Excerpt: ...s pltfs' signed a waiver of release of all liability. In the 6th (fraud for non‐ disclosure of facts) and 7th (fraud for negligent representation) causes of action the second amended complaint has failed to properly plead any specific facts about the source or time of any misrepresentations or non‐disclosures. In addition, the pltf has failed to plead what authority any person who made such representations has to bind the deft corporation. Th...

Excerpt: ...ded to purchase the property. The demurrer is sustained with leave to amend on the 2nd cause of action (fraud) because of lack of specificity. The demurrer to the 4th and 5th causes of action is sustained without leave to amend. Notice of a lis pendens published in the course of judicial proceedings is privileged pursuant to CC 47. Lack of service does not render the recordation unprivileged. Consequences of violating service requirements are del...

Excerpt: ...e deft's supervised retirement home. The decedent apparently fell and broke his hip on 11/25/16 and passed away on 12/29/16. The 1st cause of action does require specificity as to the statutory violation of elder abuse to establish gross negligence or reckless disregard. The alleged incident occurred on a single occasion, not sufficiently connected to the decedent's death, and does not demonstrate a significant pattern of withholding care. The se...

Excerpt: ...ight to discovery after the cut‐off date, the court has discretion to reopen discovery pursuant to Cal. Code Civ. Pro. §2024.050; however, this statute specifies that such leave shall be granted only on motion of any party. (Pelton‐Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568, 1586.) The court must consider the following factors: (1) the necessity and the reasons for discovery; (2) the diligence o...

Excerpt: ...17, 433. Moreover, Cross‐Defendant would first have to acquire good title by completing the transaction in order to flip the Property, which negates the allegation in the Cross‐Complaint that she never intended to complete the transaction. As to the second and third causes of action, a notice of lis pendens published in the course of judicial proceedings is privileged under Civ. Code § 47 and thus cannot form the basis of a cause action for ...

Excerpt: ...tement of opinions is without merit. As pleaded in the FAC, Pool Route's alleged statement that Albert's accounts never had any prior problems was a specific misrepresentation of existing fact rather than a general statement or subjective opinion. See FAC, ¶¶ 16‐17. See also Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311. Pool Route's argument (made only in reply) that exculpatory provisions in the Agreement negate the possibility ...

Excerpt: ...d the right version of the settlement agreement. Also, moving party to submit an update on the status of the Johnson case when moving for final approval. Moving party to give notice. This matter was originally heard on May 17, 2018. In its tentative ruling, this court noted the motion failed to comply with the CMO at ¶¶ 1.d., 1.e., 2., 3., 5.a., 6., 7., 8., 10., 12., 16., 19., 20., 21., 23., 24., 26. of Section E. The court continued the hearin...

Excerpt: ... agreement can be reached that would resolve the objections raised in the demurrer. As part of the meet and confer process, Cross‐Defendant shall identify the specific causes of action that she believes are subject to demurrer and identify with legal support the basis of the deficiencies. Cross‐Complainant shall provide legal support for his position that the pleading is legally sufficient or, in the alternative, how the cross‐complaint may...

Excerpt: ... Cal.App.4th 446, 451.) GRANT the motion as to the 3rd cause of action without leave to amend. Negligent misrepresentation requires a positive assertion, not merely an omission or implied representation. (Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 596; Diedliker v. Peelle Fin'l Corp. (1997) 60 Cal.App.4th 288, 297‐298.) Plaintiffs do not allege that Defendants made an affirmative misrepresentation of fact. Prevailing pa...

Excerpt: ...fessional negligence through the testimony of her two expert witnesses, Plaintiffs satisfy their burden in opposition to demonstrate the existence of triable issues of fact with respect to both the alleged breach of the standard of care and causation. Plaintiffs' expert, Jack Sills, M.D. is properly qualified and opines that the standard of care required that the twins be subject to parallel evaluations and antibiotic treatment and that if Joshua...

Excerpt: ...n an ordinary negligence case. Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1050. “With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances' relevant to an overall assessment of what constitutes ‘ordinary prudence' in a particular situation. . . Since the standard of care remains constant in terms of ‘ordinary prudence,' i...

Excerpt: ... Moving party to give notice. 42 U.S.C. § 1395x, 45 CFR § 164.512 and Cal. Civ. Code § 56.10 are completely inapplicable to Defendant. The definition of “provider of services” under 42 U.S.C. § 1395x applies for purposes of payments to physicians and funds of medical schools. The restricted disclosures under HIPAA, 45 C.F.R. § 164.512, apply only to “covered entities” which include 1) health plans; 2) health care clearinghouses; and ...

Excerpt: ...be excusable, i.e., relief must be granted even where the default resulted from inexcusable neglect by the defendant's attorney. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 897.) GRANT $1,000 sanctions—the Law Office of Charlene Baillie shall be ordered to pay $1,000 in sanctions to Plaintiff within 30 days. (CCP § 473(b) and 473(c)(1).). Moving party to give notice. Counsel for defendant, Charlene Bai...

Excerpt: ...ective order is not sufficiently narrow. In its current form, the phrase “or any of the subject matter contained therein” includes the bank account event. (Proposed Order filed 5/10/18.) Therefore, the protective order is granted as to the TRO declaration itself and facts concerning Burkholder's intimate sexual relations with her ex‐husband as well as issues of domestic violence and medical issues, which shall be protected in the context of...

Excerpt: ... filings of CMC statement and notice of rulings, which do not require filing fees. Plaintiff infers that the “court filings” fees were attorney service fees. The “court filings” entry is not itemized in the Memo of Costs, so it is impossible to determine what portion of the claimed costs were for filing fees, and what portion were for attorney service fees. Defendant should have itemized these costs ($419.75) because costs for attorney se...

Excerpt: ...pletion of the Project and promptly apply the Construction Fund to the payment of vouchers to be issued and signed by Contractor and/or Owner, of such costs as are properly allocated to the construction of said Project and such payments to be made in accordance with the terms and conditions of the Construction Agreement and the Construction Loan Agreement.”], emphasis added.) Alternatively, even if defendant met the initial burden, there are tr...

Excerpt: ...f a mistaken fact material to its failure to timely respond. However, monetary sanctions shall be imposed against Defendant and its attorney of record in the amount of $1,590. Prevailing party to give notice. ...

Excerpt: ...�3, where one person, employed by a lender but authorized by MERS, signed the assignment and substitution. Here, O'Connell was designated as a signing officer for MERS. (Dec.O'Connell, ¶9, Ex. “4”, Corp. Resolution.) The Bogosian Court noted that no legal authority was presented prohibiting such an arrangement. (Id.) Here, Plaintiff does not challenge this arrangement. In addition, Plaintiff agreed to allow MERS to act as the nominee accordi...

Excerpt: ...in which he indicates that he decided that the loss of consortium cause of action on behalf of Mary Hoover lacked merit and that he did not realize that he failed to delete it before filing. He states that he did not discover this error or the labeling errors until the meet and confer on May 7, 2018. Counsel states that he added the new facts concerning Plaintiff's injuries in response to Defense Counsel's concern regarding the sufficiency of the...

Excerpt: ...w of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.” (People v. Shuey (1975) 13 Cal.3d 835, 841.) The court of appeals did not determine the validity o...

Excerpt: ...tial burden by producing the expert testimony of Dr. Klein, showing that Dr. Tang did not breach the applicable standard of care or cause Merri Baldwin's death, and the burden shifted to Plaintiffs. The testimony by Plaintiffs' expert, Dr. Leo, shows triable issues of fact precluding summary judgment. Prevailing party to give notice. ...

Excerpt: ...outstanding issues under the Stipulation are Plaintiff's failure to serve a written declaration responding to the seven deposition questions and the failure to provide deposition dates for expert witnesses. With respect to the authorization for the release of records, Plaintiff's counsel did not stipulate that Plaintiff would execute authorizations and only indicated on the record that he would withdraw his objections, which he did. Contrary to D...

Excerpt: ...l Code. The City determined petitioner was not entitled to an exemption, in part, because he operated a business, sought a profit, and did not own the horses at his ranch, even though the applicable code section provides for no such exclusions from the right to an exemption and implies, on its face, that the applicant operates a business because the exemption, once granted, allows the agriculture enterprise to operate without a business license. ...

Excerpt: ...t Plaintiff is seeking compensation for her portion of equity in the property rather than title. However, Plaintiff asserts a Quiet Title cause of action alleging that title should be quieted in her name, although the basis for this cause of action is unclear and not supported by the terms of the alleged implied contract. She also asserts that a constructive trust and/or resulting trust should be imposed upon the subject property. She does not, h...

Excerpt: ...ns of Plaintiffs' counsel and the targeted solicitation allegedly sent to Plaintiffs may potentially violate obligations, particularly the Rules of Professional Conduct, the documents/information sought by the subpoena and the origin of the relationship between Plaintiffs and their attorney of record are not relevant to any claim or defense in the present action and are not reasonably calculated to lead to the discovery of admissible information....