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...