Excerpt: ...The motion is based upon the grounds that the first cause of action fails to state facts sufficient to state a cause of action. The TAC alleges that Plaintiff Edwin J. Dobremsyl was a patient at Defendant S‐H OPCO RANCHO MIRAGE, LLC dba BROOKDALE RANCHO MIRAGE's skilled nursing facility from March 17 to April 1, 2017, 16 days. (TAC ¶¶ 17‐30). The TAC alleges that Brookdale "neglected" Plaintiff because it "failed to ensure that DOBREMSYL wa...

Excerpt: ...a Brookdale Rancho Mirage. The motion is based upon the grounds that the first cause of action fails to state facts sufficient to state a cause of action. Plaintiffs allege the following as to AG Ranch Mirage: On April 1, 2017, DOBREMSYL was admitted to RANCHO with diagnoses of dehydration, and recent recurrent urinary tract infections. Upon admission, due to DOBREMSYL's dehydration and urinary tract infections, RANCHO staff should have initiated...

Excerpt: ...(“NOAs”) against each of the respondents, James Fernandez (PSC 1005534), Mary Rafferty (PSC 1905534) and Elizabeth Shepherd (PSC 1905551) (collectively, “Respondents”).1 In each of the NOAs, DRMC seeks a de novo appeal of all the findings, conclusions and awards set forth in the July 19, 2019 Order, Decision or Award of the Labor Commissioner, which awarded $66,492.41 to Fernandez, $57,589.92 to Rafferty and $64,794.62 to Shepherd for Lab...

Excerpt: ...the leases. The two properties were used as wind farms. Plaintiff Arthur Gresen owns one property (Gresen Property). (SAC ¶ 1.) The Gresen Property lease expired on June 30, 2015. (SAC, Exh. B, ¶¶ 1.9, 2.) Plaintiff Solomon Gresen owns a 1/3 fee simple interest with two others as tenants in common (Siegal Property). (SAC ¶ 2.) The Siegal Property lease expired on May 31, 2015. (SAC, Exh. B, ¶¶ 1.9, 2.) The Original Complaint was filed on Ju...

Excerpt: ...n is meritless on its face. Defendant seeks an “Order striking—under California Code of Civil Procedure (‘C.C.P.') section 425.16— Plaintiff' s Application and Order for Appearance for Examination (on Form EJ‐ 125), the order of which was served on Ross for a judgment debtor's exam set to occur in PS4 on March 20, 2020 (the ‘Examination Order').” Section 425.16 provides a procedure for striking “[a] cause of action against a perso...

Excerpt: ...CL violation, and 9) PAGA penalties. Only the 9th cause of action for PAGA penalties is brought in a representative capacity on behalf of current and former employees of Defendant RMC Construction. Plaintiff seeks court approval of his PAGA settlement. The terms of the settlement are as follows: Defendant to pay a total of $102,500 to settle both Plaintiff's individual claims and the PAGA claim. These sums to be distributed as follows: $ 6,000 Cl...

Excerpt: ...aws regarding fair and affordable housing. After negotiations the parties entered into a stipulated settlement, wherein Petitioners assert they achieved nearly all of the relief sought in their petition, including a judgment ordering the City to adopt a Fifth Cycle Housing Element regarding zoning and the General Plan to accommodate lower‐income housing and to engage in robust public participation efforts when it adopts a four‐year revision t...

Excerpt: ...d shuttle driver, and termination by Defendant Marriott Resorts Hospitality Corporation (MRHC). The gravamen of Plaintiff's complaint is that he was passed over for a promotion because of his age and harassed, retaliated against and ultimately terminated for complaining about the alleged discrimination and wage theft by another employee. Plaintiff began his employment MHRC on September 21, 2015. In 2017 he filed an action for age discrimination a...

Excerpt: ...f personal jurisdiction. Defendant seeks attorneys' fees pursuant to Nevada Revised Statute 18.010(2)(a). Assuming that Nevada law applies, this section is not a basis for awarding fees to Defendant. This section provides as follows: 1. The compensation of an attorney and counselor for his or her services is governed by agreement, express or implied, which is not restrained by law. 2. In addition to the cases where an allowance is authorized by s...

Excerpt: ...erior Court (1967) 65 Cal.2d 583, 588.) To effectively prepare for trial on the issue of damages the County has established good cause and is entitled to depose Plaintiff on issues of damages. There is no dispute that Plaintiff's former attorneys filed the request for dismissal. By seeking to amend to add those dismissed Defendants, Plaintiff has placed his former lawyers' decision to file the request for dismissal directly at issue. Only Plainti...

Excerpt: ...ject to a mortgage dated May 16, 2006 recorded as Instrument Number 2006‐0367032 in Riverside County. Plaintiffs assert based on information and believe that the mortgage has been paid in full and that Plaintiffs have demanded payoff information from the title holder of the mortgage in order to tender payment, but “that mortgage holder admits that it finds no loan due standing in the name of Plaintiffs.” This mortgage continues to be a clou...

Excerpt: ...mpted remediation but failed to remedy the issues. (Complaint ¶ 15‐16.) Although the Complaint asserts Defendant's conduct was fraudulent, there are no specific factual allegations that demonstrate fraud on the part of Defendant. However, there may be additional facts which can be alleged sufficient to support a claim for punitive damages. Claims for punitive damages must be pleaded with particularity as to the facts constituting the alleged e...

Excerpt: ... opposition persuasive in connection with what should be considered as reasonable attorney fees regarding the facts and circumstances surrounding this petition. An example some of the unreasonable claimed fees include 129 claimed hours drafting the opening brief; 78 hours drafting a reply brief and 59.30 hours claimed for the motion for attorney fees is unreasonable. Petitioners Nadine Garcia, James Marmor and Helen O'Neill‐Pottery are low inco...

Excerpt: ... School District (District) assert claims for, among others, discrimination, harassment, retaliation, constructive termination and negligent hiring, supervision and retention against, among others, the District and numerous District administrators and employees and the County of Riverside (County). Plaintiffs' allegations all concern actions taken after the hiring of former District superintendent Defendant Charles Bush in August 2016 (who recent...

Excerpt: ...ced the requested hourly rate of Attorney Mikhov to $250.00 per hour for review; Attorney Wirtz to $550.00 per hour as trial counsel; Attorney Underwood to $300.00 per hour and paralegal billing to $135.00 per hour. This is a Song‐Beverly lemon law case that resulted in a jury verdict in Plaintiff's favor on 10/9/19. Plaintiffs now move for $277,542.50 in attorney's fees plus a “lodestar” enhancement of 1.5 in the amount of $138,771.25 for ...

Excerpt: ...st supplemental briefing which should address the impact of HCD's approval authority on the parties' settlement agreement and this court's authority to order City to do something contrary to HCD's explicit directions and the impact of the pandemic on the strict enforcement of the settlement agreement. This is a writ of mandamus case filed on 12/3/18 where petitioners seek to require the City of Desert Hot Springs and the Desert Hot Springs Housin...

Excerpt: ...ertz Vehicles, LLC and was operated by Defendant Avneesh Gill. Plaintiff and Defendants Gill and Hertz have entered into a settlement agreement in the sum of $15,000. Defendants Gill and Hertz seek this court's determination of good faith settlement on the grounds that $15,000 represents the full amount of the policy limits available for the accident. No declarations were submitted in support of the motion. Defendants Valia and Charles Devitis op...

Excerpt: ...e damages claim. Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63. C.C. §3294 provides that exemplary damages are allowable where the defendant is guilty of malice, oppression or fraud. After the 1987 amendments, “malice” was redefined and now “means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and cons...

Excerpt: ...ostro Medina, Mirna Rivas and Terry McQueen. Additionally, defendant moves for an order severing or staying this action as to the remaining 9 plaintiffs. Defendant's motion is made on the grounds that the long‐term rental agreements entered into by 28 plaintiffs (identified in the first two groups of residents set forth above) contain provisions Page 4 of 9 which require the parties to mediate and if unsuccessful to arbitrate all disputes relat...

Excerpt: ... two‐seat go kart driven by Rebeca Perez, a minor. The motion is based upon the grounds that FFP do not owe Geller a duty of care. There is triable issue of fact whether FFP increased the risks inherent in go karting. There is no duty to decrease or minimize the risks inherent in the activity. (Balthazor v. Little League Baseball (1998) 62 Cal.App.4th 47, 52.) Under California law, the primary assumption of risk doctrine clearly states that the...

Excerpt: ...s: 1) to compel CDCR to follow CCR Title 15, Sections 3006, and 3130 through 3147 when processing Petitioner's incoming mail, and 2) either handover the 5 confiscated photos or reimburse him the cost for the photos. CDCR's demurrer is based on two grounds: 1) petition fails to identify a ministerial duty that respondent has refused to perform, citing Keyes v. Bowen (2010 189 Cal.App.4th 647, 656‐657, and 2) that Petitioner has an adequate remed...

Excerpt: ...onal Law Corporation fraudulently induced Plaintiff to loan Defendants $200,000. The motion is based upon the grounds that San Diego County is the proper county for venue. Michael W. Quade is a resident of San Diego County. There is no dispute that this is a transitory action. For venue purposes, actions are classified as “local” or “transitory.” To determine whether an action is local or transitory, the court looks to the “main relief�...

Excerpt: ...rity on 2/7/20, which is discussed below. On 2/18/20, plaintiffs filed their sur‐ reply analyzing the authorities cited by Columbia at the hearing and in the three notices of new authority Columbia had filed after its opposition was filed. Generally, plaintiffs argue in their objection filed on 2/7/20, and in their sur‐reply filed on 2/20/20, that the authorities cited either are not new authority, the decisions are distinguishable on the fac...

Excerpt: ...ied Defendant's MSJ. There is no dispute that Plaintiff intended to send to the arbitrator and to the Defendant. However, Plaintiff mistakenly sent the email not to the Defendant but to a former client with the same first name as Defendant's counsel, Juan. That email is as follows: Mr. Newell, We all agreed at the MSJ hearing that defendants would go first. This agreement became muddled with Juan's emails to your query so I'm not sure where we st...

Excerpt: ...ter 13 case to a Chapter 7. (RJN, Exh. 3.) Subsequently, on January 22, 2019, an Assignment of Deed of Trust was recorded where Cardinal assigned the beneficial interest in the Deed of Trust to PennyMac Loan Services, LLC. (FAC, ¶ 25; Exh. G.) attached thereto. On February 25, 2019, PennyMac filed a Motion for Relief from Automatic Stay. (RJN, Exh. 4.). On March 28, 2019, the bankruptcy Court entered an Order granting PennyMac relief from stay t...

Excerpt: ...h 7th causes of action (note: Complaint has two 4 th causes of action, so the second is referred to as the 5th cause of action and the 5th and 6th restated here as the 6th and 7th causes of action to address this error) in Plaintiff Bikram Yoga Plus Palm Springs, LLC's Complaint on the grounds they fail to state sufficient facts to constitute a cause of action. The Complaint alleges in pertinent part as follows: • The original leasehold was hel...

Excerpt: ...antiated or allowable under CCP §1033.5(b); not reasonably necessary to the conduct of the litigation in violation of CCP §1033.5(c)(2); not reasonable in amount in violation of CCP §1033.5(c)(3), and not reasonably incurred in violation of Civ. Code §1794(d)(6). FACTS: Defendant moves to strike the following: 1) $90 filing fee; 2) $7,848.14 in deposition costs, or at a minimum $869.49; 3) $1,539.95 in service of process fees, or at a minimum...

Excerpt: ...t and Arbitration, (Second Agreement. Defendant seeks to compel arbitration pursuant to both agreements. “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequi...

Excerpt: ...'s fees. Request 3: 1st, 2nd, 3rd and 7th causes of action. Request 4: Request for injunctive relief. C.C.P. §436(a) provides that a court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. Clauson v. Sup. Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255. The same liberal policy r...

Excerpt: ...age. The demurrer is based upon the grounds that the first cause of action fails to state facts sufficient to state a cause of action. The court sustained the demurrer to the elder abuse cause of action in the original Complaint and FAC because Plaintiff had not pleaded elder abuse with the required specificity. The only relevant allegations as to AG Rancho Mirage in the FAC were as follows: RANCHO neglected to provide medical care for DOBREMSYL'...

Excerpt: ... Agarwal and Royale Residential seeking: Any and all employee files for Kimberly Delgado … including hiring documents, termination documents, resignation documents, write‐ups, written warnings, accolades, notes regarding oral warnings, correspondence, performance reviews, time‐off requests, vacation requests, and any other documents related Page 2 of 4 to Kimberly Delgado's employment with your company from February, 2015 through and includ...

Excerpt: ...rust, LJ Acquisitions, LLC, M.A.N. Holdings, LLC, CV Land Company, LLC, GMS Developments, LLC, DDGC Holdings, LTD, Glen Brayshaw, Michael Nyhuis, and Sean Runnels (“Defendants”) demur to the 1st – 12th causes of action in Plaintiffs Glenn Melvin and Francisca Saliwan's Complaint on the grounds they fail to state facts sufficient to constitute a cause of action and/are uncertain or barred by the applicable statute of limitations. In addition...

Excerpt: ...nsons. The gravamen of the action is that Defendants misrepresented that the subject property had a place where the Johnson's could park their RV. Plaintiffs' claimed damages are approximately $35,000. Sandahl, Hilgenberg and Wilson have settled with the Johnson for $13,500, $4,500 each. Brill and Mata argue that application should be denied because the settlement amount is “too little” and the application for good faith settlement fails to c...

Excerpt: ...f alleges that Estelle's osteopath, Defendant Dr. Howard Levy, implemented Estelle's plan to deprive Plaintiff of an effective course of treatment by providing placebos that left Plaintiff untreated, disoriented, and confused. (FAC, ¶, 2:20‐22.) The demurrer is based upon the grounds that 9th cause of action for assault and 10th cause of action for battery are uncertain and fail to state a cause of action. The FAC does not allege harmful or of...

Excerpt: ...ctual allegations required to support a punitives claim. (Smith v. Sup.Ct. (Bucher)) (1992) 10 Cal.App.4th 1033, 1041–1042; (Anschutz Entertainment Group, Inc. v. Snepp) (2009) 171 Cal.App.4th 598, 643.) Moreover, Plaintiff has pleaded no facts which show authorization, ratification, advance knowledge, malice, etc. on the part of an officer, director or managing agent of the corporation as required to state a punitive damages claim against a co...

Excerpt: ...non‐party David Castillo regarding a debt owed by Castillo to CVCS and title to the subject real property. Accordingly, Armcon, Fernandez and Castillo entered into a Settlement Agreement and executed a stipulation for entry of judgment in INC 1702951. Pursuant to the Settlement Agreement, Castillo was to pay CVCS $40,000 with a first payment of $5,000 due on June 15, 2019, and thereafter monthly payments in the amount of $2,917. The Settlement ...

Excerpt: ... Plaintiff alleges that “[w]hile under the care and treatment of DEFENDANTS from May 17, 2018‐ May 20, 2018, O' BRIEN suffered multiple injuries including a GI bleed which led to extreme pain and suffering and an untimely death.” (FAC ¶ 17.) This the only specific factual allegation. The remaining allegations are general boilerplate. For example, the very next paragraph of the FAC states, “MANOR CARE neglected to provide medical care for...

Excerpt: ...ndant' s personal habit, known to her friends and associates, to drink during the day even though she knew that she would be driving that day. On the day in question, throughout her drinking the Defendant knew that she would be driving. Further, Defendant understood that drinking aggravates the risk of automobile accident and injury. Defendant was aware on the very day of her accident that her act of drinking and then driving increased the risk o...

Excerpt: ...and (4) breach of contract arises out of bed bug bites suffered by Plaintiff when she was a guest at Defendant's Embassy Suites hotel in Palm Desert. Plaintiff alleges that she suffered bedbug bites the first two nights of her stay, after which she complained about the bedbugs and was moved to a different room. The demurrer is based upon the grounds that each cause of action fails to state a cause of action and is uncertain. 2 nd cause of action�...

Excerpt: ...t in a truck and pummeled Plaintiff with rocks thrown from the truck's windows knocking Plaintiff unconscious on the ground with a serious head wound and other injuries. The court sustained the demurrer to the 9th cause of action for premises liability against Defendant Capri Palm Desert Association (Capri) with leave to amend because the FAC failed to allege facts that showed Capri owed Plaintiff a duty of care. The FAC alleged that “Defendant...

Excerpt: ... of Defendants only based upon representations by the notary who notarized the subject deed, Mercedes Gutierrez, a friend of Defendant Anna Ramirez, that the parents could not put the names of more than two grantees on the deed. The motion is based upon the grounds that Plaintiffs failed to properly serve, record and file the lis pendens and that Plaintiffs cannot show the probable validity of their real property claim. Page 2 of 3 TECHINACL DEFE...

Excerpt: ... criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a Fifth Amendment privilege. (Pacers, Inc. v. Sup.Ct. (Needham) (1984) 162 CA3d 686, 689— depositions postponed for one year, at which time criminal prosecution would be barred.) However, such a stay is discretionary; defendant has no right to a blanket stay on Fifth Amendment grounds. (Klein v. Sup.Ct. (Thomas) (1988...

Excerpt: ....5, and (5) Wrongful Termination in Violation Of Public Policy is based upon allegations that Plaintiff was terminated for “raising concerns over unpaid wages, lack of meal and rest breaks, and child pornography discovered on company computer(s).” (Compl. ¶ 15.) Elena Bulatova Fine Art El Paseo LLC (El Paseo) moves for summary adjudication of the first four causes of action on the grounds that Plaintiff was not employed by El Paseo, and both...

Excerpt: ...t D/T Carson Enterprises, Inc. and Dale Carson move the court for an order compelling Plaintiff Fidel Torres to produce his cell phone for inspection, copying, testing, sampling and production of electronically stored information and request for sanctions of $3,590. Defendant asserts the following: Defendant D/T Carson Enterprises, Inc. propounded RFPs (Set One), which included Nos. 27, 29, 34 and 35 seeking documents supporting Plaintiff's claim...

Excerpt: ...o Columbia's policy which allowed management to restrict rest periods to the premises; 3. Meal and Rest Break Policies—All Class Members during the Class Period who were subject to Columbia's “customer‐first” policy which denied or reduced their meal and rest breaks; 4. Rounding Policy—All Class Members during the Class Period who were subjected to Columbia's rounding policy of rounding time to the nearest quarter hour; 5. Inaccurate Wa...

Excerpt: ...d thousand vehicles throughout the United States equipped with defective continuously variable transmissions ("CVT")… [which] were installed in all Seventh generation (i.e., model year 2013 — 2017) Nissan Sentra automobiles and 2012‐2017 Nissan Versa automobiles sold or leased to consumers, including Plaintiff” (Compl. ¶ 17) and that the defective transmission caused "hesitation from a stop before acceleration; hard shaking during decele...

Excerpt: ...te and local law and Burrtec's exclusive franchise agreements with the cities of Indio, Coachella, Palm Desert, Cathedral City, and Indian Wells and the County of Riverside and Southern Coachella Valley Community Services District and any other city, county, district or territory in which Burrtec has an exclusive franchise agreement. Burrtec's franchise agreements provide that they have the exclusive right to collect, transfer, transport, recycle...

Excerpt: ...equired under the CBA, Plaintiff's performance after observing Plaintiff in the classroom and giving him a negative rating; that “[o]n April 18, 2017, PLAINTIFF grieved Dean Tabor' s negative teaching evaluation pursuant to the terms of the CBA. As part of his complaints, PLAINTIFF also raised the issue of discrimination in violation of the law”; that although he had been assigned to teach Earth Sciences… in the Fall of 2017, he received a ...

Excerpt: ...commencing March 31, 2020 and estimated to last seven days. Page 4 of 4 FACTS: Plaintiff DK Holdings opposes the motion and asserts that Defendant's motion is baseless as res judicata does not apply to the state court claims. In addition, Plaintiff asserts that this is Miva's second attempt as they already brought a motion in the federal district court asking the court to find res judicata applicable and issuing an injunction staying this action,...

Excerpt: ...o state facts sufficient to state causes of action for fraud and elder abuse and/or are uncertain. Moving parties previously demurred to these same causes of action in CrossComplainant's First Amended Cross‐Complaint with leave to amend noting that as to the fraud cause of action the FACC failed to plead facts with the requisite specificity and as to the elder financial abuse cause of action that the facts were insufficient to state a cause of ...

Excerpt: ...way 111, LLC, Urban Commons, LLC and Brighton Management, LLC move the court for summary judgment on Plaintiff Gary Bruce's First Amended Complaint, or in the alternative summary adjudication as to each of Plaintiff's causes of action for: 1) negligence, 2) nuisance, 3) negligent infliction of emotional distress, 4) breach of contract, and 5) breach of quiet enjoyment. On 4/20/19 this court ruled on Defendants' demurrer and motion to strike porti...

Excerpt: ...ith leave to amend. In sustaining the prior demurrer the court noted that each of Plaintiffs' 4 causes of action were based on the premise that Defendant, Plaintiffs' real estate agent and broker, owed them a duty to investigate whether or not the express representations and warranties made by Plaintiffs to buyer, as sellers of certain commercial property, were in fact accurate. The court noted that none of the cases cited by Plaintiffs stood for...

Excerpt: ...sonable safe condition, in that they failed to properly maintain pest control on the property, Plaintiffs endured slum‐type living conditions resulting in financial loss, personal injury and emotional distress. Following to court's ruling on the demurrer to the original complaint and motion to strike. Plaintiff filed this FAC. The Demurrer is based upon the grounds that the 6th cause of action for IIED, 9th cause of action for Fraud and 10th fo...

Excerpt: ... of resident's rights‐H&S Code § 1430(b) and (3) wrongful death is brought by Jessica Floyd both as the successor interest to decedent Reba Fay Owens and individually against CNRC, LLC a nursing and rehabilitation center. The gravamen of the complaint is that CRNC's neglect led to Owens' death. This agreement is expressly governed by the FAA. “The parties to this Arbitration Agreement acknowledge and agree that the Admission Agreement and th...

Excerpt: ...ws: Page 7 of 8 No. 16.1: Do you contend that any person, other than you or plaintiff, contributed to the occurrence of the incident or the injuries or damages claimed by plaintiff? If so, for each person: (a) State the name, address, and telephone number of the person; (b) State all facts upon which you base your contention; (c) State the names, addresses, and telephone numbers of all persons who have knowledge of the facts; and (d) Identify all...

Excerpt: ...cannot meet his burden of proof that the subject tire was involved in the incident had any product defect or that any purported product defect caused or contributed to Plaintiff's claimed injuries. Therefore, Plaintiff cannot Page 2 of 8 meet his burden of proving any of the elements of his causes of action against Titan, the alleged manufacturer of the tire. Summary judgment is granted when a moving party establishes the right to entry of judgme...

Excerpt: ...oyees, plaintiffs foot got caught in the excess portion of a seatbelt which was loose on the floorboard of the van, and plaintiffs body was violently thrown unto [sic] the concrete outside, causing him serious bodily injuries. Plaintiff reported the incident to the defendant' s employees but was refused access to medical care for days, despite repeated requests. Plaintiffs injuries and the employees' refusal to get him medical care caused plainti...

Excerpt: ...bstantially reduced as 1) motion was not timely or served pursuant to mandatory statutory guidelines, 2) seeks fees pertaining to matters unrelated to the motion, 3) fails to introduce any evidence to support the rates claimed by attorneys Keane, Huso or paralegal, 4) failed to engage in a proper lodestar analysis for the fees claimed, 5) the lodestar analysis conducted by Plaintiff confirms that the fee request is excessive, and 6) the deadline ...

Excerpt: ... 201.6; Special Interrogatory 27‐33, 44‐50, 59, 62, 64); 2. Plaintiff's dissatisfaction with Defendant's Responses, despite the Defendant adequately supplementing its Response (FI‐ Employment 201.4, 209. 2, 211.1; Special Interrogatory 7, 24, 42, 43); Page 2 of 4 3. Requests purporting to seek information about Plaintiff's employment and claims in this lawsuit, but which Defendant claims are facially overbroad, unduly burdensome, and which ...

Excerpt: .... Page 12 of 15 Cross‐Defendant Mitchell Altman moves the court for summary judgment, or in the alternative summary adjudication, on Cross‐Complainant Yun Hei Shin's Second Amended CrossComplaint on the grounds that all causes of action have no merit and/or are moot and that Shin lacks standing to bring such claims. Murray Altman (“Altman”) is the sole managing member of Desert Springs Financial, LLC. (“DSF”) Defendant Mitchell Altman...

Excerpt: ...s of the Davis‐Stirling Act. This matter may indeed be moot in light of the court's ruling in the Asher matter. However, the court intends to issue the same order for the same previously litigated and argued reasons insofar as the issues are the same. Plaintiff's 10th cause of action is asserted against Defendants The Morningside Community Association (“HOA”), David Peters (“Peters”) and Peters & Freedman (“D&F”) and Does 3‐5. The...

Excerpt: ...2.5 (2nd coa) and Violation of Labor Code §§6310 and 6311 (3rd coa) on the grounds they fail to state facts sufficient to constitute a cause of action against them and are sham pleadings. On 4/10/19 this court heard and sustained with leave to amend as to Plaintiffs' 2 nd and 3rd causes of action as to moving parties. The court found that the causes of action were based upon allegations that Jay was terminated for reporting two alleged workplac...

Excerpt: ...before 03/08/2019. On 02/21/19, this court found that there was a willful violation of its 10/11/2018 order in that Petitioner failed to file her opening brief. The court therefore dismissed the action. On 04/16/19, Petitioner filed a “Declaration of Susan Cogliano, Motion to Vacate Order Entered on 02/21/19” and on 04/29/2019 a “Second Declaration of Susan Cogliano, Rebuttal to Opposition to Good Cause…” in both of which she claimed th...

Excerpt: ...owes Caltrans a duty to defend. A plaintiff may move for summary adjudication of a cause of action if the plaintiff asserts there is “no defense” to that cause of action; the plaintiff's burden of proof on such a motion is to prove each element of the cause of action entitling the party to judgment on that cause of action. CCP §437c(f)(1), (p)(1); Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241. On October 6, 2016...

Excerpt: ...eted private mediation and were successful in resolving their dispute. The parties (King and Franklin) executed a written Settlement Agreement on May 2, 2019 along with non‐parties Nick Franklin, Elliot Megdal and Taylor Megdal. The terms of the settlement are set forth in Paragraph 3 of the written agreement as follows: 3.1. Within three court days after the execution of this Agreement by all Parties, King (with respect to the Action) and Fran...

Excerpt: ...00,000 in damages. Plaintiff moves for an order quashing or modifying deposition subpoenas issued and served by Defendant on June 5, 2019, to (1) Tower Market; (2) Blue Shield of California; and (3) Sam Ahdab, MD. In addition to the above, Plaintiff moves to quash, or in the alternative, modify Defendant's subpoena issued on June 7, 2019, to (1) Quantum Medical Radiology; as well as the subpoenas issued on June 13, 2019, to (1) Desert Regiona...

Excerpt: ...(4) justifiable reliance, and (5) resulting damage. (Engalla v. Permanente Medical Group (1997) 15 Cal. 4th 951.) (Lovejoy v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 157‐158.) Plaintiffs allege that Louise told Autry that WFLF was looking for a new ranch for the horses because the owner of their previous home had stolen from WFLF and poisoned some of the horses. (Complaint (Compl.)), ¶18.) Louise this statement was allegedly false and intende...

Excerpt: ...aintiff Nita Brasch's Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action against them and/or uncertain and/or barred by statute of limitations. Plaintiff frames her case as one involving slum housing conditions, including bed bug infestations, mold infestation, rodent infestation, infestation by other vermin and pestilence and deplorable living conditions. Plaintiff's claims arise out of a unit she l...

Excerpt: ...ve of court. Accordingly, the court SUSTAINS without leave to amend. Although this court granted leave to amend the TACC (in ruling on the demurrer filed by Joanna Lents) that did not give Dunlap leave to do anything other than address the causes of action related to Cross‐ Defendant Lents. Granting leave to amend in an order sustaining a demurrer “must be construed as permission to the pleader to amend the cause of action which he pleaded in...

Excerpt: ... him as an Administration of Justice instructor because the California Teachers Association had attempted to resolve his claims with the District. Essentially, Plaintiff alleges that he was teaching 9 units as a part‐time Administration of Justice (AJ) instructor and 10 units as Basic Peace Officer Training (BPOT) Coordinator. The BPOT Coordinator, was well over the 10 units that would require the District to classify him as full‐time and tha...

Excerpt: ...plicable causes of action. DISCUSSION: C.C.P. §436(a) provides that a court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. Clauson v. Sup. Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255. The same liberal policy regarding amendment of pleadings applies as on sustaining demurr...

Excerpt: ...s Complaint and FAC. In ruling on the last demurrer (to the FAC) the court noted that the FAC failed to plead facts with particularity that support an elder abuse cause of action and further failed to allege facts sufficient to impose corporate liability. Accordingly, the court sustained with leave to amend to provide Plaintiffs an additional opportunity to allege a cause of action for elder abuse against moving parties at this stage of discovery...

Excerpt: ...aintiffs assert the 3rd cause of action against HK and Flaherty and the 4th cause of action against Flaherty. The pertinent alleged facts related to the professional negligence and negligent misrepresentation causes of action are as follows:  HK and Flaherty are professional licensed real estate brokers and/or salespersons involved in the purchase and sale of the property at issue.  HK and Flaherty represented the seller, Defendant Miller, ...

Excerpt: ...aintiff's motion for preliminary injunction was denied. Moore asserts that the basis for attorney's fees is the Association's Master Declaration that states that for “any action for breach of or to enforce the provisions of [the] Master Declaration is commenced, the court in such action shall award to the party in whose favor a judgment is entered, a reasonable sum as attorneys' fees, which attorneys' fees shall be paid by the losing party in s...

Excerpt: ...n for: 1) Medical Negligence, 2) Lack of Informed Consent and 3) Loss of Consortium. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. C.C.P. § 437c(c). A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established o...

Excerpt: ...randt situation. On 07/12/2019, following a jury verdict in his favor and the court's execution of a judgment on 06/28/29, Plaintiff filed a notice of entry of judgment. This notice of entry was premature and improper because there was no final judgment at that point. This is clear from the fact that at the very least, the issue of Attorney fees/Brandt fees was outstanding. In California, “[t]here can be only one final judgment in a single acti...

Excerpt: ...elationship the Defendant and Plaintiff would each pool and combine their skills, efforts, labor and earnings…” (Compl., ¶ 7.) The 3rd cause of action seeks recovery based upon a contract implied in fact, an “implied understanding.” (Compl., ¶ 34.) The demurrer is based upon the grounds that the 1st through 3rd causes of action fail to state a cause of action, is uncertain and fail to state whether the cause of action is written, oral o...

Excerpt: ...ith a public issue, and all of Mr. Poynter's alleged statements are protected by the litigation privilege pursuant to Civ. Code §47(b), and Plaintiff cannot demonstrate a probability of prevailing on either of its causes of action. Defendant Poynter asserts that the alleged statements that Plaintiff King asserts as grounds for his single cause of action for slander and slander per se were purportedly made by Poynter to Alan Axelrod during a phon...

Excerpt: ... filed on or before 9/9/19. Accordingly, the opposition is not due until after the court's deadline for posting a tentative ruling. C.C.P. §664.6 provides that: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by th...

Excerpt: ...priately. CCP Section 2032.530(a) provides “The examiner and examinee shall have the right to record a mental examination by audio technology.” The examination and all tests to be completed within six hours. No interview or tests questions are to address directly or indirectly the plaintiff's sex life, sex behavior and or sexual orientation. Defendant Phillip Schneider moves the court, pursuant to CCP §§ 2032.220, et seq., for an order comp...

Excerpt: ...aims against them arise out of protected activity in furtherance of their constitutional right to free speech in lodging a complaint with their HOA stating that Plaintiff's Jacaranda trees violated the HOA's CC&Rs. Plaintiff Daniel Swartz' Complaint alleges 5 causes of action against Thunderbird Property Owners Association and Roy and Susan Hofheinz for: 1) breach of written agreement, 2) breach of fiduciary duty, 3) negligence, 4) discrimination...

Excerpt: ... the 2nd, 3rd, 4th, 5th and 8th causes of action. 2. Mitchell Brodie and Marcus Carter demur to the 2nd, 3rd, 4th, 9th and 10th causes of action. 3. Merv Griffin Equestrian Estate, LLC demurs to 2 nd, 3rd, 4th , and 5 th causes of action. Causes of action: (2) intentional misrepresentation, (3) fraudulent concealment, (4) unjust enrichment, (9) conspiracy and (10) aiding and abetting. Page 2 of 4 Plaintiff's claim that Defendant concealed that ot...

Excerpt: ...d Defendants but placed title in the property in the name of Defendants only based upon representations by the notary who notarized the subject deed, Mercedes Gutierrez, a friend of Defendant Anna Ramirez, that the parents could not put the names of more than two grantees on the deed. The subject deed was executed in1999. Plaintiffs allege that they were their parents' care takers and have been in possession of the land. The demurrer is based upo...

Excerpt: ...ses of action in their First Amended Complaint against all defendants: Morningside Community Association and Board of Directors Randall Zien, Jack Buckingham, Liza Ivins‐Hazelrig, Ronald Kolar, Chris Norman, and Wayne Pollard (collectively HOA Defendants); The Club at Morningside and its Board of Governors Rusty Goepel and Richard Cantlin and its General Manager and COO Greg Harris (collectively The Club Defendants), and Peters & Freedman, LLP ...

Excerpt: ...e” by the defendant. (CC § 3294(a).) “Malice” means conduct intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. CC § 3294(c)(1). While the underlying claims may be generally alleged, specific factual allegations are required to support a punitives claim. Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th...

Excerpt: ...r the 10‐year enforceability period, set forth in CCP §683.020. Judgement debtor seeks an order vacating the renewal of the judgment. In opposition, judgment creditor asserts that the 10‐year renewal period was tolled pursuant to 11 U.S.C. §108(c) due to judgment debtor's bankruptcy case. Further, that his renewal was timely as it was filed within 30 days after he was granted relief from stay to be able to file his renewed judgment pursuant...

Excerpt: ...to state facts sufficient to state a cause of action and/or are uncertain. Plaintiff Pamela Day's SAC alleges certain causes of action against moving parties as follows: 1 st (fraud/false promise), 2nd (fraud/concealment), 3rd (fraud/misrepresentation), 4th (breach of fiduciary duty), 7th (tortious interference with contractual relationship) and 8th (forcible detainer) which Defendants demur. On October 19, 2018 this court heard and sustained wit...

Excerpt: ... required voting requirements to amend the Bylaws from 51% of the voting power to two‐thirds of the ballots cast when ballots are received from at least a majority of the voting power. Association's petition alleges voter apathy and states that they made every effort to get out the vote of their 3,450 voters with the following results: Elimination of Cumulative Voting (January 11, 2019 ballot): 2,052 votes cast representing 59.5% of total voter...

Excerpt: ...e, duplicative, oppressive and imposes undue burden and expense on Plaintiff. Therefore, the court should issue a protective order directing that defendants amend their expert witness designation so that there is a single retained expert witness as to each subject matter upon which expert testimony will be offered. In opposition, Defendants state that they amended their designation of experts to address the issues raised by Plaintiff. Therefore, ...

Excerpt: ...evasive and nonresponsive. Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) State the number of the request; (b) State all facts upon which you base your response; (c) State the names, addresses, and telephone numbers of all persons who have knowledge of the facts; (d) Identify all documents an...

Excerpt: ...ses of action in their First Amended Complaint against all defendants: Morningside Community Association and Board of Directors Randall Zien, Jack Buckingham, Liza Ivins‐Hazelrig, Ronald Kolar, Chris Norman, and Wayne Pollard (collectively HOA Defendants); The Club at Morningside and its Board of Governors Rusty Goepel and Richard Cantlin and its General Manager and COO Greg Harris (collectively The Club Defendants), and Peters & Freedman, LLP ...

Excerpt: ... 2: Prayer for Relief, No. 3, Page 24, Line 14 as to punitive damages, which are not authorized against Toyota. No. 3. Paragraph 76, Page 11, Lines 9‐10, and paragraph 173, Page 22, Line 27 through Page 23, Line 89, because equitable and injunctive relief is not available when there is an adequate remedy at law available and they are irrelevant and not drawn in conformity with the law as against Toyota. No. 4: Prayer for Relief, Nos. 5 and 8, P...

Excerpt: ... to constitute a cause of action against them. Plaintiff's SAC alleges in pertinent part as follows:  Plaintiff Mitchell Kelley brings this as a derivative action on behalf of O.M. Contracting, Inc. and Y&M Management, Inc. against Yahya Omer Mohamed, Rolling Camel Page 2 of 9 Ranches, O.M. Investments, Inc. (nominal defendant), O.M. Contracting, Inc. (nominal defendant), and Y & M Management, Inc.  Kelley is a minority shareholder of O.M. ...

Excerpt: ...mail to the California Insurance Commissioner fail as International is not an insurer and GIC does not conduct any insurance Page 2 of 4 business in California. Further, Defendants assert that Plaintiff failed to comply with the provisions of Ins. Code §§1610 and 12931. In support of its motion, Defendants submit the declaration of Peter Williams, Regional Claim Manager for The Burlington Insurance Company. The declaration states that Internati...

Excerpt: ...y he purchased for $85,000.  In early 2014 Plaintiff fell behind in paying his property taxes.  Plaintiff received a foreclosure notice for his unpaid taxes of $6,000.  Plaintiff called a real estate agent by the name of Rocio Velasco for advice. She advised Plaintiff that she worked for Jerry Corona, from Century 21, who was an investor and Page 3 of 5 could help him.  In February 2014, Plaintiff went to Corona's office.  Plaintif...

Excerpt: ...en purchase agreement, which was part financed by UPC pursuant to a promissory note executed by HN. This case was settled in its entirety and dismissed on March 16, 2017. In PSC1700610, Plaintiff C&W Electric filed suit against multiple parties, which did not include UPC, and also sought to foreclose its mechanic's lien against the property. This action was dismissed on February 8, 2018. In PSC1700746, Orr Builders filed suit against multiple par...

Excerpt: ...re. Healing Nature, LLC asserts it is the prevailing party on its Cross‐Complaint against United Pentecostal Church for breach of the purchase and sale agreement due to the UPC's failure to disclose material facts concerning the unpaid construction costs that resulted in mechanic's liens against the property. As the parties' purchase and sale agreement has a provision that states, “In any action, proceeding, or arbitration between Buyer and S...

Excerpt: ...rroneous calculation of the project profits by failing to deduct the project's full land purchase costs of $4,060.000; the indirect costs of $241,222 and committed costs of $95,416. Page 2 of 5 Plaintiff's expert, Mr. Taylor calculated a 50% profit division based on a land purchase price of $2,905,000 rather than the total amount spent by defendant to acquire all 59 lots developed and subject to the profit participation agreement which amounted t...

Excerpt: ... in the lease, a "care facility providing inpatient detoxification, residential treatment and lodging, and other substance abuse related activities." Plaintiff now seeks leave to file an FAC deleting the three causes of action for rescission and proceeding on a their cs/a for breach of contract, negligent misrepresentation and money had and received based upon a different set of facts, to wit, that the Plaintiffs Page 3 of 5 provided writ...

Excerpt: ... Contemporary Services Corporation (CSC) at an outdoor concert called Desert Trip put on by Defendant Golden Voice (GV) and at Defendant Empire Polo Club (EPC). Essentially, Plaintiffs allege that decedent went into cardiac arrest and died as a result, in part, of the conditions of the housing provided by GV and EPC. More specifically, Plaintiffs allege that high winds and dry heat caused large clouds of dust that made it hard for people to breat...