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

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

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neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended.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

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

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: ... (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: ...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: ...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: ...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...