Excerpt: ... the hole (Exh ibit E) but provides no measurements of how big it is, its placement in the backyard, or the layout of the backyard. While the hole appears large in the picture, it is unclear whether this evidence alone meets the Defendant's initial burden. Additionally, a triable issue of material fact exists regarding whether the open and obvious exception applies. Open and obvious does not negate duty if it is foreseeable based on necessity or ...

Excerpt: ...re of Person . DENY Defendant Kevin Carpenter's Motion for Summary Adjudication as to the Second Cause of Action for Violation of Fourth Amendment Rights – Excessive Force and Punitive Damages Claim against Defendant Kevin Carpenter. SUSTAIN Defendants' Evidentiary Ob jections as to Exhibit D and Gibson Decl. ¶¶ 3, 6 and 22; OVERRULE as to Gibson Decl. ¶¶ 7, 8, 12 –18, 19 and 21. SET OSC on April 15, 2024, re: Plaintiff's failure to file...

Excerpt: ... appears that conduct that occurred before Plaintiff filed for bankruptcy can make her a borrower under Civil Code § 2920.5(c). See Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 297- 299. First Cause of Action for Violation of Civil Code § 2923.5 (A)( 2). This section requires a mortgage servicer to contact a borrower to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure before...

Excerpt: ...nding the NOD . (Def.'s RJN 4.) Plaintiffs cannot establish “an illegal, fraudulent or willfully oppressive sale,” since the foreclosure sale never took place. Plaintiffs nonetheless argue that their wrongful foreclosure cause of action is valid because it is based on F MC's alleged failure to comply with the HBOR provisions identified in the FAC (i.e., Civ. Code §§ 2923.4, 2923.5, 2923.7, 3273.01 et seq.). (See FAC ¶¶ 45– 60.) However...

Excerpt: ...rd Donahue, MAI, FRICS setting forth the basis of the appraisal calculation and setting the appraisal at $40,400. Construction of the Project is scheduled to commence on or about April 8, 2024. Any delay in possession will derail the sequence of construction and rel ocation of public improvements that must be completed to benefit residents and businesses in the City. (Moreno Reply Decl., ¶¶ 4 & 5.) The construction involves the relocation of s...

Excerpt: ...warranty data compiled from GM's network of dealers; testing conducted by GM in response to these complaints; as well as warranty repair and part replacements data received by GM from its network of dealers (¶¶ 64 –66, 68– 71, 73); that, despite such knowledge, Defendant continued to conceal and failed to disclose the Transmission Defect to its consumers (¶¶ 68, 71 –72, 75– 76); and that had Plaintiffs known that the subject vehicle w...

Excerpt: .... Binuya suffered a massive blood loss and had to be transported to the hospital. There must be more than the failure to provide proper medical services to describe a caretaking or custodial relationship. “[C]laims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care provid...

Excerpt: ...g to revoke access to Los Corralitos Road and by erecting fences to block access to the Property. (SAC, ¶¶ 71 -73.) Plaintiffs further allege that Defendants' intentional acts have dissuaded buyers from purchasing the Property, that Defendants are attempting to “extort” a low price for the Property from the Lopezes and that Defendants' devaluation scheme has resulted in a total loss to the Lopezes of $1,275,000. (SAC, ¶¶ 74 -81.) However,...

Excerpt: ...f action —there appears to be no adverse employment action. Burger King argues that establishing that Evelyn could not hire, train, fire, and did not set Plaintiff's schedule establishes that Evelyn was not a supervisor under Government Code § 12926(t). However, t his assertion lacks merit. Under Government Code § 12926(t) it provides several categories of conduct that meets the definition of supervisor. Those categories are: (1) having the...

Excerpt: ...that the Defend ants contacted her “sometime after October 25, 2023, and prior to their due date to respond to the complaint . . . to confirm that I was handing the response to the complaint pursuant to their insurance policy with Generali Global assistance,” but that def ault was entered before the insurance carrier could fully assess coverage and retain defense counsel. (Rivas Dec., ¶¶ 4, 5.) There is no declaration by any of the defenda...

Excerpt: ...laint. Dis crimination (1st cause of action): Plaintiff alleges she was constructively terminated from her position. Constructive termination occurs when an employer engages in conduct that effectively forces the employee to resign, i.e., “that the employer either in tentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would real...

Excerpt: ...e has an ownership interest in Information Technology, and licenses the trade secret to White Bu
¯alo, who in turn, granted Plainti
¯ the exclusive license to the trade secret. (Rozo Decl. ¶3.) Plainti
¯ argues that a sublicense has standing based on Civil Code §3426.1 which deÞnes misappropriation as: “(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper m...

Excerpt: ...First Amended CrossComplaint, ¶ 7.) The contract was allegedly entered into at someplace other than Superior's “appropriate trade premises” – Juan and Maria's home. (Id. at ¶ 18.) Based on the agreement attached to the Þrst amended cross-complaint, it appears that the amount of the agreement was more than $25. Due to this, it appears for pleading purposes, Civil Code § 1689.7 appears applicable. Civil Code § 1689.13 applies where a con...

Excerpt: ... for elder abuse. Plainti
¯ was 87-years old at the time of his residence at Defendant's facility. (FAC, ¶ 1.) On May 22, 2022, Plainti
¯ was admitted to the hospital at which Defendant took on a custodial relationship. (Id at ¶ 11.) Plainti
¯ alleges that Defendant's sta
¯ failed to properly monitor and assess his skin condition, failed to reposition his legs, failed to provide wound care or notify a physician when his skin deteriorated an...

Excerpt: ...dustry standards. (Id. at ¶ 57.) Dealer allegedly breached this duty by failing to properly store, prepare and repair the vehicle in accordance with industry standards. (Id. at ¶ 58.) With respect to damages, Plainti
¯ allege, in a conclusory way, that Dealer's “negligent breach of its duties” proximately caused their damages. (Id. at ¶ 59.) Plainti
¯s fails to otherwise plead the nature or extent of what their damages are. (Id.) Therefo...

Excerpt: ....) It was not sent to Defendant's “clerk, secretary, auditor, or governing body” and it was not sent to Defendant's principal o
¯ice. Instead, the address to which the claim was sent was a private residence. (See, Decl. of Deena O. Zaki at ¶¶ 3-4, Exs. B & C; Decl. of Kim Bentrum [“Bentrum Decl.”] at ¶ 7.] Therefore, the claim was defective. Additionally, it is undisputed that Defendant never received this claim. (Bentrum Decl. at ¶�...

Excerpt: ...ns at the time the notice was written and assumed Likun as an employee, when she was not an employee. (Cross-Compl. 9, 87—88.) Therefore, together with the other allegations, Cross-Defendants do not meet their burden in showng that the Cross-complaint fails to state sufficient facts for the RICO cause of action. Second Cause of Action: Concealment: The Cross-complaint sufficiently alleges that CrossDefendants never disclosed the status of their...

Excerpt: ...or before 30 days before trial, and discovery motions to be heard 15 days before trial. A contnuance or postponement of trial does not reopen discovery proceedings. (CCP 52024.020(b). ) Parties may stipulate to extend the time. (CCP 52024.050.) The initial trial date of 11/17/23 governs the discovery cut-off date. Plaintiff contends this is not a discovery motion. The court disagrees. This is a motion to de- designate under the protective order�...

Excerpt: ...u have to follow the law. Like it or not, the answer to this question is zero because we didn't put that evidence before pu. But that's how this verdict form should be answered based upon the evidence and the law in this case." (Ex. 2 Transcript, p. 86.) And, "l acknowledge we didn't prove any of the damages on the 30-day claim. That should be answered zero." (Ex. 3 Transcript, p. 10.) "'In the trial of a cause the admissions of counsel, as to ma...

Excerpt: ...e arch to minimize the amount of anesthesia needed; (2) failing to use the correct type of anesthesia, using too much anesthesia, and not adequately considering interactions with Decedent's medications; and (3) failing to timely call 911 to address Decedent's life-threatening change in condition following treatment. (Torbiner Decl. at 10-17). This, along with his opinion that these breaches were a substantial factor in Decedent's death, are suffi...

Excerpt: ..., and excerpted quotes from, documents not attached as exhibits to the complaint].) SUSTAIN Defendants' Evidentiary Objections. SUSTAIN Defendants' Demurrer to the First Cause of Action for Financial Elder Abuse without leave to amend. DENY Defendants' Motion to Strike as MOOT. The TAC allegations do not support Plaintiff's contention that Defendants knew or should have known that preparing the quitclaim deed, at the request of Bernice's financia...

Excerpt: ...nt. 5. GRANT the motion for summary adjudication as to the 2nd, 3rd and 4th causes of action. However, the court allowed the parties to file further briefing as to the 1st and 5th causes of action, and as to evidentiary objection no. 23. OVERRULE Objection No. 23. There are two layers of hearsay covered by this Objection—the statement from Shaw to Sanford, and the statement from Sanford to Plaintiff. Neither Shaw nor Sanford were named as defen...

Excerpt: ...vded the paperwork, i.e., Conditions Addendum and gift affdavits, needed for originating the mortgage loan for the purchase of the property. Defendant Parks never met or spoke with Plaintiff and did not partake in procuring Plaintiffs signatures on the gift affidavits to defraud or to exert an undue influence. Nor is it shown that Parks prepared the affidavits with an intent to aid James and Bunas in unduly influencing Plaintiff to sign the affid...

Excerpt: ...arassment claim. (FAC, 915(e).) However, courts have held that, "[h]arassment... consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 55.) Moreover, harassment does not include personnel management duties such as "hiring and firing, job or project assignments, office or work staton assignments, promotion or demotion, ...

Excerpt: ...rrantor" and that HMA violated that Song Beverly Act by failing to conform the Vehicle to the express written warranties within a reasonable number of attempts (Comp.,'1 12, 15), Plaintiff does not actually allege that HMA provided any express warrantes to Plaintiff covering the Vehicle. There are no facts showing the warranty period. Nor does the Complaint allege any specific nonconformity. The Complaint provides conclusory allegations only that...

Excerpt: ...ls (RJN, Exs. C-NI), and Plaintiff concedes in the Opposition that he does not personally hold title to any of the parcels. (Opposition, pp. 4-5.) Instead, he alleges in the SAC that the Association assigned him the right to collect assessments levied upon Defendants. (SAC, 3, 12.) Plaintiff does not dispute that, under Civil Code S 5735(a), a homeowner association is prohibited from assigning its rights to collect assessments. Thus, Plaintiff fa...

Excerpt: ...to sever the claims against Mr. Capriotti from the claims against Mrs. Capriotti, so that a default judgment may be entered against Mr. Capriotti. Bifurcation under CCP S 1048 is not appropriate because Plaintiffs do not seek to bifurcate causes of action or issues such as liability and damages. What Plaintiffs seek is a separate judgment of default against Mr. Capriotti. (See Motion, p. 4 (bifurcation is needed to prevent "a possible future atta...

Excerpt: ...nd-ng an instrument signs it, he may not, in the absence of fraud, coercion or excusable neglect, avoid its terms on the ground he failed to read it before signing it." (Bolanos v. Khalat-ian (1991) 231 Cal.App.3d 1586, 1590.) However, it is also not clear that it was an arbitration agreement — the headline is "Employee Acknowledgment and Agreement." The arbitration agreement is not bolded or otherwise separated to identify that it is an arbitr...

Excerpt: ...ston (special interrogatories), 12, 13; Declaration of Sean Kingston (RFPs), 14-17.) Axia failed to file a Reply in support of the motions. It appears, based on Axia's IDC brief, that Axia is in the midst of reviewing the responses and documents. If there are any issues with the supplemental responses, Axia can file a new motion. Courts impose monetary sanctions against any party who unsuccessfully makes or opposes a motion to compel further resp...

Excerpt: ...pp.5th 209 shortly. It is fully briefed. To sustain the demurrer right now (as it is not clear how Plaintiff can amend since this is a legal issue) would effectively kill these causes of achon before allowing Rodriguez to be determined. If the Supreme Court affirms Rodriguez, the court can then grant a motion for judgment on the pleadings. If the Supreme Court reverses Rodriguez, then the case can contnue forward and the parties will not lose tim...

Excerpt: ...et for 10/10/23, which is less than 30 days the trial date of 11/2/23. However, the court has the authority to permit a later hearing. (aeroiz v. Wahl 84 Cal.App.4th 485, 493, fn 4.) Therefore, this argument fails. 1st and 2nd Cause of Action-Breach of Contract: Johanson argues that Plaintiff cannot prove a breach of contract claim because it failed to attach the contract to the Complaint, which shows there was no contract and no contract can be ...

Excerpt: ...med Incryo, a business based in India, would know of any law or regulation preventing it from paying the $250,000 settlement by 11/5/21. (ld. 10.) Smith also assumed that was going to pay the entire $250,000 settlement before the deadline. (ld. '1 8.) Smith asserts that the payment was ready to be made, but was unexpectedly delayed by the Reserve Bank of India due to a regulatory obstacle that prevented Incryo from making the $250,000 transfer fr...

Excerpt: ...s operated from the Anza property. (ld. 3.) Smith was aware that Silvester ran other businesses from the property including HerbSharks, a Wyoming entity. (ld. 4.) Smith declares that in 2019, Silvester discussed a new business venture involving a hemp farm in Colorado, and solicited him to invest, which he wanted to do, but could not do financially. (ld. 5.) Smith has independently established that Silvester resided at the Anza property during th...

Excerpt: ...ses of action; DENY as to the 1st and 5th causes of achon. SOL: Defendant contends the limitations period is one year, but mistakenly relies on the prior version of Gov. Code S 12960. (See prior version of Gov. Code S 12960(d).) As of January 1, 2020, the time limit for filing FEHA claims with the California Civil Rights Department is three years from the unlawful act. (Gov. Code S 12960(e)(5),(5).) The "unlawful act" about which Plaintiff compla...

Excerpt: ...ff twice in one night with no sitter ordered (FAC 912-13), and on the next day, he fell and suffered a laceration and hemorrhage (FAC 914). Plaintiffs generically allege that Defendant failed to assess his medical needs and refused to follow his care plan, failed to implement fall prevention policies and procedures, withholding care by failing to seek emergency' advice, and understaffing the facility. (FAC 921.) There are no facts to support that...

Excerpt: ...onnel. However, these non-specific conclusory facts are insufficient to allege a cause of action for elder abuse within the meaning of the Act. Plaintiffs factual claims still do not rise to the level of egregious conduct required by the Supreme Court of California to plead a cause of action for elder abuse under the Act. As with the FAC, Plaintiff's SAC lays out a multitude of care that she received during her various hospitalizations to LLUMC-M...

Excerpt: ...o assess the Plaintiff's skin after fraudulently indicating that he was suffering from pressure ulcers on admission, failed to rotate or reposition the Plaintiff's legs and falling to manage the Plaintiff's pain or obtsn a pain management consultation. (Comp., '133.) Further, the Plaintiff asserts that the Defendant failed to revise and update his care plan. (Ibid.) The Plaintiff contends that the hospital was understaffed. Plaintiff also alleges...

Excerpt: ... constitutes a breach of this covenant. If this motion is not granted, the Plaintiffs contend they will be prohibited from seeking a permit until after July 29, 2024, due to a County moratorium. And argue that requiring the Defendant to sign a form for the County is not a mandatory action. Plaintiffs, however, are seeking a mandatory injunction. An injunction is prohibitory if it requires a person to refrain from acting and mandatory it compels t...

Excerpt: ...laintiff stopped driving the vehicle and wanted her money refunded or a different vehicle. (ld. at 120.) The court of appeals found that the plaintiff's vehicle was a new motor vehicle under Civil Code which had five categories of new motor vehicles, which includes a demonstrator vehicle or other motor vehicle sold with a manufacturer's new car warranty. (ld. at 122-123.) The court ultimately found that "section 1793.22 includes cars sold with a ...

Excerpt: ... determined when she should be discharged from inpatient care." (Second Amended Complaint, 917); and adds paragraphs 27 to 32, 36 to 42 and 62 to 64. The allegations plead in these newly added paragraphs are still factually deficient and cannot support a cause of action for Elder Abuse or Neglect. Paragraphs 27 to 32 allege that plaintiff had a low Braden score and had minimal bed mobility; and that LLLIMC-M was aware that plaintiff only had emer...

Excerpt: ...ys leave to amend, the fifth cause of action. DENY the entire moton to strike. Request for Judicial Notice: A draft copy of CC&Rs do not fit within any of the categories set forth in Evidence Code SS 451 and 452 and the document is irrelevant to both motions. Judicial notce of Exhibit 2, recorded grant deeds is appropriate. Scott v. JP Morgan Chase Bank (2013) 214 Cal.App.4th 743, 755. As to election rules, Plaintiff does not dispute that these a...

Excerpt: ...ch Michele responded she had already applied for family leave and was in the process. Despite Irene telling Michele that she had until April 17, 2021, to enroll for family leave, in or around early April, Michele received a termination letter dated March 31, 2021 the letter stated her employment had been terminated for her alleged failure to return to work from leave of absence. (Complaint, 15 [emphasis in the original].) Hernandez's alleged acti...

Excerpt: ... year after it was manufactured, pursuant to RINlriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209. However, Rodriguez has been granted review by the California Supreme Court—it is no longer binding authority and is only persuasive. The court in Rodriguez determined that the purchasers of a pre-owned vehicle could not assert a claim against the manufacturer despite the fact that the vehicle was sold with some balance remaining on the manufacturer...

Excerpt: ..., once in the uterus, made multiple attempts to bring the baby's head out of Ms. Fogg's pelvis, but this was not successful. Dr. Lebo then made multiple attempts to do the same, but was not successful either. The decision was then made to deliver the baby from a breech position. The baby was delivered successfully. Dr. Lebo did not have any further involvement in Ms. Fogg's or her daughter's care once the c-secäon was completed. McMurray states ...

Excerpt: ...rs to be an inordinate amount of time devoted to review and preparation of pro forma discovery demands/responses. Finally, GM's challenge to the hours spent on the present fee motion also has merit. Based upon GM's specific challenges to the billing records, the following adjustment/discount are granted as to hours billed by Plaintiff's counsel: • 6.0 hours at $435 (Zhang) ($2,510) — excessive time reviewing and drafting discovery demands and...

Excerpt: ...ly endured at the hands of Defendants. Plaintiffs contend that they (or at least counsel) were not aware of some of the conduct until Zachary Lear's deposition, which was taken at the end of July 2023. (Declaration of Annie Duong, '1 8.) Additional conduct in connection with the claim for wrongful evicton occurred in May 2023, with Defendants allegedly shutting off Plaintiffs' access to water and power. Plaintiffs' would not have been able to inc...

Excerpt: ... recently named led Plaintiff to believe that the correct party was sued. On the other hand, evidence presented by Defendant shows, at least by October 2022, Plaintiff should have known of the true identity of Aaron Michael Splipich by way of Micahel Splipich's responses to discovery, in which he repeatedly asserted objections that he was not involved in the accident and pointed Plaintiff to refer to the Traffic Collision Report, which referenced...

Excerpt: ...een contacted and her financial situation and options had been explored. The compliant indicates she did not receive any mail or messages from Nationstar. (Complaint, 27.) However, the complaint does not say that she did not speak to anyone from Natonstar. 2 nd CofA: Based on recorded documents, Affinia Default Service, LLC, as trustee for the beneficiary, recorded the notice of default. This document was recorded on 2/23/18. (RJN Exhibit 6) Thre...

Excerpt: ...ta, early consumer complaints made exclusively to GM's network of dealers and directly to GM, aggregate warranty data compiled from GM's network of dealers, testing conducted by GM in response to consumer complaints, and repair order and parts data received by GM from its network of dealers (q 25); that Defendant knew or should have known about the transmission defect from consumer complaints that formed the basis for McKee v. General Motors LLC,...

Excerpt: ...fendant that rise to the level of abuse or neglect contemplated by the elder abuse statute. The gist of the allegations are the development of pressure ulcers (without any facts to support that they developed out of neglect), that the wounds were being treated (any failure would amount to not providing enough care, not a complete lack of care) and that Plaintiff was discharged (any additional claimed injury would not be as a result of care by Def...