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...