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...

Excerpt: ...mely served. Plaintiff contend that the responses were untimely served. Plaintiff contends that the responses should have been served on August 02, 2022. This argument is incorrect. Plaintiff served her RFP 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 res...

Excerpt: ...ontaining the essential terms of the parties' agreement. As one method of pleading the existence of a contract, “[a] written contract may be pleaded either by its terms‐ set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference‐ or by its legal effect.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.) Here, the LOI was for the sale of specific pr...

Excerpt: ...ed Judgment on Jury Verdict filed on August 11, 2022, which includes additional extraneous procedural facts.] DEFENDANT to submit Proposed Amended Judgement that comports with this ruling within 10 days. OSC re: Failure to file Amended Proposed Judgement set for October 17, 2022. The Judgment provides for joint liability against both Defendants in the amount of $918,232.31, plus punitive damages against Specialized Loan Servicing in the amount of...

Excerpt: ...e Plaintiff's agreement to allow testing, Defendant and its experts chose not to conduct any testing and chose only to make a visual inspection and photograph the site. (Ibid.) It does not, therefore, appear that Plaintiff attempts to “sandbag” Defendant by denying Defendant the same opportunity to test. Defendant does not explain why no testing or surveys were conducted during the inspection, or why it could not have conducted the testing be...

Excerpt: ...e Plaintiff's agreement to allow testing, Defendant and its experts chose not to conduct any testing and chose only to make a visual inspection and photograph the site. (Ibid.) It does not, therefore, appear that Plaintiff attempts to “sandbag” Defendant by denying Defendant the same opportunity to test. Defendant does not explain why no testing or surveys were conducted during the inspection, or why it could not have conducted the testing be...

Excerpt: ...s of the property. Plaintiff also alleges that Cadez failed to disclose his conflicting interests and multiple roles in the transaction, including his dual agency and sole ownership of the Seller RTC. Had she known these facts, she would not have entered into the Agreement. (Complaint, ¶¶ 37, 73‐77; Cervenka Dec., ¶¶ 4‐16.) These facts suggest fraud in the inducement of the contract as a whole, not fraud in the inception or execution. How...

Excerpt: ... not alleging that Defendant failed to do the inspection or did not spend time replacing parts on her vehicle. Instead, Plaintiff is challenging the quality of the inspection done on the vehicle. Defendant's assertion that they have high standards, which the vehicle must meet and the vehicle is “the best”, constitute nonactionable puffery because no standards to judge such assertions were provided and they appear to constitute opinions. Osbor...

Excerpt: ... Mercury, plaintiff now alleges that misrepresentations were made to her regarding the scope of the repairs necessary. Defendants argue in their demurrer that plaintiff's allegation that the representations were made in her “presence” are not sufficient, but plaintiff has sufficiently alleged that the representations were made to her; the only other person present was a “flooring contractor hired by defendant Mercury Insurance.” (TAC, ¶ ...

Excerpt: ...ecisions, nor was she oriented to anything other than persons, and not to time, place, or situation. The medical Page 3 of 3 records submitted with the reply do indicate that three days after the decedent executed the arbitration agreement a physician assessed plaintiff as having the capacity to understand and make decisions. However, the assessment was after the agreement was executed and not on the day of the assessments. The records for the da...

Excerpt: ...ance with its own laws, therefore, a writ of mandate shall issue. (California State University, Hayward v. National Collegiate Athletic Assn. (1975) 47 Cal. App. 3d 533, 539.) Respondent shall hold a meeting in compliance with its Grievance Procedures under Art. XIII, Sec. C of the By‐Laws within 45 days. Laches: To defeat a writ petition based on laches, the real party in interest or respondent must show that there was an unreasonable delay in...

Excerpt: ...numerous health conditions including Parkinson's disease, chronic pulmonary disease, hypertension and peripheral vascular disease. (Decl. of Nordean, ¶4.) Counsel indicates that Plaintiff's condition has deteriorated as a result of the alleged fall at the Nursing Home. (Id at ¶6.) He notes that “Parkinson's disease is a degenerative disorder of the central nervous system, where the progressively worsening condition of the subject includes the...

Excerpt: ...tifying the discovery sought by demonstrating relevance and specific facts justifying discovery. (CCP §2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause for production “is met simply by a fact‐specific showing of relevance.” (Tbg Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) Once good cause is established, the responding party has the burden to justify any objecti...

Excerpt: ...y obtain needed evidence. C.C.P. §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met his burden, it then shifts to plaintiff to show that a triable issue of fact exists. The complaint suffers the same defect regarding PK, as it does regarding GMI. The Court treated a motion for summary judgment brought by GMI as a motion for judgment on the pleadings Page 5 of 20 because the complaint contained no alleg...

Excerpt: ...g a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley...

Excerpt: ...half as to matter on which the examination is requested. A request for documents may be made in connection with the PMQ deposition, and when such a request for documents is made, “the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents Page 5 of 17 or everyone who knows where such documents might be held.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396.) Where a p...

Excerpt: ...ommon issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC 3.1330; see also Condee v. Longwood ...

Excerpt: ... which will injure the right of the other to receive the benefits of the agreement.'” Id. A cause of action for breach of covenant of good faith and fair dealing requires something beyond a breach of the contractual duty. Aljabban v. Fontana Indoor Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 509. “A party violates the covenant if it subjectively lacks belief in the validity of its act or if its conduct is objectively unreasonable.” Carma Dev...

Excerpt: ...dants did agree to supplement their responses to some, but not all, of the responses served on 11/16/21, and did so on 1/13/22. The supplemental responses were served by electronic mail. The present motion concerns only the responses which were not supplemented, so plaintiffs' discussion of the deadline for filing a motion to compel further responses to the supplemental responses is irrelevant. Defendants are also correct that the deadline for fi...

Excerpt: ...formed the contracts in California with Feast, Tarasa, and The Eyal, LLC, and conducted additional business in California and with California residents. (Supp.Oppo., Fact Nos. 3‐19.) Feast asserts that Cross‐ Defendants engaged in telephonic and email communications and negotiations to/with multiple California residents (Ben Eramya; Feast; Tarasa.) (Id. Fact Nos. 3‐5, 9, 13.) When negotiating with Feast, Glenn Beattie knew Feast was operati...

Excerpt: ...services Sonata provided. The facts seem to suggest, however, Sonata provided services relating to medical care and in‐ home wound care, similar to the facts in Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382. Plaintiff alleges, for example, “[Sonata] neglected to provide medical care for [Plaintiff's] physical and mental health needs by failing to take all the necessary steps to properly care for her . . . failed to adequately ...

Excerpt: ...had or had not used any of Paramount's proprietary information. The declarations supporting the motion say that new information was uncovered in discovery, but does not address the nature of the new information that was uncovered. The motion alleges counsel could not have acted faster because Paramount needed an employee to explain “attorney eyes” documents and the stipulated protective order says that an employee can only do that if Pilotte ...

Excerpt: ...� protected conduct. It alleges the emotional distress is allegedly caused by Helen's broken promises. This conduct occurred before this lawsuit was filed and is not based on the petitioning action. (Cross‐ Complaint, ¶ 57.) However, this cause of action also asserts that Marilou has suffered emotional distress damages from incurring attorneys' fees (presumably due to the filing of this lawsuit) and because Helen will reap the benefits of “p...

Excerpt: ... insurance policies, citing Ascherman v. General Reinsurance Corp. (1986) 183 Cal.App.3d 307, 310‐311; Abari v. State Farm Fire & Cas. Co. (1988) 205 Cal.App.3d 530, 543; Hendy v. Loose (1991) 54 Cal.3d 723, 740; East Bay Mun. Utility Dist. v. Richmond Redev. Agency (1979) 93 Cal.App.3d 346, 357 fn.4; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285 fn. 3; and Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1727‐1728. None of th...

Excerpt: ...eponderance of the evidence that Plaintiff agreed to the arbitration agreement based on Pamela Voit's declaration establishing her habit to account for and review every onboarding packet, the statement that she presented Plaintiff with the onboarding packet, and the statement that, as a matter of custom and practice, she reviews onboarding packets for any errors. The arbitration agreement provides that, as a condition of employment or in consider...

Excerpt: ...not establish PHH's unjust retention of benefits or that Kaiser cannot establish damages. Statutory Remedy: 28 CCR § 1300.71(d)(6) only allows the plan to offset an overpayment where the provider fails to reimburse the plan and “the provider has entered into a written contract specifically authorizing the plan . . . to offset an uncontested notice of overpayment of a claim from the contracted provider's current claim submissions.” PHH has fa...

Excerpt: ...s or power.' (Bus. & Prof. Code §§ 2052, 2400.) The restriction is meant “to protect the professional independence of physicians and to avoid the divided loyalty inherent in the relationship of a physician employee to a lay employer. [Citations].” (California Physicians' Service v. Aoki Diabetes Research Institute (2008) 163 Cal.App.4th 1506, 1514 (“Aoki”).) However, the court in Aoki noted as follows: “The doctrine against the corpor...

Excerpt: ... Plaintiff has not established any new or different facts, circumstances, or law. Also, Plaintiff's counsel concedes that he could have presented additional facts with the opposition to the demurrer, but that he believed (and still does) that this is a nonissue. (Motion, Dec. Sisco ¶ 6.) Finally, Plaintiff's counsel, Kenneth D. Sisco, does not set forth a basis for this court to find attorney fault. Mr. Sisco asserts that he “had, and still ha...

Excerpt: ...ence that Defendant contracted Covid‐19 in December 2020, but neither she nor her counsel was informed that Defendant was ill in any way in December 2021. (Kondo Decl. p.2.) Even if ill, Defendant only states it was “more difficult to concentrate on things” and this is why he did not file a response to the complaint. This is not evidence of excusable neglect. (3) Filing a proof of service that complies with the applicable statutory requirem...

Excerpt: ...aw, or other determinable legal standard.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159. Regardless of whether Plaintiff possesses a right of action for an alleged violation of FERPA, such a violation—which is proscribed by statutory/regulatory law—may support a cause of action for intentional interference with a prospective economic advantage. Defendants cite no authority to suggest otherwise. The motion to strike...

Excerpt: ...(a) defines sexual battery as “acts with the intent to cause a harmful or offensive contact with an intimate part of another” or acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, where a sexually offensive contact directly or indirectly results. (Cal. Civ. Code, § 1708.5(a)(1)‐(2).) Section 1708.5(a)(3) also prohibits “acts…caus[ing] an imminent apprehension of the conduct des...

Excerpt: ...dchanji, M.D.. However, Petitioner is not seeking arbitration against Jack Druet, M.D. Inc., but rather, Jack Druet the individual. There is no arbitration agreement between these parties. Petitioner asserts that because Respondent signed the Agreement, he is bound by the Agreement. However, “Persons are not normally bound by an agreement entered into by a corporation in which they have an interest or are employees.” (Suh v. Superior Court (2...

Excerpt: ...of law for many reasons including lack of actual or constructive notice of proceedings or lack of or improper service of summons. (Lovato v. Sante Fe, Int'l Corp. (1984) 151 Cal.App.3d 549, 553.) Here, Cross‐defendant Porter argues that substitute service may only be effectuated at a person's home or business and the location in Tennessee was neither; he never resided at the address or worked at the address. However, as noted above, under Code ...

Excerpt: ... proceedings when such positional changes have an adverse impact on the judicial process… The policies underlying preclusion of inconsistent positions are general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings… Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (citi...

Excerpt: ...Both defendants seek the award of sanctions on each of their motions. These motions are governed by Code of Civil Procedure (CCP) sections 2030.090 [interrogatories] and 2031.060 (requests for production of documents], each of which allows a party served with interrogatories or RFPs to “promptly move for a protective order.” (C.C.P., §§ 2030,090, subd. (a), 2031.060, subd. (a).) Subdivisions (a) of C.C.P. sections 2031.060 and 2030.090 auth...

Excerpt: ...not employees of Costco.” As pointed out by Plaintiff, Defendant had reasonable opportunity to investigate and discover Plaintiff's injuries, including Plaintiffs' deposition, responses to written discovery, medical records, and video surveillance related to the fall, witness statements, etc. (Declaration of Jacob L. Stipp, ¶¶ 5‐11.) Thus, Defendant is obligated to provide an answer based on the information available to it. The interrogator...

Excerpt: ...ays. A party may object by demurrer to a complaint on grounds that the pleading does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Pro. §430.10(e).) For the purposes of a demurrer, the allegations in the complaint must be accepted as true no matter how unlikely or improbable. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “To survive a demurrer, the complaint need only allege facts...

Excerpt: ...n September 2014 and began aggressively seeking Trang's investment in a business that manufactures nutritionally enhanced powdered milk. (SAC, ¶ 102.) In November 2014, Chanh offered Trang the following: 1) in exchange for $300,000, Trang would become a named partner in a real estate partnership that would purchase, manage and own a warehouse in Temecula that would house a new milk business; and 2) in exchange for $750,000 Trang would receive 50...

Excerpt: ...w Isu decl., Exhibits 1 and 2, ¶ 44.) and the declaration of Kurt Knauer, the Administrator for defendant Vineyard Ranch, states that the facility engages in interstate commerce by receiving funding through Medicare, use of U.S. Mail, national telephone lines and internet connections to conduct business, uses out of state vendors to buy supplies and medications. (Knauer decl., ¶¶ 5‐7— though Knauer has only served as administrator since No...

Excerpt: ...It is undisputed Defendants failed to timely pay the arbitrator' fees, and JAMS closed the file on May 25, 2021. (Declaration of Edward Yun, Exs. 1‐5.) Defendants, therefore, materially breached the arbitration agreement pursuant to CCP § 1281.97. Thus, Plaintiff had the right to withdraw the arbitration claim with JAMS and file its claim with this court, and Defendants waived their right to compel arbitration. Defendants argue that the arbitr...

Excerpt: ...relief without their presence. These arguments are persuasive under the circumstances presented although they do not resolve this motion. Feast and the individual Defendants also argue that moving Cross‐Defendants' committed a tort knowing that their conduct would cause injury to Feast, which operates from California. (Dec.Rosenstein ¶ 5.) “Nonresident employees are generally not suable for “mere untargeted negligence” performed outside ...

Excerpt: ...n connection with entering into the loan, Defendants, and represented by their Invoice and otherwise that they were selling the Equipment to Borrower for the sum of $111,495.00. In addition, Borrower and Defendants represented to Plaintiff that it would be granted a security interest in the Equipment to collateralize Plaintiffs Loan to Borrower. (Id at 21) Plaintiff further alleges that Defendants and Borrower represented that the Equipment was d...

Excerpt: ... with 20 days leave to amend. 2. CVSW2105308 TAYLOR VS LOMA LINDA UNIVERSITY MEDICAL CENTER, MURRIETA DEMURRER AND MOTION TO STRIKE COMPLAINT ON COMPLAINT FOR MEDICAL MALPRACTICE (OVER $25,000) OF MARCIA TAYLOR BY REGAL MEDICAL GROUP, INC. Tentative Ruling: 1. SUSTAIN the demurrer to the 2nd cause of action for dependent adult abuse/neglect for failure to state sufficient facts, with 20 days leave to amend; 2. OVERRULE Regal's demurrer to the 4th...

Excerpt: ...efendant cites very clearly say “no.” Nevertheless, Plaintiff contends that Defendant is a hospital and hospitals have a duty to insure the competence of its staff. This isn't disputed. Plaintiff also distinguishes this matter from the argues this case from the automobile accident cases cited by Defendant. Although there are factual distinctions, Plaintiffs have not provided any authority that show Defendant cases are inapplicable to the pres...

Excerpt: ...burden showing as a matter of law that it did not control the subject location where Plaintiff fell. GRANT summary adjudication as to the 2nd and 3rd causes of action. 1 ST Cause of Action: While the District produced sufficient evidence showing it did not own the subject location where Plaintiff fell, the District's own evidence shows triable issues of fact as to whether the District controlled the Location, i.e., was in a position to prevent, r...

Excerpt: ...cks authentication). Breach of the Implied Covenant of Good Faith and Fair Dealing: While Defendant provides evidence that its denials of coverage was made after expert reports were provided and payments or attempts to make payments were made to Plaintiff (many of which she did not cash), Defendant has not established that all of its conduct was reasonable. The moving party's evidence must be strictly construed, whereas, the evidence offered in o...

Excerpt: ...cks authentication). Breach of the Implied Covenant of Good Faith and Fair Dealing: While Defendant provides evidence that its denials of coverage was made after expert reports were provided and payments or attempts to make payments were made to Plaintiff (many of which she did not cash), Defendant has not established that all of its conduct was reasonable. The moving party's evidence must be strictly construed, whereas, the evidence offered in o...

Excerpt: ...the terms are not found in the settlement agreement. Defendants contend the parties have already retained an independent appraiser who has completed an appraisal on the property. They contend that in response to this appraisal, Plaintiffs have asked to see documents, many of which were irrelevant. Defendants have provided Plaintiffs with records that it believes are relevant to the appraisal and not privileged. Defendants assert that Plaintiffs d...