Excerpt: ...bined co ntract and tort in this claim against Defendants as such it is uncertain. Plaintiffs allege they entered into a contract with Defendants to provide physical therapy services, Plaintiffs agreed to pay for the services, but Defendants failed to perform as p romised as the therapist abused NJ instead of providing therapy. (SAC, ¶¶ 42 -46.) However, Page 2 of 3 Plaintiffs have not alleged damages as a result of the breach of contract, inst...

Excerpt: ...ithin GM's possession, custody, and/or control, subject to the stipulated protective order. Monetary sanctions in the amount of $2,310.00 are imposed against GM and its counsel. Responses and sanctions are due in 45 days. RPD 16, 19 -32: The Objections raised by G M are overruled. The primary problem with GM's responses to RPD Nos. 16, 19 -32 (and 45 -46, discussed below) is that after asserting objections, it states: “No documents will be prod...

Excerpt: ...nses ar e due within 60 days. The parties letter writing did not constitute a meaningful meet and confer. The parties are therefore restricted from filing any further discovery motions without first requesting an IDC. RFP 1 and 4: Plaintiff demonstrates good c ause in seeking these documents. These documents would be relevant to the issues related to Defendant's good faith compliance with the SongBeverly Act. For instance, in Oregel v. American...

Excerpt: ...rounds in G avaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246.) Post - 998 Offer Attorney Fees However, Defendant is correct that all costs and fees incurred after Plaintiffs rejected Defendant's 998 Offer was served are not recoverable. Pursuant to CCP § 998(c), if the plaintiffs reject a defendant's offer to compromise and then fail to win a more favorable judgment or award, the plaintiffs cannot recover their postoffer costs and must pa...

Excerpt: ...underlying d ebt of the Chapter 11 bankruptcy debtor. The automatic stay does not apply to nondebtors such as corporate affiliates, corporate officers, codefendants, guarantors, or general partners. (See Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979 -980, italics added; Otoe County Nat. Bank v. W & P Trucking, Inc. (10th Cir. 1986) 754 F.2d 881, 883 [“[s]ection 362(a) automatically stays proceedings against the debtor only and not co...

Excerpt: ...eyond the sco pe of the allegations of the Complaint. Judgment was entered on January 3, 2024. While Section 473 allows the court to grant leave to amend at any stage of the proceeding, amendments proffered after judgment is rendered are allowed only if the judgment i s vacated as by granting a motion for a new trial. (Young v. Berry Equip. Rentals, Inc. (1976) 55 Cal. App. 3d 35, 38; see also M.B. v. City of San Diego (1991) 233 Cal. App. 3d 699...

Excerpt: ...covery has ne ver been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.” (Id. at 1251 -1252.) Courts have prevented the release of witness contact information only under extreme circumstances. (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347.) Here, Plaintiff seeks the identity and contact information for Defendant's former employers as percipient witnesses to Wold's ...

Excerpt: ......

Excerpt: ....) A written contract may be pleaded verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198- 199.) Alternatively, a written contract can be pleaded by attaching a copy of the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) Elmashat alleges that Ayoub breached the Settlement Ag...

Excerpt: ... all claims, including those asserted by Plainti
¯ as an individual and whether any defense to the Arbitration Agreement exist. Page 5 of 5 Enforceability is with the arbitrator. The delegation clause provides: “You agree that an arbitrator will decide any question about whether a claim or dispute must be arbitrated under the arbitration clause.” (Hernandez Dec., Ex. B.) The Agreement also provides that the arbitration will be administered b...

Excerpt: ...d acts determined in Lugo I, many of which occurred after the August 12, 2015 e
¯ective date of the Bond For example, Plainti
¯ contends that the Notice of Ruling from the Lugo 1 Trial states “Perez continually reassured Lugo her funds would be returned Perez conÞrmed he sent a letter, dated September 30, 2015, discussing the return of these funds" (RJN Ex I, Pg 2, Paragraph 7) Additionally, the Notice of Ruling explains, "In February ...

Excerpt: ... prior MSJ was never withdrawn. Procedurally, Moving Party should have withdrawn the original MSJ and then reÞled its new MSJ. Accordingly, the only Motion that can be heard today is the Original Motion Þled on August 16, 2023. The so-called “Amended” MSJ is stricken. On its merits, the MSJ is DENIED. Plainti
¯s objection to the photographs is SUSTAINED. This leaves the only relevant evidence to be Plainti
¯s deposition that only identi...

Excerpt: ...al provision was adopted, the enactors intended that it include a damages remedy for a violation (Katzberg v Regents of University of California (2002) 29 Cal4th 300, 317 (analyzing section 7)) If there is no a
¯irmative intent to allow or withhold damages, the court must then determine whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and signiÞcance of the...

Excerpt: ... is injured due to a risk that is inherent in an activity in which plainti
¯ chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) Assumption o the risk does not depend on i) the reasonableness or unreasonableness o plainti
¯'s conduct to subject himsel or hersel to the risk o deendant's conduct, or ii) whether plainti
¯ subjectively knew o and voluntarily chose to en...

Excerpt: ...dispute that Plaintiff filed for Chapter 7 bankruptcy on 11/13/15 at which time all of his property, including his pre-pettion claims against Defendants, became property of the bankruptcy estate. (Defendants' RJN, Ex. "1".) Defendants assert that Plaintiff's bankruptcy schedules admit: that the DOT was fully owned by Natonstar and secured against the property; and that Plaintiff did not have any "contingent and unliquidated claims of [any] nature...

Excerpt: ... credit card. This cost is merely convenient, rather than reasonably necessary. So $1,529.70 is taxed. Expert Witness Fees - Plaintiff made three statutory S 998 offers — on October 14, 2022 in the amount of $314,477.25, July 14, 2023 in the amount of $350,000, and August 1, 2023 in the amount of $200,000. (Declaration of Jeffrey T. Robert, Exs. 5, 5, 7.) Defendant contends that the October 14, 2022 offer was not reasonable because it was prema...

Excerpt: ...agreement specifically states that the FAA applies. (Dec.Taube '1 6, Ex. "A", S Xl, T. Arbitration, p. 28 of 89.) The arbitration agreement is not barred pursuant to CC section 1953. First, the arbitration agreement appears to be a separate agreement with a separate signature block. (Dec.Taube '1 6, Ex. "A", S Xl, T. Arbitration, p. 28-29 of 89.) Second, there is no evidence that this premises liability/negligence and elder abuse action involves ...

Excerpt: ...here was no causal connection between the treatment provided by Branuelas and the collapse of the headrest. (ld at '1 32.) This opinion was based, in part, on records showing that Dr. aranuelas had no notice of any imminent failure of the headrest support mechanism at any time prior to the incident. (ld at 28.) Defendant Young testified that he regularly inspected the chiropractic table on first day of each month, including April 1, 2021. (Deft. ...

Excerpt: ...wner of the Property, Code Enforcement Officers observed and documented outdoor cannabis cultivation on the Property. (UMF ## 1, 4, 5, 7). As both of these facts are undisputed, the only remaining question is whether any exemptions apply to Defendant. There are limited exemptions that allow the cultivation of cannabis for (1) personal use, or (2) a medical cultivation by qualified patients or primary caregivers. First, the personal use exemption ...

Excerpt: ...le, and did not cause any harm to Plaintiff. (Young Decl. "1 2-15.) Dr. Young also submits the declaration of Dr. Sigmund, who is a neuroradiologist. He declares he reviewed Plaintiff's MRI's from before the alleged incident, and after, and concludes to a reasonable degree of medical probability that Plaintiff did not suffer any injury to his spine due tothe incident. (Sigmund Decl„ 14-15.) These expert opinions are supported by Plaintiff's med...

Excerpt: ...ories 6-7 are not overly broad because they are limited to other vehicles of the same year, make, and model. The attorney-client privilege as to Categories 10-15 are not valid yet. Category Nos. 10-15 do not require testimony that would violate these protections. To the extent that questions at the deposition violate these protections, GM's counsel could object at the time. Nor in this area was the court persuaded by the claim that the informatio...

Excerpt: ...on for violation of the UCL. A plaintiff alleging a violation of the UCL must show and prove an "injury in fact" by way of lost money or property which was "caused by" the unfair competition. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 521, disapproved on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 52 Cal.4th 919.) Moore argues that she has sufficiently alleged an "economic injury." (Cross-complaint, '1 84....

Excerpt: ...rt rules as follows: Alter ego allegations: SUSTAINED. The allegations do not show individual liability of Defendants Charles and Ana Singleton. The FAC cites conclusory allegations in support of Plaintiffs' claims for alter ego liability, without supporting factual allegations. Plaintiffs' conclusory allegations are made on information and belief which requires that Plaintiffs assert factual allegations supporting Plaintiffs' belief. 2COA for br...

Excerpt: ... and all radiological films including but not limited to any x-rays, MRI's, CT Scans, Bone Scans, Nerve Conduction Studies EMGs, CT Mylograms, Diskograms, etc., whatsoever relating to any care, treatment, diagnosis, prognosis, consultation and/or findings. Documents should also include, but not be limited to, any and all emergency room records, radiology reports, pathology reports, all test and test results, medication records, physical and/or uc...

Excerpt: ...ant, '1 5.) These factual allegations are sufficient to allege inducement on false or incomplete statements. As such, the argument by Defendant that concealment is not plead is not persuasive. Next, the Second Amended Complaint alleges that the vehicle had a Hydra-Matic 8L90 transmission. (Second Amended Complaint, '1 4.) It asserts that as early as September 2014, Defendant was aware that the 81_90 transmission was defective. (Second Amended Cro...

Excerpt: ...elief demanded determines the applicability of the statute of limitations under our code.' " (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22—23.) Thus, the court will follow Hensler and focus on the gravamen of each cause of action. Song-Beverly: For the Song-Beverly and breach of express warranw, the delivery date is irrelevant, because Plaintiffs discovered the defect within 1-2 weeks of purchase, i.e. 9/24/17-10/1/17. Yet, Plaintiffs did...

Excerpt: ...the Song- Beverly Act against both the dealer and the manufacturer. (ld. at 491.) Moreover, the signatory defendant in Felisilda was not dismissed until after the motion had already been decided. (Ibid.) In the present case, however, the Complaint sets forth statutory claims and a fraud claim against AHM. The dealer, Honda of Escondido, is not and has never been a party to this action. Moreover, the Complaint does not depend upon the RISC in asse...

Excerpt: ...ritten Contract: Defendants have met their burden to show that they were not parties to the alleged employment contracts. "[T]he lack of a party's signature does not make a fully executed contract unenforceable." (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659 [The lack of subcontractor's signature on settlement agreements with general contractor was irrelevant to enforceability].) However, " 'the...

Excerpt: ...ate they seek $690.60 for witness fees for Michael Wasco. Mr. Wasco is not identified as an expert. Defendants also fail to provide how many days he was made available as a witness or how many miles he traveled. As discussed above, witness fees are $35 a day and travel costs are $0.20 a mile actually traveled by the witness. Defendants indicate that part or the $590.50 incurred by Defendants was to compensate Mr. Wasco for his lost wages. These a...

Excerpt: ...edical examinations or doctors' notes related to the subject incident or prior shoulder injuries could issue likely without being quashed. The remaining records, including job application, leaves of absence, health benefits, performance evaluations and disciplinary records, are not directly relevant to any issues raised by the Complaint. Plaintiff is awarded $1,635 in sanctions. These sanctions reflect a more reasonable rate for discovery. The ar...

Excerpt: ...ip or burden. It is up to the propounding party to prove the allegations of his/her "declaration of necessity": i.e., complexity of the case, financial burden of depositions, expedience of interrogatory answers. A motion for protective order may be granted on the ground that, contrary to the representations made in the declaration of necessity, the number of specially prepared interrogatories is unwarranted (CCP S People vs. sarpas (2014) 225 cal...

Excerpt: ...xs. "1" "2", but DENY judicial notice of the declaration in support of a MSJ (Ex. "3") is GRANTED. The Demurrer is SUSTAINED for the following reasons without leave to amend: First, there is no standing. Moving Defendants argue that Plaintiff lacks standing the Chapter 7 bankruptcy trustee has not yet abandoned the property, which means the trustee is the real party in interest, not Plaintiff. "The widely accepted rule is that after a person file...

Excerpt: ...ble evidence. The service concerns raised in the motion have been remedied. (See Declaration of Sean a. O'Keefe, 93, Ex. 1.) The Motion is not sufficiently particular. The subpoena demands a blanket category of all communicatons regarding the parties and the hotel property and an unrelated property which is not a subject matter of this case. The opposing parties fail to show fact-specific justification for relevance or to show that the informatio...

Excerpt: ...Rancho re-circulated the stipulation and proposed order on August 4, 2023, but Plaintiff, again, did not sign it. (Declaration of Rebecca CKray-Murphy, 7, 8, 14-19.) Rancho filed the instant action on August 30, 2023, three weeks later. Under these facts, Rancho timely moved for a protective order. Rancho's employees' right to privacy is implicated. The DM8 Report contains information obtained from Rancho's past and current employees during an in...

Excerpt: ...e FAC was not willful as he to the initial Complaint, but was ignorant of the fact that another response was required to the FAC, a document he did not understand. (ld. 7.) He declares he appeared at hearings, but it was never made clear to him that he was at risk of default until the MSC on 7/14/23 when Plaintiff's counsel informed him that he was in default and had no right to attend the MSC. (ld. 8-9.) Yang then retained counsel who filed this...

Excerpt: ... stated "No documents will be produced." (see Plaintiff's Separate Statement [PSS].) There is no dispute that, based on good cause, the Court initially ordered GM to provide further responses and responsive documents (including ESI) to RPD Nos. 15, and 19-21 as well as maintaining and providing a privilege log to the extent GM is withholding documents. (8/8/22 Minute Order.) The Court also found that GM's objections were not well founded. (Ibid.)...

Excerpt: ... the costs of notice; and (5) if cost shifting or sharing is proposed, an estmate of the cost involved in giving notice. (Cal. Rules of Court, rule 3.766(b).) Plaintiff asserts that the motion now includes the statement required by subdivision (b), but the motion in fact does not comply with this subdivision. Instead of addressing each item, Plaintiff merely states in the motion that "The parties have agreed that notice should be mailed to class ...

Excerpt: ...d in the first place, but it is not clear why such a motion would cost $451.85 to file. The memo of costs indicates this amount included a "first appearance and filing fee," but the Answer to the Complaint would have been the first appearance fee of $450, which is the firstfee listed on the memo of costs. Plaintiffs have thus met their burden to show this cost is unreasonable and is taxed. The court taxes $2,ff9.48 of the deposition costs for the...

Excerpt: ...sideration of the settlement. Settlement and release is an affirmative defense to Ayoub's claims. (Ladd v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 1310.) It is unclear how the alleged breach of the settlement release gives rise to a cause of action. The settlement involved multiple parties who all signed the release. There is no causal link between Ayouws breach of the release and the alleged damages (e.g., payment to third-...

Excerpt: ...ence of the contract, (2) plaintiff's performance or excuse for non#rformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) The CC&R forms a contract between the association and the homeowner. (Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 828.) "The rights and responsibilities of contracting parties are deter...

Excerpt: .... (Complaint, 40.) "The only remedy afforded by section 2923.5, is however, a one-time postponement of the foreclosure sale before it happens." Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 77. he property at issue has already been foreclosed on. (ld. at 26 and 28.) As such, this cause of acton falls. 2COA: Selene and U.S. Bank contend there is no private right of action under Civil Ctxle S See Lucioni v. Bank of America, N.A....

Excerpt: ...a finding in a 2021 medical report. However, Plaintiff does not contend that she was not aware of this report or its finding. She only asserts that she did not provide said evidence "because it was not needed until the court's order was issued and the court disregarded the employer's Staff testimony that she suffered a stroke." Declaration of Richard A. Apodaca, 6. Based on this assertion, the Plaintiff was aware of her diagnosis and discussed sa...

Excerpt: ...tions." (Lundeen Coatings Corp. v. Department of Water & Power (1991) 232 Cal.App.3d 816, 832.) Unless provded by statute, a public entity is not liable for an injury. (emphasis added) (Gov. C. S 815(a).) Then if a statute is identified, to state a cause of action against a government entity, every fact essential to the existence of statutory liability must be pled with particularity. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App....

Excerpt: ...and ordered the amended judgment, dated April 8, 2021, void and vacated (RJN Ex 5). Although the FAC alleges that "Hartford is liable to Plaintiff on the Escrow Bond, due the Judgment entered and/or to be entered against Milestone," it is contradicted by judicially noticeable documents (LUGO II FAC, RJN, Ex2; p. 2 6). Absent an enforceable judgment against Milestone Escrow, Plaintiff seeks relief on a non-existing judgment. Page 5 of 8 (2) The Cl...

Excerpt: ...ds HS section 1799.110(c), further, even liberally construing Dr. Halloran's declaration, nothing therein indicates that Page 3 of 4 he possesses any certification, expertise or relevant knowledge of the standards of care attributable to emergency room nurses. (See Halloran Decl., 1-2; see Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) A continuance is not warranted and therefore DENIED. Counsel falls to indicate whether controverting evid...

Excerpt: ...he Motion is DENIED. Sanctions are DENIED. Plaintiffs' Complaint is not directed at the act of Defendant's filing the unlawful detainer proceedings. Rather, is directed at Defendant's negligence since the inception of tenancy in 2020 (SITI 23—25); breach of the implied warranty of habitability by failing to maintain the Pro#rty in a safe and habitable condition, and by failing to comply with the Enforcement Department order of February 8, 2023 ...

Excerpt: ...he Motion is DENIED. Sanctions are DENIED. Plaintiffs' Complaint is not directed at the act of Defendant's filing the unlawful detainer proceedings. Rather, is directed at Defendant's negligence since the inception of tenancy in 2020 (SITI 23—25); breach of the implied warranty of habitability by failing to maintain the Pro#rty in a safe and habitable condition, and by failing to comply with the Enforcement Department order of February 8, 2023 ...

Excerpt: ...]he nature of the right sued upon and not the form of achon nor the relief demanded determines the applicability of the statute of limitations under our code.' " (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22—23.) Thus, the court will follow Hensler and focus on the gravamen of each cause of action. 1. Song- Beverly, Breach of Express and Breach of Implied Warranties Commercial Code 52725 governs the applicable statute of limitations. (Mex...

Excerpt: ...rivacy interests of Defendant and nonparties justifies disclosure of such information. Defendant's argument that USRECH has failed to demonstrate that any of the documents sought by the subpoena have anything to do with Plaintiff's claim or that the subpoena answers no question relevant to the dispute is not persuasive. Although financial records which go to demonstrate available assets held by a defendant in a civil lawsuit, and not to the heart...

Excerpt: ... is supported by sufficient undisputed facts. (St. Paul Mercury Ins. Co. v. Fronter Pac. Ins. Co. (2003) 111 Cal.App.4th 1243, 1248.) The golden rule of summary judgment is if it is not set forth in the separate statement, it does not exist. (United Community Church v. Garcin (1991) 231 Cal. App. 3d 327, 337.) If summary adjudication is sought, the specific causes of action, affirmative defense, claims for damages, or issues of duty must be state...

Excerpt: ...ns of its uniquely tailored contracts with its service vendors, and the details, terms, and conditions are not disclosed to the public or to other Home Depot contractors. (Hannah Decl. 4—5.) The dissemination of its contracts is strictly controlled, and access to the contracts is limited to Home Depot associates whose job responsibilities require them to have access to them. (ld. at '15.) In fact, the contracts itself contains a confidentiality...

Excerpt: ...'s objection under CCP S 2031.030(c)(1) is also not well taken as the requests are reasonably particularized. As to the opposition that it seeks confidential or proprietary information — work out a protective order. GRANTED RFPs 3-5: Home Depot makes valid objections based on overbreadth and undue burden, as the requests are not reasonably limited in scope and time. RFP Nos. 3, 4 and 5 seek all documents regarding the entire store for a five-ye...

Excerpt: ... countless times before. The hourly rates already reflect the expertise and a multiplier is unnecessary. This case did not involve particularly novel or complex questions, nor did Plaintiff's counsel demonstrate particular skill. Moreover, Plaintiff's counsel has not provided evidence that it was precluded from other employment as a result of this litigation. Though Plaintiff's counsel took the case on a contingency basis, the risk of not obtaini...

Excerpt: ... Ex. B at 2.) As Vineyard argues, however, the Operating Agreement for 2021 is irrelevant to this case as the Decedent was not a resident at Vineyard's facility in 2021. Plaintiff has failed to show good cause for production of document in response to RFP No. 2. RFP 14: Denied Plaintiff has failed to set forth specific facts showing good cause justifying the discovery sought by this request beyond what Vineyard has produced. RFP 64: Granted The r...

Excerpt: ...ommunity Business Directors nationwide maintain the correct new-hire paperwork, and she is responsible for and oversees all documents provided to new hires. Ms. Damante is familiar with Defendants' onboarding process. Further, Ms. Damante is familiar with the online tools which Defendants provide to employees, including the presentation and execution of arbitration agreements. She is familiar with Defendants' recordkeeping procedures and has acce...

Excerpt: ...n-parties justify disclosure of such information. Discovery of financial information is expressly authorized after issuance of a right to attach order (Code Civ. Proc., S 485.230), and USRECH may discover the identity, location and value of property in which Lander has an interest by any means permitted under the general civil discovery statutes. (Code Civ. Proc., S 2016.010 et seq.) Discovery by subpoenas is proper as Part4 of the Discovery Act ...

Excerpt: ...f the agreement, and hence in default of subdivision (a) of sec
Ÿon 1281.97, the employee may “[w]ithdraw the claim from arbitra
Ÿon and proceed in court of appropriate jurisdic
Ÿon.” (C.C.P., § 1281.97(b)(1).) The issue of intent is irrelevant. While there is evidence that Defendant's belated payment was uninten
Ÿonal, nothing in sec
Ÿon 1281.97 as dra
Led depends on the intent or good faith. Therefore, the reason for the failure to pa...

Excerpt: ... had not expired before the summary judgment motion was made. The summary judgment was filed on April 25, 2023, well before Defendant served its expert demand on June 23, 2023. The exchange was to occur on July 20, 2023, to which Plaintiff did respond (albeit 10 minutes late and without the required information.) (Declaration of Joseph M. Radochonski, 3, 4.) ICOA: Assuming Defendant met its burden of proof, Plaintiff produced the testimony of Dr....

Excerpt: ...follow Felisilda. There, the plaintiffs experienced problems with the transmissions in their Ford Focus and Fiesta models and sued Ford Motor Company ("FMC") in 2015 and 2016. (306 Cal.Rptr.3d at 616-17.) FMC moved to compel arbitration of the plaintiffs' claims under the sales contracts, which included language identical to the RISC in this case. (ld. at 617) The trial court denied the motion, and the appellate court affrmed. (ld. at 616-17.) Th...

Excerpt: ...) breach of the fiduciary duty; and (3) damage proximately caused by the breach." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) "Whether a fiduciary duty exists is generally a question of law. [Citation.]" (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915.) A fiduciary relationship is any relation existing between parties to a transacton wherein one of the parties is... duty bound to act with the u...

Excerpt: ...t of Ray's client files. As this is the sole basis of the complaint, as to her, the Demurrer is SUSTAINED as to all COA for lack or standing. As DR has had an opportunity to state these claims following the prior demurrer, and has failed to allege any new facts to meaningfully change the claim, the demurrer is SUSTAINED WITHOUT further leave to amend as to DR. As to the ICOA (all defendants): SUSTAINED as follows: Conversion is: (1) plaintiff's o...

Excerpt: ...rtment is in public records that have been disclosed to the Department by USRECH and Calmwater in applying for a lend-ng license. Moving parties assert that while information was disclosed to the Department, all of it is not publicly available and remains confidential. Lander claims the information he seeks will establish that USRECH is not entitled to a usury exemption because it was not licensed when the loan was made, and was required to be li...

Excerpt: ...se may arise without a transactional relationship when a known safety risk is concealed. (See Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 836.) There is no duty to disclose a latent defect where "the complaint is devoid of factual allegations showing any instance of physical injury or any safety concerns posed by the defect." (ld., see also Bardin v. DaimlerChrysler Corporation (2006) 136 Cal.App.4th 1255, 1261-1262.) ...

Excerpt: ...information; (c) personal health information, etc. The request is reasonably calculated to lead to the discovery of admissible evidence. Objections that were raised for the first time in the opposition, but not included in the responses or supplemental responses to the subject RPFs, are not considered. The Motion is GRANTED as to RFP Nos. 65 and 65. RFP Nos. 75 and 86 are MOOT. Plaintiffs demonstrate a sufficient good cause basis for the producti...

Excerpt: ...terpretation and enforcement of the agreement. Under 9 USCS S 1, a provision of the FAA, it states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Said provision has been read to provide a limited exemption to the FAA for contracts of employment for workers engaged in interstate commerce. Nieto v. Fresno Beverage Co., Inc...

Excerpt: ... privilege log. GM has not provided a definitive response stating that it is not withholding any documents. Instead, GM essentially states that it is not withholding "relevant" documents. This statement incorporates objections on ground the RPDs are overly broad, lack relevance and/or are not reasonably calculated to lead to the discovery of admissible evidence. But, the Court specifically overruled GM's objections on these grounds. If GM is not ...

Excerpt: ...e any transmission issues until November 2021. (First Amended Complaint, 52.) The vehicle again displayed transmission issues in January 2022. (ld. at '1 53.) Plaintiffs allege that they did not know until this lawsuit was filed that their vehicle could not be repaired. (ld. at '1 56.) using November 2021 as the date that Plaintiffs discovered the defect to start to the statute of limitations does not bar this matter. Based on the allegations ass...

Excerpt: ...ery recent decision — Ochoa, supra, 89 Cal.App.5th 1324, 305 Cal.Rptr.3d 611 — the Court of Appeal for the Second District declined to follow Felisilda. There, the plaintiffs experienced problems with the transmissions in their Ford Focus and Fiesta models and sued Ford Motor Company ("FMC") in 2015 and 2016. (306 Cal.Rptr.3d at 616-17.) FMC moved to compel arbitration of the plaintiffs' claims under the sales contracts, which included langua...

Excerpt: ...obligated under the settlement agreement. Plaintiff has not added any new allegations to the FAC to cure the defects addressed in the Court's ruling on the last demurrer. The FAC alleges that, on or about October 8, 2019, Plaintiff and Defendant Elmashat entered into a settlement agreement in the separate lawsuit, Ayoub v. Candee (MCC1701291). The terms of the settlement were memorialized in a Stipulation and Order, which was entered in that acti...

Excerpt: ... notify the potential defendant of the alleged violations and demand correction. (Civ. Code, 51782; Von v. Sprint PCS (S.D. Cal. 2CG) 312 F.Supp.2d 1285, 1304.) his notce must be writing and must be sent by certified or registered mail with return receipt requested to defendant's principal place of business in California or the place where the transaction occurred. (Civ. Code, (2).) he notice requirement is applied literally and strictly. (Outboa...

Excerpt: ...ncerning HIV/sexually transmitted diseases, "lab test results and reports", "radiology reports", and "billing for all conditions." Billing information is limited to Plaintiff's claimed psychological injuries and related physical manifestations. Analysis: Defendants are entitled to obtain Plaintiff's medical history of his claimed injuries. In addition, the unmodified description of records is overly broad, and may cause disclosure of sensitive me...

Excerpt: ...clined to follow Felisilda. There, the plaintiffs experienced problems with the transmissions in their Ford Focus and Fiesta models and sued Ford Motor Company ("FMC") in 2015 and 2015. Page 3 of 4 (305 Cal.Rptr.3d at 616-17.) FMC moved to compel arbitration of the plaintiffs' claims under the sales contracts, which included language identical to the RISC in this case. (ld. at 617) The trial court denied the motion, and the appellate court affirm...

Excerpt: ...f's RJN is GRANTED. The Motion is GRANTED. Therefore, Sanctions are DENIED. Analysis: 1. Protected Activity Plaintiff concedes the malicious prosecution claim is subject to the instant ant-SLAPP moton because it constitutes protected speech. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 ("by its terms, section 425.16 potentially may apply to every malicious prosecution action because every such Page 3 of 4 action arises from a...

Excerpt: ...th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) The Demurrer is SUSTAINED without leave to amend as to the 2COA (FRAUD). Crosscomplainant has failed to cure the defects addressed by the Court in its ruling sustaining a previous demurrer to the FACC filed by Cross- Complainant Wall. Wall is alleging a fraud cause of action against Calmwater under two separate theories: (1) that Calmwater intentiona...

Excerpt: ...ent decision —Ochoa, supra, 89 Cal.App.5th 1324, 306 Cal.Rptr.3d 611 —the Court of Appeal for the Second District declined to follow Felisilda. There, the plaintiffs experienced problems with the transmissions in their Ford Focus and Fiesta Page 3 of 4 models and sued Ford Motor Company ("FMC") in 2015 and 2016. (305 Cal.Rptr.3d at 616-17.) FMC moved to compel arbitration of the plaintiffs' claims under the sales contracts, which included lan...

Excerpt: ...asoning underlying the demurrer and motion to strike. (Declaration of Harry H. Terzian, '14.) Defendant fails to provide details about when the call was made, who made the call and to whom a message was left. Thus, the court gives more weight to the view of plaintiff's attorney. Thus, the Court will not continue the hearing to allow the parties to meet and confer. It is doubtful any meet and confer discussion will be productive. The Court will th...

Excerpt: ...ections — all overruled. The court does not consider evidence in connection with a demurrer, unless it can be judicially noticed. Cross-complainants are borrowers of a defaulted commercial loan seeking to recover damages from the lender and others based on allegations of misrepresentation. Plaintiff U.S. Real Estate Credit holdings III-A, LP ("USRECH") seeks judicial foreclosure of the real property given as security for the loan and seeks dama...

Excerpt: ...hol license. The Landlord received a Notice of Violation from the City of Temecula related to these activites. Lieberg went to the premises to post the Three-Day Notice and heard activity going on inside the building. He unlocked the door and saw three women decorating and setting up alcohol bars. Plaintiff contends he merely asked if Cooke was there, took some pictures, and left. Cooke alleges that Plaintiff harassed women during a photo shoot w...

Excerpt: ...o evict Plaintiffs in LJDSW 2200612 (UD #2.) Plaintiffs allege that the property was governed by the Tenant Protecton Act of 2019 (TPA), and the Tenant Relief Act of 2020 (TRA.) Plaintiffs also allege that beginning in March of 2020, they were excused from paying rent under Civil Code 51511 (performance excused) due to COVID-19 regulations. In March of 2020, Wells was furloughed due to COVID-19 regulations, and laid off in August of 2020. She so ...

Excerpt: ... respect to Auto Club, Plaintiff alleges that it acted negligently, carelessly, and recklessly in its handling of her application and/or cancellation of automobile insurance coverage that specifically took her out of coverage for the October 11, 2020 loss, and that as a result, she suffered economic harm and loss. (ld. at "14243.) Auto Club now demurs to the 4th COA for negligence on the grounds that (1) it fails to set forth sufficient facts to ...

Excerpt: ...events and served alcohol at the premises despite not having a certificate of occupancy' or an alcohol license. The Landlord received a Notice of Violation from the City of Temecula related to these activities. Lieberg went to the premises to post the Three-Day Notce and heard activity going on inside the building. He unlocked the door and saw three women decorating and setting up alcohol bars. Plaintiff contends he merely asked if Cooke was ther...

Excerpt: ...to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.A...

Excerpt: ...oss-Defendant's evidentiary objections as to nos. 1-14, 16-23, 78-73; OVERRULE as to no. 15. Decline to rule on nos. 24-67 and 74 because the evidence objected to is moot and thus, was not material to the court's analysis. DENY the motion. The motion for summary adjudication is procedurally defective, and Cross-complainant failed to meet her initial burden on summary judgment that no triable issues of material fact exist. Analysis: This is an HOA...

Excerpt: ...this noticed Motion, and the parties agree that Plaintiff is the prevailing party. Plaintiff now move the court for an order awarding attorney's fees under the lodestar method. In support of his motion, Plaintiff submitted the declarations of Attorney Richard Wirtz and Attorney Amy Rotman. In support of their opposition, Defendant submitted the declaration of Attorney Adjoa Anim-Appiah. With his reply, Plaintiff submitted evidentiary objections t...

Excerpt: ... respectively. Requests for Judicial Notice: The Requests for Judicial Notce by Plaintiff Phoenix Capital Group Holdings ("Phoenix Capital"), and the Request for Judicial Notice by Cross-complainant, Keith Candee ("Candee") will both be denied. The matters contained in Phoenix Capital's RFJN are immaterial for purposes of a General Demurrer. The court does not decide a demurrer by factual inferences like the ones raised by Phoenix Capital. Candee...

Excerpt: ...ion to Defendants' care and treatment of Mr. Suh while he was a patient at Loma Linda university Medical Center from December 31, 2019 to January 5, 2020, resulting in injuries to Mr. Suh. Defendants now bring this Moton for Summary Judgment, or in the alternative, Summary Adjudication, on the grounds that the care and treatment prov-ded to Plaintiff while he was a patient at Loma Linda Murrieta at all times met the standard of care, and as such,...

Excerpt: ...ition. Trivial Defect? The condition of the sidewalk was minor, or trivial. The County asserts that Plaintiff tripped on the raised edge of a sidewalk, and fell on 12/26/20 at 41161 Orange Place in Hemet. (Undisputed Material Fact [UMFI Nos. 1-2.) Plaintiff and her husband own the property, which their daughter rents from them. (UMF Nos. 3-4.) On 1/15/21, the County measured the sidewalk deviation, which was 1 % inches, with no jagged edges or br...

Excerpt: ...ential evidence "may exist but cannot, for reasons stated, be presented, the court shall deny the motion" or contnue it for a reasonable period, or "make any other order as may be just." (CCP S 437c(h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Yet, Plaintiff has not done that. As a result this Motion is supported by expert opinion that the standard of care was not breached, but not controverted by expert opinion. In support of...

Excerpt: ...er of law involves a twostep process: First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a...

Excerpt: ...NIED claim, which fails for additional reasons discussed below.) Each claim is based on Moda's alleged theft of Ray's confidential client files, and his subsequent act of giving the files to Mozer. (Comp„ "1 66, 77, 91, 99.) Debbie, Thornton, Thornton Yachts and/or EAMT are not real parties in interest as to the theft of Ray's client files. Without such factual allegations, they lack standing. ICOA (Return of Stolen Property): As demurring Defe...

Excerpt: ...ng school hours." (Comp. , 6.) However, Plaintiff was "violently sexually assaulted in the bathroom by DOE 1, and/or DOES 2-11N, while the s#cial education aide assigned to LH. was not carrying out his or her duties." (ld. at 9.) Plaintiff incorporates those allegations into his 2nd cause of action and further alleges that Doe assailant's conduct was intentional and sexually offensive. (Comp., 29-30.) Plaintiff also alleges that District "knew th...

Excerpt: ...e 3. It then states the issues regarding the first and second causes of action are set forth together on page 12. This would be improper. Each cause of action where summary adjudication is sought must be separately set out. (California Rules of Court, Rule 3.1350(d)(1).) However, on page 12, it does not appear to address the first and second causes of action, but instead addresses the first cause of action in Roripaugh's cross-complaint. The noti...

Excerpt: ...at it needs to pay the entire settlement amount of $75,000 to resolve this action. (Def.'s Opp. 1:23–24.) Even if it does, the evidence shows that Defendant repudiated the Settlement Agreement by failing to make the first and second installment payments and by refusing to provide the conforming declaration of Mr. Dodd. Thus, Plaintiffs are entitled to a judgment for the entire $75,000 settlement amount. Paragraph 6 of the Settlement Agreement i...

Excerpt: ... a risk that is inherent in an activity in which plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) Assumption of the risk does not depend on i) the reasonableness or unreasonableness of plaintiff's conduct to subject himself or herself to the risk of defendant's conduct, or ii) whether plaintiff subjectively knew of and voluntarily chose to encounter the risk of w...

Excerpt: .... Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Plaintiff has failed to show the threshold showing of the probable validity of its mechanic's lien by demonstrating that it complied with the requisite statute governing the preparation and service of the lien. First, the mechanic's lien fails to state the name of the owner or reputed owner which was admittedly known to Pl...

Excerpt: ...ld have stayed; and, that Plaintiff suggested to one witness that if the witness testified favorable for Plaintiff, he would “make it worth his while.” (Id. p. 4:17‐26.) The Award states that Defendant admitted it violated Labor Code § 226. (Id. p. 5:2.) The arbitrator noted the main defense to violations of this statute was a class action settlement entered in 2017, but that the defense lacked merit. (Id. p. 5:3‐4.) The arbitrator found...

Excerpt: ... for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. A loss of consortium cause of action is action against a health care provider based on professional negligen...

Excerpt: ...referred to at the trial of any such action.” (CCP § 484.100; Pech v. Morgan (2021) 61 Cal.App.5th 841, 854, n. 9.)) Rather, Defendants submit a declaration to explain what defenses they will assert based upon the language of the contract and documents related to an investigation – documents that are notably not included as exhibits to the declaration. (See Altepeter Decl., ¶ 4 [detailing the provision of the contract], ¶¶ 6‐8 [investig...

Excerpt: ... as to whether any floor sweep checks occurred on the day of the incident prior to Plaintiff's fall. Defendant has not provided any logs that show if or when the floor was checked by employees. The only evidence provided by Defendant is that employees typically checked the floors in the area where they were working, but there is no evidence that any employee actually checked the floor on the day Plaintiff fell. If a sweep check did not occur, Def...

Excerpt: ...As to the 3COA (Calmwater), 4COA, 5COA and 6COA: The alleged misrepresentation on which Cross‐Complainants' fraud claims are based relates to the Approved Budget as described in the parties' loan agreement. According to Cross‐Complainants, CrossDefendants, by USRECH's execution of the loan agreement, represented that the Approved Budget (attached as Exhibit C to the loan agreement) submitted by Cross‐ Page 3 of 3 Complainants was reviewed a...