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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 ...