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: ... on the issue of reasonableness is on the party seeking to invalidate the provision. (El Centro Mall, LLC v. Payless ShoeSource, Inc. (2009) 174 Cal.App.4th 58, 63.) Here, Plaintiff has failed to meet its burden of proof establishing that the liquidated damages provisions are unenforceable. I. FACTS: Plaintiff KPC Towne Centre, LLC (“KPC”) owns commercial real property in Hemet, that it agreed to lease to Defendant SFM, LLC (“SFM”), which...

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: ...th 205, 211‐ 212. Additionally, “the party who seeks to establish waiver must show that some prejudice has resulted from the other party's delay in seeking arbitration.” Id. The parties agree the only wrongful conduct on Defendant's part was its failure to pay timely arbitration fees, which caused the hearing date to be vacated. Defendant has since paid the required fees and both parties have conducted the required discovery and appear read...

Excerpt: ...C sufficiently asserts the substance of the allegedly defamatory statements. Collie contends there are no specific allegations regarding where or when the allegedly defamatory statements were made. However, Collie cites to no authority that requires allegations supporting where and when the allegedly defamatory statements were made. Collie relies on language in Hecimovich, which does not apply. Hecimovich discusses whether the second prong of the...

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: ...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: ...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: ...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: ...  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: ...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: ...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: ...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: ...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: .... 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: ...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: ...'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 ...