, the court shutdown on 3/17/2020. A stipulation was filed and signed by the court extending the time in which to file the Motion to Seal. The Court had granted the Motion to Conditionally Seal pending the filing and ruling on this motion. The Motion to Seal is Granted in Part and DENIED in PART. The Request to seal as to Exhibits 305, 367 and 474, referred to as the 14D Reports is GRANTED, the Declaration of Fyie demonstrates that t...

Excerpt: ...lly. First, it is not clear that service has been shown to Shawwaf as the County appears to concede in the Reply that service may be improper because it has sought to serve defendant by other means. With respect to the issues of service, however, the Court overrules all objections to the Moore Declaration under either hearsay or relevance grounds. The Court finds that the challenged portions of the declaration are not submitted for the truth of t...

Excerpt: ... four corners of the complaint. The case management conference is continued from 9‐ 22‐20 to 10‐20‐20 at 8:30 A.M. in Dept. 1. Analysis: The general demurrers are sustained because there is no 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 t...

Excerpt: ...Amended Complaint actually alleges that the County's liability stems from a dangerous condition of public property. Specifically, the First Amended Complaint alleges: • Hurricane Rosa caused severe flash flooding which destroyed Box Canyon Road and cost over $3 million to repair. • On September 30, 2018, Box Canyon Road was in a dangerous condition due to "flooding from Hurricane Rosa, combined with the layout and the topography of Box Canyon...

Excerpt: ...d demurrers. The Court denies TVH's and Husted's motions to strike. The Court orders Defendants to file their answers within 30 days. FACTUAL / PROCEDURAL CONTEXT This is a medical malpractice matter. On August 25, 2017, Hannah Coates (“Hannah”) was presented to Temecula Valley Hospital, Inc. (“TVH”) with a high fever and pain on her right side. She was admitted for a suspected appendicitis. Hannah and her parents Elizabeth Coates (“Eli...

Excerpt: ...4. The fact that Defendants' Answer to Plaintiff's Fourth Amended Complaint was filed on July 22, 2016; and 5. The decision in California Court of Appeal, Fourth Appellate District, Division Two, in Roger v. County of Riverside (2020) 44 Cal.App.5th 510. Under Evidence Code §452(d), the court may take judicial notice of the records of any court of this state. Accordingly, the requests for judicial notice are GRANTED. II. Motion for Leave to Amen...

Excerpt: ...d triable issues of material fact as to UMF Nos. 33, 38, 56, 61, 148, 171; and 161 and 184 [which are undisputed but see, PSS, PAMF Nos. 4, 15.] Defendants' objections to the Winch Declaration, ¶ 12 are overruled. FACTUAL / PROCEDURAL CONTEXT Plaintiff eXteres Corporation (“eXteres”) has developed technology that allows companies to better communicate with customers through text messaging. The technology is used by car dealerships, among oth...

Excerpt: ...CP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC rule 3.1330; see also Condee v. Longwood Mgmt. Corp....

Excerpt: ...rade secret privilege. A party seeking a protective order restricting disclosure of trade secrets must provide an affidavit or declaration listing the declarant's qualifications to give an opinion, identifying the alleged trade secret, identifying the documents disclosing the trade secret and presenting evidence that the secret qualifies as a “trade secret.” (Evid. Code § § 1060‐1061; CCP § 2031.060(b)(5); Stadish v. Sup. Ct. (Southern C...

Excerpt: ... of this petition seek to compel Plaintiff to binding arbitration pursuant to Code of Civil Procedure §§1281.2, et seq. and California Rules of Court, Rule 3.1330, on the grounds that the parties entered into valid and enforceable arbitration agreements on or about April 5, 2020 and June 18, 2020. Defendants assert that the subject matter of the first representation agreement was that Defendants would perform certain legal services for Roland A...

Excerpt: ...324 provides that a motion to amend a pleading before trial must include a separate declaration that specifies the following: “(1) The effect of the amendment, (2) Why it is necessary and proper, (3) When the facts giving rise to the amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). “[It] is an abuse of discretion to deny leave to amend where the opposing party wa...

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

Excerpt: ...R. Enterprises, Inc. (the prime contractor) to provide disaster relief services in the aftermath of Hurricane Irma. Plaintiff alleges that Defendant breached the Retainage Agreement dated 9/9/18 when it failed to make the final retention payment of $94,303.43. The complaint, filed 3/6/20, asserts: (1) breach of written contract; (2) open book account; (3) account stated; and (4) violation of Civil Code §8818. Defendant moves to compel arbitratio...

Excerpt: ... America, Inc. (2019) 42 Cal.App.5th 1062 and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836. In contrast, here Defendant submitted ample evidence with its moving papers about the electronic process and the protections in the ADP Vantage HCM process to ensure that the documents were indeed signed by Plaintiff. The process and its protections are set forth in the declaration of Adam Dolak. The process requires employees to create t...

Excerpt: ... he/she/it must show a “satisfactory explanation for failing to provide the evidence earlier, which can only be describes as a strict requirement of diligence.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Facts known by the party seeking reconsideration when the original ruling was made are not considered “new or different.” In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. Plaintiffs do not meet the requirements under C.C.P...

Excerpt: ...t cannot take judicial notice of the truth of what Zellers said. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569.) Since the fact that Zellers said these things is not relevant to this suit, the declarant is irrelevant, and judicial notice is denied. Without the evidence that Zellers's factual representations are true, the factual foundation for the motion is lacking. 2. The description of the area in which burials are proposed to be en...

Excerpt: ...and care, implementing interventions to avoid pressure sore development and worsening, and providing Miller with adequate and proper assistance with personal hygiene. (FAC ¶9.) The FAC further alleges that the hospital wrongfully withheld this care from Miller by repeatedly failing to administer this specific care to her. (FAC ¶10.) Under Sababin, this is enough to show neglect. Taking these allegations as true, as we must do at the demurrer st...

Excerpt: ...establish that the “health and safety of residents or the public is endangered” by the alleged substandard conditions on the property. The evidence merely showed an unfinished construction site exists at the property. After hearing oral argument, the court continued the hearing to 1‐17‐20 and ordered the County to arrange for an inspection of the property with reasonable notice to Wayne, and with Wayne to give access for an inspection. Th...

Excerpt: ...ry and concise language.” (Code Civ. Proc., § 425.10.) On demurrer the court must assume the truth of all facts properly pled, facts that may be implied or reasonably inferred from the facts expressly alleged, and evidentiary facts that are in exhibits attached to the complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The court's task is to treat well‐pleaded allegations in the complaint as true and determine whether the complain...

Excerpt: ...nstrate jurisdiction. With respect to Defendant Jeffries Financial Group, Inc., a New York corporation, the simple fact that Jeffries may have an ownership interest in an LLC or corporation which owns the dealership in not sufficient to confer jurisdiction. Plaintiff fails to demonstrate how either Defendant has a continuous and systematic affiliation with California other than an ownership stake in another corporation that did. Specific jurisdic...

Excerpt: ...ad discretion to issue discovery sanctions where: (1) there was a failure to comply with a valid discovery order; and (2) the failure was willful. (Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4th 1470, 1474.) 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.” (Young v. Rosenthal (1989) 212 Cal. App. 3...

Excerpt: ...t allegations in the complaint in the Moore Action by evidence that either does not contradict the allegations or that is not subject to judicial notice. The central arguments by the St. James parties is that admissions by the Moore parties establish that the ByLaws of the church have not been followed and the Moore parties are not members of the church or the board, thus having no power over control of the church. The admissions by the Moore par...

Excerpt: ...mend the Complaint and add any causes of action in a good faith belief they are based in fact. The fact that the cause of action was ultimately unsuccessful does not cause it to be unreasonable. This $90 fee is not stricken/taxed. The $180 for two ex parte applications to continue trial were solely to benefit Plaintiffs' counsel and accommodate his schedule. The $180 is stricken/taxed. The $90 filing fee for the Motion to Compel the deposition of...

Excerpt: ...ion is OTHERWISE DENIED on the ground that Plaintiff has failed to demonstrate a “plausible factual foundation” for discovery of any of the other officer's personnel records. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019). The Court Plaintiff and the City appear at the hearing of the Motion, telephonically and through counsel, to discuss the in camera review of responsive documents. The City's request for sanctions is DENIED. Meet a...

Excerpt: ...rt”), who was the City Manager, displayed tax information concerning Plaintiff's business on a large screen that was visible to the public. Talbert also stated that Plaintiff owed taxes and was a tax dodger. On July 31, 2019, Plaintiff filed his Complaint for Damages against the City and Talbert (collectively “Defendants”). He asserts one cause of action for Violation of Freedom of Speech. The entire action was voluntarily dismissed without...

Excerpt: ...ontends 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 discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action, i.e., “plaintiffs are required to conduct a reasona...

Excerpt: ... as Plaintiff has not shown a reasonable probability of success on the merits of his claims. The Court dissolves the Temporary Restraining Order and a Temporary Protective Order. Factual / Procedural Context: On June 19, 2020, Plaintiff filed the instant action arising out of the alleged conversion of his business and related properties entrusted to his stepson Defendant Alex Delgadillo, asserting nine causes of action against Defendants: (1) Fin...

Excerpt: ... the complaint. The case management conference is continued to 9‐28‐20. The plaintiffs and plaintiffs' counsel, Knight Law Group, LLP, are sanctioned $150, jointly and severally, for the failure to appear at the 6‐9‐20 CMC, payable to the clerk of the court within 20 days. Analysis: The general demurrer is sustained because there is no allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fr...

Excerpt: ...of Riverside, State of California 92211 ("Property"), and has a claim to all timeshare interests. The Complaint names all of the individuals and entities that may claim an interest in a timeshare at Sun Dunes Villas. Sun Dunes Villas is an interval or timeshare ownership project consisting of 24 units and 1,224 timeshare interests (51 weeks times 24 units). The Association was established to act on behalf of the individual owners of timeshare int...

Excerpt: ...lying action”); 2) the Opinion issued by Court of Appeal, Fourth Appellate District, Division Two on 10/17/13 on the underlying action; and, 3) the Fifth Amended Complaint by Plaintiff and his spouse in the underlying case. (The Court notes that copies of the documents were attached as exhibits to the request for judicial notice filed by the County on 2/24/20, before federal, state, local, and court COVID‐ 19 related declarations and orders. ...

Excerpt: ...ies or that statements allegedly made by Dalton are attributable to CSD under any theory of vicarious liability. (See Civ. Code § 2339 [“A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section [negligence or omission], unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service”]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal...

Excerpt: ...nified School Dist. (1986) 177 Cal. App. 3d 792, 802.) The SAC is uncertain. Plaintiff combines the District and City together when describing their duties and roles. (SAC ¶35‐38.) Education Code § 44808 concerns liability when pupils are not on school property. The SAC acknowledges that the incident occurred after school was out and across the street from the school. Plaintiff provides no facts that District knew that the food trucks were da...

Excerpt: ...z, Benedicto Gutierrez, Fernando Benjamin Soriano, Roberto Pedroza, Jose De Jesus Ayala, and Rafael Sandoval Perez, who worked as part of garden maintenance crews, allege that Defendant's common practice, policies, and lack of policies, resulted in systematic denial of rest breaks and wages in violation of the California Labor Code. One such alleged practice involves supervisors' simply reporting just eight hours of work per putative class member...

Excerpt: ...misinterprets plaintiff's allegations. Defendants argue the Proposal itself contradicts plaintiff's allegation that he did not receive notice after the merger was completed, as required by the Corporations Code. Defendants contend the Proposal, which includes references to the Corporations Code, contradicts the allegation that plaintiff did not receive notice. Plaintiff's opposition is correct, however, that the Proposal was allegedly provided to...

Excerpt: ...ts of malice, oppression or fraud to support the demand for punitive damages under the negligence causes of action. There are only conclusory allegations of malice, which are insufficient. (SAC, ¶¶ 27‐30, 35, 39; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [conclusory allegation that conduct is intentional cannot elevate claim for medical malpractice to support demand for punitive damages]; Smith, supra, 10 Cal.App.4th at 1041‐42 [co...

Excerpt: ...very matter pertaining thereto.” (CCP § 128(a)(5); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee); Oaks Management Corp. v. Sup. Ct. (2006) 145 Cal.App.4th 453, 462.) “The power is frequently exercised on a showing that disqualification is required under professional standards governing … potential adverse use of confidential information.” (Responsible Citizens v. Sup. Ct. ...

Excerpt: ...pecific Code of Civil Procedure section and subdivision, if any, in the Answer. Plaintiff's Request for Judicial Notice: Plaintiff requests judicial notice of Defendants' Answer to the Complaint. The Answer may be judicially noticed as a court record under Evid. Code §452(d). The request for judicial notice is granted. Defendants' Request for Judicial Notice: Although Defendants have not filed a separate request for judicial notice, in his decla...

Excerpt: ...t, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., section 366.2(a).) Subdivision (b) of CCP section 366.2 goes on to state, “The limitations period provided in this section for...

Excerpt: ...ourt of the purpose, historically, of demurring to an answer: A plaintiff moving for summary judgment had to disprove defendant's affirmative defenses, so plaintiff made sure, by way of demurrer, that those affirmative defenses were pled in very fact‐specific allegations. The summary judgment statute, however, was amended in 1992, eliminating this requirement. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554...

Excerpt: ... with left hip pain. O'BRIEN also had cramps in the abdomen, dizziness and black stool, all of which are signs and symptoms of potential gastrointestinal issues. Although, O'BRIEN presented with all the above symptoms, DOHC failed to perform the proper tests to diagnose O'BRIEN even though O'BRIEN showed signs of extreme pain and suffering. Later on May 17, 2018, O'BRIEN was admitted to MANOR CARE. O'BRIEN was admitted to MANOR CARE with symptoms...

Excerpt: ...ligence, (2) medical negligence, (3) fraud and (4, 5) dependent adult abuse arises out of the development of decubitus by Plaintiff Maria Alamanza, a comatose quadriplegic patient, while in the care of Defendants Desert Regional Medical Center, Inc. and Indio Nursing and Rehabilitation Center, Inc. Plaintiff alleges that immediately after the automobile accident that rendered Almanza quadriplegic she was transported to DRMC. Plaintiff refers to D...

Excerpt: ...safeguarded the premises and/or sidewalk at or near 155 S Palm Canyon Dr., Palm Springs, CA 92262, such that unmarked, exposed, protruding and nonoperational pipes, sprinklers and/or light fixtures were allowed to exist and be left in disrepair. Defendants failed to barricade the area and/or to warn of the dangerous condition, rending the area of said premises dangerous and resulting in serious bodily injury to the Plaintiff in the following mann...

Excerpt: ...ct to be determined on a case by case basis. The key inquiry is the employee's authority to change or establish corporate policy. The Declarations of Davy Williams and Erik Calderon offered in this case are conclusory and do not satisfy Defendant's initial burden, they simply parrot the standard set forth in White v Ultramar and Davis v. Kiewit Pacific Co. The court finds that the declarations filed in support of the motion of Issues 1 and 2 are ...

Excerpt: ...pines allege they had their house stolen from them by their daughter Leilani L. Dalumpines (now deceased) and her boyfriend, defendant Mauro Ruben Chavez, through two fraudulent grant deeds. Plaintiffs alleges 18 separate causes of action including quiet title, fraud, conversion, elder abuse and related claims against Chavez, successors of decedent Dalumpines and all persons claiming title to the subject property. Other than filing an answer, Cha...

Excerpt: ...use as to why sanctions should not be imposed on the plaintiff for the failure to dismiss the settled action. The OSC was returnable on 1‐15‐20, and expressly defined “sanctions” to include dismissal. The OSC also advised the plaintiff that RSC Local Rule 3116 required the plaintiff to file a declaration five calendar days in advance of the return date in order to avoid any sanctions. Five calendar says before the return date of the OSC w...

Excerpt: ...e.” On its face, the statute applies retroactively, since the term “lifetime” can apply to something existing both before and after Measure J was adopted. Petitioner argues that Government Code § 36502 governs the scope of term limits for charter cities, such as Indian Wells, and 36502 provides that term limits may only apply prospectively. The City argues that it has the general authority under the California Constitution, Art.XI, sec. 5(...

Excerpt: ...123 Cal.App.3d Supp. 11 (App. Dep't Super. Ct. 1981).) This does not mean that a court ignores other “interests of justice as to parties. (See Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d 94.) But in a “convenience of witnesses” motion under Code of Civil Procedure section 397, subdivision (c), the moving party has the burden of proof. (Hamilton v. Superior Court (1974) 37 Cal.App.3d 418.) Moreover, a corporate defendant seeking c...

Excerpt: ...ary 2018. This motion was filed more than one year later. Waiver is a question of fact which must be judged on all the facts and circumstances of the case. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 982‐84.) The law favors arbitration, and waiver will not be “lightly inferred.” The party claiming the other waived the right to arbitrate “bears a heavy burden of proof.” (Saint Agnes Med. Ctr. v. PacifiCare of Calif....

Excerpt: ...Admission. Code of Civil Procedure section 2033.280 provides: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:…(b) the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010 ). Sanctions are impos...

Excerpt: ...ppropriate way or had any concern after watching the dogs interact with non‐family members. (UMF 6‐12 and Plaintiffs' response thereto.) The burden shifted to Plaintiffs, but Plaintiffs failed provide any evidence that Defendants had actual knowledge of any dangerous propensity of the dogs. Further, Defendants are not vicariously liable for the alleged negligent acts of the tenants in allowing the dogs to be unleashed in the front yard. Court...

Excerpt: ...ke is moot. FACTUAL / PROCEDURAL CONTEXT This is a legal malpractice case. Plaintiff Mark Borden alleges defendants Lalah Ensafi and Newport Law orally agreed on December 16, 2016 to represent him in a wrongful foreclosure case (Case No. PSC1606284) and provide him with legal services. (First Amended Complaint, ¶ 10.) On May 23, 2017, they brought in attorney Christopher Beckom to assist in the case, without Plaintiff's knowledge or consent. Pla...

Excerpt: ...that Fresh Start had knowledge that Plaintiff did not have the ability to find out about the undisclosed fact before they moved in. (Second Amended Complaint, ¶¶ 233, 237, and 242.) Plaintiffs identify in the complaint who at Fresh Start knew about the bedbug infestation. (Second Amended Complaint, ¶ 234.) Fresh Start allegedly knew about the bedbug infestation from the tenant who occupied the rental before Plaintiffs and who sued Fresh Start ...

Excerpt: ...ning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 895‐896.) “One who willfully consumes alcoholic beverages to the point of intoxic...

Excerpt: ... the court. (See Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1604.) Until a petition for approval is presented to the court and granted, any settlement agreement is voidable by the minor or the minor's guardian ad litem (Id. at 1603, 1605.) On October 8, 2019, at the hearing on the petition to approve the minor's compromise, the Probate Court asked Plaintiff's why a settlement of $127,000 was reasonable and commented that this cas...

Excerpt: ... the case could be heard before the Riverside County Bar Association for fee arbitration. The arbitrator awarded a refund to Barret and Seki in the amount of $ 38,084.84. That amount was never paid by the Griscom who filed an objection and request for trial de novo. The parties then met on October 9, 2013, and executed a binding settlement agreement, under Code of Civil Procedure § 664.6. (Motion, Ex, A.) Under the agreement, the parties “stip...

Excerpt: ...defendant. Nevertheless, the motion addresses only the first cause of action. Because the motion does not attempt to show that there is no triable issue of material fact as to the second cause of action, the motion for summary judgment fails. The motion for summary adjudication relies on the declaration of an expert, Dr. Ricci, who in turn relies upon medical records describing what Dr. Farag did and did not do. In light of Ricci's reliance on Fa...