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...

Excerpt: ... to allege that the remedial provision of the Song-Beverly Act applies to Plaintiff's vehicle. The Complaint hardly alleges any facts and merely states that Plaintiff entered into a warranty contract with Ford; it neither alleges whether the vehicle was purchased new nor that the subject vehicle was sold with a manufacturer's new car warranty. Although the Complaint does not specify that the vehicle was purchased as a used vehicle, it nevertheles...

Excerpt: ...pu
Ÿng the language of the proposed order. The Tech-Bilt factors are, therefore, not relevant because this is not an issue of whether the se
©lement was made in good faith. Thus, the mo
Ÿon is denied as improper. Notwithstanding, the court can amend the language of the proposed order. Un
Ÿl an order is signed and entered, the court retains power to change its ruling or modify an order. (Bernstein v. Consolidated American Ins. Co. (1995) 37 Ca...

Excerpt: ...tatements made in the declarations in support of the application based on relevance, prejudice, lack of foundation, lack of personal knowledge, hearsay and false statement. Most of the testimony is relevant for background and context, and have sufficient foundation. There are, however, a few statements that constitute inadmissible hearsay. OVERRULE nos. 1-19, 21, 22, 24, 25-67; SUSTAIN as to nos. 20, 23. Defendants argue that a TRO may not be gra...

Excerpt: ...ith assumed 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. '1 10.) Mr. Smith also assumed that Incryo was going to pay the entire $250,000 settlement before the deadline. (ld. 8.) Mr. 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 Page 4 o...

Excerpt: ...mano Decl. 1116.) The motion includes a copy of the billing entries for Plaintiffs counsel. (Romano Decl. Ex. 1.) Counsel took this case on a contingency fee basis and asserts the time spent and fees charged are reasonable. (Romano Decl. "19-20.) Defendant cites to various cases where courts reduced counsel's hourly rates in lemon law cases. Defendant argues that Plaintiff's attorney rates should be reduced to no more than $400/hour given the typ...

Excerpt: ...anscripts, and the x-rays and CT scans performed on Plaintiff. (Garg Decl. 92.) He opines that, to a reasonable degree of medical probability, the care and treatment provided by Dr. Robinson to Plaintiff was appropriate and complied with the standard of care. (Garg Decl. 938.) Garg states Robinson initially and correctly determined Plaintiff was not a surgical candidate because there was no fracture involving the glenohumeral joint or lateral bor...

Excerpt: ...rejudicial the delay is to opposing party because it becomes more difficult to replace counsel. The stage of litigation supports a finding of unreasonable delay. Defendants' answer identifying Marshall as counsel was filed on 3/11/22. This motion was filed on 3/15/23. Plaintiff was aware for cwer a year that Marshall would be representing Defendants before he raised this issue. This appears to be a lengthy delay. Also, relief provides a tactical ...

Excerpt: ... hearsay. The Retail Installment Sales Contract ("RISC") is properly authenticated by counsel Fisher who states that the document was produced by Plaintiff. (Fisher Dec., '1 1, Ex. A.) The statement by Nguyen regarding his reviewing the RISC is not hearsay and is based on personal knowledge. Though the next portion of his statement (i.e., "the [RISCI ... shows Gladys Lopez purchased the Subject Vehicle used with 38, 746") is inadmissible under Ev...

Excerpt: ...int was filed December 22, 2021. On April 8, 2022, Defendants Temecula Valley Athletic Club, lnc, Lani Morel and Ed Morel filed a demurrer and motion to strike as to the Complaint. On May 16, 2022, Defendant Erik Sardpon filed his Answer to the Complaint. Then on May 23, 2022, Plaintiff, without leave of court, filed a First Amended Complaint rather than file an opposition to the demurrer and motion to strike. CCP 5472 provides as follows: (a) A ...

Excerpt: ...s. (ld. at 26.) This is another theory of liability against Defendant. Plaintiff confirmed this in his opposition. (Plaintiff's Opposition, 13:12- 14.) Since Defendant has failed to address said allegations in its moving papers, it has failed to meet its initial burden as to the second cause of acton. Plaintiff has also provided sufficient evidence to establish a triable issue of material fact about whether the withholding of funds was proper. De...

Excerpt: ...re not required to do so. (Cruz Dec„ 9.) However, he does not state whether the refusal to sign affects employment. Plaintiff asserts that she was told that she had to sign the Arbitration Agreement to keep her employment. (Palagnas Dec., 2.) Although the Arbitration Agreement states that each party agreed to the terms voluntarily after an opportunity to discuss with legal counsel, Plaintiff again states that this was not true and that she was ...

Excerpt: ... motion for judgment notwthstanding the verdict (JNOV). (CCP 5629(a).) However, a JNOV moton occurs after the jury has rendered a verdict. (ld.; see Wegner, et California Practice Group: Civil Trials & Evidence S12:325 (Rutter Group 2022).) As explained by one court: While made at different times, the three motions are analytically the same and governed by the same rules. [Citation.] The function of these motions is to prevent the moving defendan...

Excerpt: ...im for negligent repair against Pedder. The dealer, Temecula Nissan, is not a party to this action. Moreover, the Complaint does not depend upon the RISC in asserting causes of action against the non- signatory manufacturer, and NNA's alleged misconduct is not founded upon or connected with the obligations of the RISC. Also, recently in Ochoa, 2023 WL 2768484 — the Court of Appeal for the Second District similarly declined to follow Felisilda, ...

Excerpt: ... to the seventh cause of action as to Ebert and SREG, without leave to amend; and • SUSTAIN as to the ninth cause of action, with 30 Days leave to amend. • SUSTAIN as to the eleventh cause of action as to Ebert and SREG, with 30 Days leave to amend. /// /// Page 3 of 3 1st COA: As with the previous complaint, there are no facts alleged in the FAC to support this statutory claim as against Ebert. Plaintiff admits in his Opposition that it was ...

Excerpt: ...ot otherwise established defective subject matter or personal jurisdiction in the underlying Oregon action. The notce of entry of judgment was served on Cynthia at Defendant's home address via substituted service on Johnny on August 20, 2021. (8/26/21 Proof of Service.) This motion was not filed until February 6, 2023—therefore, the motion is untimely. As to substitute service on Johnny, Evid. Ctxle S 647 provides that a registered process serv...

Excerpt: ... Alabama court order granting his request to stay the action to pursue this California action. The problem with the instant request is that Johnson does not have a quantum meruit claim in this action and does not address this fact in his motion. Thus, to the extent Johnson relies on the Alabama court order as new evidence to support his request to lift the stay it is not persuasive. There is nothing new as it relates to the claims asserted in thi...

Excerpt: ...mended complaint identifies two alleged misrepresentations made by SLS — the notice of default filed by SLS and a misrepresentation that SLS would send Plaintiffs an accounting of the $38,000.00 listed on the notce of default. (First Amended Complaint, 24 and 25.) There are, however, no allegations that show actual reliance in connection with the recording of the notice of default. As to the second representation regarding SLS (that an accounti...

Excerpt: ...ot otherwise established defective subject matter or personal jurisdiction in the underlying Oregon action. The notice of entry of judgment was served on Cynthia at Defendants home address via substituted service on Johnny on August 20, 2021. (8/26/21 Proof of Service.) This motion was not filed until February 6, 2023—therefore, the motion is untimely. As to substitute service on Johnny, Evid. Code S 647 prov-des that a registered prc„cess se...

Excerpt: ...tion for unfair competition. OVERRULE the sixth cause of action for misappropriation of trade secrets. DENY the motion to strike. Pilotte: SUSTAIN the general demurrer to the third cause of action for breach of contract, with 20 days leave to amend. OVERRULE the general demurrer to the sixth cause of action for misappropriation of trade secrets. DENY the motion to strike. Axia/Pilotte: OVERRULE the special demurrer. Axia and Pilot-te fail to expl...

Excerpt: ...dgment and motion to set aside judgment were heard on 1/12/23. The motion for summary judgment was continued to allow a supplemental expert declaration and supplemental reply. Plaintiff submitted a supplemental declaration from his expert Brad Avrit. Mr. Avrit's testimony indicates why he believes he has knowledge to testify regarding property management and sanitation issues in paragraph 5 of his supplemental declaration. He also states that he ...

Excerpt: ...scovery that may lead to admissible evidence just as in any other case. (Property Reserve, Inc. v. Sup. Ct. (2015) 6 Cal.App.5th 1007, 1017 ["80th the Eminent Domain Law (citations) and the Civil Discovery Act (citations) authorize the landowner to engage in discovery, subject to the court's conventional discretion to manage and limit the discovery's scope, manner, and frequency."l) While pre- condemnation activities are a different type of emine...

Excerpt: ...m. on August 8, 2020. (AR024.) Petitioner told Officer Leanos that he was driving his Can-Am at approximately 45-50 mph within the open campground area. He made a right turn, lost control, and flipped the vehicle 1-2 times. After the collision, Silva drove the vehicle back to his campsite and Brian Solorio called 911. Solorio sustained deep lacerations to his middle finger as a result of the crash and he was transported to Victor Valley Medical C...

Excerpt: ...e undisputed. While Plaintiff purports to dispute paragraph 8 of the Separate Statement regarding the dialogue between Davies and Deputy Leso because “Defendants selectively omit” dialogue regarding a violation of Penal Code § 602.1(a). However, it is clear from the video footage that the “omitted” dialogue regarding § 6.02.1(a) was not directed to Davies (that is, the dispute is not supported by Plaintiffs' cited evidence). Moreover, t...

Excerpt: ...der the terms of the Master Agreement and addendum. (TAC, ¶ 106.) The reasonable value for the work, labor and services was $500,000. (TAC, ¶107.) Plaintiff claims that this sum has not been paid to PSG by Charter. (TAC, ¶108.) The TAC states that, instead of paying PSG, beginning on April 5, 2019, Charter made payments to Precision for services rendered by PSG after receiving communications from Ornelas indicating that PSG was no longer opera...

Excerpt: ...his motion. (CCP § 437c(q).) GRANT the motion for summary judgment in favor of Wawanesa and against Plaintiff. Defendant to submit a Proposed Judgment Order within 10 Days. The named driver exclusion in the 2021 endorsement was conspicuously presented on an entire page, titled in all capital font, in bold, and advised the insured to read it carefully. (UMF No. 10.) There is also no dispute that Arnelle was an excluded driver in the 2021 policy f...

Excerpt: ...ome (CRPS). Plaintiff was examined by Defendant's anesthesiologist/pain management expert, who concluded Plaintiff does not suffer from CRPS but an “abnormal EMG/NCV” indicating Plaintiff has a “bilateral polyneuropathy of unknown origin.” Defendant seeks further examination by its retained neurologist Dr. O'Carroll “to determine the cause and origins of this co‐morbidity.” Defendant adequately explains in the supplemental brief tha...

Excerpt: ...on the rest as not material. Based on the arguments of notice and open and obvious, PK has met its initial burden and Plaintiff has failed to establish a triable issue of material fact. The second amended complaint alleges that the dumpster itself constituted a dangerous condition and PK failed to use reasonable care because it did not provide safety precautions or warnings for individuals who climbed into the dumpster. PK contends these claims f...

Excerpt: ...continued to 2/6/23. Mr. LaTorraca opines that a reasonable rate in this matter is between $225 and $300 per hour, based on a ruling almost five years ago, with no explanation of the complexity of the issues involved in that case. (LaTorraca declaration, ¶¶55‐57; Exhibit “10”.) This figure is not consistent with my own assessment of fees in this region and the other factors to be assessed in determining what would be a reasonable rate for...

Excerpt: ...y, the documents contain internal communications of FCA's engineers and personnel concerning analysis and investigation of alleged defects. The emails concern engineering team discussions on the investigation and application of vehicle recalls, tracking data for warranty claims, regulatory relations with governing bodies in foreign nations, and investigation methodology. (Decl. of Hendler, ¶¶5‐8.) Mr. Hendler asserts that the information is n...

Excerpt: ...dgment that comports with this ruling. The trial court's jurisdiction to act on remand from a higher court is defined by the terms of the remittitur. (Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5; People v. Dutra (2006) 145 Cal.App.4th 1359, 1368‐1369.) If the remittitur is ambiguous, the trial court can interpret it in light of the law and the appellate opinion to determine its duties. (People v. Dutra, supra, 145 Cal.App....

Excerpt: ...etailed declaration as to time spent on this portion of the case—the billing records currently lack sufficient detail. DENY Klein's costs related to court transcripts—he is not entitled to recover the court transcripts since (1) they must be pled and proven as part of trial; or, alternatively (2) this is an improper motion for reconsideration—Klein failed to make this argument in his opposition on the Motion to Tax. Timeline ▪ 7/13/17: Re...

Excerpt: ...iscretion to reduce costs to $37,500. Defendants are entitled to recover expert witness fees. (Code Civ. Proc., § 998, subd. (d).) The fact that the 998 offer was jointly made to all three plaintiffs does not render the offer void because plaintiffs shared a unity of interest. (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505; see also Farag v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 372, 382 [no need to apportion damages between s...

Excerpt: ...alth care provided by The Springs indicates that Nunzio Nino Lacriola is responsible for making health care decisions for Decedent. Hence, The Springs' argument that Plaintiff had power of attorney lacks merit. Additionally, Plaintiff's agreement that she had authority to act on Decedent's behalf in the arbitration agreement does not appear sufficient. See Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1164. An individual who i...

Excerpt: ... already had Plaintiff sit through one medical examination by its retained anesthesiologist/pain management expert, Dr. Zarembinski, based upon Plaintiff's claimed CPRS. (Declaration of Nikki K. Orr, ¶ 7.) However, Plaintiff also alleges permanent orthopedic injuries to his right foot and right leg resulting from the incident. (Id., ¶ 2; Complaint, ¶ 17; Opposition, p. 3.) Although Plaintiff contends Dr. Zarembinski “examined both the orthop...

Excerpt: ...on of Documents and/or lawful Subpoenas. The proof of service attached to the moving papers does not reflect that either Attorney Baldwin or the Riverside Sheriff's Department were served with notice. Further, pursuant to CRC Rule 3.1346, “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or compel production of a document or tangible thing from a nonparty deponent must be personally serve...

Excerpt: ...ermine what issues must be admitted or denied, or whether the claims are directed against it. (Khoury, supra, 14 Cal.App.4th at 616.) The special demurrer on grounds of uncertainty is denied. In the FAC Plaintiff repeatedly conflates Pacific Inland and Parkside. Pacific Inland, however, is not a party to the Lease. Further, Plaintiff does not plead facts to demonstrate a breach of the MSA; rather Plaintiff simply alleges that the defendants breac...

Excerpt: ...21, 2022. The parties exchanged numerous, substantive meet and confer letters and met and conferred telephonically. It appears that the parties are now at an impasse. It appears that Defendant's counsel became antagonistic and inappropriately aggressive during the meet and confer process. Nevertheless, despite this hostility, the parties satisfied the meet and confer requirements of (Cal. Code Civ. Pro. §§2030.30(b); 2031.310(b)(2).). Defendant...

Excerpt: ...our causes of action arising out of a real estate transaction between Plaintiff and EPR DE: (1) breach of contract (against EPR DE); (2) breach of contract (against EPR DE); (3) fraud (against EPR DE and Schutte); and (4) alter ego (against Klein and EPR CA).[1] The default of the EPR defendants was entered, and default judgment was entered against them on the first three causes of action on 9/29/22. Following a court trial on this issue, Defenda...

Excerpt: ...ntitled to judgment as a matter of law. After the moving party has met its initial burden, the court's sole function on a summary judgment motion is to determine whether or not there are material facts in dispute. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) Plaintiff alleges the following causes of action in her complaint: (1) FEHA Discrimination based on sex discrimination; (2) FEHA violations based on pregnancy discrimination; (3) FEHA vio...

Excerpt: ... omission in a notice of public hearing, unless the court finds the error was prejudicial, the complaining party suffered substantial injury, and a different result was Page 3 of 5 probable had the error not occurred. ([Government Code] § 65010, subd. (b).) Neither prejudice, substantial injury, nor the probability of a different result may be presumed based on a showing of error alone. (Ibid.) ” (Rialto Citizens for Responsible Growth v. City...

Excerpt: ...ritten lease with defendant Jefferson Avenue Temecula, LLC to rent commercial space located at 27355 Jefferson Ave, #C/D in Temecula to operate a beauty supply store and salon starting November 1, 2019. Plaintiff alleges Defendant failed to timely deliver possession of the premises with a certificate of occupancy. Defendant now moves for summary judgment and/or adjudication of each cause of action. Defense relies on the fact that most of the issu...

Excerpt: ...t calls out a separate theory of liability. (Lilienthal & Fowler v. Sup. Ct. (1993) 12 Cal.App.4th 1848, 1853– 54.) Each arises from a distinctly separate legal obligation or claim of right and (2) each has its own set of elements that will be established by different evidence. In Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, the court held that a special demurrer was properly sustained “where two causes of action ha[d]...

Excerpt: ...n documents without any intent to occupy or own the property, but rather, as an accommodation to the Defendant Cross complainant to enable her to borrow money from a lender when she otherwise lacked the financial wherewithal to finance the mortgage. Neither party has addressed the effect that this apparent fraud on the lender would have on the matter at hand in terms of whether either party can now move to enforce the ownership of the mortgage th...

Excerpt: ...ional or statutory right by threatening or committing violent acts; (2) that the plaintiff reasonably believed that if he exercised his constitutional right, the defendant would commit violence against him or his property; (3) that the defendant injured the plaintiff or his property to prevent him from exercising his constitutional right or retaliate against the plaintiff for having exercised his constitutional right; (4) that the plaintiff was h...

Excerpt: ...x sold, and delivered, the two pods to Mochi. Mochi paid for only one of the two pods and this failure to pay formed the basis for the judgment entered in favor of Podtronix in this case. Mochi possesses the two pods, which are located at Mochi's place of business. In support of showing of the need for a turnover order, Rerucha states that “[b]ecause of the physical construct of the business premises of Mochi, it would be impossible for the She...

Excerpt: ...m the late filing, and the court chooses to exercise its discretion and move forward with the demurrers. The moving declarations of Plaintiffs' counsel indicate that meet and confer efforts, including a settlement offer, took place from May 2022 through the end of September 2022. Defendants have satisfied their meet and confer obligation under Code of Civil Procedure, section 430.41(a). In their demurrers, Defendants fail to explain how any of th...

Excerpt: ...emetery. On August 09, 2022, a judgment was entered in favor of the Iverson Defendants after they had prevailed on their motion for summary adjudication. The judgment indicated the following concerning Defendants' entitlement to costs of suit: “As the prevailing party, pursuant to Code of Civil Procedure § 1032, Defendants, MICHAEL DENNIS IVERSON; LAW OFFICES OF MICHAEL DENNIS IVERSON, APLC; CHARLES BENJAMIN GRAFF and GRAFF & ASSOCIATES LAW FI...

Excerpt: ... Witak. Plaintiff John Stauter died during the pendency of this action on December 1, 2021. The complaint asserts the following causes of action: (1) cancellation of instrument, (2) quiet title, (3) slander of title, (4) breach of oral lease, (5) ejectment, and (6) declaratory relief. Witak has filed a cross‐complaint against Plaintiffs. She asserts that the parties agreed that if Witak paid for some of the Plaintiff's moving expenses to the Ph...

Excerpt: ...erved on August 02, 2022. This argument is incorrect. Plaintiff served her Request for Production on June 30, 2022, by email. Defendant served its responses on August 03, 2022. Discovery responses to request for production (“RFP”) are due within 30 days from the date they were served. (Code Civ. Proc., §2031.260 [RFP].) Failing to respond within the time limit waives most objections to the discovery requests, including claims of privilege an...

Excerpt: ...any of the factual allegations asserted by Defendant. A demurrer based on a statute of limitations defense must clearly and affirmatively show that the claim is barred. (Lockley v. Law Office of Cantrell, Green, Kekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) “It is not sufficient that the complaint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.) Legal malpractice suits are governed by a 1 year statut...