Excerpt: ...rd issue either the immunity does not apply, or there is a triable issue of material fact. Defendant Riverside Unified School District (School District) argues the first cause of action for dangerous condition of public property fails for three reasons: 1. The School District cannot be liable for any condition on premises that it does not own, control or maintain and the sight line and visibility obstructions identified by plaintiffs are all on p...

Excerpt: .... Webb Associates as an Administrative Assistant directly under the supervision of Susie Reyes. She alleges she told a co‐worker, Todd Carpenter, that she was pregnant. Plaintiff alleges that on 1/4/18 before she had told Reyes about her pregnancy, Reyes asked another co‐worker, Stephanie Serao, if Plaintiff was pregnant. She alleges Serao told Reyes to ask Plaintiff, and Reyes responded that she knew the answer to her question. Thereafter, o...

Excerpt: ...vious concerns regarding the 4th and 5th causes of action. Here, the Second Amended Complaint alleges in pertinent part: • Plaintiffs purchased a 2009 VW Passat from Defendant Volkswagen, which was delivered to Plaintiffs with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including but not limited to electrical, engine and brake defects. Page 3 of 5 • The car was delivered ...

Excerpt: ...ing the doctrine of informed consent, each patient presents a separate problem, the patient's mental and emotional condition is important and in certain cases may be crucial, and in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent. It is the physician's duty to disclose to the patient all material information to enable the patient to make a...

Excerpt: ...ued to 12‐12‐19 at 8:30 a.m., Department 1. The clerk is to give notice of the continuances. Since judicial 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 su...

Excerpt: ...usive jurisdiction over Plaintiff's state claims raised in its state complaint. (See Fowler v. Ross (1983) 142 Cal.App.3d 472, 476.) Plaintiff is also correct that the rule of concurrent jurisdiction that provides the first action filed has exclusive jurisdiction does not apply where jurisdiction is taken by a state court and a federal court because they are not courts in the same system. (Id.) But, as Plaintiff also acknowledges, a state court h...

Excerpt: ...nt VIPER's representative Mark (based in Chino, CA) to pay $48,500 for a 2000 Caterpillar D7R Dozer. Plaintiff wired the money, and Defendant has failed/refused to produce the dozer or refund Plaintiff's money. Plaintiff's 7/05/19 Form Complaint alleges claims for Breach of Contract and Fraud (Misrepresentation, Concealment Promise without Intent to Perform). SUMMARY OF MOTION AND DECLARATION Defendant VIPER MACHINERY LLC specially appears and mo...

Excerpt: ... in the underlying action, which is at the heart of Plaintiff's complaint. The four‐year statute of limitations under CCP § 340.6 does not bar Plaintiff's claims because the stipulated judgment about which Plaintiff complains was entered on August 28, 2015, less than four years before the Complaint was filed. To the extent Defendant relies on extrinsic evidence, it is improper and will not be considered by the court. Defendant to file their an...

Excerpt: ...88 Cal.App.3d 283, 299; Pianka v. State of California (1956) 46 Cal.2d 208, 211.) Defendants are not just attacking the sufficiency of the pleadings. The Motion relies on facts far outside of those pled in the Complaint. The Motion contains numerous statements about: what Plaintiff testified to at trial (Motion, 2:7‐8); the jury's factual findings (Motion, 2:13‐18); how the Court “is bound by the jury's factual findings” (Motion, 5:25); w...

Excerpt: ...use of action and/or is uncertain. The original Member Derivative Complaint alleged two causes of action for 1) breach of governing documents and 2) breach of fiduciary duty against Defendant Skyline Development Co., LLC and Nominal Defendant Pinnacle Owners Association, Inc. Skyline demurred to the complaint and the court found that as to the 1st cause of action there was at least one valid claim to overrule the demurrer. At the hearing, after o...

Excerpt: ...nown claims is limited to those arising out of the lawsuit. Ambiguities in a § 998 offer are interpreted against the offering party. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86; Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) On 9‐18‐18, Defendants served a statutory offer to comprise pursuant to CCP § 998 for $250,000.01 in exchange for a dismissal and release (“§ 998 Offer”). Plaintiff did not accep...

Excerpt: ...of Defendant First Student and operated a school bus for Defendant PSUSD at Plaintiff's school. Plaintiff is an 11‐ year‐old especially vulnerable disabled girl. Plaintiff's vulnerability had been communicated by her parents to PSUSD, but PSUSD did nothing to ensure that First Student and its bus drivers were equipped to help students like Plaintiff or to ensure that students like BLL would not be taken advantage of. When BLL told one of her ...

Excerpt: ...ifiable 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.) The elements of a negligent misrepresentation cause of action are (1) a representation as to past or existing material facts; (2) falsity of the representation; (3) defendant lacks reasonable grounds to believe the truth of the representation; (4) intent to induce reliance; ...

Excerpt: ...of Plaintiff's complaint. Furthermore, there are sufficient facts alleged against Lisa G. Salisbury individually. The motion to strike is DENIED. Whether attorney fees are recoverable can be determined by noticed motion following judgment and is not appropriate for determination at this time. Furthermore, Plaintiff alleges sufficient facts showing circumstances of fraud sufficient to support punitive damages. SUMMARY OF MATTER This is a legal mal...

Excerpt: ...ve court days prior to the continued hearing date. Page 2 of 3 The Court has identified the following deficiencies in the motion: 1. Plaintiffs have failed to comply with Section H.1.b of the CMO, which requires counsel to set forth the attorney's estimate of the total amount of damages, monetary penalties or other relief that the class would be awarded if the action were successful at trial on all of its claims. 2. Plaintiffs have failed to comp...

Excerpt: ...expert Edward Schneider, M.D. establishes that defendants are entitled to summary judgment as to all claims against them. He establishes that the Paradise Home defendants met the standard of care in the care they provided to Simmon Hasinsky during his residency there, that there was no act or failure to act which caused injury to Mr. Hasinsky or was a substantial factor in causing Mr. Hasinsky's death. He further establishes that there is no evid...

Excerpt: ... 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 (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as t...

Excerpt: ...ery 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 issued any administrat...

Excerpt: ...liar with the dangers of drunk driving due to multiple prior DUI convictions. (Id.) Plaintiff alleges that John Marshall fled the scene of the accident to avoid liability (Id at ¶11), which suggests that he was aware that he was driving while intoxicated. These facts constitute despicable conduct despised by ordinary people. As such, Plaintiff has stated facts to show malice. However, while these allegations are sufficiently pled to show malice,...

Excerpt: ...(Set One) Nos. 6‐7, 9, and with a privilege log as to RPD Nos. 19‐22, 25‐29, 32, 34, 35, 42‐ 45. Only a privilege log is required for RPD Nos. 1‐5, 10, 14‐16, 24, 46‐47. Otherwise, the motions are DENIED. The request for sanctions by defense is also denied. SUMMARY OF MATTER Plaintiffs, Gordon Marino and Cynthia Lee, allege that on 6/5/14 they purchased a new 2014 Volkswagen CC from Defendant, Riverside Volkswagen (Dealership) for $...

Excerpt: ...ts are taxed as follows: Messenger/Attorney Service: $3,552.63. Defendant provides no evidence that the messenger fees were reasonable or necessary; rather, counsel merely avers that the use of an attorney service is the “customary practice” of his office and that it was necessary “[i]n order to meet court mandated deadlines and to have documents filed on time.” (See Declaration of Ben‐Thomas Hamilton, ¶ 20.) Counsel, however, fails to...

Excerpt: ...uted or undisputed. As a self‐represented litigant Defendant Hajj is entitled to the same, but no greater consideration, than an attorney or represented litigant, and she must comply with the rules of court to the same extent as an attorney would be required to do. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) For each disputed fact in her original separate state...

Excerpt: ...to agree to, but the fact that Plaintiffs now appear to challenge the Settlement is concerning. CRTC does not provide the value of the waiver of costs. Because a non‐settling defendant is entitled to a setoff for the value of the settlement, the value must be established by evidence. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1385.) The waiver of litigation costs by a settling defendant constitutes consideration paid for the settlement...

Excerpt: ...lton Worldwide, Inc. Hilton Worldwide Holdings, Inc., Embassy Suites Management, LLC, Urban Commons Highways III, LLC, Urban Commons, LLC and Brighton Management, LLC demur to the 1st through 7th causes of action in Plaintiff Sabrina St. Pierre's FAC on the grounds they fail to state facts sufficient to constitute a cause of action, and/or are uncertain and fails to state whether the breach of contract cause of action is based on a written oral o...

Excerpt: ...sented Plaintiffs in their effort to sell their property and also represented the buyer in the same transaction, acting as a dual agent.  Defendant Sperry Van Ness are real estate brokers and Stiles employer.  Defendants knew that Plaintiffs were based in Los Angeles and acquired the property as an investment and did not know for a fact if the property was hooked up to a sewer system or if there was a septic tank, and if so, whether it was ...

Excerpt: ...aranty. The loan guaranty was executed by both Dina and her then spouse, Cross‐ Defendant Vsevolod Okhrimovski, who was dismissed as a defendant in INC1304735. Defendant/Cross‐ Complainant Butler Capital, Inc., the assignee of the default judgment against Dina, responded to Dina's Complaint with an unsuccessful anti‐SLAPP motion and demurrer before filing this Cross Complaint for fraud, constructive fraud, aiding and abetting fraud, intenti...

Excerpt: ...) and that they were behind the campaign for Measure L (FAP ¶33.) While these activities do meet petitioning activity, the remedy by the Wirt of Mandamus is to direct the City and City Manager to perform their duties regarding Measure L, and invalidating portions of the Municipal Code. (Prayer ¶1‐3.) None of this has anything to do with these Respondents. As stated by one court: “It would be inappropriate for us to insert into a pleading cl...

Excerpt: ...7 are OVERRULED; and as to Harris's Deposition, Objection 8 is OVERRULED. /// Analysis: The motion for summary judgment is denied because there are triable issues of material fact regarding the first cause of action for medical negligence as to whether the standard of care was met and whether, to a reasonable degree of medical probability, plaintiff's injuries were caused by the treatment she received. The declarations of the expert for defendant...

Excerpt: ...he Agreement was made between JFK Memorial Hospital and Lifschutz in August 2015. JFK is a nonparty. By the Agreement, Lifschutz released claims against JFK and affiliates. There is no dispute that the Cross‐Complaint “arises from” protected activity and that Code of Civil Procedure section 425.16 applies. The question at issue is wither DRMC can demonstrate a probability of prevailing on the merits. The Court finds that it cannot. A cause ...

Excerpt: ...missed after Plaintiff's motion for preliminary injunction was denied. Moore asserts that the basis for attorney's fees is the Association's Master Declaration that states that for “any action for breach of or to enforce the provisions of [the] Master Declaration is commenced, the court in such action shall award to the party in whose favor a judgment is entered, a reasonable sum as attorneys' fees, which attorneys' fees shall be paid by the lo...

Excerpt: ...hin 20 days. The Court declines to award sanctions. SUMMARY OF MATTER Plaintiff Lori Hammond alleges that on 12/16/16, she slipped and fell on a slippery substance. She further alleges that Defendants failed to maintain the floors, place warning signs, warn, and exercise due care. On 6/22/18, Plaintiff filed a complaint for premises liability and negligence. Trial is currently set for 1/3/20. Page 2 of 7 Summary of Motion: Plaintiff brings this m...

Excerpt: ...trial. Plaintiff has alleged several instances of error, which the Court shall address separately. ANALYSIS With respect to errors of law, a judge may grant a new trial based on an error in law that occurred at the trial and that was objected to by the party moving for a new trial. (Tun v. Wells Fargo Dealer, Servs., Inc. (2016) 5 Cal.App.4th 309, 323.) A new trial on this ground is warranted when the case was resolved by a ruling that was errone...

Excerpt: ... lot of the school. Evidentiary Objections: Declaration of Edward Ruzak: Objections 1 to 23 are overruled. Declaration of Brad Avrit: Objections 1 to 5 are overruled. Declaration of Roy C. Leggitt, III: Objections 1 to 5 are overruled. Armando G. Huerta was on a motorcycle heading eastbound on Colorado Avenue when he collided with a vehicle driven by defendant Gerardo Unzuetas who was attempting to make a left turn from the western driveway of Ad...

Excerpt: ...nown claims is limited to those arising out of the lawsuit. Ambiguities in a § 998 offer are interpreted against the offering party. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86; Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) On 9‐18‐18, Defendants served a statutory offer to comprise pursuant to CCP § 998 for $250,000.01 in exchange for a dismissal and release (“§ 998 Offer”). Plaintiff did not accep...

Excerpt: ... proving the causes of action. Plaintiffs' argument regarding what the documents may demonstrate is insufficient to demonstrate direct relevance. “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” to meet the burden of a party seeking constitutionally protected information. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017; see also Look v. Penovatz (20...

Excerpt: ...uments relating to Ford's “rules, policies, or procedures since 2011” concerning the issuance of refunds to buyers or providing replacement vehicles to buyers and the “policies, procedures and/or instructions since 2011” that Ford employees are required to following in responding to customer complaints regarding failure to repair vehicles. Defendant does not dispute the relevancy of the documents sought, but argues that they are overbroad...

Excerpt: ... of C.C.P. §§ 708.110, et seq. SUMMARY OF MATTER The complaint and consolidated complaint in this matter were filed by Richard Van Loon and Dianne Van Loon and were dismissed early on in litigation. Two of the cross‐complaints that were filed went to trial – one brought by Winchester‐Wesselink, LLC. (“LLC”) and one brought by Richard Van Loon. LLC asserted in its cross‐ complaint that two of its members, Richard and Dianne Van Loon ...

Excerpt: ...no new or different facts, circumstances, or law as required by Code of Civil Procedure section 1009. BACKGROUND & RELEVANT PROCEDURAL HISTORY: This is a wrongful foreclosure action. Plaintiff Yi Fu Hwang (“Plaintiff”) alleges that he obtained a Home Equity Line of Credit (“HELOC”) from defendant Cathay Bank on September Page 5 of 7 22, 2006, in the amount of $150,000, which is secured by a deed of trust on Plaintiff's property located at...

Excerpt: ...gment on the pleadings. (Weil & Brown, Cal. Practice Guides: Civ. Pro. Before Trial (The Rutter Group, 2016) P. 10:52, p. 10‐25.) The rules applicable to demurrers and motions for judgment on the pleadings apply. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118.) Where the motion for summary judgment functions as a judgment on the pleadings to challenge the sufficiency of the allegations and it appears that the oppo...

Excerpt: ... as moot. Page 4 of 7 SUMMARY OF MATTER In this action, Plaintiff alleged Defendant Akmakjian along with other family members and the Riverside Community Hospital committed causes of action stemming from the death of Plaintiff's father. Essentially, Plaintiff alleged that sometime in January of 2017, Decedent, age 90, caught a flu at home, which was treated with cough syrup. (¶ 13.) On February 6, 2017, he was admitted to Riverside Community Hos...

Excerpt: ..., retention and supervision, and negligence arising out of a motor vehicle accident. The allegations are that Plaintiff was a passenger in a vehicle driven by Defendant Byars, who ran a stop sign and collided with another vehicle. Further, that before driving, Byars voluntarily consumed alcohol to the point of intoxication. In addition, that Byars knew that shortly after drinking the alcohol that he was going to operate a motor vehicle to drive t...

Excerpt: ... motion for judgment on the pleadings, motion for summary judgment or raised as an affirmative defense. (Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036‐37.) The Court construes the present motion as a motion for judgment on the pleadings. Under the “Barton doctrine,” which is derived from the Supreme Court's decision in Barton v. Barbour, 104 U.S. 126 (1881), “a party must first obtain leave of the bankruptcy court befo...

Excerpt: ...(a).) Defendant has failed to produce bank records as they are kept in the usual course of business and is ordered to produce them accordingly. As evidenced by Defendant's exhibit as a sample of the items produced, the account number is redacted. CRC rule 1.201 requires that any financial account numbers be redacted to protect privacy issues in a pleading or other paper filed in the public file. Plaintiff has provided no compelling reason for nee...

Excerpt: ...�1094.5. Petitioner challenges the constitutionality of Riverside County Ordinance No. 630 and the County's administrative hearing process on the grounds that they fail to satisfy due process requirements. (Phillips vs. San Luis Obispo County Dep't. of Animal Regulations (1986) 183 Cal. App. 3d 372). Petitioner also alleges that because of various actions and omissions specific to this case, it was denied its due process rights. (For instance, Pe...

Excerpt: ...the California Department of Corrections and Rehabilitation (“CDCR”) at one of its California Rehabilitation Centers (“CRC”). He contends that in 2005 a lawsuit was filed against the CDCR regarding its failure to provide inmates with adequate dental care. A settlement was reached in 2006. Under the terms of this settlement agreement, comprehensive protocols where put in place specifying the timeline for providing specific care. It appears...

Excerpt: ...to constitute a cause of action and/or is uncertain. FACTS: The original Member Derivative Complaint alleged two causes of action for: 1) breach of governing documents, and 2) breach of fiduciary duty against Defendant Skyline Development Co., LLC and Nominal Defendant Pinnacle Owners Association, Inc. Skyline demurred to the complaint and the court found that as to the 1st cause of action there was at least one valid claim to overrule the demurr...

Excerpt: ...or pretrial work for attorneys Altman, Hassen, and Kiesel, the Court rules as follows: Pretrial Fees: $166,272 Trial Fees: $465,363 Post‐trial fees: $37,587.50 Total lodestar: $669,222.50. Applying a 1.25 multiplier would then result in a fee award of $836,528.12. Costs, which were not challenged, shall be $94,264.99. FACTUAL / PROCEDURAL CONTEXT This is a Song‐Beverly action that went to trial and resulted in a verdict in favor of plaintiffs...

Excerpt: ... Defendant requests judicial notice of the Court's file in the present action, the First Amended Complaint in the Los Angeles Action, and an Order Approving Compromise and Release in Plaintiff's worker's compensation action against Defendant. These documents are judicially noticed by the Court pursuant to Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticea...

Excerpt: ...te whether VPE owned or controlled the Property, the evidence submitted does not demonstrate the existence of a triable issue of material fact. It is undisputed that: Levinson owned and kept the subject dog in a home he rented from Braswell; and, Braswell was the sole owner of the home and the Property on which it was located. There is no dispute that VPE leased a small portion of the Property (the dome area), which was not where the incident occ...

Excerpt: ...Evidence Code Section 452(b) as to Exhibits A – F requested made by the County of Riverside. Granted pursuant to Evidence Code Section 452(c) as Exhibits A – C requested by Respondent. Denied as Exhibit D requested by Respondent on ground the photograph can be subject to dispute. Page 2 of 3 Health & Safety Code §17980.6 provides that “[i]f any building is maintained in a manner that violates any provisions of this part, the building stand...

Excerpt: ...nd (6) violation of PAGA arises out of Plaintiff Levi Miller's employment with Defendant Desert Community College District (District) and claims based upon the District's (1) failure to properly compensate him as a full‐time instructor at COD and (2) retaliatory decision to not hire him as an Administration of Justice instructor because the California Teachers Association had attempted to resolve his claims with the District. Essentially, Plain...

Excerpt: ...wever, did not apply to documents which were publicly available, such as the fictitious business name statements obtained by cross‐defendant. Sanctions are denied because the present motion arises under Code of Civil Procedure section 1008, which has its own procedure regarding sanctions; had the court granted the present motion, and reconsidered the matter, then the attorney's fees provisions of Code of Civil Procedure section 425.16 would hav...

Excerpt: ...nding at least two years without having been brought to trial or hearing.” (Code Civ. Proc., § 391(b)(1).) A “vexatious litigant” may also be a person who: “[a]fter a litigation has been finally determined against the person repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the...

Excerpt: ...f cannot establish that she was able to perform the essential functions of her job. The burden shifted to Plaintiff, but Plaintiff failed to produce any evidence showing a triable issue of fact. 2 nd cause of action: Defendant met its initial burden showing it terminated Plaintiff based on the reasonable belief that the Plaintiff was permanently disabled from performing the job. The burden shifted to Plaintiff, but Plaintiff failed to produce any...

Excerpt: ...(“AQuality”) collided with a vehicle in which Plaintiff Leann Bibbie (“Plaintiff”) was a passenger. Plaintiff sustained severe injuries and property damage. Plaintiff filed her Complaint on June 24, 2017. She asserts two causes of action for: (1) Motor Vehicle; and (2) General Negligence. A jury trial was held April 4, 2019. Prior to the trial, Plaintiff sent Postulka an offer to compromise for $249,999.00 pursuant to Cal. Code Civ. Pro. ...

Excerpt: ... 3.1332(c)(6).) Here, the defendants fail to demonstrate the requisite diligence. The defendants appeared in the case 2.5 years ago, in April of 2017. Apparently, the defendants propounded no discovery in either 2017 or 2018. (Decl. of Mojtehedi, ¶ 2 [discovery in 2017 and 2018 “included various sets of discovery from Plaintiff.”]) On 2‐28‐18, the Court set a trial date of 7‐27‐18. On 6‐15‐18, the defendants applied ex parte for ...

Excerpt: ...The only items that are potentially relevant are records related to Plaintiff's wages/salary (i.e., payroll records) and records relating to the injuries at issue in this action. However, Defendants fail to demonstrate good cause for the production of Plaintiff's entire personnel file. (M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐33.) Defendants do not even address the breadth of the Subpoena in their opposition or offer any e...

Excerpt: ...use the fact that plaintiff filed an amended complaint to attack claims that appeared in a prior complaint. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637.) The anti‐SLAPP statute “‘is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.' [Citation.] To minimize ...

Excerpt: ... pages long, and only 12 lines of which was not boilerplate. Counsel estimated 0.4 hours to draft a fiveline email, and 0.8 hours to draft a declaration with only 12 substantive lines. In the accompanying motion to compel responses to form interrogatories below, plaintiff's counsel billed the same number of hours for the documents supporting that motion, even though the motion, declaration, exhibits, and proposed order for that motion were almost...

Excerpt: ... further motion shall fully comply with the Court's CMO and with the ruling by which the first motion was denied. Analysis: The motion is denied because the plaintiff has failed to comply with the Court's CMO. In particular, it appears that the plaintiff failed to fully comply with the following sections of the CMO, because the plaintiff:  Has failed to address the PAGA claim when responding to H.3.a.iii.;  Has failed to comply with H.3.k.,...

Excerpt: ...defense. See California Cas. Gen. Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 280‐281—disapproved on other Page 2 of 2 grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407, fn. 11). Such denial is “most appropriate” where the pleading is deficient as a matter of law and the defect could not be cured by further appropriate amendment. California Cas. Gen. Ins. Co. v. Sup.Ct. (Gorgei), supra, 17...

Excerpt: ... motion: DENY. Defendant failed to show it is the prevailing party under the Independent Contractor Agreement and failed to show Plaintiff's FEHA claims were unreasonable, frivolous, meritless or vexatious in the context of the entire complaint. D. Defendant Bachelor's motion: DENY. Defendant failed to show Plaintiff's FEHA claims were unreasonable, frivolous, meritless or vexatious to justify an award of attorney fees and costs under Gov. Code �...

Excerpt: ... opposing the motion, the Commission challenges only the number of hours incurred in prosecuting the appeal and preparing this motion. It argues that the fees should be reduced by 20 percent, but it never explains how it comes to that figure. The only task that it identifies as having consumed an unreasonable amount is oral argument. It fails to propose what a reasonable amount of time would be for that task, and thus does not identify the number...

Excerpt: ...ent Consulting (“FMC”), he submitted a bid on a Caltrans Request for Proposal (RFP # 82A0033) for financial consulting services (and appears to have been the low bidder). FMC was not awarded the public contract, and exhibits to the FAC indicate that Plaintiff made several challenges to Caltrans's decision. Plaintiff generally alleges that Caltrans failed to follow RFP Guidelines and violated Pub. Contract Code, §§ 10344 and 10345. The FAC a...

Excerpt: ...epted as true for the purpose of the Demurrer. Based on the allegations, Plaintiffs have stated sufficient facts to constitute a cause of action for concealment. As a result of the allegations, the cause of action falls within an exception to the economic loss rule. (Robinson v. Helicopter Co. Dana Corp. (2004) 34 Cal. 4th 979, 989 ‐ 990.) Page 2 of 2 Fifth cause of action for fraudulent inducement ‐ intentional misrepresentation: It is not c...

Excerpt: ...Act or “FEHA”). In the complaint, plaintiff alleges that defendant ATI was his employer. He alleges that codefendant David Fountain was president and plaintiff's supervisor. Only an employer can be liable under FEHA. (Leek v. Cooper (2011) 194 Cal.App.4th 399 (“Leek”).) A sole shareholder of a corporate employee can only be held liable for the corporation under alter ego theory. (Leek, 194 Cal.App.4th, at p. 406.) Plaintiff did not plead ...

Excerpt: ...aused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injur...

Excerpt: ...n the home, including an unpermitted room in the house and mold infestation, which Buyer discovered shortly after moving into the home. Buyer filed a claim with IVAMS, and arbitration proceeded before the Honorable L.A. Simmons, Judge (Ret.) (the “Arbitrator”) over the course of 9 days in November and December 2017. The Arbitrator found in favor of Buyer and against Seller in the amount of $299,056.76 plus costs (“Arbitrator's Award”). Th...

Excerpt: ... their face, a legal claim to title that is premised on Johnson's allegations that various individuals have competing title claims but that he acquired title by adverse possession. The Third Cause of Action for fraud, however, is premised on protected petitioning activity. The Third Cause of Action specifically alleges that the fraudulent representations at issue were made by way of the First Amended Complaint filed by Defendants Humphrey and Wat...

Excerpt: ... “YOU ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THIS CONTRACT, INCLUDING THE ARBITRATION PROVISION ON THE REVERSE SIDE, BEFORE SIGNING IT.” The contract was take‐it‐or‐leave‐it, so it was adhesive and somewhat procedurally unconscionable. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915 (“Sanchez”).) However, the contract was not substantively unconscionable. Its terms were similar to the contract upheld in Sanc...

Excerpt: ...f Eva Pocklington (nos. 4, 5, 6, 7, 8, 10, 11, 14); declaration of Lantson Eldred (all). Almost every single paragraph starts with “Based upon my review of the papers prepared as part of this Motion, I am informed and believe and based on such information and belief assert ________” “Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or ...

Excerpt: ...laim for damages are limited to the insurance coverage available, pursuant to Probate Code section 550, et. seq. and Plaintiff's failure to comply with Probate Code section 554 bars him from seeking recovery for any of his claims for damages in excess of insurance coverage available. The Court notes that Defendants admit that Plaintiff filed a creditor's claim in the probate action on 6/23/17. Therefore, Plaintiff complied with Probate Code § 55...

Excerpt: ...ntiff must be represented by an executor, administrator, trustee, or other personal representative. Second, to the extent that the motion is seeking reconsideration, there is no evidence that the procedural circumstances that require such a motion exist. Such a motion is necessary “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms . . . ...

Excerpt: ...claiming personal injuries from a motor vehicle collision allegedly cause by Defendant, Michael Gray. A party seeking disclosure of law enforcement officer information must follow a two‐step process by first filing a motion (i.e. a Pitchess motion) that identifies the peace officer, the agency in possession of the records, a description of the records, who is seeking the records, and well as time and place of the hearing (Evid. Code, § 1043(b)...

Excerpt: ...tter 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 assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. B...

Excerpt: ... alleges that Essence and Silverton intended to permanently deprive Plaintiff or her property, this combined with allegations that Essence and Silverton improperly donated the horses to Villa Chardonnay appears sufficient for pleading purposes. 3COA (Trespass to Chattels): Overruled. Sufficient facts show interference with Plaintiff's property and an exercise of control over it. 4COA (Retaliatory Eviction): Sustained for failure to state sufficie...

Excerpt: ...action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal...

Excerpt: ... Construction Co. (1994) 24 Cal.App.4th 1426, 1444 (internal citations omitted).) The filing of a proof of service creates a rebuttable presumption that service was proper only if the proof of service complies with the applicable statutory requirements. (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) A proof of service of summons must be filed pursuant to CCP §417.10 (in state defendants) or CCP §417.20 (out of ...

Excerpt: ...s to whether the parties agreed that Defendant William Nielsen would support Plaintiff Dawn Foote. Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74. Nielsen argues that Foote lacks sufficient evidence to raise a triable issue of fact that the parties had either an express or implied agreement. Foote alleges both a sharing agreement, that is an agreement to share earnings, property, etc., and an agreement to prov...

Excerpt: ...e attorney general‐an agent of the state‐while the governmental entity on whose behalf he or she sues is the real party in interest.” (Franco v. Arakelina Enteprises, Inc. (2015) 234 Cal.App.4th 947, 962.) A plaintiff may maintain a PAGA suit without satisfying class action requirements. (Arias, supra, at pp. 981‐ 982.) ...

Excerpt: ...wing the requesting party his or her day in court. Here, Bodde declares she was never personally served with the complaint and first learned about this case when she received the request for entry of default on or about July 31, 2018. Bodde immediately went to the court to obtain copies of the lawsuit. Because she did not have legal training she attempted to set aside the default via an ex parte application, which the court denied on August 2, 20...

Excerpt: ...the fact that the specific discovery requests at which this motion is directed are no longer at issue the following may be helpful to the parties going forward. “The law is well settled that, where one is bound either by law or agreement to protect another from liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the suit and an opportunity to control and manage it…. The judgment recov...

Excerpt: ...s to other employees); Travis Booth – none; Nicholas Bouzikian – 8 and 14; Daniel Cerda – 10; Dejuanne Davis – 1, 4‐5, 8 and 14 (as to other employees); Ericka Eisenman – 3 (as to other employees) and 8; Ollie Ervin – 12, 20, and 23 (as to what other employees were told); Courtney Fisher – 6, 11 and 17 (as to other employees); Robert Geason – 6; Anthony Hidalgo – 10, 18, 21 (as to other employees were told); William Homsany �...

Excerpt: ... by the enactment of Penal Code section 688.5, and may now be dismissed without prejudice. They contrast that claim with the claim for a writ of coram nobis, the subject of the third count, suggesting that they agree to the dismissal of counts one and two. Are the plaintiffs conceding that the demurrer to the first and second counts may both be sustained without leave to amend? If not, exactly what are they stipulating may be dismissed? Second, t...

Excerpt: ...rvice literature and replacement parts to effect repairs during the express warranty period.” (Civ. Code, §1793.2(a)(3).) Plaintiff can claim civil penalties in the third cause of action because Civil Code section 1794 allows damages and penalties for “a failure to comply with any obligation under this chapter” and the replacement or reimbursement remedies under section 1793.2, subdivision (d) are not exclusive. Civil Code section 1794, su...

Excerpt: ... contained in the 1st cause of action are identical to those set forth against City for what is essentially a cause of action for dangerous condition of public property, as the court noted in response to moving parties' demurrer to the Complaint. Dangerous Condition of Public Property: G.C. §835 reads as follows: Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff e...

Excerpt: ...Safety Code section 1339.51, which requires a certain notice to be posted. (TAC, ¶¶ 31‐32.) She also complains that the defendant failed to make certain other disclosures. (Id., ¶ 47.) In order to establish standing under the UCL, a plaintiff must demonstrate some form of economic injury, i.e., a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e. economic injury, and (2) s...

Excerpt: ...3.1382, regarding the identification of the pleadings proposed to be dismissed. Any further effort to obtain a determination that a settlement is in good faith shall do so by notice (Code Civ. Proc., §.877.6, subd. (a)(2)) rather than by noticed motion (id., subd. (a)(1)) unless either (1) the party expects the effort to be opposed or (2) the party will be requesting an order shortening time for the hearing on the motion. If a noticed motion is ...

Excerpt: ...6.) Here, the plaintiff's attorney signed it, but it is unclear whether it is also signed by Iris Landing Homeowners Association, the only plaintiff in the action. (Complaint.) There are two signature pages attached to the agreement. (Harrington decl., Ex. A.) On one of them, a signature line is prepared for “Iris Landing Homeowners Association, Plaintiff.” That signature line is blank. On a second signature page, there is signature line labe...

Excerpt: ...22,254.03. On 12/28/17, an assignment of the judgment and judgment lien was filed with the court reflecting that Butler Capital Corporation assigned their judgment and lien to LA Lease Holding, LLC on 10/14/14. Also filed on 12/28/17 was an assignment of the judgment and judgment lien from LA Lease Holding, LLC to Butler Capital, Inc. dated 1/20/17. On 3/22/18 a notarized assignment, dated 12/16/14, was filed with the court reflecting that Butler...

Excerpt: ...ainst Defendant in “the Butler Lawsuit,” which caused a judgment to be recorded against property located at 2392 Achilles Drive. The judgment lien would not have attached if Defendant had “complied with the law, requiring the deed to be signed over to Plaintiff.” As a result of the Butler judgment the property was lost. Defendant falsely represented to Plaintiff that she would defend the Butler Lawsuit and concealed and failed to disclose...

Excerpt: ...otocopies of Exhibits (Item 12). Defendant argues that most of the exhibits were not used at trial (other than 30 pages worth $6), and the enlargements were unnecessary because the courtroom has an Elmo available to enlarge the exhibits for the jury, which Plaintiff used. Plaintiff argues that the costs were reasonably necessary to the litigation, that the models were used during the opening statement, and that she had no way of knowing an Elmo w...

Excerpt: ...Defendant's opposition asserts that the following acts contained in the FACC constitute extreme and outrageous acts: Dr. Vuthoori entered Dr. Holt's medical practice and yelled at him and his staff about the purported outstanding rent causing distress to Dr. Holt's sick patients, knocked on windows and doors of and demanded meetings and threated to “take care” of Dr. Holt. Plaintiffs Surender Vuthoori, M.D. and Surender Vuthoori, M.D., Inc. m...

Excerpt: ... On April 17, 2018, this court sustained with 20 days' leave to amend demurrers to the 1 st and 7th causes of action asserted against Cross‐Defendant Joseph Tortoris alleged in Cross‐Complainant James Kollins' Third Amended Cross‐Complaint. The court's ruling was an adoption of its tentative ruling posted April 16, 2018 and the fact that no party requested oral argument and no party appeared at the scheduled hearing. Kollins failed to timel...

Excerpt: ...ce by the witnesses in March. Depositions of those experts to be taken within 15 days unless other dates mutually selected by all parties. FACTS: Defendant's motion states the following: Expert exchange occurred on January 24, 2018. Plaintiffs designated Dr. Kaee and Dr. Darvish as retained experts. On January 29, 2018, Defendant noticed the depositions of Plaintiffs' retained experts for February 13, 2018. At the time the deposition was noticed,...

Excerpt: ...f the hearing on this motion. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. This is one of three motions which all arise out of Defendant/Cross Complainant 14080 Palm, LLC's failure to timely serve verifications with its discovery responses. To be sure, the failure to do so for extended period of time, as happened here, is improper. However, equally objectionable are certain positions advocated by the ...

Excerpt: ...y for the relief sought. That reliance is misplaced. To the extent relevant, that section says that a motion to compel appearance and testimony may be brought if “a person designated by an organization that is a party under Section 2025.230” fails to appear at the deposition or to proceed with it. (§ 2025.450, subd. (a).) Here, the person designated by the city appears and testified. Therefore, the section has no application. The Court could...

Excerpt: ...ion. (UMF No. 8, Soberon Dec, Ex. J.) On July 6 and September 6, 2016, Plaintiff was notified that she was approved for a Streamline Home Affordable Trial Modification. (Soberon Dec, Ex. K and M.) Select has also produced evidence that it conducted a review of later applications before determining that she was ineligible for modification. Select notified Plaintiff that she was denied on March 2, 2018. (Soberon Dec, Ex. N.) It also appears that Se...

Excerpt: ...s “Individual Defendants”, contend Plaintiff failed to exhaust his administrative remedies as to them. They allege that under Government Code §8547, a plaintiff must first exhaust his or her administrative remedies with the SPB (State Personnel Board) before filing a lawsuit. The Individual Defendants also contend that Plaintiff's claim is time barred. Individual Defendants fail to meet their burden on the ground of failure to exhaust admini...

Excerpt: ...action are notably brought on several distinct grounds/counts. CHA simply does not address each of the disputes and alleged breaches of the CC&Rs in its motion. Further, even if CHA was correct that long‐term funding obligations were effectively transferred to KH and/or that its obligations have not accrued under the CC&Rs, questions concerning CHA's alleged failure to maintain water quality basins and features within the community, its alleged...