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...