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

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

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

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

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...