Excerpt: ...hermore, the remedy is an injunction prior to the sale, and for actual economic damages resulting from the sale. (Civil Code §2924.19.) “A borrower may state a cause of action under section 2923.5 by alleging the lender did not actually contact the borrower or otherwise make the required efforts to contact the borrower despite a contrary declaration in the recorded notice of default.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th...

Excerpt: ...tten agreement in asserting [its] claims' against the nonsignatory.” ' ” (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 218.) The second applies where “a nonsignatory may compel arbitration only when the claims against the nonsignatory are founded in and inextricably bound up with the obligations imposed by the agreement containing the arbitration clause. In other words, allegations of substantially interdependent and concerted misconduc...

Excerpt: ...e of facts existed as to one or more elements of Plaintiff's causes of action or to demonstrate that it is entitled to a complete defense to these claims. Defendant Custom Commercial did not meet its burden as the motion is unopposed. As such, Plaintiff is entitled to summary adjudication as a matter of law. Plaintiff has made a prima facie showing as to the 1COA. The parties who are considered merchants of the sale of goods of the kind involved ...

Excerpt: ... the 6COA is sustained without leave to amend. (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) Lim waived any defect in service. Lim waived any defect in service by filing a substantive opposition. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) 2COA: Elder abuse claims must be pleaded with particularity. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) Leaving aside that Lim has not set ...

Excerpt: ...act with their bodies, causing them to sustain injuries. (Id. at ¶ 137.) At the pleading stage, this is sufficient to state a cause of action for battery. 6COA (IIED): Plaintiffs allege that Defendants' knowing, intentional, and willful failure to remediate the bedbug infestations constitute extreme and outrageous conduct that goes beyond the bounds of decency. (FAC ¶¶ 145 & 147–148.) They allege that Defendants “knew, yet intentionally, w...

Excerpt: ...that the negligent misrepresentation claim fails to allege the claim with the required specificity regarding what was said, when it was said, and the form of the statement. 5COA: The 1COA action alleges non‐performance by “refus[ing] to comply with signing the agreement and opening escrow.” (FAC, ¶ 35.) The 5COA relies on the same conduct as the factual basis for breach of the implied covenant. (FAC, ¶ 73 [“Defendants breached the impli...

Excerpt: ...m is typically absent when a dangerous condition is open and obvious. [Citation.] ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.' [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious' and take action to avoid the da...

Excerpt: ...iversity (2014) 231 Cal.App.4th 1337, 1341.) 1COA (Inverse Condemnation): The United States and California Constitutions require that just compensation be paid when private property is taken or damaged for public use. (U.S. Const. 5th Amend; California Constitution, Article 1, § 19; Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1138; see also Dryden Oaks LLC v. San Diego County Regional Airport Authority (2017) 16 Cal.App.5...

Excerpt: ...e defense counsel that they were in default while they continued to litigate the case. Defendants file a Case Management statement on January 11, 2021 and an opposition to Plaintiff's motion to compel on March 2, 2021. However, the filing of documents other than an answer or other permitted responses, is not sufficient to prevent default. (See Wisdom v. Ramirez (1985) 177 Cal. App. 3d Supp. 1, 7‐8, filing of a “declaration” was did not cons...

Excerpt: ...med sufficient. As to RFP nos. 109‐117 and special interrogatory nos. 104‐114, the Motion is GRANTED subject to Belaire‐West notice. With mixed results, the sanctions are denied. Any responses due are to be provided within 30 days. Analysis by subject matter: A. Kevin Osbourne Plaintiff used to be supervised by Kevin Osbourne, who left LLUMC before plaintiff's alleged assault incident. She says Osbourne had complained about Rob Boothby, who...

Excerpt: ...o allow Plaintiffs to comply with the noncompliant matters under CMO Section H H.3(a)(vi)(A)&(B); 3(b); 3(e)(ii)&(iii); 3(k); 4(a); 4(c); 5(b); 5(c); 5(e); 9(b)(i). /// Page 3 of 4 Finally, the introductory paragraph of the Proposed Order should indicate that the Court, for purposes of the order, adopts all defined terms as set forth in the Settlement Agreement. Detailed Guidance: As to CMO Section H.3(a)(vi)(A): Is counsel Aiwazian aware of any ...

Excerpt: ...rer to the 3COA through 7COA is SUSTAINED as to both Calmwater and USRECH with 20 days leave to amend. 1COA and 2COA: The Demurrer is SUSTAINED as to Calmwater for failure to state facts sufficient to a cause of action. Rescission is technically a remedy, but nevertheless analysis follows. Movants persuasively argue that Calmwater is not a party to the loan documents so, there is nothing to rescind as to Calmwater. Notably, the FAXC alleges that ...

Excerpt: ...s understanding and intentions in entering the settlement agreement. As Defendants point out, however, Plaintiff did not submit any admissible evidence in support of his motion. Plaintiff did not submit any declaration in support of his motion. While he attached documents to his motion, they were not properly authenticated. He simply relies on the settlement agreement attached to his motion to argue that Attorney Lieberg would be a witness in thi...

Excerpt: ...o discriminate against an employee in the terms, conditions or privileges of employment because of sex or gender or physical or mental disability or medical condition. Pregnancy is a form of sex discrimination. (Gov. Code § 12926(r)(1); §12945(a),(b); Spaziano v. Lucky Stores (1999) 69 Cal.App.4th 106, 110.) Here, Defendant argues that Plaintiff cannot show she was terminated based on her pregnant status because the evidence shows Defendant had...

Excerpt: ...to Plaintiff's counsel asking to stipulate to an extension of discovery cutoff so that Defendants could serve a subpoena on BlueHost, Inc., and requested a response by July 27, 2022. (Thompson Decl. ¶ 19, Ex. M.) Plaintiff's counsel acknowledged receipt of the letter, but he did not respond to the extension request. (Id. at ¶ 20.) Plaintiff's counsel appears to oppose the extension request on the ground that Defendants' counsel signed the stipu...

Excerpt: ...ses to RFPs Nos. 81, 83, 94 and 96 35: Whether Plaintiffs are entitled to relief under the Song‐Beverly Act is entirely unrelated to requests for buyback or replacement of other vehicles. Moreover, this request is not limited to Honda Pilot. It is unclear how “all documents” evidencing or describing statistics for the number of service contracts Honda has given consumers in response to requests for a buyback or replacement of vehicles other...

Excerpt: ...ones v. Jacobson (2011) 195 Cal.App.4th 1, 17‐18 [arbitration agreement may be enforced by nonsignatories when the nonsignatory is a third‐party beneficiary of the agreement, and when a preexisting agency relationship makes it fair to allow the nonsignatory to impose the duty to arbitrate].) In their moving papers, Honda argues that it is entitled to enforce the arbitration provision under the RISC on the grounds of equitable estoppel, and as...

Excerpt: ... framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.'” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 101.) “The statutory scheme has three purposes: ‘ “(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that...

Excerpt: ...lass certification and notice, they are the ones responsible for trying the case, appearing in court, and working with class counsel on behalf of absent members.” (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1434.) The current class representative is a convicted child molester of a child under the age of 14. (PC288(a).) Plaintiff pled no contest to a violation of Penal Code §288 in 2002, which resulted in an incarceration of 2.5 years...

Excerpt: ...tiff admits that she informed Groves that she believed Life Care killed her father. (Second Amended Complaint, ¶ 16.) Based on that statement alone, I think it was reasonable that Life Care did not believe Plaintiff could do her job. Whether Life Care's termination of Plaintiff was legally proper is different from whether their conduct constitutes malicious or oppressive conduct. The bulk of the evidence provided by Plaintiff does not support a ...

Excerpt: ...tiff admits that she informed Groves that she believed Life Care killed her father. (Second Amended Complaint, ¶ 16.) Based on that statement alone, I think it was reasonable that Life Care did not believe Plaintiff could do her job. Whether Life Care's termination of Plaintiff was legally proper is different from whether their conduct constitutes malicious or oppressive conduct. The bulk of the evidence provided by Plaintiff does not support a ...

Excerpt: ...ort Plaintiff's arrest, Plaintiff's claims fail. Before Plaintiff's arrest, there were several incidents involving Plaintiff and Christopher where the police were called. (Exhibits 1‐5 and 7 to the Declaration of Bilal A. Essayli.) Drootin was aware of prior incidents before he arrested Plaintiff. (Drootin's Deposition, 106:21‐25; 107:1‐7) The extent of his knowledge of these incidents is unclear. (Drootin's Deposition, 107:8‐17.) Based o...

Excerpt: ...mbers of the attorney's law firm and any associated law firm to determine whether the defendant or those individuals are aware of any such similar actions. 2. Counsel shall carefully review both the terms and the terminology of the order and accompanying forms (notice, objection form, exclusion form, and any claim form) to confirm that the various documents are internally consistent, consistent with each other, and consistent with the settlement ...

Excerpt: ... the Property unusable and resulted in a significant diminution in value. (TAC, ¶¶ 13‐29, 35‐ 36.) Moreover, even assuming that the requirement of an avigation easement constitutes a “physical invasion” – and it does not – the Hemet Plan was, as reflected in the TAC, adopted by the County, not the City. (TAC, ¶ 13.) Plaintiff's argument that the generic agency allegations in the TAC are sufficient to tie the City to the adoption of...

Excerpt: ...as in a “unique position” to protect Plaintiff from the abuse under the circumstances of this. The abuser was his own father and presumably under his father's care – not the Church's care – when the alleged abuse occurred, even if it occurred on Church premises. There are insufficient facts establishing the Church had sufficient control over Jack or custody of Plaintiff to prevent the abuse from occurring. Plaintiff cites to a “wide pan...

Excerpt: ...are not unequivocal and do not establish that she cannot reasonably obtain the needed evidence. Furthermore, Defendants have not produced properly authenticated evidence that Defendants IE Rentals and Nijjar were not involved in the management of the subject property at the time of the incident. The Motion for Summary Adjudication is GRANTED as to the fifth and sixth issues for adjudication because the doctrine of negligence per se does not apply...

Excerpt: ...able to establish a basis for attorneys' fees under the same statute, although the statute itself was not pled. 2. CVSW2104311 HANDLE IT MMS LLC VS SFT REALTY GALWAY DOWNS LLC DEMURRER ON CROSS‐ COMPLAINT OF SFT REALTY GALWAY DOWNS LLC BY HANDLE IT MMS LLC, CHEZ BOUJIE INC Tentative Ruling: The Demurrer is OVERRULED as to the 1COA and 3COA. The Demurrer is SUSTAINED as to the 2COA without leave to amend as set forth below. 2COA (Waste): “Wast...

Excerpt: ...e the discovery dispute without the court's intervention, despite Defendant's Good faith effort to do so are awarded and due in 30 days. The court does not see any procedural bars. There is evidence that Defendants and FastDomain agreed to an alternative production date, thus curing any defects with the original dates. Based on the information provided in Opposition, it is clear this issue could have been handled without court intervention. Defen...

Excerpt: ...xt. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. ...

Excerpt: ... according to the complaint, the Plaintiff paid tens of thousands of dollars to the Defendants for the express purpose of paying off the mortgage on the property because he was in fact the purchaser of the property. Plaintiff claims that the money he paid was not applied to the mortgage, but was, at least in significant part, taken without authorization and utilized for the personal use and benefit of the defendant(s). According to the complaint,...

Excerpt: ...ates facts showing a reasonable and good faith attempt at informal resolution of each issue presented in the motion. C.C.P. §§2030.300(b) and 2016.040. Meeting and conferring requires “that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439. “‘Only after all the cards have been laid on the table, and a party has meaningfully assessed the rel...

Excerpt: ...or three days, along with other symptoms which he diagnosed as a possible intra‐abdominal abscess and other complications. After consultations with OB/GYM physician, Kevin Fulford, M.D., Plaintiff Collins was admitted for a Dilation and Curettage (D&C) procedure. Plaintiff Collins next sought treatment from Dr. Moody in emergency care at Loma Linda University Medical Center on 10/17/19, complaining of abdominal pain, this time in the right lowe...

Excerpt: ...at all cannabis materials had been removed. The Court accepts the sworn testimony of the respondent to the effect that the tenants who were engaged in the unlawful cultivation of cannabis have been evicted and during the County inspection conducted in March 2022 it was confirmed that no violations appeared to be ongoing. “The purpose of a preliminary injunction is to preserve the status quo until there is a final determination of a cause of act...

Excerpt: ...rrer where the pleading does not state facts sufficient to constitute a cause of action. C.C.P. § 430.10(e). The court assumes the truth of all material facts which have been properly alleged, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law all...

Excerpt: ... invitee due to a dangerous condition on the premises (whether natural or artificial) are duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Concerning the elements of duty and breach, a property owner has a duty to exercise ordinary care in using or maintaining his or her property to avoid exposing others to an unreasonable risk of injury; the failure to fulfill this duty is negligence. (Alcaraz v. Vece (...

Excerpt: ...Magnuson‐Moss federal claim indicating how it can be brought in state court other than through the Song‐Beverly Act. It is undisputed that Plaintiff purchased the vehicle in question in the state of Maryland. Song‐Berverly does not apply to vehicles purchased outside of the state of California Cummins v. Superior Court, (2005) 36 Cal.4th 478. Since California's Song‐Beverly Act does not apply there has been a failure to establish the nece...

Excerpt: ...lleged to show that the representation was false at the time it was made and that Yan and Jian had knowledge of the falsity of their representation or an intent not to perform the promise when it was made. However, the SOL argument is not persuasive as these causes of actions are in tort and not contract. 3COA, 4COA and 5COA: Financial elder abuse is not sufficiently alleged because no facts are alleged that Yan and Jiang engaged in acts that dep...

Excerpt: ...79 Cal.App.3d 494 and Gonzales v. Super. Ct. (1987) 189 Cal.App.3d 1542.) These opinions pre‐date the Legislature's 1990 amendment to CCP § 437c which disposed of the procedures discussed in the opinions. Substantively, Defendants met their initial burden by demonstrating that (1) Plaintiff consented to the extraction of her tooth number 17; (2) Plaintiff admitted that she had the opportunity to discuss the treatment alternatives with Dr. Morr...

Excerpt: ...; 8. Sustained; 9. Sustained; 10.Overruled; 11.Overruled; 12.Overruled; 13.Sustained; and 14.Overruled. Ruling 1. Fraud by Omission The Motion for Summary Adjudication is GRANTED as to the first issue for adjudication. The fraud by omission claims are barred by the economic loss rule because there is no evidence of personal injury or property damage and there is no evidence of affirmative misrepresentation. The citation to Robinson Helicopter Co....

Excerpt: ...e consider the court considered the untimely Motion. The Court considered the factors under Tech‐Bilt. Defendant Enfield contends that the medical and special damages claimed by Plaintiff are $79,213.76. However, while Defendant has produced “medical billing,” he has produced no evidence regarding the actual damages Plaintiff is seeking. (See Marcos Dec. Exhibit G.) More problematic, Defendant Enfield has produced no evidence regarding the ...

Excerpt: ...ed to summary adjudication on Plaintiff's first cause of action for breach of contract because there still remain triable issues of fact as to coverage for Plaintiff's claims and the amounts owed for covered damages. 2COA (Implied Covenant): The undisputed facts demonstrate that CSE acted reasonably in handling Plaintiff's claims, including its initial denial. As Plaintiff points out, CSE initially denied Plaintiff's claims under the vacancy excl...

Excerpt: ...ed the deposition after five hours. (Ross Dec., ¶4.) The Court then sanctioned Plaintiff for her conduct and ordered her to appear for the continued deposition. (Ibid.) The deposition was noticed for August 23, 2021, but the parties disagreed about the scope of the deposition and Plaintiff, through counsel, would not agree to answer all questions. (Id at 5; Plaintiff Dec., ¶14.) After meeting and conferring, the parties agreed that the depositi...

Excerpt: ...valid and enforceable lease agreement, and Plaintiffs were not entitled to rent. (12/18/17 Amended Statement of Decision, p. 4.) Following an appeal, the Court's decision was affirmed. (see E070363.) In addition, Plaintiffs failed to establish that AMC paid rent to Mohammad to support their breach of fiduciary plus accounting cause of action (RIC 1514603). The prior “Partnership Case” (RIC 1514603) is related to rent owed for the 7th Street P...

Excerpt: ...d below the standard of care or was a substantial factor in causing the injuries allegedly suffered by plaintiffs' decedent, Timothy Olvaney. There are triable issues regarding the following: 1. Whether there was negligence on the part Dr. Lopez; 2. Whether the negligence of Dr. Lopez was a substantial factor in causing the death of the decedent. The competing declarations of Dr. Lo and Dr. Amin are sufficiently detailed regarding the condition o...

Excerpt: ...nst Defendant himself. Plaintiff alleges Defendant acquired title by failing to disclose material facts at the time of purchase, and by taking advantage of Plaintiff based on her age and vulnerability. Plaintiff claims legal interest in the property because all of Plaintiff's monies were used to purchase the property. Plaintiff asserts a cause of action for partition and quiet title. Thus, if Plaintiff were to prevail on her claims, Defendant's c...

Excerpt: ...ns must be attached and incorporated by reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218‐19.) This rule does not require the petitioner to authenticate the agreement or do anything more than allege its existence and attach a copy. (Condee, supra, 88 Cal.App.4th at 218‐19.) The burden then shifts to the opposing party to demonstrate the falsity of the purported agreement. (Id. at 218‐19.) Here, P...

Excerpt: ...ive easement. The hostility is averred in paragraphs 22‐27. 2COA (Trespass): As a matter of law, an easement is only a nonpossessory right to use another's property and is not tangible property. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal. 4th 871, 881.) An easement is a “limited privilege to use the land of another, but does not create an interest in the land itself.” (McBride, supra, 18 Cal. App. 5th at 1174.) Because an owner o...

Excerpt: ...cases addressing business interruption insurance are instructive. Generally speaking, losses from inability to use property do not amount to “direct physical loss of or damage to property” within the ordinary and popular meaning of that phrase; that is physical loss or damage occurs only when property undergoes a “distinct, demonstrable, physical alteration.” (MRI Healthcare Center of Glendale, Inc. v. State Farm Gen. Ins. Co., 187 Cal. A...

Excerpt: ... the Hemet Plan is not final land use determination. (Dryden Oaks, LLC v. San Diego County Regional Airport Authority (2017) 16 Cal.App.5th 383, 399.) Contrary to Plaintiff's argument, Dryden did not recognize an exception for per se facial regulatory takings (i.e., where a plaintiff alleges that a regulation results in a loss of all economically beneficial use of property). (Id. at 397‐98.) As the court noted, the “first step required in any...

Excerpt: ... the Hemet Plan is not final land use determination. (Dryden Oaks, LLC v. San Diego County Regional Airport Authority (2017) 16 Cal.App.5th 383, 399.) Contrary to Plaintiff's argument, Dryden did not recognize an exception for per se facial regulatory takings (i.e., where a plaintiff alleges that a regulation results in a loss of all economically beneficial use of property). (Id. at 397‐98.) As the court noted, the “first step required in any...

Excerpt: ...scission of the NOD which was recorded on October 10, 2017, thereby mooting Plaintiff's claim for cancellation of written instrument. (RJN, Ex. 12.) 2COA (2933.7 ‐ SPOC): The violation is alleged to be material “because in failing to assign a SPOC, the entity has prevented PLAINTIFF'S chances for a successful submission of the proper papers to complete a loan modification package to save the Subject Property from foreclosure.” (Id., ¶ 41.)...

Excerpt: ...3500 including costs are awarded to the Opposing Party and due within 30 days. Bertrand properly adjourned the January 14 deposition under section 2025.460(e) due to Plaintiff's failure to answers several questions listed in the Motion to Compel. The Court granted the Motion as to all questions except No. 6, which was incorrectly numbered, and 7, which was sufficiently answered during the first deposition. (See Decl. of Plaintiff, Ex. B.) Nothing...

Excerpt: ...have some basic information regarding this case, Plaintiff's argument that he must know something because “no one else has stepped forward” is speculative. (Reply 12:24.) Plaintiff has failed to demonstrate that Schultz has “direct personal factual information pertaining to material issues in the action.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910 [emphasis supplied].) Further, while Plaintiff has presented a list of what q...

Excerpt: ...e three‐day notice to quit. A three‐day notice to quit is a preliminary step before litigation in an unlawful detainer matter can be filed. C.C.P. §§ 1161 and 1166; Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674‐675. As such, these emails appear to have been made in response to anticipated litigation. However, “[t]he anti‐SLAPP statute does not apply to litigation communications which constitute criminal extorti...

Excerpt: ...e three‐day notice to quit. A three‐day notice to quit is a preliminary step before litigation in an unlawful detainer matter can be filed. C.C.P. §§ 1161 and 1166; Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674‐675. As such, these emails appear to have been made in response to anticipated litigation. However, “[t]he anti‐SLAPP statute does not apply to litigation communications which constitute criminal extorti...

Excerpt: ... § 25845(b)(c) [authorizing attorney's fees against property owner for abate costs for a nuisance]; Riverside County Ordinance No. 725 [abatement costs include attorney's fees]; Riverside County Ordinance No. 725, section 11b [authorizing liability of “owner…who willfully violates the provisions of a Land Use Ordinance…for a Civil Penalty not to exceed $1,000.00 for each day or portion thereof, that the violation continues to exist.”].) ...

Excerpt: ...it is not clear whether the documents listed are all the responsive documents in Defendant's possession and does not state that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded and the reason the party is unable to comply. Furthermore, it does not set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item o...

Excerpt: ...”) for the investigation, that the agreement for services by CLA was entered into between AALRR and CLA and at no time did CLA contract with the College. (Dietrich Dec. ¶ 3.) Counsel informed CLA that the investigation was confidential and subject to attorney/client and attorney work product privileges and that CLA had been retained directly by his firm. (Dietrich Dec. ¶ 5.) At the conclusion of the CLA investigation a report was generated an...

Excerpt: ...13 for limitations.) The motion for a further response to Request for Admission No. 15 is DENIED. The motion for further responses to Form Interrogatory 17.1 is GRANTED, but limited to the Lake Elsinore store in dispute here. Generally, the discovery sought concerns defendant's defenses that it ceased operating at the leased premises and that its rent should be mitigated for the period of time it was unable to operate. The discovery sought is wit...

Excerpt: ...that, although Harney knew that Holt used drugs on the property and did not like the drug use, he took no affirmative steps to prevent it. (Ibid.) Plaintiff further alleges that Harney failed to warn failed to warn him of the dangerous condition. Plaintiff asserts that Holt, with whom he was in a romantic relationship, regularly provided drugs to Plaintiff. (Id at p. 8.) However, there are no allegations that Harney was present during these visit...

Excerpt: ...not clear when Remsen became a shareholder. At his deposition when asked when he became a shareholder, Remsen said in 2006. (Graff Decl. Ex. B p.14:15‐17.) Exhibit 3 attached to the FACI (Double D Pipeline Stock Ledger) indicates that Remsen acquired 820 shares on July 28, 2006 (pages 1 & 3), but the very same exhibit seems to indicate that Remsen acquired 820 shares on July 28, 2005 (Stock Certificate, page 16; DP000205.). Yankie claims the 20...

Excerpt: ...home to 3B for $325,000. At the time of these discussions, Cross‐Complainant Haryung was suffering from dementia and disorientation, and did not understand that the transaction that CrossDefendants were trying to cause him to engage in obligated Haryung to convey his home to them, and for far less than Mr. Haryung's equity in his home was worth. CrossDefendants took advantage of Haryung's weakness of mind and deceived him into signing papers �...

Excerpt: ...intiff is seeking for Rampage to identify or exactly what is meant by involvement in the “management” of Aerosports Trampoline or Aerosports Trampoline Park Murrieta, LLC . Given the ambiguity with the term “managers” and “management” along with the failure to limit the interrogatory as to time, the motion is denied as to Special Interrogatory Nos. 1 and 2. Had plaintiff met and conferred on this interrogatory, perhaps the meaning of ...

Excerpt: ...ficient to demonstrate that the Moving Defendant has fully performed his obligations to enforce the Settlement Agreement pursuant to Code of Civil Procedure section 664.6. Moving Defendant submits his declaration stating that the horse has been removed from the premises on November 9, 2020, and that certain photos were returned to Plaintiffs as contemplated by the Settlement Agreement. However, the Settlement Agreement, under section 2.1, require...

Excerpt: ...ullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051 [“A breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages”] [internal quotation marks and bracket omitted].) Here, the FAXC does not contain sufficient allegations of malice, fraud or oppression. Cross‐Claimant's second cause of action is based upon BCMA's alleged failure to review the Atchisons' architectural plans in good ...

Excerpt: ...g was sustained…” (emphasis added) and thus does not apply here. There had need been a prior demurrer to the pleading nor was the amendment caused by the court sustaining a demurrer. Accordingly, the demurrer is not barred for this reason. 7COA: When paragraph 81 is read in conjunction with the other allegations in the FAC, it is clear enough that the termination was in violation of the public policy protecting whistleblowers, Labor Code §11...

Excerpt: ... settled their claims for $20,000.00 and French and Voit have settled with Plaintiff for $50,000.00. The facts as set forth in Roberts' motion are that Plaintiff tripped on an uneven sidewalk. There is a dispute as to whether palm trees planted by Roberts and Ryan caused the uneven sidewalk. County contests the settlement and asserts it is brought in bad faith. While County argues that Plaintiff's damages are more than $150,000.00, it provides no...

Excerpt: ...d to him that Defendant had not taken x‐rays on the day of the manipulation. He does not state that he suspected that the failure to take x‐rays was wrongdoing by Defendant or anyone else. The testimony is vague, tacit and fragmentary and does not appear to be an unequivocal admission that he suspected wrongdoing. Defendant's evidence should be strictly construed whereas Plaintiff's evidence should be liberally construed. As such, it appears ...

Excerpt: ...on defendant Yankie's objections to the declaration of Maxim Vaynerov because the evidence subject to the objection is not material to the disposition of the present motion in that the declaration is not part of the FACI. Remsen's objections to the evidence submitted by defendants in support of their demurrers is as follows: (1) Sustained (buy‐sell); (2) Sustained (not a contradictory declaration) and (3) Sustained (Coates declaration). RJN by ...

Excerpt: ...o the injury. In a letter describing the denial of the promotion, Captain Jeremy Cody stated that one possible reason and major factor was a significant decrease in his Physical Fitness Test due to loss of upper body strength caused by a motor vehicle accident. (ARC, Ex. C.) Captain Cody also indicated that there were other reasons for the denial. (Ibid.) While documents relied on by Cody or other involved in the promotional decision are directly...

Excerpt: ...DENIED. Moving Party is admonished that omnibus discovery motions in Riverside County are not allowed for future reference. RFP 2 & 5: Plaintiff has stated good cause that the responses and documents will reveal the extent of GM's evaluation of Plaintiff's pre‐litigation repurchase demand and identify the person responsible for the denial of his demand. The documents relating to GM's policies and procedures for its compliance with statutory pro...

Excerpt: ...cle. Neither DCH nor FCA US can invoke the arbitration clause. The only parties to the RISC that includes the arbitration provision are Plaintiff and the non‐party Dealer, Bob Baker. FCA is not a third‐party beneficiary. The language of the RISC, however, does not support the argument: Any claim for dispute whether in contract or tort, statute or otherwise … between you and us or our employees, agents, successors or assigns, which arises ou...

Excerpt: ... accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” JM has...

Excerpt: ...e Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Nos. 3‐14: Neither of these are considered “facts and proposition that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, §452(h).) The Motion is DENIED. SA Food has demonstrated that it had no duty owed to Plaintiff, an employee of its hired independent co...

Excerpt: ... at the time of the alleged wrongdoing.].) Plaintiff attaches Exhibit 3 to his complaint. Exhibit 3 is described as the Stock Ledger Sheet. Plaintiff alleges the Stock Ledger Sheet was “fraudulently backdated” to show the transfer to Yankie occurred on July 25, 2005, rather than the actual date in October of 2005. (Complaint, ¶ 17.) Plaintiff also alleges that “following Mr. Yankie's sale of 820 shares of his stock to Mr. Remsen…a few mo...

Excerpt: ...further briefing. The only other materials the parties may submit if some how they cannot resolve this now is a declaration by Plaintiff whether they are seeking garden variety emotional distress. The Notice of the Motion must state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination. (CCP §2032.310(b).) Neither motion complies with this as Defendants do not identify the scope ...

Excerpt: ...hat the Moving Defendant has fully performed his obligations to enforce the Settlement Agreement pursuant to Code of Civil Procedure section 664.6. Moving Defendant submits his declaration, stating that the horse has been removed from the premises on November 9, 2020, and that certain photos were returned to Plaintiffs as contemplated by the Settlement Agreement. However, the Settlement Agreement, under section 2.1, required that “the horse cur...

Excerpt: ...ient's primary caregiver from liability for the crimes of possession or cultivation of marijuana when the marijuana is possessed or cultivated “for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician”; and the Medical Marijuana Program Act, which provides guidelines to implement the CUA. (Health & Saf. Code, §§ 11362.5, 11362.7 et seq.) In addition, after the Adult Use of Marijuana...

Excerpt: ...Defendant nearly a dozen times. His statement is not that directly clear. His declaration indicates he spoke with Plaintiff regarding the substance of the underlying investigation on 1/27/16, 2/1/16, 2/2/16, 2/2/16, 2/18/16, 2/19/16, 2/22/16 and 3/25/16. (Plaintiff's Decl. ¶5.) The other communication was for payment (2/17/16), while the other statements were communications by Defendant—not Plaintiff. Defendant submits a declaration that Plain...

Excerpt: ...e third‐party administrator. Defendants are to provide contact information to the thirdparty administrator for all residents and former residents who resided in their facility at the same time as Plaintiff Lykke Jensen, as well as the contact information for the resident's representatives. There are legitimate concerns about HIPPA and privacy. However, the court must balance the interest of the party's privacy versus the public interest in obta...

Excerpt: ...gligence in striking Plaintiff; (2) negligence in hiring and supervising the security guard; and (3) negligence by failing to provide the proper security. As to the first way to establish negligence, this is negated as indicated in the analysis of the 1COA. As to the second way to establish negligence, evidence has been provided that the third party hired the security guard. (Francisco Ruiz' Declaration, ¶ 10; Maria Agueda Ruiz' Declaration, ¶�...

Excerpt: ...ses at all.” (Appleton v. Superior Court, supra, 206 Cal.App.3d 632, 636.) FROG 1.1: “Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter” (Code Civ. Proc., §2017.) The person who prepared or assisted in the preparation of the responses may be a potential party witness and the reasons provided by Defendants are not valid objections to interrogatories supported by legal authorities. ...

Excerpt: ...skilled nursing facility arguably relates to “the physical or mental condition” of an individual within the meaning of HIPAA.” (See 45 CFR § 160.103 (“Health information means any information … that … [r]elates to the past, present, or future physical or mental health or condition of an individual”).) As such, the information sought in the interrogatories in the present case appears to be subject to HIPAA protection. However, HIPAA...

Excerpt: ...f the SUBJECT VEHICLE to the present, AHM has no written rules, policies and/ or procedures concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the state of California under the Song Beverly Consumer Warranty Act and no such documents have ever existed. Repurchase or replacement requests under the Act are evaluated in good faith on a case ‐by‐case basis.” This response is compliant with CCP § 2031.01...

Excerpt: ...unable to reach a resolution, then General Motors may file a motion to stay or quash or a motion for a protective order. No sanctions are awarded. GM's Objections to the Deposition, the Categories of Inquiry and Document Requests are procedurally improper. GM served objections to the deposition notice, including objections to each category of inquiry for the PMK and to each request for production. Objections to the deposition notice are limited t...

Excerpt: ...ond to the Complaint because they believed that Plaintiff intended to resolve the issue informally. (Decl. of Marvin, ¶20.) However, Plaintiff's counsel sent a letter to Defendants on May 30, 2020 indicating that if Defendants did not confirm in writing that they would comply with the CC&Rs and approval process before any further construction, Plaintiff would pursue legal action. (Plaint. Ex. E.) Counsel also advised Defendants of the ex parte h...

Excerpt: ...ment by making $150,000 worth of capital improvement on the Clark Property for Tiger Eye to farm hemp plants on the land. Plaintiff alleges that Defendant breached his duties under the Agreement by failing to reimburse Plaintiff for the capital improvement and to distribute his share of the profit from the secret sale of 10,000 pounds of hemp. Plaintiff also alleges that Defendant breached his duties under the Agreement by interfering with Tiger ...

Excerpt: ...ond to the Complaint because they believed that Plaintiff intended to resolve the issue informally. (Decl. of Marvin, ¶20.) However, Plaintiff's counsel sent a letter to Defendants on May 30, 2020 indicating that if Defendants did not confirm in writing that they would comply with the CC&Rs and approval process before any further construction, Plaintiff would pursue legal action. (Plaint. Ex. E.) Counsel also advised Defendants of the ex parte h...

Excerpt: ...ment by making $150,000 worth of capital improvement on the Clark Property for Tiger Eye to farm hemp plants on the land. Plaintiff alleges that Defendant breached his duties under the Agreement by failing to reimburse Plaintiff for the capital improvement and to distribute his share of the profit from the secret sale of 10,000 pounds of hemp. Plaintiff also alleges that Defendant breached his duties under the Agreement by interfering with Tiger ...

Excerpt: ...rect and were necessarily incurred in the case.” (CRC 3.1700(a)(1).) Further, the motion is not identified as a memorandum of costs and did not provide Defendants with sufficient notice in order to file a proper motion to tax costs. (See CRC 3.1700(b)(1) [notice of motion to tax costs must be served and filed 15 days after service of the cost memo].) Because of the absence of the memorandum of costs, the court may not award litigation costs, an...

Excerpt: ...to be the “sole and proximate cause” of the accident. (SAC p. 5.) This defect is not curable since the car accident did not occur on Harney's property. The SAC alleges that Harney owns real property located on Calle Cabernet in Temecula. (SAC p. 6 ¶1.) It is alleged that from 2016 to 8/20/18, Plaintiff regularly visited and spent time at Harney's property with Holt, which Harney was aware of. (SAC p. 6 ¶2.) Plaintiff alleges that Harney kne...

Excerpt: ...f material fact regarding causation. (Ian Jenkins, M.D.'s Declaration, ¶ 9; Samuel Pleasure, M.D.'s Declaration, ¶¶ 8 and 11.) Plaintiff has provided declarations from medical experts to show the triable issues. The declarations indicate that Altriki failed to meet his required standard of care and that his conduct caused Plaintiff's injuries. Ian Jenkins, M.D. opines that Altriki, as the supervising physician, fell below his standard of care ...

Excerpt: ...App.4th 631, 635. “An agency is ostensible when a principal causes a third person to believe another to be his agent, who is really not employed by him.” J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403. Ostensible agency is implied where a plaintiff obtains treatment from a hospital, absent notice to the plaintiff that the doctors treating her are independent contractors. Mejia v. Community Hospital of San Bernardino (2002)...

Excerpt: ...ciently pleads that defendant acted with conscious disregard of the likelihood that its failure to provide appropriate monitoring of decedent would cause her injury. Additionally, against the corporate defendant the allegations are also sufficient. The SAC alleges that the corporation itself made the policies of understaffing to maximize profits and that their Executive Director, arguably a managing agent, implemented the very policies that alleg...

Excerpt: ... decedent Dietrich Thomas was employed by Defendant Barbarian Transport, Inc. at the time of the subject accident. Defendants also contend that the decedent was working “in the course and scope of his employment” with Barbarian Transportation, Inc. when the accident occurred. As evidence, Defendants submit a subpoenaed copy of the Application for Adjudication of Claim filed with the Workers' Compensation Appeals Board (“WCAB”), which was ...

Excerpt: ... account, leading plaintiff to believe it was necessary as part of processing her entrance into the College and the basketball program. Plaintiff contends that subsequently someone filed a fraudulent FAFSA application with the Department of Education with egregious misrepresentations of facts. Plaintiff asserts she did not file the fraudulent FAFSA Application. The fraudulent FAFSA generated money illegally and Mozga is alleged to have told Plain...

Excerpt: ...ter); (3) intent to deceive and induce reliance; (4) justifiable and actual reliance on the misrepresentation; and (5) resulting damage. Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) The Second Amended Complaint alleges that St. Pierre, the President of the Community Water Agency misrepresented facts regarding the Water A...

Excerpt: ... exists. Declaratory Relief: The COA for Declaratory Relief fails because there is no actual or present controversy between Plaintiff and Defendant “with respect to their interests in the Subject Property and their rights and duties under the Oral Agreement.” First, in a prior unlawful detainer action filed by Defendant against Plaintiff in November 21, 2018, relating to the sublease of the subject property, a judgment was entered in favor of...

Excerpt: ...f the court finds the following two things: (1) the admission resulted from mistake, inadvertence or excusable neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (CCP §2033.300(b).) \ The court finds mistake, inadvertence and/or excusable neglect. The motion is accompanied by the declaration of Plaintiff's Attorney Shelly Ziese who states she made an inadvertent t...

Excerpt: ...discovery is not limited to documents admissible at trial. Discovery may concern information that is itself admissible or that is reasonably calculated to lead to admissible evidence. Documents related to the technical service bulletins for the subject vehicle may be admissible in evidence, but, even if they are not, the bulletins may lead plaintiff to other evidence and witnesses that are admissible. As to No. 26: This is similar to No. 25. Just...