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: ...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: ...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: ...  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: ...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: ...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: ...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: ...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: ...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. ...