Excerpt: ...de in the present matter. The TAC specifically alleges that “Plaintiffs presented…a claim” on 6/29/17, to Defendant and that it was rejected. (TAC, ¶ 7.) Even though the District's rejection notice states that it rejected the claim of the decedent, plaintiffs' allegation must be taken as true on demurrer. (Moreover, the District's own request for judicial notice includes the letter, which states that the claim is made for decedent and plai...

Excerpt: ...rcumstances relating to this insurance: (a) at the time application is made; (b) at any time during the policy period; or (c) in connection with the presentation or settlement of a claim.” Defendant has provided evidence that Plaintiff's statements were not consistent regarding when/how she communicated with her boyfriend and what time things happened. They also provided an expert indicating that based on his opinion, there was a 90% chance or ...

Excerpt: ...of care (Decl. of Martin, ¶5) and was treated appropriately throughout this hospitalization. (Id at ¶6.) Martin states that during her visit to the HVMC ED on January 11, 2018, HVMC's nursing staff completed a complete assessment of Decedent's condition on arrival and notified her treating physicians of relevant changes in her condition, which met the standard of care. (Decl. of Martin, ¶16.) Martin asserts that diagnostic and treatment determ...

Excerpt: ... them at the Mailing Address. Defendant Carole Campbell states that she picks up her mail from the Mailing Address every day, but did not receive any legal papers. (Decl. of Carole Campbell, p. 2.) However, on May 18, 2017, Plaintiff served Defendants a Notice of Case Management Conference at the Mailing Address. The Notice of Entry of Default Judgment was also served at the Mailing Address on August 8, 2018. Defendants did not file their initial...

Excerpt: ... Agreement was negotiated and executed in California (and the alleged misrepresentations were made in California). (Declaration of Daniel Leigh (“Leigh Decl.”), ¶¶ 6‐10) Moreover, Defendants utilized a California attorney to draft the Assignment Agreement. (Id., ¶¶ 11‐12.) In addition, the parties met in California to discuss issues/problems related to the Assignment Agreement and specifically with regard to Defendants' failure to mee...

Excerpt: ...laration are immaterial and not ruled upon. The Motion for Attorney Fees is GRANTED in the amount of $3717.50. Analysis The Section 998 offer was for $22,000.00. The jury's verdict was for $15,000.00. There is no dispute that Plaintiffs failed to obtain a judgment more favorable than the amount set forth in MBUSA's § 998 offer and the court has previously rejected Plaintiffs' argument that the offer was vague and not made in good faith. And does...

Excerpt: ...eveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425‐426.) Plaintiff seeks compensatory relief for rehabilitation of Defendant's property, but fails to plead he was a duly licensed contractor during the performance of such services. As such, Plaintiff's claims are barred by Bus. & Prof. Code § 7031. Analysis 1COA (Breach of K): In contrast to the original complaint, Plaintiff now alleges that the contract was for the sale of Defendant's pro...

Excerpt: ... Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, which is not applicable. The issue on appeal was whether a trial court has jurisdiction over discovery matters in an uninsured motorist arbitration (id. at 920‐926) and whether the trial court abused its discretion in dismissing the arbitration when the plaintiff refused to comply with the discovery order (id. at 928‐929). While the trial court order did involve an order to have pl...

Excerpt: ...he facts of the Complaint here are conclusory and insufficient. While Plaintiff is correct that the rules of pleading generally require only ultimate facts to be alleged (McKelly v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1469), “[f]acts, not conclusions, must be pleaded.” (Zumbrum v. University of Southern California (1972) 25 Cal.App.3d 1, 8.) Further, where, as here, statutory remedies are invoked, the facts “must be pleaded w...

Excerpt: ...o be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Identifying a cause of action as an intentional tort does not remove it ...

Excerpt: ...s of the same Inn of Court as this Court is. The Court sees no reason to recuse itself. Analysis: As to the 1COA, 2COA, 3COA, 4COA and 5COA, Corporations Code section 800(b)(2) requires a shareholder commencing a derivative action to comply with two requirements. First, plaintiff must allege “the efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort….” Plaintiff alleges in paragraph 26 ...

Excerpt: ... in accordance with the DOT. (See Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 975‐76.) (See TAC, ¶¶ 28‐35, 40‐44.) These are issues that could have been adjudicated in the UD action. Thus, Plaintiff is barred from raising issues of alleged defects in the title of the Property in the present action. Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 976. 3COA and 4COA “[A]s a general rule, a financi...

Excerpt: ...unitive damages is GRANTED. Summary Adjudication as to the 4COA, 5COA and 6COA (wage and hour claims) is DENIED. Analysis: 1COA Although Plaintiff sets forth a prima facie cause of action for gender discrimination, Defendant effectively rebuts the presumption of discrimination by demonstrating that there were legitimate, nondiscriminatory reasons for the adverse employment actions. However, Plaintiff fails to demonstrate that the proffered reason...

Excerpt: ...isdiction over the defendant. Defendant voluntarily took title to real property situated in California. One who takes title to property in a foreign state necessarily expects to be subject to the jurisdiction of that state at least with regard to the connection to the property. The court in Shaffer v. Heitner (1977) 433 U.S. 186 suggested that where the property owned by the defendant was “completely unrelated to the plaintiff's cause of action...

Excerpt: ...s to why he has foundation to testify about the standards of care for a nursing care facility. He states he is qualified to teach emergency medicine and the standard of care for emergency department physicians and nurses. (Id. at ¶8.) Furthermore, he opines that Defendant followed its own policies, but provides no explanation as to why those policies meet the industry standard of care. (Id. at ¶ 12‐ 13.) Dr. Barclay may be able to opine about...

Excerpt: ...'s 9/13 Objections to Rebecca Morrison Declaration Nos. 1 – 11 are OVERRULED. Defendant's 9/13 Objections to Larry Pelton expert Declaration are OVERRULED as to Nos. 1 – 25. /// Analysis: Defendant relies upon Plaintiff's unverified response to special interrogatory No. 1, which asks her to identify all facts that refer, relate to or regard the cause of the Reed Fire. Despite acknowledging that unverified discovery responses are akin to “no...

Excerpt: ...s on the causes of action affected by the motion. (Varian Med. Systems, Inc. v. Delfina (2005) 35 Cal.4th 180, 191‐192.) The automatic stay does not apply to a prevailing defendant's enforcement of a judgment awarding fees and costs under CCP § 425.16(c). To stay enforcement of such a judgment, the SLAPP plaintiff must post a bond or undertaking pending the appeal. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1434.) The undertaking under ...

Excerpt: ...ry lawsuit. C.C.P. §395(a) applies to transitory lawsuits and provides: “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. . . Subject to subdivision (b), if a defendant has contracted to perform an ...

Excerpt: ...rant a multiplier. After a substantial amount of work by the Barry Law Firm another firm, the Law Offices of Michael Rosenstein were brought in to try the case. This transition is inherently inefficient and leads to duplication of effort. While the matter was at the Barry Law Firm, the senior partner, Barry, spent a significant amount of time on simple case tasks that should have been done by junior associates or paralegals. An example of this ca...

Excerpt: ... (2007) 20 Cal.3d at 862‐864. Once a party has raised a claim of privacy, the party seeking discovery must show a particularized need for the confidential information sought. The broad “relevancy to the subject matter” standard is not enough. The court must be convinced that the information is directly relevant to a cause of action or defense . . . i.e., that it is essential to determining the truth of the matters in dispute. Britt, supra, ...

Excerpt: ...ndants – in a single motion. Regardless of whether their purpose was to avoid filing fees or whether they believed it would be simpler, Plaintiffs should have, at the very least, separated their disputes according to Plaintiffs and discovery devices (i.e., into four motions). Further, Plaintiffs' efforts to meet and confer were insufficient. In fact, the Employment Form ROGs are not even referenced in the one substantive email sent by Plaintiff...

Excerpt: ...llegations during the April 1, 2019, deposition of Neugebauer. (Decl. of Shin, ¶9.) Plaintiff filed its Doe amendments on June 10, 2019 and the present Motion on August 8, 2019. Plaintiff's Counsel indicates that she informed Defendants of her intent to seek leave to amend to add alter ego allegations on July 30. While Plaintiff does not explain why it took four months to file the Motion, this delay is not excessive. Plaintiff appears to acknowl...

Excerpt: ...he CUIPA applies fails. The CUIPA permits an administrative agency to police bad faith insurance practices, but does not create a private cause of action for first or third party claimants against an insurer. (Zephyr Park v. Superior Court (1989) 213 Cal. App. 3d 833, 837‐838.) There are no allegations that Seven Corners was a party to the insurance contract or that it breached any duty under the Contract. The Contract indicates that Seven Corn...

Excerpt: ... Hair Restoration Center. (Undisputed Material Fact [UMF] No. 4.) Prior to the procedure, McEvers received written instructions to arrange for transportation if the patient received medication in the afternoon, and that most patients could drive themselves home if they did not receive pain medication or sedation in the afternoon. (UMF No. 5.) McEvers was given specific medications in the morning (6:58 a.m.) of 5/3/16, which were not general anest...

Excerpt: ...ttorney work‐product protection as to any responsive documents, it is also to provide a privilege log pursuant to CCP §2031.240(c)(1) (Wellpoint Health Networks, Inc. vs. Sup. Ct. (McCombs) (1997) 59 Cal. App. 4th 110, 130). Sanctions by both sides are DENIED. Analysis: The Court finds that plaintiff has shown “good cause” for all the production requests as to Districts 45, 46 and 51. The consolidation, which included plaintiff's terminati...