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...