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201 Results
2024.03.21 Demurrer on FAC 190
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.03.21
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.03.21
Excerpt: ...t (FAC) and/or fails to attach a copy of the agreement as an exhibit to the FAC. Since Plaintiff has not adequately pled a contract between the parties, so too does the cause of action for breach of the covenant of good faith and fair dealing fail. On fraud, Plainti ffs allege that Defendant misrepresented that the vehicle they rented was legally allowed to be driven by them, when in fact, it had been reported stolen and thus could not legally be...
2024.02.29 Demurrer, Motion to Strike 414
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.29
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.29
Excerpt: ...unlawful sexual conduct against Plaintiff, to meet the extended statute of limitation pleading requirements of CCP § 340.1(c). (FAC Paras. 26 -28,30.) The FAC alleges that Sharp groomed Plaintiff while attending bible study at Sharp's home, that the Defendant church el ders saw Sharp follow Plaintiff into and out of a single person bathroom unsupervised for extended periods of time, and failed to investigate, terminate or take any actions agains...
2024.02.22 Demurrer, Motion to Strike 841
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.22
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.22
Excerpt: ...rd - 6th causes of action, with 30 days leave to amend. Highway 243 argues that Duggin's claims amount to professional negligence, as they are based on design errors and omissions, and therefor the damages claimed are outside of the contractual damages. The problem is th at there are no allegations in the Cross- Complaint to support this. Therefore, the negligence cause of action is barred by the economic loss rule. Further, Highway 243 alleges t...
2024.02.22 Demurrer on FAC 483
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.22
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.22
Excerpt: ...nt surgica l approaches to replace a hip joint. They are both surgical hip replacements, but whether they are substantially different procedures is a factual question for the finder of fact, and not one capable of being decided on demurrer. (See Kaplan v. Mamelak (20 08) 162 Cal.App.4th 637, 647.) As to Defendant's assertions that it cannot be liable for medical battery because only the doctor can provide consent, and the physicians are not empl...
2024.02.21 Demurrer on FAC 076
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.21
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.21
Excerpt: ...stituting the fraud until after Defendant's unsuccessful attempts to repair the defects. (FAC , Para. 42.) The court deems, for purposes of demurrer, these allegations to be true. (Hacker v. Homeland Residential, Inc. (2018) 26 Cal.App.5th 270, 280.) Therefore, the 3 year statute of limitations begins to accrue when Plaintiff acquires knowledge that the vehicle is defective, not when the Plaintiff takes delivery of the vehicle. Plaintiff sufficie...
2024.02.20 Anti-SLAPP Motion to Strike 594
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.20
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.20
Excerpt: ...ding trial te stimony by Goger relating to her elder abuse claims, the value of the property at issue, and the taxes paid on the property. (First Amended Complaint (FAC), Paras. 4, 18, 22, 26, 33, 39, 43, 52, 54.) Goger has met her burden of showing that Plaintiff's cla ims arose out of protected activity. Plaintiff's arguments that the anti -SLAPP statute is inapplicable are meritless. The burden now shifts to Plaintiff to show a probability of ...
2024.02.08 Demurrer on TAC 608
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.08
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.08
Excerpt: ...esidential Assn., Inc. v. Hulven Internal, Inc. (2017) 14 Cal.App.5th 156, 170 to 180.) Plainti¯s claim that there is nothing to show that the 5/25/18 assignment of the DOT is derivative of the 7/26/04 assignment, but the Third Amended Complaint (TAC) expressly states that the 7/26/04 transfer is part of the transaction. (Complaint, Paras. 39, 44.) Next, Plainti¯s argue that the statute of repose does not apply to this action, because it appl...
2024.02.07 Demurrer on SAC 246
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.07
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.07
Excerpt: ... under ERISA § 502(a), 29 U.S.C. § 1132. Conßict preemption does not apply under ERISA § 514, 29 U.S.C. § 1144, since Plainti¯'s c l a i m s h e r e or implied contract, misrepresentation, negligence and quantum meruit are based on the alleged oral representations made by United's employee regarding a promise to pay or services provided by the Surgery Institute. While the Plan may be the initial step in the causation chain, in that the a...
2024.02.01 Demurrer 714
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.01
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.02.01
Excerpt: ...y, and is causing downstream property damage to the Deleo property, including but not limited to, severe erosion, signiÞcant damage to trees, and the destruction of the irrigation system. (Complaint, Para. 25.) Defendant KB asserts that this action is time barred because Plainti¯ has failed to timely challenge the government approval of KBs subdivision plan for the development during the approval process and the applicable period for review. ...
2024.01.29 Motion to Compel Arbitration 445
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.29
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.29
Excerpt: ...greement indicate that it is subject to the FAA. Since the FAA does not apply, the EFAA as well has no application to the arbitration agreement at issue. While the claims as set forth in the Complaint are covered by the language of the arbitration agreement, the arbitration agreement itself is unconscionable. A contract is unenforceable if it is unconscionable. (Civ. Code § 1670.5.) “The doctrine of unconscionability contains two components: p...
2024.01.26 Motion for Order of Seizure of Personal Property in Private Place 974
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.26
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.26
Excerpt: ...tion is issued, a judgment creditor may apply to the court for an order directing a judgment debtor to transfer to the levying officer possession of property sought to be levied upon by taking custody, and/or possession of documentary evidence of title to property of a debt owed to the judgment debtor that is sought to be levied upon. If the personal property sought to be levied upon is located in a private place of the judgment debtor and the le...
2024.01.18 Demurrer to TAC 608
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.18
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.18
Excerpt: ...en Internat„ Inc. (2017) 14 Cal.App.5th 155, 170 to 180.) Plaintiffs claim that there is nothing to show that the 5/25/18 assignment of the DOT is derivative of the 7/25/04 assignment, but the Third Amended Complaint (TAC) expressly states that the 7/25/04 transfer is part of the transaction. (Complaint, Paras. 39, 44.) Next, Plaintiffs argue that the statute of repose does not apply to this action, because it applies to creditor claims, and Pl...
2024.01.12 Motion to Set Aside Complaint 338
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.12
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.12
Excerpt: ...Vision, LLC. , the Court denied the moton without prejudice to allow the business entity to retain counsel. On December 15, 2022, the Court dismissed the entre acton for Plaintiffs failure to submit the default judgment. Plaintiff filed a motion to set aside the dismissal on June 13, 2023, which was heard and granted on August 18, 2023. Default Judgment was entered on October 18, 2023. Moving Defendant HARRELL now brings this motion to set aside ...
2024.01.11 Demurrer on SAC 638
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.11
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.11
Excerpt: ...ail on an alter ego theory in California, a party must establish the following: 1) such "a unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist"; and 2) "that, if the acts are treated as those of the corporation alone, an inequitable result will follow." (Mesler v. Bragg Mgmnt. Co. (1985) 39 Cal.3d 290.) The SAC alleges that "all defendants were acting at all relevant times as the a...
2024.01.03 Motion for Approval of PAGA Settlement 750
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.03
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2024.01.03
Excerpt: ...ssive or capricious and does not indicate the likelihood that violations would be proven to have been knowing and intentional. The discussion is not sufficient and does not help the court in its evaluation of whether the Settlement is reasonable. • S A.4.a-d — Plaintiffs are each settling their individual claims for a cash payment $2,500 (in addition to their requested service fee of $5,000). There is no information in any of the accompanying...
2023.12.29 Motion for Summary Adjudication 891
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.29
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.29
Excerpt: ...eory of liability in the motion for summary adjudication that was not alleged in the Complaint. (See Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493.) GRANT Motion for Summary Adjudication of the First and Second Causes of Action For Direct Negligence. Defendants move for summary adjudication of the first cause of action for negligence and the second cause of action for negligent hiring, training and supervision, arguing that t...
2023.12.27 Motion for Summary Judgment 354
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.27
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.27
Excerpt: ...e" under the Act because the vehicle had been previously owned by Enterprise Rent- A-Car as a GM commercial fleet vehicle, for which GM issued a fleet vehicle warranty. Generally, the remedies available under Song-Beverly do not extend to a purchaser of a used vehicle bought from a third- party dealer. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 924.) In Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, the Court of Appeal concluded t...
2023.12.27 Demurrer 797
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.27
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.27
Excerpt: ...raudulent concealment cause of action. The facts of this case a very similar to Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828. Here, Plaintiff alleges engine defects (Complaint; Paras.ll and 60), exclusive knowledge (Paras.61-62), active concealment (Paras.62-63), allegations that Plaintiff would not have purchased the vehicle had she known of the defect (Paras. 64-65), and damages (Para.56.) These allegations are sufficient for ...
2023.12.18 Motion to Quash Doe Amendment 838
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.18
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.18
Excerpt: ...Court (1999) 75 Cal.App.4th 169, 177.) It is irrelevant whether plaintiff had the means to obtain such knowledge when the complaint was filed, or even if the plaintiff was negligent or failed to exercise reasonable diligence in not discovering the defendant's identity or liability earlier. (See McGowen v. Grossman (2007) 153 Cal.App.4th 937; General Motors Corp., supra, 48 Cal.App.4th at 596; Grinnell Fire Protection System Co. v. American Sav. &...
2023.12.05 Motion for Summary Judgment 565
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.05
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.05
Excerpt: ...eement that moots the causes of action of the Plaintiff's Complaint. On 3/19/20, Plaintiff's counsel sent the Defendants' insurance carrier a letter offering to settle his claims against the Defendants subject to the carrier agreeing to five specific terms and conditions outlined in the letter. The letter states "[t]he written acceptance of these terms must be in our hands before April 2, 2020. No term is more important than any other term; there...
2023.12.01 Motion for Leave to Obtain Physical Exam Beyond 75 Miles of Residence 097
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.01
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.12.01
Excerpt: ...cing the examinee's reasonable travel costs and expenses. (CCP S 2032.320(e)(1)and(2)) Plaintiff does not dispute that he has refused to travel to California from Pennsylvania for the Independent Medical Exam (IME), despite Defendant's offer to pay travel costs. (See "Sarmiento Declaration", Para.16; Opposition, p.4.) The court finds that Defendant has shown cause for Plaintiff to travel to California for the IME because, despite Defendant's best...
2023.11.28 Motion for Dismissal 700
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.28
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.28
Excerpt: ...served within three years after the achon is commenced against the defendant...[A]n action is commenced at the time the complaint is filed." Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1051.) CCP S 583.250(b) further provides that [ "If service is not made in an action within the time prescribed in this article...[...
2023.11.22 Demurrer 451
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.22
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.22
Excerpt: ...N, INC. (ERRONEOUSLY SUED AS HONEYCOMB INVESTMENT & LOAN, INC.) demur to Plaintiff's complaint for uncertainty and failure to state a cause of action, Causes of Action 2-9, because the Honeycomb entities were not incorporated or formed until after the purchase agreement was executed by the parties on 1/18/22. The Court rejects this contention, as the Purchase Agreement states that Honeycomb was the brokerage firm acting on behalf of both Sellers ...
2023.11.15 Demurrer to SAC 246
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.15
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.15
Excerpt: ...A S 502(a), 29 U.S.C. S 1132. Conflict preemption does not apply under ERISA S 514, 29 U.S.C. S 1144, since Plaintiff's claims here for implied contract, misrepresentation, negligence and quantum meruit are based on alleged oral representations made by United's employee regarding a promise to pay for services provided by the Surgery Institute. While the Plan may be the initial step in the causation chain, in that the alleged misrepresentations we...
2023.11.09 Demurrer to SAC 246
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.09
Location: Riverside
Judge: Ottolia, Daniel
Hearing Date: 2023.11.09
Excerpt: ...e Security Act of 1974 (ERISA), Congress included two distinct and powerful preemption provisions: complete preemption under ERISA S 502, 29 U.S.C. S 1132, and conflict preemption under ERISA S 514, 29 U.S.C. S 1144. A state law claim is completely preempted if an individual, at some point in time, could have brought his claim under ERISA S and . there is no other independent legal duty that is implicated by a defendant's actions." (Aetna Health ...