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...