Excerpt: ...ate Claim for Coram Nobis The defendant cites People v. Kim (2009) 45 Cal.4th 1078 for the proposition that a party moving for a writ of error coram nobis must demonstrate factual innocence. The Supreme Court said no such thing anywhere in that opinion. To the contrary, it said: “The writ of [error] coram nobis is granted only when three requirements are met. (1) Page 3 of 4 Petitioner must ‘show that some fact existed which, without any faul...

Excerpt: ...ed in the Notice of Motion. The five page Separate Statement does not satisfy requirement that each cause of action be separately identified and supported by material facts that are relevant to that cause of action. The purpose of the Separate Statement and opposing Separate Statement is to permit the Court to determine quickly whether the Motion is supported by sufficient undisputed facts. (St. Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co. (20...

Excerpt: ...W. Pyle, Jr. for alleged problems with the maintenance and operation of the Park. Pyle moved the court for an order compelling arbitration of the plaintiff's claims on the grounds that at least 16 of the plaintiffs had leases that included agreements to mediate and arbitrate. Pyle also moved the court to stay all proceedings in this case pending arbitration. On January 23, 2018, this court heard and denied Defendant's motion. Defendant then filed...

Excerpt: ....A. (McCain) wherein Plaintiffs would contribute capital to be used to secure a bank Guarantee used in connection with the purchase of gold. McCain moves (1) to quash service of summons based upon lack of personal jurisdiction and (2) to dismiss based the parties' choice of Florida as the forum for any action. MOTION TO QUASH Plaintiffs have failed to meet their burden to demonstrate that minimum contacts exist between defendant and the forum sta...

Excerpt: ...n Plaintiffs' First Amended Complaint (“FAC”). Plaintiffs' SAC alleges 7 causes of action against Defendant as follows: 1) breach of covenant of good faith and fair dealing, 2) breach of contract, 3) negligence, 4) accounting, 5) Unfair Business Practices, 6) Intentional misrepresentation, and 7) negligent misrepresentation. The 4th cause of action for accounting was not alleged in the FAC. In their opposition, Plaintiffs state that the chang...

Excerpt: ... unconscionable. There is no dispute that Serantes agreed to arbitrate employment related claims as part of JFK's Fair Treatment Process. FTP. The FTP provides for a pre‐arbitration resolution procedure and only after that is completed binding arbitration. “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may...

Excerpt: ...ns are privileged and that there are only three narrow exceptions to overcome that privilege, which are: 1) intentional waiver, 2) the gravamen of the case is so intertwined with the return that waiver has occurred, or 3) public policy outweighs the privilege. Plaintiff asserts that none of these exceptions apply in this case. In addition, Plaintiff asserts that as the S Corporations sole shareholder he has a personal financial privacy right. As ...

Excerpt: ...is motion, SCE seeks summary adjudication of the inverse condemnation cause of action. In order to establish inverse condemnation Plaintiff must prove that the facilities at issue were serving a public use. The motion is a based upon the grounds that there is no triable issue of fact that the facilities at and near the bank were serving a public use because they were not serving the public at large. SCE has failed to show that there are no triabl...

Excerpt: ...subdivision (c), defines “aggrieved employee” to mean “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Subdivision (i) says that, of the civil penalties recovered by aggrieved employees, 25 percent shall be distributed “to the aggrieved employees.” Allocation of the entire 25% share of the penalties to a single aggrieved employee, rather than to all the aggriev...

Excerpt: .... All she points to is the fact that the probate case (RIP 1400189 ) has been resolved and that Plaintiff refuses to appear for deposition. As to the former, the probate court entered judgment on 11/1/17, which is on appeal. Res judicata (claim preclusion) “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.” (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398.) “Res judicata precludes t...

Excerpt: ...n administrative hearing regarding alleged violations of the statutes and regulations governing the operation of traffic schools. Petitioners then moved to set aside that default on the grounds that they did not receive notice of the administrative action. That motion was denied because the hearing officer found that Petitioners did Page 3 of 3 receive notice. The order revoking Petitioner's license has now become final. This petition challenges ...

Excerpt: ...o have an attorney represent it in a lawsuit, which he later learned from the court. He thereafter sought and retained counsel to represent and defend EJD. (Kancilia Dec., ¶¶ 3‐6.) These facts are sufficient, and appear sincere. Kancilia initially responded to the complaint on behalf of himself and EJD by filing a demurrer and petition to compel arbitration. He sought counsel on behalf of EJD after default was taken, and after attempts to mee...

Excerpt: ...ravamen of this litigation includes failure to provide meal and rest breaks along with negligent hiring and retention. The defendant is seeking cell phone records relating to the date of March 9, 2016, which are relevant to a date plaintiff left work without clocking out. Plaintiff was terminated on March 11, 2016. Defendant is also seeking cell phone records from the date of May 12, 2013 to March 8, 2016. These records are relevant to issues of ...

Excerpt: ...balance, as explained more fully below. Lockhart's request for sanctions is granted in the sum of $1,290. Analysis: The objection/motion to strike. The defendant objects to and moves to strike the plaintiff's motion on the ground that the memorandum in support of the plaintiff's motion violates California Rules of Court 2.108 and violates this Court's admonition against excessive use of footnotes. Both the objection and the motion to strike are m...

Excerpt: ...eeking the identity of potential witnesses. Though technically speaking, Plaintiff could have done a better job phrasing the interrogatories (e.g., it is not clear whether no. 1 is asking Defendant to identify lawsuits containing any of the causes of action or all of the causes of action identified in the interrogatory), it is obvious what information Plaintiff seeks. As to the objection regarding format per CCP § 2030.060(f): CCP § 2030.060(f)...

Excerpt: ...n, that Burrell “was physically and emotionally … Hudson … and was also physically and emotionally abusing his other son Kaiden… from a relationship with Lyndsay Hunter. The actual words were that the Plaintiff punched Hudson and threw him into a swimming pool, pinching his body and forcing him to sit naked outside then throwing a telephone at him and there he forced the two boys to fist fight one another”; that Cebreros later repeated ...

Excerpt: ...ker Corporation were Plaintiff's agent for the sale. The gravamen of this action is that Downs made certain misrepresentations to Plaintiff about the value of his property in order to get Plaintiff to sell it far below market value to investors with whom Downs was working. The motion based upon the grounds that the complaint does not state a claim for punitive damages against Defendants. Plaintiff has failed to plead fact showing corporate liabil...

Excerpt: ...nce on Representations of Partnership, 2) Common Count for Work Labor and Services Rendered, 3) Breach of Contract, and 4) Common Count for Reasonable Value of Services (Quantum Meruit). /// /// Page 2 of 7 The Third Amended Complaint alleges as follows: Defendants Barry Werner and Simon Werner and KGA, Inc. were the owners of Defendant KMR Tours. Defendant Baruch Erblich was doing business as Afikoman Tours. Defendant Premier Passover was a part...

Excerpt: ...Further, this matter is properly before the court as there are no allegations that this asset was ever part of a trust. 2COA (Elder Financial Abuse): There are sufficient facts to show undue influence. The only issue is standing. An elder abuse cause of action is based on injury/damages to the elder, not to the elder's heirs. See Welfare & Institutions Code §§ 15657.3 and 15657.6. If the elder dies, the right to commence an action “shall pass...

Excerpt: ...nce will be vacated. Any renewed motion shall comply with CMO#2, to be issued forthwith. Analysis: 1. The motion fails to comply with the Court's initial CMO in at least the following respects: a. No declaration from plaintiff's counsel re other class or representative actions. (CMO ¶E.1.d.) b. The proposed release (Settlement, p. 16, ¶31) exceeds the limitations on the scope of the released parties. (CMO ¶E.5.a.) c. There is no declaration fr...

Excerpt: ...(1).) Defendants claim that no statement of damages was served on them. In the opposition, Plaintiffs do not dispute this contention. Because the default is being vacated due to Plaintiffs' failure to serve the statement of damages rather than based on fault of Defendants' attorneys. Plaintiffs request for attorney fees is denied. The Order to Show Cause set for November 6, 2018 is ordered vacated. The Case Management Conference is restored to ca...

Excerpt: ...s pltfs' signed a waiver of release of all liability. In the 6th (fraud for non‐ disclosure of facts) and 7th (fraud for negligent representation) causes of action the second amended complaint has failed to properly plead any specific facts about the source or time of any misrepresentations or non‐disclosures. In addition, the pltf has failed to plead what authority any person who made such representations has to bind the deft corporation. Th...

Excerpt: ...arcia owns certain real Page 2 of 6 property in Coachella. City of Coachella filed criminal charges against him alleging municipal code violations related to the property. Garcia pled guilty to 9 counts based on a stipulated sentence including a $9,000 fine ($8,100 stayed pending cure of the defects at the property within 90 days). Garcia cured the defects within 90 days and paid his $900 fine. City attorney did not tell him that in addition to t...

Excerpt: ...2:125, pp. 2‐53 to 2‐54, citing Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578‐579.) The Demurrer as to Osceolo is SUSTAINED only as to the 6COA for failure to state facts sufficient to the COA but WITH LEAVE to AMEND of 20 Days. As to all other COA pertaining to Osceolo, the Demurrer is OVERRULED. 6COA (Fiduciary Duty): “Fiduciary duties are imposed by law in certain technical, legal relation...

Excerpt: ... defendant timely preserved his objections, the result would not differ since the court finds that the objections were not well‐taken and seek documentary support for defendant's contentions, which are a proper subject for discovery. Sanctions are awarded against defendant Orellana and his counsel in the amount of $1,035.00. 4. RIC1709019 BRUYN VS ORELLANA MOTION TO/FOR COMPEL FURTHER RESP OF RICHARD ORELLANA TO SPECIAL INTERROGATORIES SET ONE ...

Excerpt: ... needed given the allegations against the dental assistant are already present the FAC and Plaintiff is simply seeking to amend the request for damages. ...

Excerpt: ...complaint for breach of contract in the U.S. District Court, Central District of California, Case No. 17‐cv‐00433 against Hayday, Lyndon Ichida and the Ichida Family Trust. In that case, Hayday successfully compelled arbitration and the federal action was dismissed. Hayday now has claims against FeeDx Holding, Inc., HayDx, Inc. Thomas Tsai, and FFNT pending in AAA Case No. 01‐17‐002‐8035. The claims and cross‐ claims in the arbitratio...

Excerpt: ...Both parties agree that the applicable standard of review is the independent judgment test. In applying the independent judgment test, the court determines whether the weight of the evidence presented supports the findings of the administrative law judge (“ALJ”). C.C.P. §1094.5(c). There is a strong presumption that the ALJ's findings are correct. Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817. The Petitioner has the burden to show that...

Excerpt: ...dants are business entities, noticing the depositions of the PMKs is appropriate. Pursuant to CCP §2025.450(a), where a party fails to appear, without a valid objection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be accompanied by a meet and confer declaration under CCP §2016.040. (CCP §2025.450(a).) Plaintiff asserts th...

Excerpt: ...set aside default must be filed within a reasonable time, not to exceed six months, from the date of default. Further, the application must be accompanied by a copy of the proposed responsive pleading, otherwise the application shall not be granted. ...

Excerpt: ...tion 474. Under section 474, for statute of limitations purposes the claims against a defendant added as a Doe defendant relate back to the filing of the original complaint when the identity of the defendant is unknown. The relation‐back provision of section 474 has not been interpreted literally to only apply when the plaintiff is ignorant of the identity of the defendant. Courts have more broadly interpreted the “ignorance” requirement to...

Excerpt: ...ded to purchase the property. The demurrer is sustained with leave to amend on the 2nd cause of action (fraud) because of lack of specificity. The demurrer to the 4th and 5th causes of action is sustained without leave to amend. Notice of a lis pendens published in the course of judicial proceedings is privileged pursuant to CC 47. Lack of service does not render the recordation unprivileged. Consequences of violating service requirements are del...

Excerpt: ...e deft's supervised retirement home. The decedent apparently fell and broke his hip on 11/25/16 and passed away on 12/29/16. The 1st cause of action does require specificity as to the statutory violation of elder abuse to establish gross negligence or reckless disregard. The alleged incident occurred on a single occasion, not sufficiently connected to the decedent's death, and does not demonstrate a significant pattern of withholding care. The se...

Excerpt: ...h Nudleman, M.D. Dr. Ritter opines that based on Ramsey's symptoms, a detailed neurological exam should have been done. (Ritter Dec. ¶ 9‐10.) He states that Defendant failed to perform visual field testing and the remainder of the exam was below the standard of care. (Id. ¶ 10‐ 12.) Based upon the competing expert opinions, both of which find support in Ramsey's medical records, there are disputed material facts as to whether Defendant's ac...

Excerpt: ...iding need for the County to possess the property prior to the issuance of final judgment, and that County will suffer a substantial hardship if the application is denied or limited; and it has shown that the hardship County will suffer if possession is denied or limited outweighs any hardship on the Defendant that would be caused by the granting of the order of possession. Further, the costs of the property renovations and changes argued in the ...

Excerpt: ...acts are plead to support the claim. Plaintiff's allegations that Dr. Phan recklessly disregarded her instructions and proceeded to grind away more than 50% of three of Plaintiff's front teeth (among other teeth) in order to bill Plaintiff's insurance sufficiently sets forth “extreme and outrageous” conduct. Further, Plaintiff sufficiently pleads “severe emotional distress” through her allegation that she suffered extreme anxiety that req...

Excerpt: ...my client was unable to timely file any response (including an Answer and Demurrer) to the Cross‐ Complaint as a result of the lack of due process and proper notice as to the filing of the CrossComplaint in this matter prior to December 28, 2018, as a result of inadvertence, surprise, or excusable neglect” and that “my client has been suffering under a continuing physical disability which interfered with his ability to readily communicate [...

Excerpt: ...This interpleader action is based upon the following allegations: “6. Lents purchased a limited partnership interest in Lake Highlands Thrive, Ltd. ("LHTL") by executing a limited partnership agreement, subscription agreement and all documents necessary to become a limited partner of LHTL. At the time of Lents' purchase, the Plaintiffs were wholly‐owned by LHTL. 7. Lents purchased her limited partnership interest in LHTL with a ch...

Excerpt: ...gini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The preliminary injunction order is irrelevant to this motion. Granted as to Claimant's Request Nos. 1, 2, 3, 4, 6, 7, 8, 9, and 12. There was no meet and confer as required by CCP 439. It appears however that the parties have discussed the issues raised by this motion in open court before several judges as reflected in Claimant's Request for Judicial Notice, Nos. 3, 4, 8, 9 and 12. ...

Excerpt: ...Court has statutory power to grant relief from such waiver in accordance with the procedures discussed below. (Code Civ. Proc. § 2030.290(a).) The moving party's declarations must establish that the party's failure to serve a timely response resulted from “mistake, inadvertence or excusable neglect.” (Code Civ. Proc. § 2030.290(a)(2).) There is no dispute that Plaintiffs' initial failure to timely respond to discovery was due to the dis...

Excerpt: ... to bind Virginia and her estate to the arbitration agreements. MHRC did not produce a durable power of attorney or any evidence that Decedent cloaked Stablein with the authority to sign the agreements. An agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency. (Flores v. Evergreen At San Diego, LLC (2007) 148 Cal.App.4th 581, 587.). ...

Excerpt: ...sition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal theories without notice to opposing counsel and the court." (Weil & Brown, par. 9:105.10 citing Sexton v. Sup. Ct. (1997) 58 Cal.App.4th 1403, 1410.) Sexton referenced Los Angeles Superior C...

Excerpt: ...5, forthwith. There is no provision in the CCP or Rules of Court which provides that a motion is deemed to be meritorious because no opposition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal theories without notice to opposing counsel and the court...

Excerpt: ... trespass or conversion was actually adjudicated in the small claims proceedings. The small claims complaint indicates that Victoria Harkness (a non‐party) and Tony Harkness owed Plaintiff money for stopping payment after purchasing two dressers and a large mirror from Plaintiff. It indicates that they owed Plaintiff $100.00 for the dressers and mirror, $12.50 in bank fees, and $539.00 for fees she incurred regarding a Direct TV box from Nation...

Excerpt: ... This complaint for (1) trade libel, (2) tortious interference with business relations, (3) trespass to chattels and (4) conspiracy is based upon allegations that Defendant Melissa Swauger who is involved in a contentious dissolution with Jonathan Swauger, principal of Plaintiff JLS Development Group, Inc., and her parents, Defendants Michael and Cathleen Marmon, have taken actions with the express purpose of ruining JLS and attempting to force J...

Excerpt: ...�Holdings”) CrossComplaint. The Court denies summary judgment to International on Cross‐ Page 3 of 24 Complainants Amy Brinkman and IJLSF, LLC's Cross‐Complaint. The Court grants summary adjudication to International on Cross‐Complainants Amy Brinkman and IJLSF, LLC's Cross‐Complaint as to the 2nd and 3rd causes of action and as to the 1st cause of action allegations of breach of contract for: failure to approve Holding's transfer and f...

Excerpt: ... was timely served as Proof of Service (“PoS”) says that it was “caused to be delivered by courier,” but there is no PoS signed by the courier reflecting when, or if, it was served. Defendant RMRC Owners' Association, Inc. moves the court for an award of attorney's fees and costs as the prevailing party of an anti‐SLAPP motion. RMRC seeks $46,337.73 for attorney's fees plus $916 in costs. Plaintiff John Glatz (“Glatz”) filed his com...

Excerpt: ...FPs (Set 1) as to RFP Nos. 28, 29, 30, 31, 32, 34, 40, 41, 42 and 43. The Court denies the motion to produce the Person Most Knowledgeable (“PMK”) for deposition. The Court grants the motion to compel responses to PMK RFP Nos. 6, 7, 8, 14, 15, 16, 17, 18, 19 and 20. In addition, the Court grants the request for sanctions in the amount of $1,150.00 related to the motion to compel production of RFPs related to PMK. Defendant SB Hospitality Palm...

Excerpt: ...son and Palm Drive Investments, LLC's Complaint on the grounds that Plaintiffs lack the capacity to sue; there is a defect of parties; and that the complaint fails to state a cause of action and/or is uncertain and cannot be maintained as a matter of law. Plaintiffs Adrian Pinson (“Pinson”) and Palm Drive Investments, LLC (“Palm Drive”) filed their complaint against Defendant Wilson Johnson Commercial Real Estate, Inc. (“Wilson”) alle...

Excerpt: ...st in the Property, (ii) the date I pay the entire Interest Bearing Principal Balance, or (iii) the Maturity Date.” (Home Affordable Modification Agreement § (3)(d).) It provides: “[t]hat all terms and provisions of the Loan Documents, except as expressly modified by this Agreement, remain in full force and effect; nothing in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of the obligation...

Excerpt: ...operty. (SAC, ¶¶2‐8.) The SAC alleges that Plaintiffs submitted a loan modification application, which Ocwen received on 10/23/13, and denied. (SAC ¶9.) The SAC alleges that Ocwen denied a second loan modification made on 10/28/14 without proper review. (SAC ¶¶25‐26.) Substantively, this claim is properly alleged. 2COA (UCL): OVERRULED. The SAC alleges that Ocwen informed Plaintiffs that they were approved for a short sale settlement off...

Excerpt: ...ys' fees and costs are to be paid within thirty (30) days of the date of the hearing on this motion. Plaintiff is to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiff Brian Meuse moves the court for an award of attorney's fees of $27,716.25 and costs of $2,665.15 pursuant to Civil Code section 1794(d) of the Song‐Beverly Consumer Warranty Act as the prevailing party pursuant to the acceptance of a 998 Offer to...

Excerpt: ...de of Civil Procedure section 1019.5, forthwith. There is no provision in the Code of Civil Procedure or Rules of Court which provides that a motion is deemed to be meritorious because no opposition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal th...

Excerpt: ... 1 commencing with CCP 1255.010, and, further, that the proper notice was provided. The court further finds that there is an overriding need for plaintiff to possess the property prior to the issuance of final judgment in the case, and plaintiff will suffer a substantial hardship if the application for possession is denied or limited. The hardship that plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendan...

Excerpt: ...nation of active misrepresentation and concealment. (SAC ¶18.) CCP §338(d) imposes a three year statute of limitations for fraud. In Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472, the court stated: “Because the discovery rule operates as an exception to the statute of limitations, ‘if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make...

Excerpt: ...d Amended Complaint still currently alleges negligence. The Third Amended Complaint also alleges that Plaintiffs “regularly visited decedent during the time she was a resident at defendants' facilities, and thus were present during the injury‐producing events at or near the time they occurred and were then aware of these injury‐producing events and their effects ….” (Third Amended Complaint, ¶32.) However, no specific Plaintiff alleges...

Excerpt: ...ent places, during different times with different witnesses. Paragraph 42 does not tie these claims together because it does not allege any specific policy or procedure which was not properly implemented as to each Plaintiff nor does it show that deliberate acts of any of Defendant's employees caused common breaches of law resulting in each of the Plaintiffs' claims. There may be facts regarding the newly alleged policies and procedures of paragr...

Excerpt: ...lkin's Declaration, ¶6.) He contends that said lines are indicative of a preexisting fracture. (Id.) The x‐ray also revealed that there was a pin in this tooth, which were popular in 1980s and 90s, but have fallen out of favor because they have been found to induce fractures in teeth. (Id.) Plaintiff's expert states that it is his opinion based upon a reasonable degree of medical probability, that as of February 29, 2016, Plaintiff had a pre�...

Excerpt: ...d.”].) ...

Excerpt: ...h. Defendants Torres Martinez Tribal TANF, Thomas Tortez, Desiree Franco and Mary Resvaloso move the court to quash the service of summons on the grounds of lack of subject matter jurisdiction on the basis of sovereign immunity and exclusive tribal jurisdiction. Plaintiffs James Cisneros and Karen Lake's Complaint alleges 7 causes of action for wrongful discharge and employment discrimination allegations as well as IIED and Negligence. The Compla...

Excerpt: ...btedly be helpful and necessary to assess the causes of action. Further, the records do not belong to the defendants. The information sought is not Wenda King's personal information. The Exxon Mobil records sought are again not Wenda King's but the decedent's. The time period sought is narrowly tailored. The importance of these records is to one again provide insight into Plaintiff's anticipated inheritance and defendants' actions in connection w...

Excerpt: ... the court finds the motion/opposition was substantially justified or the circumstances make imposing sanctions unjust. Under C.C.P. §2023.030(a), a court may also impose monetary sanctions when a party misuses the discovery process. A misuse of the discovery process can include making unmeritorious objections. Plaintiff did not act without substantial justification in filing the on May 11, 2018. The filing resulted in the Defendant providing th...

Excerpt: ...not Decedent's personal representative and thus has no standing to prosecute the proposed cause of action for elder abuse under Welf. & Inst. Code § 15657.3(d), and, in any event, the proposed amended complaint does not demonstrate compliance with CCP § 337.32. Additionally, it appears that the proposed cause of action for physical elder abuse/neglect is untimely, and Plaintiff has not pleaded the application of the discovery rule. See Fox v. E...

Excerpt: ...per separate statement of undisputed facts with references to supporting evidence in support of her argument that there remain triable issues of fact as to the 7th – 10th causes of action. No additional briefing will be accepted from Plaintiff. The separate statement is to be filed and served no later than 08/15/18. Defendant will be afforded a meaningful opportunity to respond to the separate statement. The Defendants' response is to be filed ...

Excerpt: ...o state sufficient facts to state a cause of action and/or is uncertain. On April 6, 2018 this Court heard the demurrer to the Fourth Amended Complaint and sustained with leave to amend as to the 1st, 3rd and 4th causes of action for 1) Breach of Contract, 3) Fraud, and 4) Negligent Misrepresentation. Thereafter, VM Residential, LLC filed a Fifth Amended Complaint (“FAC”) alleging a single cause of action for Breach of Contract. The single ca...

Excerpt: ...his complaint. Plaintiff states he seeks leave to add a new cause of action to specifically address Defendant's turning off his electricity in order to get him to move. The new cause of action is not based on new facts, but rather based on a different statute—Civil Code section 789.3. Civil Code section 789.3(a) provides that “[a] landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, how...

Excerpt: ...a question of fact and is an affirmative defense upon which Defendants bear the burden of proving. Ramirez v. Yosemite Water Company, Inc. (1999) 20 Cal.4th 785, 794‐95. In addition, Plaintiff's allegations that the Individual Defendants are officers of SMJ and MEM is sufficient to support potential liability under Lab. Code § 558.1 as an “other person acting on behalf of an employer.” Further, Plaintiff's individual causes of action are s...

Excerpt: ...otice of the truth of the documents—not the fact that they were filed. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564. As to Defendants' remaining requests for judicial notice of prior judgments, pleadings, documents filed with the Secretary of State and Plaintiff's bankruptcy filings is granted. The Second Amended Complaint is confusing. As it is based, it is based on the fraud/concealment of knowledge that Healthwise was being dissolved be...

Excerpt: ...tcy court's ruling on the homestead exemption. (FAC ¶54‐56.) That fails to demonstrate an inadequate price. Based on the granted RJN, in fact the records indicate that Plaintiffs' listed the property as worth $683,680 (RJN, Ex 4) in the bankruptcy court and the property was sold for $775,742.30 (RJN Ex. 7). So there is no evidence that the price was grossly inadequate or that the Defendant took undue advantage of the property. ...

Excerpt: ...ation of the latter's legal duties, the question remains: what legal duties springing from what contract term? 4COA (Harrassment): For failure to state sufficient facts to the cause of action. Plaintiff provides two instances of conduct to support this theory: first, the disease comment, and second the thong comment. However, these are not enough to establish a pattern of harassment. 5 COA (Harrassment): For failure to state sufficient facts to t...

Excerpt: ...al on April 16, 2018, which is pending as Case Number E070357, the court has concerns that the appeal has divested this court of jurisdiction to determine this motion. See Weisenberg v. Molina (1976) 58 Cal. App. 3d 478, 486. If the motion could be found as timely, the motion is denied on the merits. There was sufficient evidence to support the verdict. A judges' discretion is limited and may only grant a motion for Judgment Notwithstanding Verdi...

Excerpt: ...t Defendant Medina for conduct unrelated to sexual harassment will in any way help her to prove her claims. Plaintiff has shown good cause for portions of Defendant Medina's personnel file. The Court requires that the following documents be produced at am in camera review hearing: 1. Any and all documents relating to the alleged sexual assault incident, including the complaint, the investigation(s) and results of the investigation(s); 2. Any othe...

Excerpt: ...o be meritorious because no opposition was filed. However, "[s]ome courts treat a party's failure to file opposition papers as an admission that the motion is meritorious, and therefore refuse to hear oral argument from such party. The purpose is to prevent introduction of legal theories without notice to opposing counsel and the court." (Weil & Brown, par. 9:105.10 citing Sexton v. Sup. Ct. (1997) 58 Cal.App.4th 1403, 1410.) Sexton r...

Excerpt: ...��17‐18, the Court raised several questions concerning the settlement terms. The parties have not fully answered the Court's questions, in the following respects: 1. The first motion was premised in part on the assertion that a settlement in any amount greater than $65,000 “would be financially burdensome” to the defendant. The Court asked, “Where is the evidence supporting that assertion?” In the second motion, the parties do not answe...

Excerpt: ...he rights and duties of the parties under the contract. The Demurrer to the fourth and fifth causes of action is sustained because plaintiff fails to plead facts necessary to avoid the statute of frauds and the “Repurchase Agreement” attached to the complaint fails to satisfy the statute of frauds since it is not signed by the party to be charged. ...

Excerpt: ...atories, Requests for Production of Documents, and Requests for Admission (all set one) on or before March 28, 2018 and to pay sanctions in the total amount of $5,035.00 to defendant Alfa Business within 30 days of the Orders. Plaintiffs failed to comply with the three Orders, at all, which necessitated the filing of the subject motion by defendant Alfa Business. (Plaintiffs argued that they did produce some documents to defendant Alfa Business b...

Excerpt: ... warrant an award of punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.). It is generally settled law that in order to state a claim for punitive damages for a non‐ intentional tort, the pleadings require some degree of specificity and not generalities. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041‐1042. That is lacking here. Also, the causes of action for failure to provide habitable dwelling and breach of the c...

Excerpt: ... Additionally, Plaintiffs did not properly plead the punitive damages claim against a corporate defendant. Civil Code Section 3294(b) sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer's (1) advance knowledge of the employee's unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. (See Grieves v. Superio...

Excerpt: ...try of default (see CCP §418.10(a)(3), (d); CCP §585(a)‐(c)). Said motion was filed on April 24, 2018. As to the untimely Opposition, the court exercises its discretion to consider it. As to the Motion to Dismiss, yes, this case has been slow in making progress. However, after service was effected, a series of Demurrers occurred resulting in the SAC of Jan 29, 2018, as the operative pleading. Additionally, there was underlying litigation in S...

Excerpt: ...AGA penalties should be Page 3 of 3 paid to the named plaintiffs, to the exclusion of any of the other 632 aggrieved employees. The statement in the case on which the plaintiff principally relies – that after the 75% of penalties are paid to the LWDA, “[t]he remaining twenty‐five percent of the penalties recovered are distributed to the aggrieved employees who initiated the claim under PAGA, not to the group of aggrieved employees on whose ...

Excerpt: ...e whether there is a fee‐splitting agreement. (CMO ¶ G.1.f.) 3. The release in the agreement does not comply with CMO ¶ G.6.a. Moreover, the language of the release in the notice differs from the language of the release in the agreement. 4. The exclusion form requires a class member's complete social security number, which appears to be unnecessary to identify the employee, and which is contrary to part 7 of the notice (only last four digits)...

Excerpt: ... surcharge. Facts supported by the evidence. Upon appointment the Receiver removed Weedmart from the property. The property was inspected and there was substandard conditions at the property including but not limited to structural modification, electrical issues and inadequate bathroom facilities. The marijuana dispensary existing at the filing of this case, was operated by the former property owners Can Nguyen and Linh Duong. Defendant Rivermerr...

Excerpt: ...ority or evidence for defective service. Furthermore, the only argument presented is that the subpoena was improperly served. That issue is now moot in light of the second subpoena that was served via a registered process server on 5‐25‐18. ...

Excerpt: ... Cal.App.4th 446, 451.) GRANT the motion as to the 3rd cause of action without leave to amend. Negligent misrepresentation requires a positive assertion, not merely an omission or implied representation. (Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 596; Diedliker v. Peelle Fin'l Corp. (1997) 60 Cal.App.4th 288, 297‐298.) Plaintiffs do not allege that Defendants made an affirmative misrepresentation of fact. Prevailing pa...

Excerpt: ...uling set forth below in Number 5. 5. RIC1717505 SUJAN M.D. VS UHS‐CORONA INC MOTION TO/FOR ANTI‐SLAPP SPECIAL MOTION TO STRIKE BY UHS‐CORONA INC Tentative Ruling: Denied. Defendants' objection to paragraph 6 of Sujan's Declaration is overruled. First Prong: Under the first prong of the anti‐SLAPP statute, the moving party is not required to establish that his or her actions are constitutionally protected under the First Amendment. Navell...

Excerpt: ...n as moot. Both parties should note that Civ. Code § 2923.55 was repealed by its own terms and is no longer of any effect. See Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 449; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489. Because many of the original HBOR statutes contained sunset provisions, the parties are advised to consult the versions of the statutes effective January 1, 2018. A special demurrer lies wh...

Excerpt: ...at leave permits the party to amend the causes of action to which the demurrer was sustained but does not allow the party to add entirely new causes of action. See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Absent prior leave from the court, an amended pleading that raising new nt causes of action is properly subject to a motion to strike. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018), § 7...

Excerpt: ...ff argues that the motion is procedurally defective because there is no authority for a motion to strike the OSC. Plaintiff is correct. A contempt proceeding is commenced by the filing of an affidavit containing charging allegations, which frames the issues to be tried at the contempt hearing. (CCP § 1211; Reliable Enterprises, Inc. v. Sup. Ct. (People) (1984) 158 Cal.App.3d 604, 616.) Upon receipt of the affidavit, the court will issue an order...

Excerpt: ...condition is not like driving under the influence as plaintiff argues in reliance on Taylor vs. Superior Court (1979) 24 Cal. 3d 890). Blacking out because of a medical condition is not malicious, and the conduct is negligent at best. In Taylor, the Supreme Court held that voluntarily driving an automobile while intoxicated constitutes willful and wanton conduct giving rise to punitive damages: “There is a very commonly understood risk which at...

Excerpt: ...ttorney only because the jury had returned a verdict on the prescriptive easement claims of LaPlante, negating a trial on their claims regarding the same disputed property. The judgment reflected both the jury verdict on the cross‐complaint and a dismissal by plaintiffs of the first amended complaint. Once the judgment was vacated by the court's granting of the new trial motion, the court records should have reflected that the dismissal was als...

Excerpt: ...h in the complaint. Defendant argues that the matter is barred by the statute of limitations. While Plaintiff does seek interest from 2016, without factual allegations it is unclear whether there is actual a statute of limitations issue. Case Management Conference currently set for July 30, 2018 is continued to September 6, 2018 at 8:30 a.m., Department 1. All parties are to submit new and updated Case Management Statements. ...

Excerpt: ...nes' First Amended Complaint (“FAC”) alleges a single negligence cause of action against Defendant Clubcorp Mission Hills Country Club, Inc., dba Mission Hills Country Club arising out of a trip and fall injury she sustained on April 10, 2015, on tennis court number 7, which was allegedly uneven and unsafe. Jones filed her complaint on 11/15/17 after the running of the two‐year statute of limitations for negligence. However, her FAC alleges...

Excerpt: ...erty Mutual Fire Insurance Company arising out of a trip and fall injury she sustained on 4/10/15, on tennis court number 7, which was allegedly uneven and unsafe. Jones filed her complaint on 11/15/17 after the running of the two‐year statute of limitations for negligence. However, her FAC alleges that Clubcorp's insurer Liberty Mutual (to whom Clubcorp directed Jones to contact about her claims) affirmatively misled her into believing that th...

Excerpt: ...$6,510.00. The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) ...

Excerpt: ...6, 2018. The status conference to set a deadline for a motion for class certification is vacated as moot in light of the dismissal of the class claims. The Court shall conduct a TSC on September 26, 2018, at 8:30 A.M. in this department. Analysis: The Court does not rule on the City's evidentiary objections 1 through 17 because the evidence to which they relate is immaterial to the Court's analysis. That evidence relates to why the dismissal of t...

Excerpt: ...ch of the requirements prescribed by section H of the CMO#2, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name, page, and line numbers – where in the moving papers each of the corresponding requirements is satisfied. Analysis: The motion fails to comply with the Court's Case Management Order #2 in numerous respects. For instance: ¶ H.1.a. Plaintiff's counsel's declaration d...

Excerpt: ...visions of the Court's CMO: § H(6) The Release includes a Civ. Code § 1542 waiver on behalf of all Class Members. Such a waiver applies only to general releases. The named plaintiff may be giving a general release, but the class members are not. What is the intended scope of the release? § H(11) The Proposed Order does not include copies of the Notice, Exclusion Form and Objection Form. § H(12) Two issues: First, while the Notice and Settleme...

Excerpt: ...re OVERRULED; Objection 33 is SUSTAINED. The Motion to Strike the complaint under Code of Civil Procedure section 425.16 filed by defendant is DENIED. The court finds that defendant meets the first prong of the analysis under section 425.16(e)(3)(4) because the statements by defendant were in a public forum regarding a public issue. Plaintiff concedes that defendant meets the first prong of the analysis under section 425.16. Plaintiff meets its b...

Excerpt: ... 634, 653.) Harbor Ventures, LLC v. Morris Cerullo World Evangilism (2018) 4 Cal.5th 637 is not applicable to this case. Plaintiff argued in his Opposition to Defendants' Motion for Judgment on the Pleadings that his emotional distress causes of action are based on conduct by Defendants that extended “well beyond simply terminating Plaintiff's employment.” As Plaintiff alleged in the Complaint, “Defendant's false allegations of the crime we...

Excerpt: ...‐open her case. (AR 70‐ 71). At this hearing, the Petitioner did appear and Petitioner's request to re‐open was denied. (AR 77‐ 79). Petitioner filed an appeal of that denial. Respondent affirmed the ALJ's decision. (AR 92‐101). The appropriate standard for the court's review of the administrative record for denial of unemployment insurance benefits is the independent judgment test. (MacGregor v. Unemployment Ins. Appeals Bd. (1984) 37 ...