Excerpt: ...3) 60 Cal.2d 620, 626‐627 (cross‐complaints are not allowed in unlawful detainer proceedings).) That Plaintiff could have asserted her position as affirmative defenses in the UD Action is irrelevant. Plaintiff now seeks damages by way of this action, which claims were not asserted in the UD Action. Uncertainty Regarding Plaintiff's Capacity: The Complaint is not uncertain or ambiguous—it identifies Plaintiff as the lessee (Complaint, ¶¶ 1...

Excerpt: ...ide relied on by Thor in this motion was revised on 1/31/20. No one from RV Center indicates that Plaintiff received the 1/31/20 version of the Thor Motor Coach Warranty Guide or confirms that once the new warranty guide comes in, there is a process to destroy the old forms. The individual who reviewed Plaintiff's warranty manual with Plaintiff provides a declaration. However, the declarant fails to indicate whether the warranty manual provided t...

Excerpt: ...o be of different ages; and iv) there is no sufficient evidence that there was an irrigation system in place to nurture the two marijuana plants. The court allowed limited briefing as to the issue of whether the two plants of different sizes can amount to a finding of commercial cannabis cultivation sufficient to amount to a breach of the permanent injunction. In ruling on a motion under CCP § 664.6, the court has the authority to interpret the ...

Excerpt: ...ay exception or are not hearsay.] DENY the motion for summary judgment and adjudication. There are triable issues of fact as to whether Defendant made material misrepresentations with the intent to defraud Plaintiff, and whether the vehicle was fit for an ordinary and/or particular purposes. While Plaintiff does not dispute that the transaction terms were set forth in the Retail Installment Sales Contract, Plaintiff contends Gosch made oral misre...

Excerpt: ...ge ("D&C") upon Plaintiff using a myosure device resulting in a uterine perforation and bowel laceration. (Complaint ¶ 10) While Plaintiff contends that she did not have knowledge or consent that her uterus would be perforated or bowl lacerated, there is no allegation that Defendants intentionally performed a substantially different procedure from the one she consented to.] SUSTAIN the Demurrer to Negligent Misrepresentation (4th COA), with 20 D...

Excerpt: ...No. 50.1; Response to Employment Form Interrogatory No. 200.3; Supplemental Response to Employment Form Interrogatory No. 200.3.) All of these responses indicate the facts are set forth to the best of the responding parties' knowledge or are presumed. These responses date back from August and September of 2020, a few months after the original cross‐ complaint was filed in March of 2020. All of these responses indicate that it is not just Philli...

Excerpt: ...lternative meaning of the terms and provisions within the parties' Shopping Center Lease agreement that is contrary to the Lease's unambiguous terms.” Even if this motion were granted, what meaning would that order have at trial but to prompt further motions in limine regarding specific testimony and documents? While the lease agreement here includes an integration clause that may result at trial in the exclusion of some extrinsic evidence for ...

Excerpt: ...e complete defense of primary assumption of the risk does not apply to a victim (not in the veterinarian profession) who voluntarily exposes himself to a dog bite. Rather, secondary assumption of the risk applies in which the plaintiff's own fault is assessed under a comparative negligence analysis. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399‐1400 (owners who failed to control their dog could not assert assumption of the risk as a compl...

Excerpt: ...ed the objections, which is not improper. Mr. Patel also asserts that Mr. Sitzer made long speaking objections, falsely claimed Mr. Patel represents an insurance company, and apologized for “making so many objections.” (Id. at ¶7 and DT‐Lott pp. 14:11‐15:11.) However, Mr. Sitzer was apologizing and providing an explanation to the witness. Also, although Mr. Sitzer stated an inference that Mr. Patel represented an insurance company, Mr. P...

Excerpt: ...on's utilization of the corporate form, the party harmed will not be adequately compensated for its damages.” (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 249.) The SAC incorporated each of the prior allegations, as if set forth in full, in the alter ego claim. Each of the first three causes of action, thereby, allege liability against Klein by way of the fourth cause of action for alter ego. Plaintiff's claim against Klein (and EPR CA) is id...

Excerpt: ...s through television commercials and internet ads, as alleged in the operative complaint. Because Defendant sought summary judgment (not summary adjudication), the presence of any triable issue requires denial of the motion. (Homestead Sav. v. Sup. Ct. (Dividend Develop. Corp.)(1986) 179 Cal.App.3d 494, 498.) Evidence: GRANT Defendant's request for judicial notice. SUSTAIN Plaintiff's evidentiary objection nos. 1‐11. Plaintiffs objects to state...

Excerpt: ...if Defendant could not repair the defects or repurchase. (Complaint ¶30.) Defendant refused to repurchased but offered to extend the warranty if she would forgo making a Lemon Law Claim. (Id.) When Plaintiff returned the vehicle for repairs, Defendant refused to honor its promise and required her to pay for repairs. (Complaint ¶31.) She contends that Defendant is estopped from denying that the vehicle has defects rendering it unfit. (Id.) Here,...

Excerpt: ...to Cross‐Defendant, decline to consider Cross‐Complainant's evidentiary objections because the evidence to which it objects was not considered in the court's analysis. The contract language is not clear or explicit. Pursuant to the indemnification provision, NRG agreed to defend Elite against claims arising out of Elite's performance of “services.” The term “services” is defined by the Contract to include “camera monitoring” and �...

Excerpt: ...urt adopted its tentative ruling and ordered Defendants to provide further responses to interrogatories and produce responsive documents within 45 days. For the form interrogatories, Defendant Brower simply reincorporated its prior objections and responses. Defendant Brower failed to justify his objections in the first motion, therefore, they are no longer appropriate and Brower cannot use this second chance to justify his prior objections. Furth...

Excerpt: ...sent lawsuit is in the relatively early stages of discovery and investigation, but at this point in time, and for purposes of this Motion For a Good Faith Settlement Determination only, KPS' alleged damages total $145,593.94”)(emphasis added).) Given that Plaintiff's injuries total $145,593.94, the settlement amount of $29,000 (i.e., 20%) plus non‐monetary terms, is within the ballpark of PWI's proportionate share of liability. It is irreleva...

Excerpt: ...ure to prevent claim is properly predicated on the sexual harassment claim. (Complaint, ¶ 82.) Although Defendant contends no cause of action for “discrimination” (as opposed to “sexual harassment”) is alleged, Plaintiff states a valid cause of action for failure to prevent sexual harassment, thereby surviving general demurrer. (Quelimane Co. Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38‐39 (“If the complaint states a caus...

Excerpt: ...from the Federal District Court and instead only provided the Federal District Court's docket. This docket showed Metropolitan was not a party to the lawsuit and insufficient information was provided by the parties to establish that this action and the Alabama action pertain to the same issues. There remains no pending litigation in Alabama to which Metropolitan is a party. Nevertheless, in the case before the Northern District of Alabama (2:18�...

Excerpt: ...n conveniens – an equitable doctrine that invokes the discretionary power of the court to decline the exercise of jurisdiction “when it believes the action may be more appropriately tried elsewhere.” (Stangvik vs. Shiley (1991) 54 Cal.3d 744, 751). Neither Plaintiff nor any of the 16 Defendants are domiciled in California. (FAC ¶¶3‐21.) The “Relevant Non‐Parties”, ssiirrii, Inc. and Ander Schreiner are also not domiciled in Califo...

Excerpt: ...ployees employed during the PAGA period. The court has issued a CMO to guide a future motion. Specifically, the motion does not include any information from which the court can determine that the Settlement is reasonable – the motion lacks information with respect to the number of aggrieved employees, the number and nature of Defendants alleged PAGA violations, the total amount of penalties for which the Defendants are potentially liable and th...

Excerpt: ...oving party shall submit their brief no later than October 30, 2020, and the responding party shall submit their brief no later than November 20, 2020. The contractual fee provision does not extend to tort claims for conversion and conspiracy. The fee provision also does not apply to Jane Garrison, who was not sued on the Founder's Agreement. She did not sign the agreement, and thus, she is a non ‐ signatory. Also, had Plaintiffs been the preva...

Excerpt: ...ompensation Appeal's Board may have a res judicata effect in subsequent proceedings (Jones v. Brown (1970) 13 Cal.App.3d 513, 521), here, Defendant does not explain how arbitration in Worker's Compensation matters function, whether an arbitrator's decision is final, and inappropriately relies on a declaration filed in support of the demurrer to the original complaint in support of the present demurrer. (Memorandum, p. 5 [referring to a declaratio...

Excerpt: ...l evidence sufficient to meet the burden to sustain the objections; (2) Any documents produced in response to the RFP must identify the specific request number to which each document is responsive, pursuant to Code of Civil Procedure section 2031.280 subdivision (a), and must include the information required under Code of Civil Procedure section 2031.230 when responding party represents that it is unable to comply. GRANT $1,485.00 sanctions again...

Excerpt: ...e demurrer indicates that counsel exchanged email in March 2020; there is no indication that defense counsel made more than a single attempt to telephone Plaintiffs' counsel, as required by the statute. Moreover, defense counsel failed to file a new declaration in accordance with General Order 2020‐15, ¶7(d), which provides: For any demurrer or pretrial motion affected by this Order that requires a meet and confer declaration (e.g., demurrers,...

Excerpt: ...eenth cause of action) without leave to amend. 11th, 12th and 13th Causes of Action: Regardless of the source of the settlement payments or how those payments are characterized in the Settlement, IWIA's requirement to make payments was a contractual obligation created by the Settlement and does not arise from any employment relationship. [See Settlement, ¶ 5(b) [general release].) The parties explicitly acknowledged the termination of any employ...

Excerpt: ...e. However, the court in Lyle states a claim for hostile workplace harassment can be brought even if the plaintiff is not the target of said harassment, but where she has witnessed harassment against another where that person falls within the same protected category as the plaintiff. Id. at 285. 2 nd CA: Plaintiff alleges that he is Muslim and that he asked Defendant if he could take time off for Ramadan. (Complaint, ¶ 22.) These allegations sup...

Excerpt: ...laint. 2 nd CA – Cross‐Complainant sufficiently alleges that Huynh, as the chief financial officer, had actual knowledge of the acts of the other Cross‐Defendants including that Avid and Nguyen were breaching fiduciary duties by failing to comply with the joint venture agreement, failing to refinance the loan and attempting to coerce Cross‐Complainants into reducing its interest in the joint venture in exchange for them to perform these p...

Excerpt: ... does not take issue with Fitch's discovery responses concerning the issue of jurisdiction. Yet, Plaintiff intends on obtaining discovery responses from all Defendants concerning the issue of jurisdiction before determining whether Fitch had minimum contacts in California. However, Fitch is the best source of information concerning his connections, if any, with California. Plaintiff does not explain what discovery he could obtain from the remaini...

Excerpt: ...n of pleading certain affirmative defenses, Plaintiff cannot prevail on a Motion for JOP on the ground the answer states no defense to the action, because some defenses are sufficiently raised through a general denials. For example, certain affirmative defenses to a contract action are considered new matter, hence they are required to be specifically pled, i.e. affirmative defenses on which defendant bears the burden of proof and pleading (See 1 ...

Excerpt: ...Plaintiff's true identity, correct tax returns and payroll information. (FAC, ¶38.) However, Plaintiff also alleges that NFCU was provided false tax, banking and payroll records. (FAC, ¶30.) She does not indicate any conduct from which this agreement to use other information can be implied. This cause of action appears to be based on Plaintiff's assumption or understanding that a credit union should do something to ensure that accurate informat...

Excerpt: ...cluding the PowerNet and TIMPs (Id at 32‐161), these recalls and TSBs involve other vehicles and it is not clear that they would have put Plaintiffs on notice of the defects, even if they had been able to access them. Accordingly, Plaintiffs have established a duty to disclose based on superior knowledge and their buyer‐seller relationship. Plaintiffs allege Defendants intentionally concealed the defects to boost confidence in the vehicle and...

Excerpt: ...spection occurred on 8/26/19. (Complaint Ex. B.) Plaintiff filed this action on 9/4/19—before the 30 days expired. Plaintiff pleads no facts for performance or excuse for nonperformance. The fire inspection listed five items: • Inspector's Comments: Sprinkler coverage is required in water heater closet of exam room 2. Closet may have been added without permits. A sprinkler permit is required to be obtained by a C16 licensed contractor and pla...

Excerpt: ...oderick in his capacity as trustee. Plaintiff has brought this lawsuit against Roderick in his individual capacity and against Kim, in her individual capacity. Roderick has failed to cite to any authority that indicates that “absolute identity of parties” only applies to the party asserting plea in abatement and to the party he is asserting the doctrine against. Exclusive Concurrent Jurisdiction Rule: The exclusive concurrent jurisdiction rul...

Excerpt: ...ugebauer, DWP I, and RTN Development.”) The filing of the Warson Action is protected activity. Probability of Prevailing ‐‐Malicious Prosecution: It is undisputed that through Rosenstein, Fazeli voluntarily dismissed his causes of action against De Portola. (Decl. of Rosenstein, ¶14.) Rosenstein indicates that he dismissed the action after taking the deposition of Rick Neugebauer's son, Ted, who testified about the methodology by which De ...

Excerpt: ...App.3d 29.) Also, in filing a substantive reply, Mecca waived any defect or irregularity in service. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Although Mecca may be a prevailing party, the attorney fee provision in the Note is inapplicable. Regardless of whether Plaintiff requested attorney fees in its complaint, Plaintiff's action under the UVTA is not an action to enforce payment of the Note. Moreover, Plaintiff is not party to the...

Excerpt: ... Parte Application and Plaintiffs' Motion to Compel Deposition of Defendant's Person Most Qualified. (Plaint's Ex. 4.) Defendant has not produced any evidence showing that the discovery motion cutoff was extended. Hence, the motions are untimely. Defendant must obtain leave under Cal. Code Civ. Pro. §2024.050 before filing any discovery motions. Meet and Confer: Further, Defendant's meet and confer efforts were insufficient. On October 14, 2019,...

Excerpt: ...e 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— that they must establish every element of the affirmative defense a...

Excerpt: ...e: Plaintiffs allege Defendants failed to provide adequate staffing for Bobb and as a result of the understaffing, Plaintiff was physically assaulted by another resident. (Compl., ¶40.) These allegations do not show a deliberate disregard of a high probability that an injury would occur. There are no allegations that Defendants knew that the other resident posed a threat to Bobb based on prior assaults or that the failure to supervise was due to...

Excerpt: ... 161 Cal. App. 4th 735, 743.) Defendant argues that the Freeway was not in a dangerous condition at the time of the accident and that the condition of the Freeway was not the proximate cause of the accident. Defendant asserts that the Department designed and implemented a traffic control plan to maintain traffic through the construction zone in connection with the roadwork. (Deft's Ex. C.) The State's expert, Matthew Webb, indicates that the Traf...

Excerpt: ...orm to the statutory requirement, which mandates that the attorney for the accepting party sign the acceptance. The acceptance of the offer to compromise was signed by defendant Leo Anderson and not his counsel. The statute states a definitive requirement and need not be further interpreted. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) Additionally, the offer was a joint offer to Leo Anderson and to co‐defendant Rose Anderson, but was only...

Excerpt: ...ly represent employees' interest regarding city's challenge to credits).) Here, Plaintiff and Dagoberto are married, thus, Dagoberto's rights are protected by Plaintiff. Additionally, Assignment of a contract carries the cause of action for rescission. (Latimer v. Capay Valley Land Co. (1902) 137 Cal. 286, 290.) Defendants contend that the representations were made in response to Dagoberto's questions. This, however, does not mean that Plaintiff ...

Excerpt: ...e pay in the amount required by law. The employees testified they were not allowed meal breaks and that when they worked overtime, they were not paid at the overtime rate of pay required by law and were paid separately for the work performed, either in cash or check. The testimony of the employees was confirmed by the auditor for the Division of Labor Standards Enforcement. The Court declines to reject the evidence as insufficient to support the ...

Excerpt: ...strate a triable issue of fact as to the sixth, eighth, ninth, tenth and twelfth affirmative defenses and defendant has not made a proper showing to justify a continuance or denial of the motion under 437c(h); GRANT Plaintiff's motion for summary adjudication as to the third cause of action— a patient's conduct prior to seeking medical attention should not be considered in assessing damages. Harb v. City of Bakersfield (2015) 233 Cal.App.4th 60...

Excerpt: ...he other party as a result of bad‐faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (Code Civ. Proc., § 128.5, subd. (b)(2).) The court finds plaintiff's conduct was not in bad faith or frivolous because the action was taken in response to her husband's medical condition, and while not a ba...

Excerpt: ...eement of the parties provides otherwise. (Gray v. Don Miller & Associates (1984) 35 Cal. 3d 498, 504.) The “tort of another” or “third party tort” is an exception to the general rule, pursuant to which a plaintiff is entitled to attorney fees if he or she is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant. (Id at 505.) For example, in Gray, the plaintiff purchaser was...

Excerpt: ...eath of the person entitled to commence an action passes to the decedents successor in interest or personal representative. (CCP §377.30.) It is not a new cause of action but a cause of action that belonged to the decedent before death and survives. (Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1264.) As to the misrepresentation causes of action, in her Opposition, Plaintiff claims that she has standing to bring the causes of act...

Excerpt: ... instrument and the instrument number, 2007‐0140081, which is the instrument number for the DOT securing the First Loan.1 There is, therefore, no evidence to suggest that Plaintiffs' belief that the two loans had been consolidated is reasonable. Plaintiffs' only evidence is a remark made in 2010 by “Robert,” a representative of Aurora, which apparently never had an interest in the Second Loan. (See Ballard Decl., ¶ 4, Exhibit 4 [assignment...

Excerpt: ...er available to testify (deceased, out of the country, unwilling to testify, etc.).” (Haning, et al, California Practice Guide: Personal Injury §6:348.1 (Rutter Group 2018).) Here, Plaintiff has been consistently transparent about his injuries. Defendant already conducted an exam and specifically chose his expert—rather than a broader expert. Also, Defendant fails to provide a declaration indicating that this matter involves a complex injury...

Excerpt: ...s the City's Motion in Limine No. 7. A motion in limine is used to exclude evidence deemed inadmissible and prejudicial by the moving party. (People v. Morris (1991) 53 Cal.3d 152, 188.) The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, ...

Excerpt: ...nt as to the underlying background of the desired substitution of plaintiff and fails to address the factors in CRC 3.142(b). Shepard makes no attempt to explain why Cooper filed the case individually instead of the Cooper Trust, when they learned that Cooper individually was not the proper plaintiff, and why it is necessary to eliminate individual Cooper in favor of the Trust. The original Complaint repeatedly alleged that Cooper individually ha...

Excerpt: ...n Inactive Status. Plaintiffs contend that the arbitration provision cannot be enforced because Defendants did not sign the Agreement (it is undisputed that Plaintiffs did). This assertion lacks merit. A “writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement. . . . Evidence confirming the existence of an agreement to arbitrate, despite an unsigned agreement, ca...