Excerpt: ...ll or substantially all of its assets to ORT, such that ORT is the alter ego of OR. Plaintiff further alleges that OR has been stripped of its assets to render it judgment proof in the present action. Defendant ORT now brings this Demurrer to each cause of action in the TAC for failure to state facts sufficient to constitute a cause of action, and for uncertainty. (CCP §§ 430.10(e),(f).) Here, the TAC alleges that “all defendants were acting ...

Excerpt: ...spass caus e of action. Statute of Limitations. County argues that the tort claims for nuisance and trespass fail because Plaintiff did not file the Complaint within six months from the County's rejection of the claim under the Government Claims Act, and that any damage suffered by Plaintiff accrued prior to July 2019, and is thus timebarred by the one - year statute of limitations under the Government Claims Act. County further contends that th...

Excerpt: ...Amended Comp laint (FAC) for negligence that after Riverside County sheriff deputies arrived at the scene of a murder, they dragged decedent's body behind a police vehicle, and in the process of dragging the body, decedent's pants slid down, exposing his genitals. Plai ntiff alleges that decedent's body lay with the genitals exposed for eight hours while the deputies and other law enforcement personnel continued to investigate the shooting. Plain...

Excerpt: ...blish that Defendant's conduct was extreme or outrageous, or that Plaintiff sustained severe emotional distress as a result of Defendant's conduct. For NIED, Shannon argues that there is no independent tort of NIED, but rather a negligence claim, and Plaintiff cannot establis h any duty owed by Shannon to her, cannot establish any breach of any duty, and cannot establish that his conduct caused her to suffer severe emotional distress. Sixth Cause...

Excerpt: ...tiffs' cause of action cannot be established. Once the burden shifted to Plaintiffs to produce admissible evidence showing a triable issue of material fact exists, they have met their burden by producing evidence to raise a triable issue of fact, to wit; with respec t to the failure to repair element, Plaintiff has presented evidence raising a triable issue as to whether the vehicle had a nonconformity involving the vibration of the vehicle and t...

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...

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...

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...

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...

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...

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 ...

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...

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...

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. ...

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...

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...

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...

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 ...

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...

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...

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...

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...

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 ...

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. &...

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...

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...

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...[...

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 ...

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...

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 ...

Excerpt: ...ttlement pursuant to CCP S 654.6. (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206; Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439-440.) "Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement." (Sully-Miller Contracting Co. v. Gledson/cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) A request for the trial co...

Excerpt: ...agreement contained in the Warehouse Services Agreement (WSA) and CCP S 1281.2. The parties do not dispute that the WSA contains an arbitration clause. (See Zhu. Decl., Para.3, Ex."A", Para.17.) Plaintiff's claims fall squarely within the arbitration clause as they concern the indemnification provision within the WSA arising from or related to the storage of products at Plaintiffs warehouse and/or Opene's performance under the Warehousing Service...

Excerpt: ...sary evidence to prove their affirmative defenses. Plaintiff's objections are overruled. Summary Adjudication of the third and sixteenth affirmative defenses is Granted Plaintiff is entitled to incidental and consequential damages under the Song-Beverly Act and because Plaintiff does not assert a Magnuson Moss claim in the complaint. As to the tenth affirmative defense, Defendant does not oppose the motion to this affirmative defense. Summary Adj...

Excerpt: ...ntract and repair orders. As such, they are not unreasonable and the Motion to Tax is denied as to these costs. For expert witness fees, under CC 51794(d), the Legislature intended the phrase "costs and expenses" to cover items not included in the detailed statutory definition of "costs" set forth in CCP S 1033.5.(See Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42. And Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 11...

Excerpt: ...hen shifts to Defendant "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." Here, Plaintiff has failed to present any evidence on the constructive trust, fraud and conversion causes of action. Hence, the Motion for Summary Judgment fails as a matter of law. As to Summary Adjudication of the remaining causes of action, the court finds that there are triable issues of material fact an...

Excerpt: ...The subpoenas are overbroad. Defendants are asking for anything and everything related to Plaintiff's time spent with third party Pomona Valley Hospital Medical Center. The temporal scope of the records subpoena is not limited to matters specifically relevant to this acton. Defendants have not established a specific compelling need to obtain disclosure of Plaintiff's private, unrelated and irrelevant employment records. Particularized evidence re...

Excerpt: ... The subpoenas are overbroad. Defendants are asking for anything and everything related to Plaintiff's time spent with third party Molina Healthcare of California. The temporal scope of the records is not limited to matters specifically relevant to this acton. Defendants have not established a specific compelling need to obtain disclosure of Plaintiff's private, unrelated and irrelevant employment records. Particularized evidence related to Plain...

Excerpt: ...c filing when a party is represented by counsel in a civil matter. Defendants are thus entitled to their electronic filing fees. Moreover, the 2/3/23 trial date was vacated on 9/7/22, and Defendants are entitled to the filing fees on the two disputed discovery motions. Motion is DENIED as to the request to tax filing and motion fees. Motion to tax is DENIED as to costs. Defendants are entitled to said costs under CCP S and Plaintiff fails to esta...

Excerpt: ... name of his solely owned corporation (The 26th Corp.) while Aquino took title in the names of his corporations, partnerships, and trusts. Page 5 of 11 Plaintiffs allege that Aquino's entities are shams and alter egos for him. The relationship continued until 2008 when Aquino allegedly started a feud with Whitney. On 3/19/08, Aquino sued U.S. Bank and Whitney in Orange County alleging that Whitney forged Aquino's signature on a check for $450,000...

Excerpt: ...to Samuel Son & Company located in Illinois. Then, on June 12, 2023, Defendant served five additional subpoenas for production of business records to: Samuel Son & Company; Samuel Son & Company/Sierra Aluminum; JCR Law Group-Glendale; The Travelers Indemnity Company, Inc.; and Marriott International. By way of these subpoenas, Defendant seeks Plaintiff's employment and insurance records. Plaintiff brings the instant motion to quash the subpoenas ...

Excerpt: ... on its behalf as to matter on which the examination is requested.l The deposition notice must "describe with reasonable particularity the matters on which examination is requested." (Cal. Code Civ. Pro. S 2025.230.) The entity is then under a duty to designate and produce the officers, directors, managing agents or employees "most qualified" to testify on its behalf having knowledge of such matters. (ld.) Cal. Code Civ. S 2025.450(a) permits a p...

Excerpt: ... to compel a further response as to document requests, the moving party must state facts demonstrating good cause justifying the discovery sought by demonstrating relevance and specific facts justifying discovery. (ld. at S 2031.310(b)(1).) he burden to show good cause for production "is met simply by a fact-specific showing of relevance." (Tbg Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal.App.4th 443, 448.) Once good cause is established, the resp...

Excerpt: ... make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court." (Cal. Rules of Court, rule 3.1306(c).) Plaintiff requests that the Court take judicial notice of the complete file in the judicial records in this case, without specifying which records, and hence fails to comply with rule 3.1306. Request for judicial notice is DENIED. I...

Excerpt: ...n this breach of contract action on August 29, 2022 against defendant Joseph Tash ("Defendant"). On May 23, 2023, Plaintiff served Defendant with Special Interrogatories ("SROGs"), Form Interrogatories ("FROGS") and Requests for Production ("RFPs"). Defendant failed to provide timely responses, resulting in Plaintiff's filing his present motions to compel (MTC). Defendant filed his oppositions to the motions to compel and Plaintiff filed his repl...

Excerpt: ...outstanding discovery is substantial, the court prefers an outline. (Cal. R. Ct. 3.1345(b)(2).) Factual / Prc„cedural Context: Plaintiffs Jaime Ordaz and Xochitl Ordaz allege that they purchased a used 2017 Cadillac Escalade on 1/10/21 that came with an express warranty. Plaintiff alleges that the vehicle has defects in the engine, electrical, transmission and structural system defects. Plaintiffs filed this action on 8/20/21 for: (1) violation...

Excerpt: ...to compel Plaintiff to provide further responses to special interrogatories 9-13, 22 and 25. He contends that despite meeting and conferring, Plaintiff has refused to supplement his responses. In Opposition, Plaintiff contends further response to 12-13 have been provided despite Defendant already having the information. He contends the remaining interrogatories are overbroad and any effort to meet and confer was not sufficient. As such, he conten...

Excerpt: ...nd identify the name of the document in which the specific material objected to is located, state the exhibit, title, page and line number of the material objected to, quote or set forth the objectionable statement or material, and state the grounds for each objection. (CRC 3.1354(b)(1)-(4).) Plaintiff's objections are non-compliant as they are contained in the separate statement. Defendants' objections do not comply as they are objections to ent...

Excerpt: ...of benefits. Unemployment Insurance Code S 1094(a) provides that: "the information obtained in the administration of this code is confidential, not open to the public, and shall be for the exclusive use and information of the director in discharge of his or her duties." Subdivision (b) states that this information is not admissible in evidence in any action or special proceeding, other than those arising out of the Unemployment Insurance Code. Se...

Excerpt: ...a commercial real estate loan broker liable for a lender's failure to fund. In its Reply, Golden Star raises several issues that were not raised in the moving papers, such as its arguments concerning causation, foreseeability of harm, intervening harm, and the absence of damages. To the extent Defendant raises new issues in its Reply, the Court will disregard those issues. (See Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.Ap...

Excerpt: ...ation. All of the Department's evidentiary objections to the declaration of Robert Bartlett are Sustained. Petitioner's Reply is untimely (two days late per CCP S 1005(b)), however, the court will exercise its discretion and consider the Reply. The court will not award Pettioner any costs in this matter. Cal. Rules of Court (CRC), Rule 3.17W(a) provides that a prevailing party who claims costs must serve and file a memorandum of costs within 15 d...