Excerpt: ...asoning underlying the demurrer and motion to strike. (Declaration of Harry H. Terzian, '14.) Defendant fails to provide details about when the call was made, who made the call and to whom a message was left. Thus, the court gives more weight to the view of plaintiff's attorney. Thus, the Court will not continue the hearing to allow the parties to meet and confer. It is doubtful any meet and confer discussion will be productive. The Court will th...

Excerpt: ...ections — all overruled. The court does not consider evidence in connection with a demurrer, unless it can be judicially noticed. Cross-complainants are borrowers of a defaulted commercial loan seeking to recover damages from the lender and others based on allegations of misrepresentation. Plaintiff U.S. Real Estate Credit holdings III-A, LP ("USRECH") seeks judicial foreclosure of the real property given as security for the loan and seeks dama...

Excerpt: ...hol license. The Landlord received a Notice of Violation from the City of Temecula related to these activites. Lieberg went to the premises to post the Three-Day Notice and heard activity going on inside the building. He unlocked the door and saw three women decorating and setting up alcohol bars. Plaintiff contends he merely asked if Cooke was there, took some pictures, and left. Cooke alleges that Plaintiff harassed women during a photo shoot w...

Excerpt: ...o evict Plaintiffs in LJDSW 2200612 (UD #2.) Plaintiffs allege that the property was governed by the Tenant Protecton Act of 2019 (TPA), and the Tenant Relief Act of 2020 (TRA.) Plaintiffs also allege that beginning in March of 2020, they were excused from paying rent under Civil Code 51511 (performance excused) due to COVID-19 regulations. In March of 2020, Wells was furloughed due to COVID-19 regulations, and laid off in August of 2020. She so ...

Excerpt: ... respect to Auto Club, Plaintiff alleges that it acted negligently, carelessly, and recklessly in its handling of her application and/or cancellation of automobile insurance coverage that specifically took her out of coverage for the October 11, 2020 loss, and that as a result, she suffered economic harm and loss. (ld. at "14243.) Auto Club now demurs to the 4th COA for negligence on the grounds that (1) it fails to set forth sufficient facts to ...

Excerpt: ...events and served alcohol at the premises despite not having a certificate of occupancy' or an alcohol license. The Landlord received a Notice of Violation from the City of Temecula related to these activities. Lieberg went to the premises to post the Three-Day Notce and heard activity going on inside the building. He unlocked the door and saw three women decorating and setting up alcohol bars. Plaintiff contends he merely asked if Cooke was ther...

Excerpt: ...to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.A...

Excerpt: ...oss-Defendant's evidentiary objections as to nos. 1-14, 16-23, 78-73; OVERRULE as to no. 15. Decline to rule on nos. 24-67 and 74 because the evidence objected to is moot and thus, was not material to the court's analysis. DENY the motion. The motion for summary adjudication is procedurally defective, and Cross-complainant failed to meet her initial burden on summary judgment that no triable issues of material fact exist. Analysis: This is an HOA...

Excerpt: ...this noticed Motion, and the parties agree that Plaintiff is the prevailing party. Plaintiff now move the court for an order awarding attorney's fees under the lodestar method. In support of his motion, Plaintiff submitted the declarations of Attorney Richard Wirtz and Attorney Amy Rotman. In support of their opposition, Defendant submitted the declaration of Attorney Adjoa Anim-Appiah. With his reply, Plaintiff submitted evidentiary objections t...

Excerpt: ... respectively. Requests for Judicial Notice: The Requests for Judicial Notce by Plaintiff Phoenix Capital Group Holdings ("Phoenix Capital"), and the Request for Judicial Notice by Cross-complainant, Keith Candee ("Candee") will both be denied. The matters contained in Phoenix Capital's RFJN are immaterial for purposes of a General Demurrer. The court does not decide a demurrer by factual inferences like the ones raised by Phoenix Capital. Candee...

Excerpt: ...ion to Defendants' care and treatment of Mr. Suh while he was a patient at Loma Linda university Medical Center from December 31, 2019 to January 5, 2020, resulting in injuries to Mr. Suh. Defendants now bring this Moton for Summary Judgment, or in the alternative, Summary Adjudication, on the grounds that the care and treatment prov-ded to Plaintiff while he was a patient at Loma Linda Murrieta at all times met the standard of care, and as such,...

Excerpt: ...ition. Trivial Defect? The condition of the sidewalk was minor, or trivial. The County asserts that Plaintiff tripped on the raised edge of a sidewalk, and fell on 12/26/20 at 41161 Orange Place in Hemet. (Undisputed Material Fact [UMFI Nos. 1-2.) Plaintiff and her husband own the property, which their daughter rents from them. (UMF Nos. 3-4.) On 1/15/21, the County measured the sidewalk deviation, which was 1 % inches, with no jagged edges or br...

Excerpt: ...ential evidence "may exist but cannot, for reasons stated, be presented, the court shall deny the motion" or contnue it for a reasonable period, or "make any other order as may be just." (CCP S 437c(h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Yet, Plaintiff has not done that. As a result this Motion is supported by expert opinion that the standard of care was not breached, but not controverted by expert opinion. In support of...

Excerpt: ...er of law involves a twostep process: First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a...

Excerpt: ...NIED claim, which fails for additional reasons discussed below.) Each claim is based on Moda's alleged theft of Ray's confidential client files, and his subsequent act of giving the files to Mozer. (Comp„ "1 66, 77, 91, 99.) Debbie, Thornton, Thornton Yachts and/or EAMT are not real parties in interest as to the theft of Ray's client files. Without such factual allegations, they lack standing. ICOA (Return of Stolen Property): As demurring Defe...

Excerpt: ...ng school hours." (Comp. , 6.) However, Plaintiff was "violently sexually assaulted in the bathroom by DOE 1, and/or DOES 2-11N, while the s#cial education aide assigned to LH. was not carrying out his or her duties." (ld. at 9.) Plaintiff incorporates those allegations into his 2nd cause of action and further alleges that Doe assailant's conduct was intentional and sexually offensive. (Comp., 29-30.) Plaintiff also alleges that District "knew th...

Excerpt: ...e 3. It then states the issues regarding the first and second causes of action are set forth together on page 12. This would be improper. Each cause of action where summary adjudication is sought must be separately set out. (California Rules of Court, Rule 3.1350(d)(1).) However, on page 12, it does not appear to address the first and second causes of action, but instead addresses the first cause of action in Roripaugh's cross-complaint. The noti...

Excerpt: ...at it needs to pay the entire settlement amount of $75,000 to resolve this action. (Def.'s Opp. 1:23–24.) Even if it does, the evidence shows that Defendant repudiated the Settlement Agreement by failing to make the first and second installment payments and by refusing to provide the conforming declaration of Mr. Dodd. Thus, Plaintiffs are entitled to a judgment for the entire $75,000 settlement amount. Paragraph 6 of the Settlement Agreement i...

Excerpt: ... a risk that is inherent in an activity in which plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) Assumption of the risk does not depend on i) the reasonableness or unreasonableness of plaintiff's conduct to subject himself or herself to the risk of defendant's conduct, or ii) whether plaintiff subjectively knew of and voluntarily chose to encounter the risk of w...

Excerpt: .... Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Plaintiff has failed to show the threshold showing of the probable validity of its mechanic's lien by demonstrating that it complied with the requisite statute governing the preparation and service of the lien. First, the mechanic's lien fails to state the name of the owner or reputed owner which was admittedly known to Pl...

Excerpt: ...ld have stayed; and, that Plaintiff suggested to one witness that if the witness testified favorable for Plaintiff, he would “make it worth his while.” (Id. p. 4:17‐26.) The Award states that Defendant admitted it violated Labor Code § 226. (Id. p. 5:2.) The arbitrator noted the main defense to violations of this statute was a class action settlement entered in 2017, but that the defense lacked merit. (Id. p. 5:3‐4.) The arbitrator found...

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...