Excerpt: ...subject to an adverse employment action within the meaning of FEHA. The burden shifted to Plaintiff, but Plaintiff failed to produce sufficient evidence showing a triable issue of fact. 2 nd, 4th, 6th and 7th causes of action: DENIED. Defendant failed to meet its initial burden that the alleged harassment was not severe or pervasive because its own evidence shows triable issues of fact and/or Plaintiff produced sufficient evidence showing triable...

Excerpt: ...f's evidentiary objections to the Caseldine Declaration. Page 16 of 19 FACTUAL / PROCEDURAL CONTEXT Plaintiff Glen Ivy Recreational Vehicle Park Owners Association (“Plaintiff”) filed the complaint in this action on September 5, 2019 and the operative first amended complaint (“FAC”) on November 20, 2019. Plaintiff is the owner association for the common interest development known as Glen Ivy RV Park (the “Park”) in Corona, CA. (FAC, �...

Excerpt: ... Improvement Program Agreement (“SFIP”) and an Essential Brand Elements Agreement (“EBE”) with deft. GM paid $734,000 in exchange for Defendant's agreement to upgrade its facility in compliance with GM's Facility Image Requirement, and its agreement to provide exclusive dealership sales and service facilities for Chevrolet at the Dealership Premises for 15 years after completion of the upgrades. Defendant allegedly breached the SFIP and E...

Excerpt: ...and Geraldine Jennings (“Plaintiffs”) allege that, on December 21, 2006, they obtained a mortgage loan from Family Lending Services, Inc. (“FLS”) in the amount of $596,600, which loan was secured by a deed of trust on property (“DOT 1”) located at 8211 Fieldstream Court in Corona (“subject property”). (First Amended Complaint (“FAC”), ¶¶ 12, 13.) Plaintiffs also obtained a second loan in the amount of $149,150, secured by a ...

Excerpt: ...at RCA has refused to follow the procedures under the MSHCP and its refusal to communicate with Plaintiff appears sufficient for pleading purposes to demonstrate futility regarding RCA. (SAC ¶ 65.) RCA it does not identify any available administrative remedies regarding County. It does point to a conflict resolution process set forth in the MSHCP Plan. However, it is unclear if this process constitutes an administrative remedy. The purposes of t...

Excerpt: ... The Los Angeles Court found that venue was not proper in Los Page 3 of 5 Angeles and transferred the case to this Court. Given there was no proceeding which resulted in a final judgment on the merits, the 7/9/19 order does not act as a bar to Plaintiff's claims. DFEH Complaint/ Statute of Limitations Dates are not in dispute. Plaintiff was terminated on 1/15/17. (FAC ¶ 15(g).) Plaintiff, through his attorney, sent a letter on 2/14/18 demanding ...

Excerpt: ...set forth below. The motion to strike the complaint under Code of Civil Procedure section 425.16 filed by defendant Mr. Papp and defendant Mr. Tye (collectively “Defendants”) is GRANTED. Defendants meet the first prong of the analysis under section 425.16(e)(1)(2). The complaint arises from the pending Riverside Superior Court action entitled Matthew Tye v. Justin Tye, et al., Case No. RIC 1601881 (the “Tye 1 matter”). Hence, it arises ou...

Excerpt: ...ndants Yvonne D'Sylva, M.D. Yvonne D'Sylva, M.D., Inc. (together, “Dr. D'Sylva”), Elena B. Jackson, M.D. (“Dr. Jackson”), State of California (Department of Health Care Services), California Department of Health and Human Services (together, the “State”) and Inland Empire Health Plan (“IEHP”). Plaintiffs Michael Franchini (“Franchini”) and Kelsey Garcia (“Garcia”) (together, “Plaintiffs”) are the parents of the deceden...

Excerpt: ...ement of which requires court approval.” As such, this motion appears to a motion for reconsideration or a renewal motion. C.C.P. § 1008(a) and (b). Both such motions require new or different facts, circumstances, or law to support their motion. Id. This requirement has not been met. Additionally, the timing requirement for a motion for reconsideration has not been met. Id. at 1008(a). Furthermore, even if the Court does not see this as a moti...

Excerpt: ...cluding the PowerNet and TIMPs (Id at 32‐161), these recalls and TSBs involve other vehicles and it is not clear that they would have put Plaintiffs on notice of the defects, even if they had been able to access them. Accordingly, Plaintiffs have established a duty to disclose based on superior knowledge and their buyer‐seller relationship. Plaintiffs allege Defendants intentionally concealed the defects to boost confidence in the vehicle and...

Excerpt: ...kin, that she developed a “pressure injury” that caused extreme pain and untimely death. Plaintiff also asserts that this failure was caused by intentional understaffing at the nursing facility where Nancy was living. Demurring party asserts that the entire First Amended Complaint fails based on the statute of limitations, but nothing on the face of the pleading shows that it is time barred and the Court will not look behind the pleadings to ...

Excerpt: ...el or initiate litigation without approval of the probate court or the conservator, stating: “because of the establishment of the conservatorship, the proper jurisdiction to seek appointment of a GAL was in the probate court.” The Court takes judicial notice of that opinion (Exhibit 18 to the Request for Judicial Notice), the logic of which controls in this matter. The Court of Appeal adopted the same logic in its opinion in Conservatorship o...

Excerpt: ...icial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” (Dunzweil...

Excerpt: ...��) on February 15, 2019, against defendants S&S Venues California LLC (“S&S”), Sportech Venues, Inc. (“Sportech”) and Silky Sullivans Group, LLC (“Silky Sullivans”). Plaintiff is the owner of commercial property (the “Premises”) located on Hamner Avenue in Norco, California. (FAC, ¶ 3.) On or about November 15, 2013, Plaintiff entered into a lease (the “Lease”) with S&S for a term of ten years. (FAC, ¶ 8, Exhibit 1.) Sporte...

Excerpt: ...s opine as to what caused Plaintiff's cataracts, they never opine as to whether Defendants' conduct breached their required standard of care. Plaintiff has provided no other expert witness declarations to address standard of care. “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care, except in cases where the negligence is ob...

Excerpt: ...A's Offer of Correction, and the Court's tentative ruling on Defendants' Motion for Judgment on the Pleadings. The Court takes judicial notice of the tentative ruling, pursuant to Evid. Code §452(d), which permits judicial notice of court records. Defendants have not provided a basis for judicial notice of the Notice of Violation or Offer of Correction. Accordingly, judicial notice is denied. Page 2 of 4 Motion to Strike: Pursuant to CCP §436(a...

Excerpt: ...thers. (See Undisputed Material Fact Nos. 1 and 10, and the evidence cited in support and in opposition.) The motion is granted as to Issue No. 2 for constructive fraud because plaintiffs concede they make no such claim against Jason Brawner and Lisa Brawner. Page 2 of 5 The motion is granted as to Issue No. 3 for conversion because plaintiffs concede they make no such claim against the Brawners. The motion is granted as to the claim for punitive...

Excerpt: ...failure to file proofs of service of the summons and complaint on the defendants. In light of the monetary sanctions previously imposed on plaintiff and plaintiff's counsel, the Court will refrain from imposing the fine authorized by Code of Civil Procedure section 473, subdivision (c)(1)(A) or the contribution to the State Bar Client Security Fund authorized by subdivision (c)(1)(B), so long as those monetary sanctions are paid in full forthwith...

Excerpt: .... The jury entered a verdict for Plaintiff against PBS, Chan and Defendant A Touch of Brass, Inc. (collectively “Defendants”). Following a Court ruling as to the alter ego allegations, Judgment was entered on October 16, 2019. The Notice of Entry of Judgment was mailed on October 24, 2019. On November 5, 2019, Plaintiff filed a Memorandum of Costs (Summary) requesting $48,056.07. Plaintiff attempted to file a Memorandum of Costs (Worksheet), ...

Excerpt: ...xplanation 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 know 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. “[T]he party seeking reconsideration must provide not only new evidence but also a satisfa...

Excerpt: ... 4, § E.) The phrase, “which arose during the Settlement Period” should be added at the end of the first sentence in § E (after the word, “lawsuit”). • The Notice has been streamlined. Typos and other errors have been corrected. However, § “D” was eliminated without changing the remaining paragraph – that is, the sections on pages 3‐4 are now numbered/lettered: A, B, C, E. • The Exclusion Form has been appropriately revised...

Excerpt: ...facts of this case are well‐documented in the Court's Statement of Decision, which will not be repeated here except to briefly state that after Plaintiff filed her action seeking to quiet title, Linda filed a cross‐complaint against Plaintiff and Kurt. With respect to Kurt, Linda filed her action against him because he was still on title at the time of the lawsuit. On 11/18/19, judgment was entered in Plaintiff's favor. The Court denied any r...

Excerpt: ...17.) Such fee awards are allowable as court costs under CCP § 1032. (CCP § 1033.5(a)(10)(A).) Entitlement to Attorney Fees Paragraph 40 of the Commercial Lease Agreement between the parties provides as follows: ATTORNEY FEES: In any action or proceeding arising out of this agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs from the non‐prevailing Landlord or Tenant, except as pr...

Excerpt: ...n—not a factual assertion. “ ‘For the bar on inconsistent fact pleading to apply, the facts must be “antagonistic,” ' and the bar ‘applies to facts, not legal conclusions to be drawn from the facts (such as whether the parties had an agency relationship or instead that of buyer and seller).' ” (Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 242 (quoting Weil & Brown, California Practice Guide: Civil Procedur...

Excerpt: ...hat the Estate adequately met and conferred prior to filing the motions. Regarding each of the motions, the Estate sent a lengthy meet and confer letter outlining the deficiencies in the responses and Kim Wynne (Kim) failed to substantively respond. No. 1: The Estate is correct that since Mark has alleged a number of oral agreements with Marsh regarding the purchase, the Estate is entitled to know those communications. According to the Estate, Ma...

Excerpt: ...ose of these causes of action in their entirety; the Court addresses these causes of action in its ruling on the motion to strike being heard concurrently with this motion. The Court previously granted the County's motion for judgment on the pleadings as to the First Amended Complaint, wherein the causes of action were differently numbered, as to the 2d (negligence) and 3d (dependent adult abuse) causes of action, without leave to amend, and as t...

Excerpt: ...reement does not unreasonably favor Defendant substantively (other than the limitations provision which Defendant has agreed to sever and the court hereby severs). The action is stayed pending arbitration. The stay shall not affect any deadline, cut‐off date, statute of limitations, etc. Plaintiff and/or Defendant may request that the stay be lifted and the action restored to civil active status by filing Riverside Superior Court form RI‐CI02...

Excerpt: ...of the plaintiff's expert. The plaintiff has failed to do so. Instead, Plaintiff provides the declaration of Dr. Dushyant Viswanathan. He disputes most of the factual recitals on which Dr. Hamburg's opinion relies, but does not provide another opinion. He fails to actually address anything that this Defendant did to breach the standard of care or causation. A plaintiff must establish causation within a “reasonable medical probability” based u...

Excerpt: ... burden that Horton was not Plaintiff's supervisor within the meaning of FEHA. 4th cause of action: Defendant's own evidence shows triable issues of fact as to whether it had prior knowledge of Horton's propensity to engage in sexual misconduct and/or whether the alleged misconduct was foreseeable. 5th cause of action: Defendant failed to meet its burden showing it is not directly liable for its own negligence. Rather, Defendant only argues it is...

Excerpt: ... 7). The Notice also defines Galasso's Bakery twice. (Notice, p. 1 and 3.) Further, defined terms are not consistently capitalized (e.g., “Settlement,” “Class Counsel” and “Class Members”) and are not consistently used. The documents should be reviewed carefully in order to eliminate awkward syntax and correct typos. • CMO, § H(5)(c) – The Notice appropriately indicates where Class Members may find a copy of the Settlement; howev...

Excerpt: ...impede its interest. Black Diamond's action in intervention is for quiet title and for declaratory relief as to Plaintiffs and existing Defendants, meaning that none of the current parties to the litigation have an incentive to represent Black Diamond's interest. Black Diamond's participation as an intervening party is necessary and appropriate. (Ziani Homeowners Association v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282.) Moving party i...

Excerpt: ...o be placed in a lottery to obtain a license to operate commercial cannabis business. Petitioners' application was denied and they were determined to be ineligible for participation in the lottery for currently operating an unlicensed cannabis business within the City of Banning. Petitioners appealed this decision. They contend that the City failed to provide any evidence that they operated a commercial cannabis on another property or that City i...

Excerpt: ...de. Defendant Kathleen Samoline owns the property. The complaint asserts: (1) unlawful maintenance of a public nuisance (Banning Municipal Code); (2) narcotics abatement (Health & Safety Code §11570); (3) public nuisance (Civil Code §3479); (4) public nuisance (Banning Municipal Code §5.34.080); (5) MAUCRSA (Business & Professions Code §26000); (6) unpaid administrative fines (Government Code §53069.4) (against Samoline only); (7) and declar...

Excerpt: ...f alleges that Estelle's osteopath, Defendant Dr. Howard Levy, implemented Estelle's plan to deprive Plaintiff of an effective course of treatment by providing placebos that left Plaintiff untreated, disoriented, and confused. (FAC, ¶, 2:20‐22.) The demurrer is based upon the grounds that 9th cause of action for assault and 10th cause of action for battery are uncertain and fail to state a cause of action. The FAC does not allege harmful or of...

Excerpt: ...e elements of fraud are: (1) misrepresentation of a material fact (consisting of a false representation, concealment or non‐disclosure); (2) knowledge of the falsity (i.e., scienter); (3) intent to deceive and induce reliance; (4) justifiable and actual reliance on the misrepresentation; and, (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) Fraud actions are subject to strict r...

Excerpt: ...ed Complaint, and without leave of Court. The Court did grant Plaintiff leave to amend with respect to his claims against the County, but not as to the City. The demurrer is sustained without leave to amend as to the 3d cause of action for violation of Section 1983 as against the City. The 4th cause of action is for violation of the Unruh Civil Rights Act, and it also contains new allegations that Plaintiff added without leave to amend, but the C...

Excerpt: ...ies caused by public employees within scope of employment) and 820 (liability for public employees). (FAC ¶149.) Plaintiff, however, did not include this in the 8th cause of action, other than a general incorporation paragraph. (FAC ¶151.) A plaintiff must file a claim against a local public entity before a plaintiff may file an action for money or damages against the entity. (Gov. C. §§905, 905.2, 945.4.) Failure to plead compliance with the...

Excerpt: ...bol, which may be unfamiliar to Class Members. It also contains references to statutes like PAGA without explanation.) Also, the procedures for objecting are somewhat confusing in that the Objection Form appears to require the Class Members to mail the Form to counsel for both parties in addition to the Administrator, while the Settlement Agreement and Notice require that the Form be sent only to the Administrator who will be responsible for forw...

Excerpt: ...ers no facts that she has any personal knowledge regarding this issue. What was her role? Did she decide that a jury trial would be requested? Did she instruct someone to deposit jury fees to preserve the right to such a trial? How does she know that the failure to deposit fees was inadvertent rather than intentional? The Court grants relief for inadvertent forfeitures, but not if the party has simply changed its mind after an intentional waiver....

Excerpt: ...of care (Decl. of Martin, ¶5) and was treated appropriately throughout this hospitalization. (Id at ¶6.) Martin states that during her visit to the HVMC ED on January 11, 2018, HVMC's nursing staff completed a complete assessment of Decedent's condition on arrival and notified her treating physicians of relevant changes in her condition, which met the standard of care. (Decl. of Martin, ¶16.) Martin asserts that diagnostic and treatment determ...

Excerpt: ...nsons. The gravamen of the action is that Defendants misrepresented that the subject property had a place where the Johnson's could park their RV. Plaintiffs' claimed damages are approximately $35,000. Sandahl, Hilgenberg and Wilson have settled with the Johnson for $13,500, $4,500 each. Brill and Mata argue that application should be denied because the settlement amount is “too little” and the application for good faith settlement fails to c...

Excerpt: ... it is undisputed that Petitioner failed to file a request for hearing within 90 days of filing the original petition as required by Public Resources Code (“PRC”) section 21167.4. Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, upon which Petitioner relies, involved a request for relief from default brought after the underlying petition had been dismissed pursuant to PRC section 21167.4. The same may be said for McCormick v. Board...

Excerpt: ...aintiff was driving a 2002 Saf‐T‐Liner ER rear engine school bus (“subject bus”) manufactured by Defendants Thomas Built Buses, Inc. (“Thomas”) and Daimler Trucks North America (“Daimler”) when a component hose manufactured by Defendant Goodyear Tire and Rubber Company (“Goodyear”) exploded sending hot coolant through the dashboard and into the driver area. Plaintiff suffered burns and other physical injuries. Plaintiff filed ...

Excerpt: ...392. ““In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recover punitive damages.” Monge v...

Excerpt: ...ctual allegations required to support a punitives claim. (Smith v. Sup.Ct. (Bucher)) (1992) 10 Cal.App.4th 1033, 1041–1042; (Anschutz Entertainment Group, Inc. v. Snepp) (2009) 171 Cal.App.4th 598, 643.) Moreover, Plaintiff has pleaded no facts which show authorization, ratification, advance knowledge, malice, etc. on the part of an officer, director or managing agent of the corporation as required to state a punitive damages claim against a co...

Excerpt: ...non‐party David Castillo regarding a debt owed by Castillo to CVCS and title to the subject real property. Accordingly, Armcon, Fernandez and Castillo entered into a Settlement Agreement and executed a stipulation for entry of judgment in INC 1702951. Pursuant to the Settlement Agreement, Castillo was to pay CVCS $40,000 with a first payment of $5,000 due on June 15, 2019, and thereafter monthly payments in the amount of $2,917. The Settlement ...

Excerpt: ...ng: The Motion to Compel Further Responses to Form Interrogatories, Set One, is GRANTED as to numbers 7.1, 9.1, 9.2, 50.3, 50.4 and 50.5. It is DENIED as to numbers 8.7 and 8.8. Verified, Further Responses, without objections, shall be served within 20 days. Sanctions are imposed on plaintiff Citrus El Dorado in the amount of $5,500.00 and are payable to defendant Stearns Bank within 30 days. The Motion to Compel Further Responses to Requests for...

Excerpt: ...or “tort of another” also fails as a matter of law because there is no “third person”; “A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred.” (Prentice v. North Amer. Title Guar. Corp...

Excerpt: ... nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (CCP § 1021.5). The statute is not intended to reward litigants motivated by their own pecun...

Excerpt: ...tiffs to make a prima facie showing of the existence of a triable issue of material. Plaintiffs did not meet their burden. It is noted that on 12‐16‐19, the court had posted its tentative ruling to grant this motion and was convinced to continue hearing on the motion to allow Plaintiffs to take the deposition of George Tsarouhas, who (based on hearsay statements by investigator Linda Arce) stated on 11‐2‐18 that he “informed the City of...

Excerpt: ...eficiencies in the responses and Mark Wynne (Mark) failed to substantively respond. (See Exh. 1 to decl. of Richard Lucal and Exh. 1 to decl. of Mark Wynne filed in opposition.) No. 16: The information sought is within Mark's knowledge since it requests information only he knows, so the response is evasive. The Estate also argues that in other pleadings Mark has stated that he and his wife never asked for reimbursement for expenses until after Ma...

Excerpt: ... only through counsel (Merco Const. Engineers, Inc. vs. Mun. Ct. (Sully‐Miller Contracting Co.) (1978) 21 Cal. 3d 724, 731). This prohibition stems from the notion a corporate representative who would likely appear on behalf of the corporation would be engaged in the unlicensed practice of law (Gamet vs. Blanchard (2001) 91 Cal. App. 4th 1276, 1284). While earlier cases suggest that papers filed by a corporation in pro per are “void” (e.g.,...

Excerpt: ...faction of Judgment at any time. Moreover, Plaintiff has failed to present evidence that Defendant Goudie was aware of Defendant, Valley Wide Towing, LLC's independent collection activities and/or participated with his Co‐Defendant to knowingly collect more than was awarded in the judgment rendered to Valley Wide Towing LLC in the underlying action. Such evidence would be required to be presented in order for Plaintiff to prevail on either of t...

Excerpt: ... them at the Mailing Address. Defendant Carole Campbell states that she picks up her mail from the Mailing Address every day, but did not receive any legal papers. (Decl. of Carole Campbell, p. 2.) However, on May 18, 2017, Plaintiff served Defendants a Notice of Case Management Conference at the Mailing Address. The Notice of Entry of Default Judgment was also served at the Mailing Address on August 8, 2018. Defendants did not file their initial...

Excerpt: ...SC 1904774, Roberts v. Coachella Valley Water District, RIC 1904943, and Roberts v. Coachella Valley Water District, RIC 1905897 should be deemed related matters and for determination of whether the foregoing matters, along with the consolidated cases RIC 1825310 (PSC 1905977) should be designated as complex. Hearing is set for 3‐18‐20 at 8:30 a.m., Department 6. The OSC is set because the court is aware that Petitioner has filed three other ...

Excerpt: ...tion agreement. (Declaration of Deleah Jones, Exhibit B.) Even though Defendants did not sign the arbitration agreement, it applies to Defendants because of agency and estoppel. (See Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613; Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 788.) Here, the operative complaint alleges an agency relationship between Adesa and Defendant PeopleReady (PR). Defendants have established that PR absorbed Labor Rea...

Excerpt: ...d is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “[D]iscretion should be exerci...

Excerpt: ...spection occurred on 8/26/19. (Complaint Ex. B.) Plaintiff filed this action on 9/4/19—before the 30 days expired. Plaintiff pleads no facts for performance or excuse for nonperformance. The fire inspection listed five items: • Inspector's Comments: Sprinkler coverage is required in water heater closet of exam room 2. Closet may have been added without permits. A sprinkler permit is required to be obtained by a C16 licensed contractor and pla...

Excerpt: ...toppel doctrine and irreparable harm if an injunction were not issued. Plaintiffs shall post a nominal bond of $1,000 within 30 days. Demurrer: Defendant's request for judicial notice is GRANTED as to Exs. 2‐4, and DENIED as to Ex. 1. The demurrer is OVERRULED as to the 7th cause of action for promissory estoppel. The demurrer is SUSTAINED as to all other causes of action with 30 days' leave to amend. SUMMARY OF MATTER: This is a foreclosure ac...

Excerpt: ...on system from Defendant; (2) at the time of the purchase, Defendant was in the business of installing and selling solar power Page 2 of 3 production systems and held itself out as possessing special knowledge and skill regarding such systems; (3) the solar system installed by Defendant was not of the same quality as those generally acceptable in the trade and was not fit for the purpose for which such goods are used; (4) Plaintiff took reasonabl...

Excerpt: ...oderick in his capacity as trustee. Plaintiff has brought this lawsuit against Roderick in his individual capacity and against Kim, in her individual capacity. Roderick has failed to cite to any authority that indicates that “absolute identity of parties” only applies to the party asserting plea in abatement and to the party he is asserting the doctrine against. Exclusive Concurrent Jurisdiction Rule: The exclusive concurrent jurisdiction rul...

Excerpt: ... Plaintiff alleges that “[w]hile under the care and treatment of DEFENDANTS from May 17, 2018‐ May 20, 2018, O' BRIEN suffered multiple injuries including a GI bleed which led to extreme pain and suffering and an untimely death.” (FAC ¶ 17.) This the only specific factual allegation. The remaining allegations are general boilerplate. For example, the very next paragraph of the FAC states, “MANOR CARE neglected to provide medical care for...

Excerpt: ...e motion shall provide argument and evidence of the following: a. The nature of the violations. The Motion does not describe the nature of the violations. b. The number of alleged individual violations, including both the length of the relevant employment period and the number of employees allegedly employed during that period. Plaintiff indicates that, assuming that the PAGA period would last up to the time of the bankruptcy proceedings, the num...

Excerpt: ...e prevailing party for purposes of the Civ. Code § 1717. (Civ. Code § 1717(b)(2); Santisas v. Goodin (1998) 17 Cal.4th 599, 617; Marina Glencoe v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 876.) Moreover, even assuming that Defendant were entitled to recover attorney fees, she was required to bring a noticed motion, as there is no indication that the amount of fees can be fixed without the necessity of a court determination. (CRC 3.1...

Excerpt: ...ugebauer, DWP I, and RTN Development.”) The filing of the Warson Action is protected activity. Probability of Prevailing ‐‐Malicious Prosecution: It is undisputed that through Rosenstein, Fazeli voluntarily dismissed his causes of action against De Portola. (Decl. of Rosenstein, ¶14.) Rosenstein indicates that he dismissed the action after taking the deposition of Rick Neugebauer's son, Ted, who testified about the methodology by which De ...

Excerpt: ...n 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 to compel must set forth the provisions of the written agreement and the arbitration clause ve...

Excerpt: ...rcia notarized by Defendant Alejandra Castillo. Plaintiff alleges defendants Francisco Javier Garcia, Gloria Garcia and Joaquin Garcia subsequently forged a grant deed transferring title to the subject property to Francisco Javier Garcia, recorded on 11/14/15 notarized by Juan Castillo. Subsequent to sustaining Defendant Alejandra Castillo's demurrer to the First Amended Complaint, Plaintiff filed his Second Amended Complaint(SAC) against defenda...

Excerpt: ... Agreement was negotiated and executed in California (and the alleged misrepresentations were made in California). (Declaration of Daniel Leigh (“Leigh Decl.”), ¶¶ 6‐10) Moreover, Defendants utilized a California attorney to draft the Assignment Agreement. (Id., ¶¶ 11‐12.) In addition, the parties met in California to discuss issues/problems related to the Assignment Agreement and specifically with regard to Defendants' failure to mee...

Excerpt: ... supplemental opposition and/or declaration by 3/23/20. Defendants shall be permitted to file a supplemental reply by 3/31/20. Because these dates are after the currently scheduled MSC and JT, the Court shall continue the MSC to May 13, 2020, at 2:00pm in D‐12 and the JT date to June 12, 2020, at 8:30am in D‐3. Page 3 of 7 SUMMARY OF MATTER This is a dispute between shareholders of a closely‐held corporation. Plaintiff Andrew Yeghnazar (“...

Excerpt: ...17, 2019. The Answer sets forth a general denial and ten affirmative defenses. After engaging in limited discovery Plaintiff made an “informal request” that Defendant withdraw her general denial and affirmative defenses. After Defendant failed to amend her answer, the present motion ensued. * * * Plaintiff moves for an award of sanctions under CCP § 128.7 on the ground that Defendant failed to withdraw her general denial and affirmative defe...

Excerpt: ...iff's fraudulent inducement/concealment is, for pleading purposes, alleged with sufficient specificity. (Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217, 231 [less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff].) Fraudulent intent is most often established through circumstantial evidence. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) While performance may not in and of itse...

Excerpt: ...ndant' s personal habit, known to her friends and associates, to drink during the day even though she knew that she would be driving that day. On the day in question, throughout her drinking the Defendant knew that she would be driving. Further, Defendant understood that drinking aggravates the risk of automobile accident and injury. Defendant was aware on the very day of her accident that her act of drinking and then driving increased the risk o...

Excerpt: ...Ramona Expressway in Perris. Plaintiff Lorena Arciga (“Plaintiff”) alleges Defendant Montrell Cortez Antoine (“Defendant”) negligently drove his vehicle causing a collision that severely injured Plaintiff. Plaintiff filed the form complaint on October 2, 2019, alleging 1) motor vehicle negligence; 2) general negligence; and 3) negligence per se. Defendant filed the Answer on November 25, 2019, containing a general denial and 8 affirmative...

Excerpt: ... principal on the bond and Federal is the surety. Cell‐Crete asserts that Federal, by this bond, is bound to pay for labor and materials that Cell Crete furnished to Granite on the Project, that Granite did not allegedly pay for. The claims between Cell‐Crete and Granite were resolved in an arbitration that resulted in a judgment for Granite and against Cell‐Crete (although not before the Court it would appear that the judgment would make i...

Excerpt: ...and (4) breach of contract arises out of bed bug bites suffered by Plaintiff when she was a guest at Defendant's Embassy Suites hotel in Palm Desert. Plaintiff alleges that she suffered bedbug bites the first two nights of her stay, after which she complained about the bedbugs and was moved to a different room. The demurrer is based upon the grounds that each cause of action fails to state a cause of action and is uncertain. 2 nd cause of action�...

Excerpt: ...th CRC 3.1345 no later than February 7, 2020. Defendant is permitted to respond to the separate statement no later than February 13, 2020. SUMMARY OF MATTER This is products liability/personal injury case. Plaintiff Lanette Boyce (“Plaintiff”) was employed as a school bus driver for Jurupa Unified School District (“District”). On March 8, 2017, Plaintiff was driving a 2002 Saf‐T‐Liner ER rear engine school bus (“subject bus”) manu...

Excerpt: ...(collectively “Plaintiffs”) allege that due to eXteres' success in the car industry, The Connections Group, Inc. (“TCGI”) approached Plaintiffs about forming a strategic partnership, which would allow eXteres to market and sell TCGI products and services and would have Winch assume the role of Chief Operating Officer for TCGI. Plaintiffs and TCGI entered into a memorandum of understanding (“MOU”) and Plaintiffs undertook work to make ...

Excerpt: ...des have expressed confusion as to the other side's position. If at the time of the hearing one side requests oral argument, both sides Page 2 of 3 should appear to clarify this issue. If neither side requests oral argument, then both parties shall meet and confer. The Court denies the request for sanctions. SUMMARY OF MATTER Plaintiff Carlton Koontz alleges that on 6/12/16, he purchased a new 2016 RAM 2500 that contained multiple defects. On 5/3...

Excerpt: ...es claim, including “loss of income, loss of earning capacity, loss of job opportunity, and other financial losses.” (FAC, ¶ 72.) Defendant has shown good cause for the documents. Plaintiff responded with objections. Her main objection is that the request is overly broad because it asks for documents relating to income from sources other than from employment. Plaintiff agrees to produce documents relating to her earnings from employment. She...

Excerpt: ...laration are immaterial and not ruled upon. The Motion for Attorney Fees is GRANTED in the amount of $3717.50. Analysis The Section 998 offer was for $22,000.00. The jury's verdict was for $15,000.00. There is no dispute that Plaintiffs failed to obtain a judgment more favorable than the amount set forth in MBUSA's § 998 offer and the court has previously rejected Plaintiffs' argument that the offer was vague and not made in good faith. And does...

Excerpt: ...er. Plaintiff cites to no authority, which supports imposing a fiduciary duty under such circumstances. Additionally, although plaintiff argues there is a statutory duty imposed under Corporations Code section 17704.09, the first amended complaint fails to state facts imposing such statutory liability. The allegations stated in the second, third and fourth causes of action are sufficient. Request for judicial notice: Granted as Exhibit 1, pursuan...

Excerpt: ...t in a truck and pummeled Plaintiff with rocks thrown from the truck's windows knocking Plaintiff unconscious on the ground with a serious head wound and other injuries. The court sustained the demurrer to the 9th cause of action for premises liability against Defendant Capri Palm Desert Association (Capri) with leave to amend because the FAC failed to allege facts that showed Capri owed Plaintiff a duty of care. The FAC alleged that “Defendant...

Excerpt: ... calendar the Hearing re: status re settlement as moot. The Court notes that in the prior tentative ruling for the hearing on plaintiff's first motion for preliminary approval, the Court specifically identified three provisions in the proposed settlement that the court was not likely to approve. While plaintiff modified the release provisions, the modifications are insufficient. Additionally, the proposed service award to plaintiff and the propos...

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

Excerpt: ...r the fifth cause of action, Plaintiff incorporates her harassment allegations. (Complaint, ¶ 120.) She sufficiently alleged harassment. (Complaint, ¶¶ 9‐15, 28‐29.) Defendant's demurrer does not lie because Plaintiff has stated at least one valid claim. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 ("A demurrer must dispose of an entire cause of action to be sustained.").) For the sixth and seventh causes of action, it ...

Excerpt: ...mber that Plaintiff attributes to the address book entries "Chris" or "Chris Next Door." Plaintiff must preserve these messages on any phone subject to inspection. The court denies both parties' requests for attorney fees. Romash demands inspection of Plaintiff's cell phone that Plaintiff used at times relevant to the complaint. Plaintiff objects that the request violates his right to privacy and asks for irrelevant Page 2 of 2 evidence. The cour...

Excerpt: ... of Defendants only based upon representations by the notary who notarized the subject deed, Mercedes Gutierrez, a friend of Defendant Anna Ramirez, that the parents could not put the names of more than two grantees on the deed. The motion is based upon the grounds that Plaintiffs failed to properly serve, record and file the lis pendens and that Plaintiffs cannot show the probable validity of their real property claim. Page 2 of 3 TECHINACL DEFE...

Excerpt: ... in the Subject Property to her daughter, Defendant Holly Jean Martin (“Defendant” or “Holly”) as joint tenants. Plaintiff Delbert Knight, as attorney‐in‐fact for Bonnie Knight (“Plaintiff”), alleges that Defendant refuses to share rents and profits from the Subject Property with Bonnie. Plaintiff filed his Complaint on February 15, 2019. He asserts two causes of action for: (1) Partition; and (2) Quiet Title. On November 27, 2019...

Excerpt: ... support a claim for punitive damages under Civil Code section 3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (Civ. Code, § 3294, subd. (c).) In cases involving conduct performed without intent to harm, a finding of “malice” for punitive damages purposes requires proof by clear and convincing evidence that defendant's tortious wrong amounts to “despicable conduct” and that such despicable conduct wa...

Excerpt: ... 2011 Buick Regal (the “Vehicle”). The complaint sets forth causes of action under the Song‐Beverly Consumer Warranty Act for breach of express and implied warranties. By this Motion, Plaintiffs seek to compel the deposition of the person most knowledgeable (PMK) from Defendant. Plaintiffs contend that Defendant has refused to produce a witness to testify as to all categories set forth in Plaintiffs' deposition notice and has objected to th...

Excerpt: ... limited by the time to appeal. Here, the time limit is not governed by the date judgment is entered and the timing of an appeal. The MOU is incorporated into the judgment as a method of enforcing its provisions in the event one party refused to cooperate. The time for an appeal of the judgment entered on 3/4/16, has no bearing on the timing of this motion. The Court does not equate the date of the order entered on the ex parte as the date to com...

Excerpt: ...App.3d 29.) Also, in filing a substantive reply, Mecca waived any defect or irregularity in service. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Although Mecca may be a prevailing party, the attorney fee provision in the Note is inapplicable. Regardless of whether Plaintiff requested attorney fees in its complaint, Plaintiff's action under the UVTA is not an action to enforce payment of the Note. Moreover, Plaintiff is not party to the...

Excerpt: ... criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a Fifth Amendment privilege. (Pacers, Inc. v. Sup.Ct. (Needham) (1984) 162 CA3d 686, 689— depositions postponed for one year, at which time criminal prosecution would be barred.) However, such a stay is discretionary; defendant has no right to a blanket stay on Fifth Amendment grounds. (Klein v. Sup.Ct. (Thomas) (1988...

Excerpt: ...cident”. (Motion, page 2, line 4.) Plaintiff shall not be questioned regarding her sex life or the intimate details of her relationship with her boyfriend. Simply put, defendants Long Ngoc Phan, Ngoc Phan DMD, Inc., Long Ngoc Phan (collectively “defendants”) shall not construe the granting of the motion as a license to inquire into plaintiff's sex life. The motion is denied as to the request for issue sanctions. The Court has weighed the pr...

Excerpt: ....5, and (5) Wrongful Termination in Violation Of Public Policy is based upon allegations that Plaintiff was terminated for “raising concerns over unpaid wages, lack of meal and rest breaks, and child pornography discovered on company computer(s).” (Compl. ¶ 15.) Elena Bulatova Fine Art El Paseo LLC (El Paseo) moves for summary adjudication of the first four causes of action on the grounds that Plaintiff was not employed by El Paseo, and both...

Excerpt: ...01881 (the “Tye 1 matter”). Hence, it arises out of a written statement or writing made in connection with an issue under consideration or review by a judicial body. Plaintiff Matthew Tye (“Plaintiff”) cannot avoid the first prong by arguing the subject declaration was not invited by the Court. Though not solicited by the Court, the declaration filed by defendant Papp in the Tye 1 matter sought to inform the Court about the facts surround...

Excerpt: ... the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “No matter how unlikely or improbable, a plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Kerivan v. Title Insurance Co. (1983) 147 Cal. App. 2d 225, 229.) In short, the ruling on a demurrer determines a legal issue on the basis of assu...

Excerpt: ...eveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425‐426.) Plaintiff seeks compensatory relief for rehabilitation of Defendant's property, but fails to plead he was a duly licensed contractor during the performance of such services. As such, Plaintiff's claims are barred by Bus. & Prof. Code § 7031. Analysis 1COA (Breach of K): In contrast to the original complaint, Plaintiff now alleges that the contract was for the sale of Defendant's pro...

Excerpt: ... Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, which is not applicable. The issue on appeal was whether a trial court has jurisdiction over discovery matters in an uninsured motorist arbitration (id. at 920‐926) and whether the trial court abused its discretion in dismissing the arbitration when the plaintiff refused to comply with the discovery order (id. at 928‐929). While the trial court order did involve an order to have pl...

Excerpt: ...sert Regional Medical Center and that a nurse told Almanza's son about Almanza's bedsores and said “‘[t]his is the fault of the nurses for not caring for your mom the way we should. We had to report this to the State because of its severity.'” Allegedly this same nurse, or another nurse, also told Almanza's son that the hospital had been fined relating to this conduct and that it wanted to move Almanza to another facility in advance of a fo...