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: ...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: ...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: ...”) 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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...