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...

Excerpt: ...cer Drootin had no duty to enforce the DVRO and CPO is persuasive. This is based on the general duty that “a police officer does not owe a private citizen a duty to arrest any person, or otherwise protect another person against crime.” (Dem. p. 17:23‐24; see Bom v. Sup. Ct. (the People) (2020) 44 Cal.App.5th 1, 15‐16 [police officers may arrest a suspect when there is probable cause to believe the suspect committed a crime, which is withi...

Excerpt: ...el by the deadline for the service of responses and objections and filed a week later, the Motion is sufficiently prompt. Merits: Bertrand propounded 60 RFAs. Counsel served a declaration in compliance with section 2033.050, which states that the number of RFA is warranted under Section 2033.040 because of the complexity or the quantity of the existing and potential issues in the case. However, other than stating that he is entitled to discovery ...

Excerpt: ...on of Documents (Set One) [RPDs] on 6/10/20; FCA served its original responses on 7/15/20. (Dec.Lotardo ¶¶13‐14, Ex. “2”.) On its face, the motion for a protective order seems to be untimely. However, importantly, the RPDs did not specifically request the Moran Class Action documents. (Dec.Lotardo ¶13.) In fact, discussion about the Moran documents came up during meet and confer efforts concerning Plaintiff's motion to compel further res...

Excerpt: ...t parts not available are evidentiary facts which Plaintiffs ultimately need to demonstrate, but not at the pleading stage. 4COA (CC section 1791.2(a): The warranty need not be attached to the Complaint. “[I]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) 5COA (...

Excerpt: ...tent, unless the defect is obvious in the context of common experience, and then it may be decided as a matter of law, including on summary judgment. (Creekridge Townhome Owners Assn. Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256 [reversing summary judgment granted in favor of defendant because of triable issues of material fact regarding whether the defect was apparent on reasonable inspection].) As to the complete and accepted ...

Excerpt: ...ased on impossibility, and there are no provisions in the contracts indicating Plaintiffs must resort to an alternate date. “The object of a contract must be possible and ascertainable by the time the contract is to be performed.” (Civ. Code, §§1595, 1597, 1596.) Where a contract has a single object that is wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. (Civ. Code, §1...

Excerpt: ...e is whether Plaintiff's response to Defendant's statements constitute a matter of public interest. There is no authority in this regard. It is Plaintiff's burden to show that it has met the first prong that this is a matter of public interest. To the court these statements are not so much a matter of public interest but rather to protect Plaintiff's reputation and business interest. However, the court will conclude that the first prong was met a...

Excerpt: ...ion was late it was responded to and is considered on its merits. There is no rule prohibiting an attorney‐party from representing another party; to the extent there may be a potential conflict between the attorney's interests under those circumstances and the clients, the opposing party would have no standing to intrude on the relationship to raise the conflict. DCH Health Services Corporation v. Waite (2002) 95 Cal.App.4th 829, 832. Thus, the...

Excerpt: ...n this ground, or by affirmative defense in the answer.” (Weil & Brown, CPG: Civ. Proc. Before Trial (TRG 2020) §2:185, citing CCP §430.10(d); §2:196, citing CCP §430.80.) The Complaint was filed on 4/17/19. AHM filed its Answer on 9/17/19, which did not challenge the failure to join Alltizer. AHM did not demurrer to the Complaint based on a failure to join Alltizer. The Retail Installment Sale Contract (RISC) is attached to Mr. Dowling's d...

Excerpt: ...tiff's allegations do not amount to the type of egregious conduct to meet the standard for “neglect” under the Elder Abuse Act. Plaintiff lists various conduct which Defendants' committed “recklessly.” (Complaint, ¶15.) However, WIC section 15657.2 requires specific allegations of recklessness as to how Defendants' acts involved more than mere inadvertence or incompetence, but rises to the level of conscious choice of a course of action ...

Excerpt: ... Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1280‐1281, fn. 11. The evidence provided by Defendants appears to indicate that the agreement is a contract of adhesion. Quest's Senior Director of Human Resource Business Partner states that as part of the new hire paperwork for all, all new hires are given the arbitration agreement to sign. The arbitration agreement has no opt out provision. As such, it appears that all new hires...

Excerpt: ...e document. (See Declaration of Monica Torres in Reply, ¶¶ 3‐6.) The court is not persuaded by Plaintiff's reliance on Campbell v. General Dynamics Government Systems Corp. (1st Cir. 2005) 407 F.3d 54. The Agreement explicitly provides that it is governed by the FAA. (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122 [finding agreement to arbitrate pursuant to the FAA enforceable]. Clearly, the situation affects i...

Excerpt: ... Bell fail due to Plaintiff's failure to exhaust administrative remedies. Defendants have established that AT&T and Pacific Bell are separate entities. Neither the caption nor the body of the DFEH names or references Pacific Bell or AT&T California. (Id.) As such, Defendants have demonstrated that Plaintiff failed to exhaust administrative procedures as to Pacific Bell. As to Issue 8, the MSA is GRANTED. To the extent that Plaintiff's Hostile Wor...

Excerpt: ... Co. (1988) 44 Cal.3d 1103, 1111.) The SAC specifically provides that “Ms. Cooper's death was sufficient to put Ms. Cooper's family, including Plaintiffs herein, on notice that some negligence or wrongdoing on Defendants' behalf may have caused or contributed to Ms. Cooper's death.” (SAC ¶9.) This means Plaintiffs agree the statute of limitations began running on the date of Ms. Cooper's death – June 21, 2016. Seven months later, Plaintiff...

Excerpt: ...rly declining coverage based on an exclusion that Defendant knew did not apply, (Compl., ¶8) and then continuing to delay investigations and payments. (Id at ¶¶ 10, 12, 15, 16 and 18.) Plaintiff asserts that Defendant intentionally ignored a plumbing report from Plaintiff's inspector showing that the water damage was caused by vandalism when the toilet was clogged with debris, and instead fraudulently claimed that the damage was caused by long...

Excerpt: ...bability of prevailing on the claim and as such the Motion should be denied. The matter is not summarily decided on the issue of illegality. Defendant does not concede the extortion and because there are competing declarations regarding the alleged extortion. So the evidence does not conclusively establish the actions of Defendant were illegal as a matter of law. In contrast in Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, the court found that ex...

Excerpt: ...the property would be transferred from Defendant's name to the name of Plaintiff's children, Norma and Damien, not in Plaintiff's name. This argument is untenable. Under Civil Code § 3050, Plaintiff has an equitable interest in the property as security for the reimbursement of any consideration paid, including any down payment and consequential expenditures for improvements, taxes and insurance. (Civil Code § 3050; McCall v. Sup. Ct. (1934) 1 C...

Excerpt: ... America, Inc. (2019) 42 Cal.App.5th 1062 and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836. In contrast, here Defendant submitted ample evidence with its moving papers about the electronic process and the protections in the ADP Vantage HCM process to ensure that the documents were indeed signed by Plaintiff. The process and its protections are set forth in the declaration of Adam Dolak. The process requires employees to create t...

Excerpt: ...t, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., section 366.2(a).) Subdivision (b) of CCP section 366.2 goes on to state, “The limitations period provided in this section for...

Excerpt: ...that Fresh Start had knowledge that Plaintiff did not have the ability to find out about the undisclosed fact before they moved in. (Second Amended Complaint, ¶¶ 233, 237, and 242.) Plaintiffs identify in the complaint who at Fresh Start knew about the bedbug infestation. (Second Amended Complaint, ¶ 234.) Fresh Start allegedly knew about the bedbug infestation from the tenant who occupied the rental before Plaintiffs and who sued Fresh Start ...

Excerpt: ...area of concern or discussions pertaining to other situations similar to the cause of death here. As authored, the request is so broad that conceivably the responding party would provide unlimited revelation of it's Board's discussion. RFP40: The Motion is DENIED under EC1157. However, Defendant must provide privilege log and is so ordered to do so. Discovery of documents relating to mock survey may be prohibited under Evidence Code section 1157....

Excerpt: ...rom the account where Defendant is believed to have made payments relating to the purchase of the subject property. Defendant acknowledges this Wells Fargo bank account is the account he used when he purchased the subject property. (Motion at p. 2:19‐21.) Plaintiffs assert they are the equitable owners of the property under the doctrine of resulting trust as they paid the consideration for purchase of the property. To prove this theory, Plainti...

Excerpt: ... Cerullo World Evangelism (2016) 6 Cal.App.5th 1207 (promissory estoppel claim based on written promise).) The cause of action for breach of contract accrues when the contract is breached. (Romano v. Rockwell, Int'l, Inc. (1996) 14 Cal.4th 479, 488.) Plaintiff alleges Defendants breached the 2014 and 2015 Agreements by failing to pay commissions earned from October 5, 2015 to December 11, 2015, which were due and payable on January 20, 2016. (Com...

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: ...ll concerning hostile, rude, or demeaning comments that affected Plaintiff's social environment of the workplace, but rather allegations of Defendants' managerial role. Harassment requires factual allegations which “focuses on situations in which the social environment of the workplace becomes intolerable because the harassment… communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) Pl...

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: ...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: ...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: ... (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: ...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: ...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: ...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: ...contrast, Dr. Neal's expert, Dr. Bruce Kahn states that Dr. Neal's conduct was at all times within the appropriate standard of care. (Deft's Ex. M, Decl. of Kahn, ¶6.) He explains that bladder injury is clearly known risk and complication for a total vaginal hysterectomy and the type of injury Plaintiff's suffered does not suggest a breach in the standard of care. (Id at ¶6(a).) He opines that Dr. Neal's actions did not cause Plaintiff's ureter...

Excerpt: ...erwise improper for counsel to instruct a witness to not answer on any other ground. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) “[I]rrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Id. at 1014.) As to No. 1 (the identity of those on the Qualified Improvement committee), committee member identities are protected and not discoverab...

Excerpt: ...the cause of action is tested by presuming that all of the material factual allegations in the complaint are true, unless the allegations are contradicted by exhibits or judicially noticed material. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, counts two and three of the first cause of action are alleged against Does 1 to 100 and are not subject to challenge by defenda...

Excerpt: ... in retaliation for her complaints about Dr. Rahmany. Rather, the SAC suggests that Loma Linda granted the medical leave as an accommodation. There are no allegations of retaliatory animus and the SAC indicates that the Loma Linda personnel Plaintiff complained to were sympathetic. See Paragraph 46. Although the allegations may show a failure to prevent harassment in violation of Cal. Gov. Code § 12940(k), Plaintiff has not established that any ...

Excerpt: ... of evidence but do not show that Plaintiffs cannot reasonably obtain evidence to support their claims. Thus, Defendants' have not met their initial burden. In the Reply, Defendants concede that there may be one or more triable issues of material fact as to the breach of contract action. Defendants themselves demonstrate this by referring to the declaration of Plaintiffs' expert, Steve Swanson, who wrote a home inspection report dated 5/11/18. De...

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...

Excerpt: ... that the 2016 Agreement is the entire agreement between the parties. (Ex. 3 to Defendant's Notice of Lodgment.) Plaintiff does not dispute executing the 2016 Agreement. As such, the 2016 Agreement is the governing agreement and the analysis below relies on the 2016 agreement. Waivers of arbitration agreements are not inferred lightly. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.) Plaintiff has not establish...

Excerpt: ...y that terms, whether it could be physical, mental, emotional, etc., as well as the nature and extent of the injuries or the alleged body parts involved. Calls for expert opinion. Premature as discovery and investigation is [sic] continuing. This responding party is unable to admit or deny and on that basis must respond as follows: Deny. 13. Objection: Calls for speculation, expert opinion, legal conclusion and non‐economic damages is an issue ...

Excerpt: ...ntiff has failed to comply with Rule 3.1324(a) and (b). Although Plaintiff provided a copy of the proposed First Amended Complaint (FAC), he has not provided a document stating what allegations are proposed to be deleted and/or added by page, paragraph and line number as required under Rule 3.1324(a). Plaintiff has not provided a declaration explaining the purpose and effect of the amendments or why the amendments are necessary and proper, which ...

Excerpt: ...ertain real property known as the “Carancho Property”. (FAXC ¶21.) Candee alleges on information and belief that on 6/22/15, after the Judgment was entered, Abdullah prepared and backdated quitclaim deeds (to 6/11/15) to allow Gabriela Ayoub to transfer her entire interest in the Carancho Property to “hinder, delay, and defraud Candee” as part of Abdullah's post‐verdict “asset protection.” (FAXC ¶¶23, 26.) It is alleged that when...

Excerpt: ...dant was motivated by animus against the disabled. (Turner v. Association of American Medical Colleges (2008) 167 Cal. App. 4th 1401, 1411.) A policy that is neutral on its face is not actionable, even if it has a disproportionate impact on a protected class. (Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal. App. 4th 1224, 1238, cable provider's policy requiring all customers to subscribe to the same package even though blind customers could...

Excerpt: ...ion to sales associates in 1 are to be redacted as this information is not relevant. Sanctions to the Moving party are awarded in the amount of $1830.00, which reflects 6 hours at $295 plus costs. Analysis: The documents at issue all pertain to Plaintiff's vehicle, condition of Plaintiff's vehicle and the purchase of said vehicle. As such, there appears to be good cause for production of the documents at issue in this motion. The employee commiss...

Excerpt: ...ake “[a]ll actions necessary to properly represent and protect Plaintiff's Interest in the Action, would be undertaken and performed”; 2) that “[t]he Opposiiton to unjust support and property division orders would be well founded, and had ‘an excellent chance for success'”, and 3) that “Rosenfeld could and would, for the flat sum of $15,000, perform all necessary services to properly represent and protect Plaintiff's interest in the A...

Excerpt: ...s, handling of financing, supervising facility staff, and disciplining staff at Parkside. Under the doctrines of respondeat superior and agency, Parkside would be liable for Uy's conduct within the scope of his employment/agency. Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208; RSB Vineyard, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1099. As to the facts on the 1COA more than enough is alleged. The SAC asserts that Parkside and Uy knew tha...

Excerpt: ...ve been taken earlier. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 725, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512 [trial court properly denied reconsideration where movant failed to provide an adequate explanation for the failure to obtain deposition testimony earlier and failed to request a continuance of the summary judgment motion].) Here, the supporting declaration fails to provide any exp...

Excerpt: ...al contract.” Yet Plaintiff references a “fully executed agreement.” (See Complaint ¶ 8.) Further Plaintiff has a separate cause of action for breach of implied contract. Plaintiff has failed to allege the terms of any oral contract of fully executed agreement word for word or according to legal intendment. (Complaint ¶¶ 5‐11.) Plaintiff alleges that she was supposed to have a ½ interest in their “forever home” but does not allege...

Excerpt: ...ssary and proper, when the facts giving rise to the amendment were discovered, and the reason this motion could not have been made earlier. Id. at (b). Helen Wang's declaration makes no attempt to address why this motion could not have been made earlier. This issue is not addressed in the memorandum of points and authorities either. Based on a November 9, 2017 letter sent to Schoonmaker, Plaintiffs were aware that Schoonmaker had failed to produc...

Excerpt: ... confer on this issue before the hearing. The 17th document requests should also be limited in time. Analysis: The technical opposition on the timing of the motion being premature is denied. C.C.P. § 2025.410 specifically allows for a motion to quash when a deposition notice has been served on a party. The materials sought are relevant to the litigation. However, 5,6,10,11,12, 26, 27 and 29, could lead to information that has nothing to do with ...

Excerpt: ...ah's active participation in the fraudulent transfers as an aider and abetter. Defect/Misjoinder of Parties: Abdullah has not shown Abuzeid or Payan to be indispensable parties. Abuzeid merely drafted the Ayoub Trust and formation documents for Thurber Ranch, LLC. Payan merely conducted a survey. Neither of these acts were wrongful. Uncertainty: With each and every cause of action surviving, the challenge based on uncertainty is Overruled. 3COA (...

Excerpt: ...curity Services USA, Inc. (2018) 23 Cal. App. 5th 745, 757.) PAGA's standing provision requires only allegations that the plaintiff is an aggrieved employee. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 546.) Unlike a class representative in a class action lawsuit, the PAGA representative is not required to establish that her claims are typical of all aggrieved employees. (Huff, surpa, 23 Cal. App. 5th at 757.) The FAC but includes all ...

Excerpt: ...lopment, as the builder, developer and original owner of the subject property, filed numerous plans, specifications, deeds and other documents wherein he misrepresented the square footage of the property. (TACC, ¶ 59.)1 It asserts that the marketing and sales materials provided to Mainstream by the Sellers and their Brokers were based on information contained in the documents created by Cross‐Defendants and their alter egos. (Id at ¶60.) As s...

Excerpt: ... 514) The court declines to rule on Defendants' evidentiary objections because the burden never shifted to Plaintiff, Plaintiff's evidence was not considered. Analysis: The landlord had actual knowledge of the dogs' existence. Couch instructed the property manager, Higginson, to advise the tenants that the dogs needed to be removed. (UMF 6,7.) . The landlord was aware that the Department of Animal Services had responded to multiple reports re...

Excerpt: ...on and what is her standing. Analysis: It is clear that the parties agreed to allow the enforceability of the arbitration clause to be decided by the arbitrator. (See Motion, Agreement, p. 7.) However, the court still has to decide whether there is a contract defense. (See Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891‐892.) Whether or not the parties agreed to arbitration is a contract defense. That does not go to the arbitrator. Th...

Excerpt: ... an integration clause in the contract – an established exception to the parol evidence rule).] Neither the parol/extrinsic evidence rule nor the statute of frauds precludes evidence of fraudulent misrepresentation, concealment, or promissory fraud as an inducement to making an agreement, whether the representations are consistent or inconsistent with the written agreement. This exception allows admission of extrinsic evidence whether or there ...

Excerpt: ... injury and/death if Meraz were not provided constant monitoring and custodial care. (Complaint, ¶ 13.) Despite this knowledge, Plaintiffs allege Defendant consciously refused to provide for the care and safety of Meraz. (Complaint, ¶¶ 12, 13, 18, 19, 33, 34.) Plaintiffs allege Defendant ran a minimum expense operation to the detriment of the needs of its residents by understaffing the facility and failing to comply with state law so as to cut...

Excerpt: ... with the leased area that the tenant occupies, but is sometimes less or greater. Premises includes such means of ingress and egress as a customer may reasonably be expected to use. (Schwartz v. Helms Bakery Ltd. (1967) 67 Cal.2d 232, 239.) Defendant's own evidence shows the incident occurred right in front of the Guest Services Booth, just a few feet away and directly in front of one of TCSE's employees. (Defendant's Evidence, Ex. 2; see also Pl...

Excerpt: ...upport this cause of action. The theory laid out is that plaintiff submitted a loan application, and that rather than engage in a discussion of alternatives with the plaintiff at the address specifically identified in her application (and in her CFPB complaint), defendant instead deliberately sent communications to what it knew to be the wrong address. This is sufficient to allege a concealment of the fact that defendant was sending communication...

Excerpt: ...reclosure proceeding arising out of Defendants' failure to provide proper notice in accordance with the DOT. See Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 975‐76.) Moreover, even if not barred by the UD action, Plaintiff fails to plead the existence of a viable contract with SDS, and her contract claims necessarily fail. (Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 999 [elements of a cause of action for...

Excerpt: ...with the leased area that the tenant occupies, but is sometimes less or greater. Premises includes such means of ingress and egress as a customer may reasonably be expected to use. (Schwartz v. Helms Bakery Ltd. (1967) 67 Cal.2d 232, 239.) Defendant's own evidence shows the incident occurred right in front of the Guest Services Booth, just a few feet away and directly in front of one of TCSE's employees. (Defendant's Evidence, Ex. 2; see also Pla...

Excerpt: ... Ms. Holliday and Dr. Kim told Mr. Watson to go home and get pain medication. (UMF No. 12.) Mr. Watson looked into the room but, could not see exactly what Dr. Kim was doing because they blocked him. (UMF No. 13.) Mr. Watson left and returned with the medication and knocked on the room door, which was opened, and he handed the medication to Ms. Holliday. (UMF Nos. 14‐15.) The door to the examination room was closed again and he waited outside. ...

Excerpt: ...ons are due within 20 days. Analysis: Defendant PHH served the same objections to each and every discovery request. Defendant states that the request/interrogatory is improper because “Plaintiff has not exhausted her administrative and/or judicial remedies,” and Plaintiff's claims are subject to arbitration. Defendant also asserts boilerplate objections including attorney‐client privilege, attorney work product, right to privacy, relevance,...

Excerpt: ...ave been treated in the same manner.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal. 4th 264, 280.) It is not clear whether Plaintiff's gender was a substantial factor in the harassment or that Stovall would have behaved differently if Plaintiff had been a man. There are no allegations that Stovall showed the pornography to Plaintiff or that she even saw it or that the profanities were gender‐ specific. The exit interview was ...

Excerpt: ...eclaration, ¶¶ 15‐18.) While Defendants' could have moved quicker in regards to performance under the settlement agreement, not all the delays in complying with the terms of the agreement were solely their fault. There was a dispute between the parties as to what information would be handed over to Defendants as part of the surrender of the vehicle. It took over a week for this issue to be resolved. (Jeffrey C. Schmid's declaration, ¶¶ 6‐...

Excerpt: ...nsel indicated that his client had relocated to England and that he was unsure whether the case would move forward. Further, Plaintiff failed to respond to Defendants' inquiries regarding the court‐ordered mediation and gave every appearance that she was not going to litigate this matter. Moreover, the failure of Plaintiff's counsel to provide a written warning appears problematic in light of clear indications that Defendants were continuing to...

Excerpt: ...tered California process server declares that he personally served Defendant on November 6, 2018 at an address on Vandon Drive in Temecula. Plaintiff filed a second Proof of Service showing that the FAC was personally served on Defendant on December 1, 2018 at the same address. The Moving party's assertion is vague and does not rebut the presumption of proper service created by the process server's declaration. Defendant does not affirmatively st...

Excerpt: ...2016) 63 Cal.4th 148, after reviewing the statutory language (of the Elder Care Act) and legislative history, the Court made three observations. First, that the legislative history indicates that the Legislature was “principally concerned with particular caretaking and custodial relationships, and the abuse and neglect that can occur in that context.” (Id. at 162.) Therefore, the Act required a caretaking or custodial situations. (Ibid.) Seco...

Excerpt: ...ns indicating that Loma Linda authorized Tri‐Valley to conduct any transactions with Plaintiff. Furthermore, to the extent Tri‐Valley was acting as a supervisory agent of Loma Linda, the allegations against Tri‐Valley involve only personnel management actions, which does not constitute harassment. Further, based on the factors enumerated in Vernon, Plaintiff has not established a joint employment relationship. There are no allegations that ...

Excerpt: ... the facts necessary to sustain its burden of proving jurisdiction. (Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.) “The plaintiff must present facts demonstrating that the conduct of defendants related to the pleaded causes of action is such as to constitute constitutionally cognizable minimum contacts. (Elkman v. National States Insurance, Co. (2009) 173 Cal. App. 4th 1305, 1313.) Plaintiffs allege that Defendant ATL Vaping, Inc....

Excerpt: ...uipment that Nature Works has sold to other entities and said equipment resembled the playground equipment Nature Works built for it. (Declaration of William Becerra, ¶ 14.) No evidence is provided that Nature Works never makes the same type of equipment twice, that the equipment built for City had distinct characteristics for work typically done by Nature Works, or that Nature Works typically does not make the type of equipment ordered by City....

Excerpt: ... To find an agreement unconscionable, there must be a finding of both procedural unconscionability and substantive unconscionability, but they need not be equal in measure; a finding of strong procedural unconscionability, coupled with a lesser degree of substantive unconscionability could still result in a finding of unconscionability, as could a finding, which reverses the degree. Here the court finds minimal procedural unconscionability and no...

Excerpt: ...neglect that he failed to originally designate Dr. Polsky. He claims that it was not until just recently that he realized Defendants would offer witnesses who intend to testify that the dogs were too friendly to have attacked Plaintiff. Counsel sought relief promptly upon realizing this and has made Dr. Polsky available for deposition immediately. Further, Defendant has not shown any prejudice in allowing the augmentation of the Plaintiff's exper...

Excerpt: ...c. (“Atria”) (e.g. claims for refund, breach of contract, intentional tort, wrongful death, elder abuse, unfair business practices)…will be determined by submission to arbitration as provided by: (1) the Federal Arbitration Act (“FAA”). 9 U.S.C. Sections 1‐16, or (2) CA law, in the event a court determines that the FAA does not apply. This includes claims or action regarding whether the care or services you received, or lack of care o...

Excerpt: ...e that he first made a reasonable inquiry of other members of his firm and the associated law firm.  CMO, § E(1)(f) ‐ Counsel provides a general summary of the case and includes both factual and legal bases for the claims. See Lidman Decl., ¶¶ 15‐20. However, the discussion is wanting with respect to the PAGA claim. A further discussion is warranted with respect to the specific statutory violations upon which Plaintiff bases the PAGA cl...

Excerpt: ... argues that Plaintiffs are seeking an endrun around Bankruptcy protections (limiting damages to available insurance), they do not offer any authority that would preclude Plaintiffs from seeking recovery from Uy. Even though Parkside argues that it will be prejudiced because it must evaluate and defend against Plaintiffs' new allegations, this is not the type of prejudice that would support a departure from the liberal policy of permitting amendm...

Excerpt: ...acity, and there are claims for wrongful death, and a survivor claim. 1COA (Elder Abuse): The Complaint sufficiently alleges the elements of an elder abuse claim. The Complaint alleges that Decedent suffered various wounds due to Devonshire's failure to provide sufficient staff to care for her, which led to infection on her leg; failed to provide nutrition, hydration, and basic care for her wounds. (Compl. ¶¶23‐24.) It is alleged that Deceden...

Excerpt: ...within the limited parameters of Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113, and Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879. The purpose of section 128.7 is to deter frivolous filings. (In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 826.) “A claim is factually frivolous if it is not well grounded in fact and it is legally frivolous if it is not warranted by existing law or a goo...

Excerpt: ...o the 2COA for failure to state facts, SUSTAINED WITHOUT LEAVE to amend as to the 4COA and 5COA for failure to state a facts and OVERRULED as to the 3COA and 6COA. 2COA: Missing from the FAC is what actually was on the internet regarding the Essure procedure. Plaintiff alleges defendants statement in Paragraph 42 was false, but how so? This causes the pleading to fail to allege the requisite specificity. 3COA: With Paragraph 53 enough is alleged ...

Excerpt: ...rity exists for the premise that an individual is precluded from pursuing tort claims against a wrongdoer's agents, even though the individual could potentially have contract claims against the wrongdoer. Next, an individual cannot use an exculpatory clause to waive its liability for fraud. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402. Under Civil Code § 1668, a contract that exempts anyone from responsibi...

Excerpt: ...enses. (See Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698.) They are preserved for attack by the general denial to the Complaint. As to the 1st to 8th affirmative defenses, the Demurrer is OVERRULED because defendants have alleged sufficient facts to support the defenses and there is no uncertainty. The defenses are sufficiently alleged to apprise plaintiff of the nature of the defense and discovery will allow plaintiff to obtain greater details...

Excerpt: ... should have known had been the subject of multiple complaints and whom it knew was incapable of completing the work. See FAC, ¶ 27. So the FAC set forth alleged duties that were independent of any contractual obligation to remediate the water damage at Plaintiff's premises. The argument about the special relationship pleading was raised for the first time on Reply and was not considered. However, even if this argument is considered on its merit...