Excerpt: ...l.2d 210, 220‐221.) While Defendants argue that Plaintiffs have failed to identify any trade secrets as required by CCP § 2019.210, the document requests at issue request specific categories of documents and Defendants themselves acknowledge and identify the categories of information sought by Plaintiffs. (See Joint Statement pg. 9:5‐17.) Defendants do not dispute the information sought is relevant to the issues raised in the Complaint. Fina...

Excerpt: .... TEA Systems, Corp. (2007) 154 Cal.App.4th 547, 575.) In fact, Plaintiff pleads facts showing Defendants did not timely perform and deliver the website as promised because they “either suffered from a lack of ability or knowledge as to how they were to perform their Services, or were plagued by serious display of incompetence or perhaps extreme negligence,” not because AJH did not intend to deliver the website on the projected completion dat...

Excerpt: ... CEQA action. (See Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 855; County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 32‐34.) If a court determines that a recipient of an approval has not been named as a real party and cannot be joined in the proceeding, it must then determine whether the unnamed party is indispensable by applying the factors in CCP § 389(b). (Quantification Settlement, 201 Cal.App.4th a...

Excerpt: ...arbitration agreement specifically states that the FAA applies. Defendants have presented evidence (and Plaintiff admits in the SAC at ¶ 24 and 32) that he flew from California to Maryland for treatment. (Freeland Dec. ¶ 4.) Plaintiff does not dispute the FAA applies. (Bernhardt v. Polygraphic Co. of America (1956) 350 US 198, 201.) Plaintiff's Wrongful Death Claim: Plaintiff did not execute the admission/arbitration agreement in any capacity, ...

Excerpt: ...ssional Negligence: Plaintiff claims Bloom failed to adequately pursue discovery in his divorce cases. Bloom was permitted to be relieved as counsel on March 21, 2018, several months before Plaintiff agreed to the Stipulated Judgment on August 22, 2018. (RJN, Ex. A.) Therefore, Plaintiff signed the Stipulated Judgment without obtaining additional discovery without advice from Bloom. The allegations concerning discovery are, therefore, not suffici...

Excerpt: ...ntly alleged by the Plaintiffs. However, this can potentially be fixed through another amended pleading. He asserts the new first, second, and third causes of action fail because the pertinent Corporations Code sections do not give rise to a private right of action. However, these causes of action are based on the Corporations Code and other statutory authority. Neugart does not provide any authority that these claims cannot be based on the other...

Excerpt: ...en's Hospital Central California vs. Blue Cross of California (2014) 226 Cal. App. 4th 1260, the court addressed whether §1300.71(a)(3)(B) provided the exclusive standard for determining the reasonable value of the poststabilization services at issue. The court held that it did not, finding that in adopting §1300.71, the Department of Managed Health Care (DMHC) was setting the minimum claims payment and dispute resolution standards to ensure co...

Excerpt: ...11,975) does not match the entry for witness fees on the Cost Memo ($11,642.86). Second, and more importantly, it does not appear that the expert fees were reasonably necessary to the defense of the action—the expert did not testify at trial. With respect to costs for service of process (Item 5) and based upon the exhibit (redacted costs sheet) attached to the opposition memo, it appears that only $1,199.40 was incurred for service of the subpo...

Excerpt: ... with Plaintiff to take any and all steps to prevent an unauthorized use of her identity, credit information and/or personal information to obtain an unwanted loan and purchase of unwanted vehicle. (Compl., ¶38.) She asserts that the parties agreed that "neither party would take any and all steps necessary for Plaintiff to use maximum benefits to prevent misuse and unauthorized use of her identity, credit information and/or personal tax returns ...

Excerpt: ...xpiration of the 60‐day hold. Additionally, Plaintiff's Separate Statement does not comply with Cal. Code Civ. Pro. §437c(b) and Rule 3.1350(d)(3). First, Plaintiff improperly attempts to fill in Defendants' disputes to his facts, which must be done by Defendants. Additionally, the UMFs are not numbered as required, which makes them difficult to reference. The evidence cited does not include exhibit numbers and appears to cross‐reference oth...

Excerpt: ...usive jurisdiction over Plaintiff's state claims raised in its state complaint. (See Fowler v. Ross (1983) 142 Cal.App.3d 472, 476.) Plaintiff is also correct that the rule of concurrent jurisdiction that provides the first action filed has exclusive jurisdiction does not apply where jurisdiction is taken by a state court and a federal court because they are not courts in the same system. (Id.) But, as Plaintiff also acknowledges, a state court h...

Excerpt: ...expert Edward Schneider, M.D. establishes that defendants are entitled to summary judgment as to all claims against them. He establishes that the Paradise Home defendants met the standard of care in the care they provided to Simmon Hasinsky during his residency there, that there was no act or failure to act which caused injury to Mr. Hasinsky or was a substantial factor in causing Mr. Hasinsky's death. He further establishes that there is no evid...

Excerpt: ...ts are taxed as follows: Messenger/Attorney Service: $3,552.63. Defendant provides no evidence that the messenger fees were reasonable or necessary; rather, counsel merely avers that the use of an attorney service is the “customary practice” of his office and that it was necessary “[i]n order to meet court mandated deadlines and to have documents filed on time.” (See Declaration of Ben‐Thomas Hamilton, ¶ 20.) Counsel, however, fails to...

Excerpt: ...gment on the pleadings. (Weil & Brown, Cal. Practice Guides: Civ. Pro. Before Trial (The Rutter Group, 2016) P. 10:52, p. 10‐25.) The rules applicable to demurrers and motions for judgment on the pleadings apply. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118.) Where the motion for summary judgment functions as a judgment on the pleadings to challenge the sufficiency of the allegations and it appears that the oppo...

Excerpt: ... Health & Safety Code § 1430(d). Instead, they argue that Plaintiffs seek more in penalties then they are entitled to. A demurrer is not the procedure to attack an improper remedy. Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561‐1562. A general demurrer does not test part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations in the cause of action cannot be...

Excerpt: ...ssue of fact.  The court declines to rule on Plaintiff's evidentiary objections—they do not conform to the format requirements of CRC rule 3.1354(b).  Defendants' evidentiary objections are OVERRULED as to nos. 1, 2, 6, 7, 9 and SUSTAINED as to nos. 3, 4, 5, 8, 10, 11. *Plaintiff mistakenly argues that Defendants seek summary judgment on an affirmative defense, i.e., the Privette doctrine, such that they must establish every element of th...

Excerpt: ...ederal law or California appellate authority. (38 U.S.C. § 5701; Payette v. Sterle (1962) 202 Cal.App.2d 372, 377 [finding no absolute privilege and merely criticizing defendant for failing to obtain the federal administrator's approval in seeking the records to admit them at trial].) DENIED as to plaintiff's obstetrics records— plaintiff has not placed in issue such records. DENY Defendant's alternative request for an order compelling plainti...

Excerpt: ...ly if the amended complaint pleads new causes of action that could not have been the target of a prior anti‐SLAPP, or adds new allegations that make previously pleaded causes of action subject to an anti‐SLAPP motion.” Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1219. No new allegations are added to the first and second causes of action (the third cause of action is no longer asserted against t...

Excerpt: ... than May 29, 2019. The Court will not accept further briefs. Factual / Procedural Context Plaintiffs Ghasan Tabel and Ghasan Tabel M.D., Inc. (“Plaintiffs”) filed the complaint in this action on December 15, 2015, against defendants Hospital Corporation of America (“HCA”), Riverside Community Hospital (“RCH”), Ben Russo, Kenneth Dozier and Russ T. Young (“Defendants”). Plaintiffs seek to recover damages because of the decline in ...

Excerpt: ...ice to the other side, even a weak showing will suffice. (Ibid). Here, especially in light of the parties' ongoing discussions, counsel's ultimatum that Defendants file their demurrer within a matter of hours was not reasonable. Likewise unreasonable, counsel proceeded to file the requests for entry of default directly following receipt of a draft copy of the demurrer and defense counsel's indication that the demurrer would be filed by the next b...

Excerpt: ...tiff offers no explanation for this mistake and appears to assume that because Ms. Nemanpour is no longer employed by The Farzam Law Firm, her mistake is not attributable to Plaintiff. Furthermore, Mr. Farzam has failed to show that his own mistake, inadvertence or neglect was excusable. The January 31, 2019 email from Ms. Nemanpour to Mr. Farzam indicates that she intended to provide the documents to Mr. Farzam the next day. (Plaint's Ex. B.) De...

Excerpt: ...to Kirk declaration. DENY the motion for summary judgment / adjudication based on the statute of limitations defense and the negligent misrepresentation claim— there are triable issues of fact, precluding judgment as a matter of law (see, the deposition testimonies of plaintiff, Robin Kirk, and Dr. Chan; the Declarations of plaintiff and Robin Kirk; and the Operative Reports and medical records for plaintiff). Dr. Sizemore presents no evidence ...

Excerpt: ...will be subject to mandatory arbitration. Despite a well‐documented offer to Opt‐out, neither plaintiff did so and thus both remain bound by the DRA. The broad language at P. 1 regarding “When This Agreement Applies” trumps opposing plaintiffs' arguments that their instant alleged claims (particularly their Tameny claim) do not fall within the parameters of the agreement. The instant DRA meets the five minimal requirements set forth in Ar...

Excerpt: ...aintiff's Breach of Contract complaint is that CITY issued the Notice of Violation after it had agreed to allow Plaintiffs until 12/31/19 to achieve full code compliance (See 1/07/16 Amended and Restated Settlement Agreement attached to Complaint, p. 1, Recital F). That agreement is repeated at p. 2. In violation of the agreement, CITY issued its Notice of Violation on 3/29/16, and threatened to place a lock on Plaintiffs' gate and prosecute all ...

Excerpt: ...ment/clarification to his underlying opposition and supplemental brief through the submission of oral argument. However, § 473(b) may not be utilized to modify or revoke a proper order based upon erroneous or incomplete argument by counsel. See Wiz Tech, Inc. vs. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 17; Garcia vs. Hejmadi (1997) 58 Cal.App.4th 674, 685. Further, Plaintiff already offered oral argument at the October 25, 2018 hearing, ...

Excerpt: ... (1991) 231 Cal.App.3d 100, 104. Here, contrary to defendants' argument, the present motion is not a motion for reconsideration. Plaintiffs have not previously sought affirmative relief under CCP § 631(g), and in fact, the court invited the present motion at the time it granted Burrtec's motion to strike the jury fees. More importantly – and irrespective of whether the failure to post fees timely constitutes excusable neglect – defendants ha...

Excerpt: ... the court's general inherent authority—There are two actions, one in New Mexico and the other is the present action in Riverside, which both involve the same parties and the same claims. (Rutherford v. Owens‐Illinois, Inc. (1997) 16 Cal.4th 953, 967.) Although plaintiff argues that the New Mexico action is still in the pleading stages, the parties have been litigating that action for at least two years and plaintiff has filed a cross‐claim...

Excerpt: ...  February‐April 2015: Kaiser removes the lump and sends it for a pathology analysis. Results not given to Plaintiff and no follow‐up. (FAC ¶11‐13.)  Late 2016: Kaiser follows up the diagnosis. (FAC ¶13.)  March 2017: Plaintiff begins surgery to remove the mass. (FAC ¶15.)  May 2018: During litigation with Kaiser, Plaintiff learns the 2013 diagnosis was incorrect. (FAC ¶18.) 3‐Year Statute: This limitations period starts f...

Excerpt: ...aintiff has not pled sufficient fact to sustain this theory. Similarly, the third cause of action “Intentional Destruction of Property” is not a recognized cause of action. As to this claim, the Court sustains without leave to amend. As to the fourth cause of action, “Intentional Misrepresentation of Fact,” like the first cause of action, is rooted in fraud but fails to plead sufficient facts or show the casual relationship between the al...

Excerpt: ...eparate statement and objections. Although the tentative decision has not changed as to the outcome, there are additional issues that the Court will discuss. Those details are set forth below. SUMMARY OF MATTER: This is a personal injury case. Plaintiff Valentina Morrison (“Plaintiff”) was a 14‐year old student at Hillcrest High School, which is subject to the control of Defendant Alvord Unified School District (“District”). Because she...

Excerpt: ...wned by Hertz Vehicles, LLC (“Hertz”) and operated by Defendant Zhoe Yu (“Yu”). Plaintiff alleges that Yu drove the rented vehicle in an unsafe speed and in an inattentive manner, thereby colliding into the vehicle occupied by Plaintiff and causing Plaintiff injuries. Plaintiff filed the complaint on April 28, 2016. Plaintiff has unsuccessfully attempted to serve Yu, a non‐resident Chinese National living in Beijing first through the De...

Excerpt: ...licable standard of care. (See Dr. Geil's declaration in support Dr. Jacobsen's Motion ¶¶ 4‐ 8 and Dr. Geil's declaration in support Dr. Chen's Motion ¶¶ 4‐9.) Dr. Geil's opinions are supported by Plaintiff's medical records and is sufficient to shift the burden to Plaintiff to demonstrate a triable issue of material fact. (CCP § 437c(p)(2); Willard, supra, 121 Cal.App.3d at 412‐13.) In opposition, Plaintiff presents the Declaration of...

Excerpt: ...have known that their conduct would likely be harmful to Plaintiff. See Welf. & Inst. Code, §15610.30(b). Moreover, property rights are a “complex bundle of rights … includ[ing] the rights to possess the property, to use the property, to exclude others from the property, and to dispose of the property by sale or by gift.” Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 479 (citation, internal quotation marks and emphasis omitted). At ...

Excerpt: ...veyed her residence to the trust. (SAC, ¶8.) On 8/26/14, Defendant ‘secretly' induced Decedent to execute a deed conveying the residence from the Trust to Defendant as his sole and separate property; Decedent retained a life estate with the remainder to Defendant. (SAC, ¶12.) Thereafter, the SAC alleges that Defendant executed an affidavit of death of life tenant, which was recorded on 4/14/17. (SAC, ¶15.) “A revocable trust is a trust tha...

Excerpt: ...ighth causes of action. GRANT defendant 30 days leave to file an Answer/Response. Continue TSC to April 30, 2019 Gender Violence in Violation of Civ. Code §52.4: The statute of limitations for gender violence claims is three years for adults. (Cal Civ Code § 52.4(b).) Plaintiff alleges numerous incidents of physical invasion of a sexual nature, which she claims occurred under coercive conditions. For example, Plaintiff alleges that in January 2...

Excerpt: ...ery to remove the kidney stones and the technique was appropriate. (Barme Decl. ¶15‐17.) He states that a tear is a known complication and that Defendant met the standard of care by placing a stent. (Id. at ¶17‐18.) He also opines that all post‐operative care met the standard of care. (Id at ¶19.) Finally, he concludes that to a reasonable degree of medical probability re: cause or contribution to the injuries. (Id. at ¶20.) While Plain...

Excerpt: ...otection clause and for due process violations. Until the remaining claims are litigated to completion, any memorandum of costs is premature. Even though plaintiff has been successful on his writ of mandate claim, defendant may prevail on the remaining claims. For the same reasons, the motion for attorney's fees is DENIED without prejudice as premature because a prevailing party has not been determined. ...

Excerpt: ...e. GRANT the motion to strike without leave to amend. Plaintiff fails to plead facts supporting malice, oppression or fraud in support of a claim for punitive damages. 1 st Cause of Action (Fraud): Plaintiff alleges that, at the time he was hired, Defendants made representations regarding the terms and conditions of his employment, including that he would be paid 40% commission for all sales made by him and that Defendants would provide all sales...

Excerpt: .... After an initial oral meet and confer attempt, either the parties misunderstood each other, or one of the attorneys is untruthful about what was agreed to. This led Plaintiff to insist that a court report transcribe any further meet and confer effort (it is unclear why a written meet and confer could not have been conducted) which Murrieta Development did not agree to. It appears that on December 14, 2018, Murrieta Development's counsel propose...

Excerpt: ...Trial Exhibit 70. The parties do not dispute that the court has the authority to rule on this motion. Thus, the only question is whether the parties stipulated to the wholesale admissibility of the Cherney report. Here, the alleged stipulation was not made in writing and was not approved by the court. Rather, Plaintiffs claim that the stipulation was reached orally at Cherney's deposition. The deposition transcripts are as follows: Cherney: Yes. ...

Excerpt: ...'s request for judicial notice found in the Reply. GRANT plaintiff's request for judicial notice re: Cal‐OSHA Regulations. (However, to the extent plaintiff is offering the statutes to show that the use of the forklift was not commonplace or customary, plaintiff is seeking a factual determination which is improper on demurrer.) 3 rd Strict Liability: Plaintiff sufficiently alleges that defendants created an abnormally dangerous instrumentality ...

Excerpt: ...ure to Exhaust Administrative Remedies/Slander: Plaintiffs have plead that they timely presented a claim to Defendants. Technical defects will not invalidate a claim so long as there has been “substantial compliance” with the claims filing requirement. (Phillips v. Desert Hosp. Dist. (1989) 49 Cal.3d 699, 706.) The test is whether sufficient information is disclosed “to enable a public entity to investigate and evaluate the claim to determi...

Excerpt: ...LAPP statute requires the court to look at the defendant's activities rather than plaintiff's causes of action to determine whether the activity constitutes protected speech or petitioning. While the complaint alleges that Collie and Joanna's conduct made Plaintiff fear that he would lose custody of his children and was done to hurt Plaintiff's reputation to gain leverage in a family law case (Complaint ¶¶ 10 and 11), the complaint does not ass...

Excerpt: ...e property. (Dec.Christian ¶¶8‐9.) Christian conducted an investigation of the property and found a cannabis business was operating there. (Dec.Christian ¶¶9‐11.) Deputy Sheriff and Lead Investigator Raul De La Torre declares that sometime in August of 2018, he conducted an undercover controlled purchase of marijuana from the business operating at the subject location. (Dec.De La Torre ¶14.) Thus, as of sometime in August of 2018, there ...

Excerpt: ... reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.)) Violation of Cal. Civ. Code §2923.5: The Homeowners Bill of Rights (“HBOR”) was enacted to ensure that “as part of the nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower's mortgage servicer, such a...

Excerpt: ... motion: DENY. Defendant failed to show it is the prevailing party under the Independent Contractor Agreement and failed to show Plaintiff's FEHA claims were unreasonable, frivolous, meritless or vexatious in the context of the entire complaint. D. Defendant Bachelor's motion: DENY. Defendant failed to show Plaintiff's FEHA claims were unreasonable, frivolous, meritless or vexatious to justify an award of attorney fees and costs under Gov. Code �...

Excerpt: ...ravamen of this litigation includes failure to provide meal and rest breaks along with negligent hiring and retention. The defendant is seeking cell phone records relating to the date of March 9, 2016, which are relevant to a date plaintiff left work without clocking out. Plaintiff was terminated on March 11, 2016. Defendant is also seeking cell phone records from the date of May 12, 2013 to March 8, 2016. These records are relevant to issues of ...

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: ...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: ...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: ...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: ... 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: ...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: ...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: ...e issues of fact with respect to both the alleged breach of the standard of care and causation. Plaintiff's 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 had been started on the same antibiotic regimen as his twin sister, he would have, to a reasonable degree of medical probability, survived the infection th...

Excerpt: ...ion. DENY the motion for summary adjudication as to James Nichols the general contractor, on procedural and substantive grounds. Plaintiffs failed to comply with the requirements of Rules of Court, rule 3.1350 which requires that: “The specific cause of action or issues of duty must be stated specifically in the notice of motion and be repeated verbatim, in the separate statement of undisputed facts.” Additionally, there is a triable issue of...

Excerpt: ...revailing party to submit proposed judgement order and to give notice. There are no allegations that WFG owed an independent fiduciary duty to Jeffrey. Hence, this cause of action is based on WFG's alleged conscious decision to participate in tortious activity by assisting Aaron in breaching his fiduciary duty by entering into the various business transaction with Sunset without Jeffrey's knowledge or consent. The business transactions at issue a...

Excerpt: ...location. (Undisputed Material Facts (UMF) Nos. 10 to 11 and declaration of Ned Wolfe at ¶¶ 9 and 12, citing to Exhibits C to E; declaration of Rodney Tidwell at ¶¶ 2 to 3.) Plaintiff sufficiently identified the dangerous condition when she agreed in her deposition testimony that she “stepped on this traffic box and that caused [her] foot to roll.” (UMF Nos. 4‐7; See plaintiff's deposition, pg. 43, lines 19‐21, attached to declaration...

Excerpt: ...ect.] Portions of HOBRA suggest that foreclosure proceedings need not be pending. For example, under Civil Code §2923.6(a) (both former and current versions), the Legislature declared that mortgage services (working under a pooling and servicing agreement) acts in the best interest to implement a loan modification agreement if the loan is in default or default is reasonably foreseeable and anticipated recovery under a loan modification exceeds t...

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: ...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: ... (1962) 207 Cal.App.2d 61, 67. A provision in a contract prohibiting an assignment does not preclude the assignment of money due or to become due under the contract, unless the contract explicitly prohibit such an assignment. Id. at 67‐69. Courts strictly construe assignments and place certain limitations on them because of the strong public policy in favor of the free transferability of property. Id. at 68. Prudential argues that the language ...

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....

Excerpt: ...ging that he increased the risk to himself and the public by driving while intoxicated and, despite this knowledge, defendant drove the vehicle which plaintiff alleges caused the accident. (Complaint, ¶¶ 11‐ 12.) Prevailing party to give notice. Prevailing party to give notice. ...

Excerpt: ...to this court that would tend to indicate he can plead around the failed allegations of statutory liability or that governmental immunity does not apply here. 1 st Cause of Action for General Negligence and 2nd Cause of Action for Violation of Statute The Complaint alleges that the Riverside County Coroners' Office has a mandatory duty under Govt. Code §27491 “to fully inquire into the circumstances, manner, and cause of all violent, sudden, o...

Excerpt: ...) 212 Cal.App.4th 674, 676. Further, Defendants' argument that application of CCP § 1281.2 is barred by FAA is without merit. Nothing in the Arbitration Agreement indicates that it is governed by the FAA, much less subject to the FAA's procedural rules. See Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840 (“The procedural aspects of the FAA do not apply in state court absent an express provision in the arbitrati...

Excerpt: ...the opposition, the Property was listed on October 4, 2017. With the exception of a short period in February 2018 during which the Property was delisted, it was relisted with a higher price. There is currently nothing for the court to enforce. Further, there is nothing in the current record to indicate that Plaintiff has acted in bad faith or that the price currently listed for the Property is unreasonable. ...

Excerpt: ...romptly serving written objections. (Cal. Code Civ. Pro. §2025.410.) Plaintiff argues that Defendant's objections were not timely served. Pursuant to Cal. Code Civ. Pro. §2025.410(b), if an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection. Defendant served its objections to the January 8 deposition on January 4. Therefore, the objection was not made three calenda...

Excerpt: ...4th 453, 458.) Plaintiff is essentially asking the court to not enjoin any wrong actions by the Defendant to preserve the status quo, but rather, make a determination on the merits and award her full control of Defendant without a trial. This is not a proper preliminary injunction. Damages will not support an injunction, since an injunction is an equitable remedy which will not be granted if there is a remedy at law. (Department of Fish & Game v....

Excerpt: ...Motion could have been denied at this time. Moving party to give notice. Much information is currently missing, it is difficult to determine whether the Settlement is fair and reasonable. Counsel does not explain the strength of the case and there are few factual allegations contained in the Complaint. Counsel does not provide estimates as to the maximum amount of damages and other relief the class could be awarded if they prevail at trial. Furth...

Excerpt: ...on, the vast majority of the documents that would be produced under these subpoenas are not relevant to this matter and protected by privilege. Personnel files from an individual's employer fall within a zone of privacy. Board of Trustees of Leland Stanford J. Univ. v. Sup. Ct. (1981) 119 Cal.App.3d 516, 528‐530. The accident in question occurred on 11/25/14. It is unclear why Defendants would need financial records that date back to 2004, when...

Excerpt: ...s former resident Patricia Jenkins.” Answer, p. 2, ln. 10‐12. Defendant concedes that the failure to obtain an admission agreement is a violation and states that “t]his factual admission alone forms the basis for Defendant's violation of section 1430(b).” Answer, p. 2, ln. 17‐18. Beyond that, defendant does not admit and denies all other allegations of the complaint. The violation that Ramona has admitted to—not obtaining an admission...

Excerpt: ...the requisite specificity. Among other things, the Complaint fails to set forth any misrepresentations of material fact that were specifically made by Pool Route (and on what authority to bind the corporation) upon which Plaintiff relied when he entered into the Agreement. Further, Pool Route is not a party to the Agreement and is not a proper party to the third cause of action for breach of contract or the fourth cause of action for rescission. ...

Excerpt: .... California courts have no inherent power to expand the methods of discovery beyond those authorized by the Discovery Act (San Diego Unified Port District vs. Douglas E. Barnhart, Inc. (2002) 95 Cal. App. 4th 1400, 1405). There is no authority within the Discovery Act for ordering a party to sign a release authorization for medical records, and none of the authorities relied on by defendant show otherwise:  CCP §128 lays out the Discovery Ac...

Excerpt: ...t time, she was put on inquiry notice that the Settlement Agreement was unenforceable and should have conducted a reasonable investigation as to the cause of her injury. Furthermore, Plaintiff had no reasonable expectation that Defendant would continue to represent her after she discovered that her appeal was denied. Representation in an unrelated matter, an isolated invoice in February 2016 for costs and expenses, and communications regarding th...

Excerpt: ...an tube and that, instead, defendants' removed her right fallopian tube, causing her to have a second surgery to remove the left fallopian tube. Prevailing party to give notice. ...

Excerpt: ...charges his clients, and instead, he claims this rate is supported by the Laffey Matrix. The trial court can determine rate calculation based on an adjusted Laffey Matrix (the official source of rates based on Washington D.C. area, adjusted to local area based on the Consumer Price Index) (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695‐696) Defendant failed to show the proper adjustment of the Laffey rate ($717/hr. for a 1...

Excerpt: ....23; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) As to the second and third causes of action, plaintiff fails to allege the manner in which his claims are ordinary negligence claims, as opposed to professional negligence claims. The motion to strike is MOOT. Prevailing party to give notice. ...

Excerpt: ...�11.) In 2012, Bryant started to talk to Moody (KPM's treasurer) about KPM obtaining a policy through Bryant. (Compl. ¶12.) Bryant, on behalf of Mid‐Century, was actively soliciting Plaintiffs' business. (Compl. ¶12.) The Complaint also alleges Bryant was “a highly experienced” agent. (Compl. ¶12.) Moody told Bryant that “KPM would need insurance that covered the kinds of risk that KPM faced.” (Compl. ¶13.) The Complaint alleges tha...

Excerpt: ...Inc. are allegedly Walker's agents. They are his property managers. He can be liable for their conduct. Madden v. Kaiser Foundation Hospital (1976) 17 Cal.3d 699, 705‐706. Additionally, Walker's conduct as alleged is sufficient to establish extreme and outrageous conduct. Walker was aware of the rat infestation. He was aware of Plaintiff's medical condition. When a horrible mess was found behind Plaintiff's stove due to the rats, Plaintiff sent...

Excerpt: ... 26, 2018. Defendants are ordered to meet and confer with Plaintiffs for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the motion. As part of the meet and confer process, Defendants shall identify the specific cause of action that they believe is subject to the motion and identify with legal support the basis of the deficiencies. Plaintiffs shall provide legal support for their position...

Excerpt: ...es. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894‐895; Moody v. McDonald (1854) 4 Cal. 297, 299.) Thus, the motion to strike punitive damages in the 1st and 5th cause of action is granted, without leave to amend. The current definitions of “malice” and “oppression” were changed by the 1987 amendments to Civil Code §3294, to incorporate “despicable conduct.” The amendments narrowed the definitions so that punitive damages will onl...

Excerpt: ...ge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360.) Here, Plaintiff alleges that the Hendersons allowed their daughter to have a party while Allison was out of town and there was no adult supervision; knew and consented to S...

Excerpt: ...y to give notice. ...

Excerpt: ...ss assumption of the risk doctrine applies. Defendant also fails to meet its initial burden that the implied assumption of the risk doctrine applies. The failure by Defendant to maintain the track and safety barriers in reasonably safe condition, including affixing the safety barriers to the floor, exposed go‐kart drivers like Plaintiff to an increased risk of harm. Defendant's reply ignores the arguments raised in the Opposition regarding Defe...