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: ...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: ...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: ...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: ...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: ...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: ...ive, a Protective Order. During discovery Defendant Contain‐a‐Way, Inc. produced a list of 1,023 alleged class members' names, addresses, and telephone numbers, which Plaintiff's counsel used to initiate communications with putative class members. Defendants served an SDT on Plaintiff's counsel seeking three categories of documents: 1) written communication sent by the law firm to putative class members, 2) documents evidencing failed attempt...

Excerpt: ...y penalties are not the same as punitive damages. Punitive damages are governed by Civil Code §3294, which sets forth different standards and requirements than those set forth in Public Utilities Code §7951. Hence, any requirements in Civil Code §3294 that are not specifically required in Public Utilities Code §7951 or under case law specifically pertaining to Public Utilities Code §7951, do not apply to the third cause of action. The wrongf...

Excerpt: ...g of the last motion on 5‐30‐18, there is nothing in the agreement that allocates $15,000 of the settlement to PAGA penalties. 2. There is nothing in the agreement that explains how the aggrieved employees' 25% share of the PAGA penalties will be allocated among the aggrieved employees, how their respective shares will be distributed to the aggrieved employees, or who will be responsible for that distribution. 3. As noted in the prior tentati...

Excerpt: ..., when she slipped and fell on a wet floor in a patient's room while the room was being cleaned by Acela Ortiz, a housekeeper employed by moving Defendant, Healthcare Services Group, Inc. (HSG). HSG provided housekeeping services pursuant to a contract with HSG. Ortiz was cleaning the patient's room because Cisneros had called housekeeping after arriving at the patient's room to find fecal matter on the patient, bed and floor. Cisneros had therea...

Excerpt: ...Separate Statement only addresses (1) plaintiffs' first cause of action for breach of contract and the nature and amount of the damages suffered, and (2) the issue that defendant had a duty under the policy to pay the losses incurred by plaintiffs. Pursuant to CRC 3.1350, the Court deems those to be the only issues for adjudication. To the extent the motion seeks summary judgment, it is denied based on the procedural deficiency. As to the breach ...

Excerpt: ...not approve the dismissal of class claims as a condition of a settlement of the plaintiff's individual claims without knowing the consideration paid to the plaintiff as part of that settlement. The defendant concedes that a prior motion to file the settlement agreement under seal has been denied, yet in this motion files the agreement in a redacted form that does not disclose the amount of the consideration. As a result, the motion lacks the info...

Excerpt: ...Misrepresentation, 3) Unfair Business Practices and 4) Breach of Contract. Thereafter, on April 13, 2018 this court heard the Demurrer to the First Amended Complaint (“FAC”) and sustained with leave to amend as to the 1st, 2nd and 3rd causes of action for: 1) Fraud, 2) Negligent Misrepresentation, 3) Unfair Business Practices and overruled the demurrer to the 4th cause of action for Breach of Contract. The Second Amended Complaint (“SAC”)...

Excerpt: ...17, 433. Moreover, Cross‐Defendant would first have to acquire good title by completing the transaction in order to flip the Property, which negates the allegation in the Cross‐Complaint that she never intended to complete the transaction. As to the second and third causes of action, a notice of lis pendens published in the course of judicial proceedings is privileged under Civ. Code § 47 and thus cannot form the basis of a cause action for ...

Excerpt: ...ight to discovery after the cut‐off date, the court has discretion to reopen discovery pursuant to Cal. Code Civ. Pro. §2024.050; however, this statute specifies that such leave shall be granted only on motion of any party. (Pelton‐Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568, 1586.) The court must consider the following factors: (1) the necessity and the reasons for discovery; (2) the diligence o...

Excerpt: ... his face and one hand and was taken to Eisenhower where it was discovered that had dementia. Based upon his injuries and dementia it was decided that upon he discharge he should transferred to a rehabilitation facility; that he was transferred to Defendant CNRC's facility they were advised that McGihon needed a 1 on 1 sitter provided 24/7 to avoid risk of falling. Two days after being admitted McGihon wandered out of his room and fell near the n...

Excerpt: ...Balis moves the Court to enforce the settlement of the parties entered on the record before this Court, pursuant to Code of Civil Procedure section 664.6. In addition, Balis seeks $10,590 in attorney's fees and costs pursuant to Code of Civil Procedure sections 128(a) and 128.5. Defendant Gregg Balis (“Balis”) asserts that the parties participated in court assisted mediation and reached a settlement agreement of the entirety of the case, whic...

Excerpt: ...tement of opinions is without merit. As pleaded in the FAC, Pool Route's alleged statement that Albert's accounts never had any prior problems was a specific misrepresentation of existing fact rather than a general statement or subjective opinion. See FAC, ¶¶ 16‐17. See also Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311. Pool Route's argument (made only in reply) that exculpatory provisions in the Agreement negate the possibility ...

Excerpt: ...meets the following requirements: (1) a “claim for money ... based upon a contract, express or implied”; (2) of a “fixed or readily ascertainable amount not less than $500”; (3) that is either unsecured or secured by personal property; and (4) that is a commercial claim. (Code Civ. Proc. § 483.010; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 852.) To obtain a right to attach order, the plaintiff has the burden of proving (1) th...

Excerpt: ...ny misdemeanor convictions and records relating thereto. Plaintiff does have a privacy right that not outweighed by the discovery rights of the defense. In addition, the defense is not entitled to any underlying material on any felony conviction unless it shows the same is material to the issues herein. No sanctions. ...

Excerpt: ... expert opinion, attorney‐client or attorney work product privilege, burdensome or invasion of privacy. 4. RIC1702898 BURTCH VS EMPIRECARE HEALTH ASSOCIATES INC MOTION TO/FOR COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS AND FORM INTERROGATORY BY BARBARA BURTCH Tentative Ruling: Request for admissions nos. 1, 2, 3, 4, 6, 7, 10, 14, and 15: The terms “notice” and “notified” are not ambiguous terms. The existence of medical documents...

Excerpt: ...ty, the Shadow Mountain property, demurrers to the 14th c/a for declaratory relief, 15th c/a to quiet title and 16th c/a for wrongful foreclosure. Plaintiff alleges that Defendant Biyikoglu forged the signature of the purported buyer, Five Star, LLC, on the purchase agreement and then forged the deed transferring title from Five Star to Scion and that as a result all transfers or interest obtained thereafter are void. Plaintiff has alleged facts ...

Excerpt: ...sponsive documents have now been produced. Hence, the motion is moot as to these responses. RFP Nos. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 31: Landscape is Ordered to produce responsive documents. If Landscape contends that some responsive documents are protected by attorney‐client privilege or the work product doctrine, it must produce a privilege log. Page 2 of 3 RFP Nos. 26, 27, 28, 30, 32, 33, 34, 38, 39, 40 an...

Excerpt: ...rivacy Protection Act (Ins. Code §791.01, et seq.) prohibits an insurance institution, agent, or insurance‐support organization from disclosing any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is in response to a facially valid administrative or judicial order, including a search warrant or subpoena. (Ins. Code §791.13(h.) The Act does not create...

Excerpt: ...dvises the defendant that the plaintiff will not amend, whichever is sooner. The case management conference is continued to August 16, 2018, at 8:30 AM in this department. Analysis: The complaint does not allege, and seems unlikely to be amended to allege, a cause of action for conversion because there is no specific, identifiable sum to which the plaintiff has a right to possess. The failure to pay money owed does not constitute conversion. Page...

Excerpt: ...epresented the functionality of the transmission. Defendant has not shown prejudice. The judge has discretion to deny leave to amend when the party seeking the amendment has been dilatory and the delay has prejudiced the opposing party. (See Hirsa v. Sup.Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490.) If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an ...

Excerpt: ... party pursuant to the settlement agreement entered on 2/15/18. Approximately 15 months after the case was filed the parties settled this matter on the day it of trial for $77,500.00. A verified fee bill is prima facie evidence the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Furthermore, a declaration attesting to the accuracy of the fee bill is presumed credible. (Horsford v....

Excerpt: ...d bug bites suffered by Plaintiffs when they stayed in Room 2328 at Marriott's Shadow Ridge Villas form 08/22/2015 through 08/24/2015. Plaintiffs, Nikkya Ramsay and her son, D'Artagnan Wade, Jr., who was 5 years‐old at the time, allege that they experienced bedbug bites during their stay but thought that the marks were mosquito bites or a rash, that on waking on the morning of the 25th, after they had returned home, they found numerous bites co...

Excerpt: ...AC”). Plaintiffs' Second Amended Complaint (“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 changes between...

Excerpt: ...s were stolen. The formation of Advantage is relevant. Further, the privacy concerns raised by the moving party as to No. 3 are outweighed by the importance and relevance of the information. The requesting party is not seeking financial information but rather information as to who owns the company from the onset and afterwards. This information is needed to access the information as to how Advantage was formed and if there was improper informatio...

Excerpt: ... Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) Page 2 of 8 A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (...

Excerpt: ...ns to the Morgan Declaration are OVERRULED as to numbers 1 ‐ 9. Defendants' evidentiary objections to the Young Declaration are SUSTAINED as to numbers 1, 5, 7 ‐ 9 and OVERRULED as to numbers 2 ‐ 4 & 6. The Motion for Summary Judgment is DENIED. The Motion for Summary Adjudication is GRANTED, IN PART, AND DENIED, IN PART, as follows: 1 st cause of action (sexual harassment). GRANTED. Defendants met their initial burden that the alleged sexu...

Excerpt: ...d the right version of the settlement agreement. Also, moving party to submit an update on the status of the Johnson case when moving for final approval. Moving party to give notice. This matter was originally heard on May 17, 2018. In its tentative ruling, this court noted the motion failed to comply with the CMO at ¶¶ 1.d., 1.e., 2., 3., 5.a., 6., 7., 8., 10., 12., 16., 19., 20., 21., 23., 24., 26. of Section E. The court continued the hearin...

Excerpt: ...ation of federal fair debt collection practices act and (7) libel and (8) conspiracy arises out of alleged Page 2 of 4 breaches of agreements to settle a dispute between Plaintiff, a homeowner at La Toscana, and the HOA regarding unpaid assessments. Defendants' motion is based upon the grounds that there is no triable issue of fact as to the 2nd and 7th causes of action. There is a triable issue of fact whether Griffith misrepresented his authori...

Excerpt: ...ospitalized. (Compl. ¶33.) It then alleges that “[o]n behalf of decedent's estate, the administrator of her estate seeks all damages caused by defendant's negligence ….” (Compl. ¶34.) The Opposition asserts that Diana Garcia is the personal representative but her name is not alleged in the Complaint in this capacity. Nonetheless, the Complaint does allege that this cause of action is being brought by the administrator of the estate. A per...

Excerpt: ...orney fees and costs in an interpleader action.” (Tri‐State, Inc. v. Long Beach Community College Dist. (2012) 204 Cal.App.4th 224, 232. Suit against public entity to enforce stop notice.) Civil Code §9506 specifically permits interpleader. Defendants contend that there are no other conflicting claimants as a matter of law. However, it provides no judicial notice of any documents demonstrating that. In a demurrer proceeding, the defects must...

Excerpt: ...recovery against Defendant Minnis and her then employer, Defendant Access Nurses, of the judgment paid and costs incurred in the underlying action. The contract sued upon was entered into between Access and non‐party Broadlane, Inc. JFK is an express third‐party beneficiary of the contract. The contract provides for the following: Access is a nurse staffing company or “supplier”. Broadlane negotiates group contracts with suppliers for nur...

Excerpt: ...Lexington”) Complaint alleges five causes of action for: 1) Negligence, 2) Negligent Hiring/Supervision, 3) Breach of Contract, 4) Breach of Express Warranty, and 5) Breach of Implied Warranty against Defendants Love's Travel Stops & Country Stores, Inc, Love's Country Stores of California and Melecio Gamoa. The Complaint alleges that Lexington issued an insurance policy to Howl Transportation, LLC. Pursuant to the policy, Lexington covered fir...

Excerpt: ...st Francisco Cano, Israel Flores and Flores & Flores Trucking. A Proof of Service (“PoS”) filed 2/15/18 states that Defendant Francisco Cano was served via substitute service on 1/24/18 by serving a “John Doe” occupant at 8:13 p.m. (Age: 40's Weight: 170 Hair: Black Sex: Male Height: 5'6” Eyes: Brown Race: Hispanic) and thereafter mailed to Cano at the same address of 17147 Orange Way, Fontana, CA 92335‐ 3928. In support of his motion...

Excerpt: .... The Title IX investigation had no practical effect until the Regents/UCR acted upon the recommendation in the Final Report. Petitioner's opportunity to challenge the investigation and alleged lack of due process was presented by PPSM‐70. Petitioner identifies no authority that would allow him to forgo exhausting his available administrative remedies and jump directly to a challenge of the underlying investigation. ...

Excerpt: ...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." (Weil & Brown, par. 9:105.10 citing Sexton v. Sup...

Excerpt: ...t “Any judge, at any time, before or after commencement of trial, in the furtherance of justice and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “This statutory provision giving the courts the power to permit amendments in the furtherance of justice has received very liberal interpretation by the courts of this state.” (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19.) “Tha...

Excerpt: ...'s estimates. Bradley's declaration repeatedly refers to the estimates of his “office.” Are these his estimates or those of someone else? In addition, the estimates are conclusory in that there is no explanation of how the estimator arrived at those estimates. 2. Section G.1.d of the CMO requires a statement of the range of recovery for the class members if the recovery by the class members will vary. 3. Section G.6.requires a basis for inclu...

Excerpt: .... a. Have the other two courts agreed to accept this Court's decision as to whether the settlement should be approved? b. Alternatively, are similar motions being filed in each case? If so, why is the court being asked to approve all three? 2. The motion appears to fail to comply with the Court's CMO in multiple respects. For instance: CMO ¶ E.3.c: It appears that the Perez and Hunt Cottrell declarations may include all claims from all three act...

Excerpt: ... state the responses are true and correct. Therefore, Defendant is to provide further CCP complaint verifications for all discovery. Sanctions as to All Motions: Denied. With the mixed results on the Motions, a reasonable dispute arose not warranting sanctions. The parties did not satisfactorily meet and confer which would have helped reduce the issues or eliminate them all together. 17.1 Granted with Responses due in 30 days. 3. MCC1701229 BROWN...

Excerpt: ...of any persuasive evidence that the agency knew or should have known of the existence of this case before May 11, 2018, the agency's commitment that it will be prepared to participate in trial as scheduled subject to its counsel's availability, and the lack of evidence of any prejudice to the plaintiffs, intervention is appropriate. The Court is unavailable on July 27, 2018, the date currently set for the trial readiness conference. Counsel for t...

Excerpt: ...rious 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 referenced L...

Excerpt: ...relief are related to the 2nd cause of action the court grants the motion with 30 days leave to amend. A motion to strike lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to support a punitive damages claim. Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63. C.C. §3294 provides that exemplary damages are allowable where the defendant is guilty of ma...

Excerpt: ...uger enlisted the help of her parents Defendants Michael and Cathleen Marmon involving her contentious dissolution with Jonathan Swauger, principal of JLS Development Group, Inc. Melissa and her parents have taken actions with the express purpose of ruining JLS and attempting to force Jonathan into settling the divorce on terms favorable to Melissa. Michael and Cathleen aided and assisted Melissa in her attempts to harass and discredit JLS by als...

Excerpt: ...th 462, 470.) The court declines to award a multiplier as requested by plaintiff, given the lack of complexity. The court does not rule on the issue of costs since there is presently pending a motion to strike/tax costs on calendar for hearing on September 6, 2018. ...

Excerpt: ...he deposition for April 4, 2018. At the time the deposition was noticed, Hubbard was residing at his Palm Desert Residence. The deposition was noticed for Palm Springs, which is within 75 miles of Hubbard's Palm Desert residence. Hubbard asserts that at the time the deposition was noticed there was a discovery stay in place due to a pending anti‐SLAPP motion by Defendants Cox, Castle & Nicholson LLP, Paul Titcher and Adam Englander (collectivel...

Excerpt: ...n is to give notice pursuant to CCP 1019.5, forthwith. Defendant Robert Bryan moves the court for an order compelling plaintiff to attend a deposition and for sanctions of $728.30. A review of the motion supports granting the unopposed motion. 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 o...

Excerpt: ...A, CC, and DD; and Exhibits 553 and 555. In all other respects, it is denied. Regardless of whether the parties submit on the tentative ruling, the parties shall appear in person or by Courtcall, as the respective parties prefer, to discuss the following issues (see order filed June 18, 2018):  Whether the defendants intend to move to strike portions of the AR that postdate the RONs at issue.  The estimated length and date of the abuse‐of...

Excerpt: ...mplaint on the grounds that the undisputed material facts establish that: (1) Herrera was not the alter ego of Shadow Hills Plaza, LLC, (2) Herrera did not breach the contract, (3) Herrera did not breach the implied covenant of good faith and fair dealing, (4) Herrera did not conceal any matters in connection with the sale of the property, (5) Herrera did not make any misrepresentations in connection with the sale of the subject property, and (7)...

Excerpt: ...e pursuant to Code of Civil Procedure Section 1019.5. Defendant Dr. Wittler moves the court for summary judgment on the grounds that he complied with the applicable standard of care in the care and treatment of Plaintiff Erin Nepusz. There are no triable issuex of fact as to the applicable standard of care and whether Dr. Wittler breached the standard of care. “[A] physician is required to possess and exercise, in both diagnosis and treatment, ...

Excerpt: ...e pursuant to CCP 1019.5, forthwith. Page 4 of 6 Defendants Michael and Cathleen Marmon demur to the 1st, 2nd and 4th causes of action in Plaintiff JLS Development Group, Inc.'s Complaint on the grounds they fail to state facts sufficient to constitute a cause of against them and/or are uncertain. Plaintiff JLS Development Group, Inc. alleges as follows: Defendant Melissa Swauger enlisted the help of her parents Defendants Michael and Cathleen Ma...

Excerpt: ...ction. LOLZ Based upon the recorded documents and other documents of which the court may take judicial notice, the Trustee under the DOT is Zieve, Brodnax & Steele (“ZBS”) and not LOLZ. Moreover, ZBS has made an appearance in this action as the Trustee (and has filed a Declaration of Nonmonetary Status). Plaintiff does not address the issue in the opposition and appears to concede that LOLZ has been improperly named. Freedom Mortgage Because ...

Excerpt: ... agreement can be reached that would resolve the objections raised in the demurrer. As part of the meet and confer process, Cross‐Defendant shall identify the specific causes of action that she believes are subject to demurrer and identify with legal support the basis of the deficiencies. Cross‐Complainant shall provide legal support for his position that the pleading is legally sufficient or, in the alternative, how the cross‐complaint may...

Excerpt: ...mplaint alleges that Norden is a resident under the care of Watermark a residential care facility. In February 2017, Norden was 87 years old and residing at The Fountains in Palm Desert, California. Upon his admission, Norden was assigned to an apartment and was provided an emergency necklace in case he suffered a fall or other sort of emergency while at the facility. On February 16, 2017, Norden fell in his apartment and could not get up. Norden...

Excerpt: ...ican Contractors Indemnity Company, and Western Surety Company (the “moving parties”) in the amount of $4,140.00, to be paid to counsel for the moving parties within thirty (30) days of the hearing on this motion. The requested further responses to Interrogatories and Requests for Admissions are to be served within thirty (30) days of the hearing on this motion. The request for the appointment of a discovery referee is denied. The Trial Setti...

Excerpt: ... or a Request for Judicial Notice. Defendant Banning Library District: The Demurrer is sustained as to the 8th cause of action with 30 days leave to amend. Plaintiff failed to plead compliance with FEHA claims presentation requirements. It is sustained as to the 9th and 10th causes of action without leave to amend. Defendant Rodriguez: The Demurrer is sustained as to the 8th cause of action with 30 days leave to amend. Plaintiff failed to plead c...

Excerpt: ... 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." Weil & Brown, par. 9:105.10 citing Sexton v. Sup. Ct. (1997) 58 Cal.App.4th 1403, 1410. S...

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 ...

Excerpt: ... FACC fails to identify any basis for an award of attorney fees. See Kirby v. Immoos Fire Protection (2012) 53 Cal. 4th 1244, 1248 (in general, a prevailing party may recover attorney's fees only when a statute or contract provides for fee shifting). With respect to the motion to strike the punitive damages allegations and demand, the motion is moot in light of the ruling to sustain the demurrer to Twin Power's ninth cause of action for fraudulen...

Excerpt: ...ns relate was not material to the Court's analysis. Defendant Paul Jun's motion for summary judgment is denied, and his alternative motion for summary adjudication is denied. Analysis: Labor Code § 558.1 provides in relevant part: (a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commissi...

Excerpt: ... of less than Page 3 of 4 14 days is enforceable against homeowners who, like Romano, purchased their property before enactment of the subject provision. Plaintiff is informed and believes, and thereon alleges, that at the time Plaintiff purchased the property, the CC&Rs provided, under section 5.3.18, that ''[t]he owner of each condominium shall have the right to lease or rent his condominium..." As of the filing of this Complaint, t...

Excerpt: ...uch as tax documents, and failure to discuss an insurance pay out for fire damage. Defendants are already required to provide Plaintiffs with all financial information, which would include tax documents. Defendants claim that they have provided the information and that Anat Louk was involved in preparing the tax return. While Defendants should comply with the existing preliminary injunction and provide Plaintiffs with access to financial records,...

Excerpt: ...tion and therefore a reasonable time spent on the case. In so doing, the court also considered the difficulty, the amount involved, the skill required, the skills and experience of the attorneys. This SongBeverly case does not appear any more or less complicated than similar actions. The concern with the hours is that 12 attorneys appear to have worked on this average case in this genre. That requires each time an attorney touches the case to get...

Excerpt: ...intly and severally liable for the plaintiff's injury.” Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040 (emphasis in the original). Here, Twin Power is not alleged to be a joint tortfeasor in the underlying complaint. Indeed, the only claims alleged against Twin Power are the fifth cause of action for intentional interference with prospective economic advantage and the sixth cause of action for enf...

Excerpt: ...ns were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) A plaintiff must allege what was said, by whom, in what manner (i.e., oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) The first cause of action for violation of B&P Codes is based on the alleged fraud. ...

Excerpt: ...s. Womancare, Inc. (1985) 38 Cal. 3d 396, 404). An unauthorized dismissal, may be vacated at any time: i.e., within a reasonable time after the client's learning of it, regardless of the time limitations in CCP §473(b) (Whittier Union High School Dist. vs. Sup. Ct. (Carroll) (1977) 66 Cal. App. 3d 504, 509). Where the attorney's lack of authority to dismiss is undisputed, it is an abuse of discretion for the court to refuse to set aside the dism...

Excerpt: ...w of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.” (People v. Shuey (1975) 13 Cal.3d 835, 841.) The court of appeals did not determine the validity o...

Excerpt: ....5. Instead, it suggests only: that counsel spoke briefly by phone, during which plaintiff's counsel promised to provide additional authority within two weeks; that he failed to do so; and that defendant's counsel made no further efforts to speak with him. That does not constitute a reasonably diligent and good‐faith attempt to discuss and resolve the merits of the defendant's challenges to the complaint. ...

Excerpt: ...ntrary to the specific allegations regarding Lowe in the complaint. The battery and false imprisonment that took place all allegedly occurred “while Lowe and ROES 1 through 5 left the team unsupervised, which was in contravention to their duties as they had direct control and supervision responsibilities on behalf of the DISTRICT.” (Complaint, ¶17.) Lowe did not directly take part in the wrongful conduct. As such, he cannot directly be held ...

Excerpt: ...ng waste or any other exceptional circumstance demonstrating a receivership is warranted in this case. Receivers may be used only where authorized by statute or where necessary to preserve the property rights of any party. (Miller v. Oliver (1917) 174 Cal. 407, 410; Turner v. Super. Ct. (Cooke) (1977) 72 Cal.App.3d 804, 811.) The burden is on the moving party to present evidence showing facts establishing one of the statutory grounds for receiver...

Excerpt: ...fs single cause of action for interference with contractual relations fails in the first instance because Plaintiffs do not sufficiently allege a disruption of their right to make a payment under the note secured by the First Deed of Trust (DOT). Plaintiffs were already in breach of their obligations under the First DOT at the time that 2 nd Chance Mortgage (2CM) acted. Moreover, to the extent that the cause of action is based upon Plaintiffs' un...

Excerpt: ... of the requirements prescribed by section G 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 second motion fails to comply with the Court's CMO#2 or is otherwise ambiguous or contradictory in the following respects: 1. The agreement provi...

Excerpt: ...tial burden by producing the expert testimony of Dr. Klein, showing that Dr. Tang did not breach the applicable standard of care or cause Merri Baldwin's death, and the burden shifted to Plaintiffs. The testimony by Plaintiffs' expert, Dr. Leo, shows triable issues of fact precluding summary judgment. Prevailing party to give notice. ...

Excerpt: ... Special Interrogatories were received, the motion is also moot except for the issue of sanctions. If the responses to Special Interrogatories were not received the motion is granted along with sanctions as described below. No meet and confer is required for compelling original responses or deeming admissions. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777‐778; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (...

Excerpt: ... to cause delay. See for support cases involving youth baseball teams: 1. C.H. v. Hemet Youth Baseball, RIC1512685, filed October 22, 2015. (RJN, Ex. 5.1) This case was dismissed on December 17, 2015 (Ex. 5.9.); 2. Hanna v. Ian Hall et al, U.S. Dist. Court Case No. 5:15‐mmc‐00009‐UA‐DBT, filed August 17, 2015 and dismissed on September 8, 2015d (Ex. 6.1); 3. Hanna v. Hemet Youth Baseball, RIC1513590, filed November 18, 2015 and dismissed ...

Excerpt: ...istrict's funding. Further, because LAFCO and the District have divergent interests, LAFCO may not adequately represent the District's interests in the litigation. See County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 37‐38 (common litigation objective is not enough to establish adequacy of representation where separate public entities may have divergent interests). Moreover, even if intervention were not mandatory, the District m...

Excerpt: ...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 those words to Brigman and Hunter; that Cebreros also ...

Excerpt: ...he fiduciary obligations—not contractual obligations. 2COA (Fraud): Plaintiff asserts that the Listing Agreement was only for one property and Defendants improperly added the second property, but yet, she was aware that she was selling both properties in the sale. (FAC ¶15‐16, 27.) It is unclear if Plaintiff only wanted to sell one property—which she is not yet asserting. 3COA (Implied Covenant): Again, the FAC merely pleads the conclusion...

Excerpt: ...nary injunction may issue: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of a preliminary injunction is to preserve the status quo until a final determination of a cause of a...

Excerpt: ... medical negligence. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of a...

Excerpt: ...ply are granted as to objections ## 4, 5, 15 & 16, but otherwise overruled. The motion for summary judgment is denied. The alternative motion for summary adjudication is denied. Analysis: Judicial notice: Judicial notice of the unrelated trial court rulings is denied because an isolated “trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831.) Evidence: Facts asserted on inf...

Excerpt: ...en filed. That plaintiff's counsel was not working at his office and did not know that he had received the responses by the time that he filed his motion explains why the motion was filed, but does not change the fact that the motion to compel was no longer necessary. When plaintiff's counsel discovered that the responses had been received, he should have granted the defendant's request to withdraw the motion and to spare the defendant from the e...

Excerpt: ...0(c) where the responses are untimely, as here. Appleton v. Superior Court (1988) 206 Cal. App. 3d. 632. An award of sanctions to moving party payable by Plaintiff Blake Peterson on all two motion, is appropriate and reasonable in the amount of $900 (2 hours at $300/hour) plus $120 filing fees. An award of sanctions to moving party payable by Eric Petersen on the motions, is also appropriate and reasonable in the amount of $780 (2 hours at $300/h...

Excerpt: ...dramatically windy day and was significantly injured when a tree fell on the golf cart he was riding in and later died four days later after he underwent surgery related to the injuries. The allegations are that defendants were negligent in the maintenance of the golf resort, specifically failing to maintain the trees on the golf course and the failure to properly prune the trees. That defendants were aware that the trees were suffering from a la...

Excerpt: .... When an action is voluntarily dismissed, recovery of costs does not depend on an entry of judgment. (Fries v. Rite Aid Corp. (2009) 173 Cal.App.4th 182, 183.) As to Item 4 for deposition costs, the court has exercised its discretion and considered evidence submitted with the reply regarding the standard charge for the court reporter used by defendants for the deposition of plaintiff. Plaintiff sufficiently challenged the necessity for an expedi...

Excerpt: ...d must be based on a showing of mistake, inadvertence, surprise or excusable neglect. (Id.) The problem is that defense counsel is not taking the blame—he instead blames Plaintiff for bad faith tactics during settlement negotiations. Nor does Defendant provide a declaration from Defendant as to why it did not forward the complaint to its insurance carrier or failed to provide a response. However, Plaintiff did take default immediately without w...

Excerpt: ...by section I of the CMO#2, dated 6‐4‐18, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name and by page and line numbers ‐‐ where in the moving papers each requirement is satisfied. Analysis: The motion fails to comply with the case management order #1, filed 1‐19‐17, in at least the following respects:  Counsel's declaration fails to comply with §G.1.c., the po...

Excerpt: ...ws that after the initial collision James Lee got out of the car. At which point, Lopez took off. James Lee had to get back into the car and catch up. A chase ensued during which the evidence shows that James Lee was driving too fast. In addition, James Lee had a duty not to engage in a chase. Having just been in a car accident with Lopez, how could James Lee not be thinking that Lopez could cause another crash especially when being chased? The c...

Excerpt: ...walking along the dirt shoulder of a road. At the time, Labuen was making deliveries on behalf of a Round Table Pizza franchise, D & N Pizza, that he co‐owned and operated with his wife, Defendant Nancy Sonneborn. Labuen also named as Defendants Round Table Pizza, Inc. ("RTP") and Round Table Development Company ("RTDC") (collectively as "the Round Table Defendants"), alleging that the Round Table Defendants were vicario...

Excerpt: ...element, the defendant must establish that plaintiff's claims fail as a matter of law. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 849.) To demonstrate that the plaintiff lacks evidence, the defendant must show that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) A defendant may not simply point to an absence of evidence, but must show that the p...

Excerpt: ...petitioner only requested a hearing date on 04/18/2018, almost two months after the last date to request a hearing date, after real party in interest filed its motion to dismiss. The motion is based upon the grounds that the failure to timely request a hearing date was the result of excusable neglect. For the following reasons, the motion is granted: The failure to timely request a hearing date was a result of excusable neglect. When a petition f...