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...

Excerpt: ...and 3. On the cause of action for Breach of the implied Covenant of Good Faith and Fair Dealing, Plaintiff relies solely on the vague statements of Mr. Aryana that Plaintiff complied with all terms and conditions of the Loans and made all required payments. Plaintiff does not provide evidence that all draw requests were made for items used on the Project as required under the terms of the Loan Agreement. Defendants have prov-ded clear supporting ...

Excerpt: ...tablish her negligent repair claim because Plaintiff cannot prove that Norm Reeves breached a duty owed to Plaintiff, nor can Plaintiff prove the element of damages as a result of Norm Reeves' conduct. Defendant provides evidence that Plaintiff presented her vehicle for repair to Defendant one single time before filing suit. (UF 2.) Plaintiff testified that in the weeks and months following repair, the problem seemed to go away. (UF 4.) Plaintiff...

Excerpt: ..., indicate that Plaintiff seeks summary adjudication. Nor does the separate statement refer to summary adjudication of the issues. Accordingly, the Court will not adjudicate the separate causes of action, but will treat this as a Motion for Summary Judgment. In California, a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated. (Rio Linda Poultry Farms v. Fredericksen (1932) 121 Cal...

Excerpt: ...s four evidentiary objections to the Declaration of Michael Makinen. Objection 1: 95: "SO- McKinely turned over the Premises to Organic Roots on May 17, 2018." Sustain on grounds of lack of personal knowledge and lack of foundation. Objection 2: 97: "A little more than two (2) years after the execution of the Lease, Organic Roots was almost $600,000 behind in payment of rent and other charges under the Lease to SOMcKinley." Sustain on grounds of ...

Excerpt: ...ursuant to Cal. Code Civ. Pro. S526(a)(3), a preliminary injunction may issue: When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. The plaintiff has the burden to prove all elements necessary to sup...

Excerpt: ...he Deed of Trust and tax liens would be judicially noticeable.) OVERRULE all of Defendant's Objections to the evidence, as the objections do not comply with the formatting requirements of CRC 3.1354(b). Page 3 of 4 DENY the motion for summary judgment/summary adjudication. The Plaintiffs lack stand-ng to bring this action. "Every action must be prosecuted in the name of the real party in interest." (CCP S 367.) In litigation involving trust prope...

Excerpt: ...-Beverly Act8reach of Express Warranty, violation of the Song-Beverly Act- Breach of Implied Warranty and violation of the Song-Beverly Act Secton 1793.2. Ford contends that on July 23, 2020, Ford sent Plaintiff an e-mail offering to repurchase or replace Plaintiff's vehicle and requested that Plaintiff provde information to Ford to repurchase the vehicle, but that Plaintiff failed to respond and ultimately rejected Ford's offer. (SUMF No.3) Ford...

Excerpt: ...orman & Clark corp. v. Fallon (1971) 3 cal.3d 875,884.) On the merits, Plaintiff's motion is denied for the failure of Plaintiffs to meet their initial burden. With respect to issues 1 and 2, no admissible evidence has been presented that Defendants acted "[w]ith actual intent to hinder, delay, or defraud" Plaintiffs at the time of the transfers. (See Civ. Code S 3439.04(a)(1).) Nor do Plaintiffs offer any evidence to support a finding of implied...

Excerpt: ... obtaining a "right-to-sue" letter from DFEH. (Govt. C. SS 12960, 12965(b)). The plaintiff then has one year from the date of the right to sue letter to file a civil action. (ld.) Here, there is no dispute that plaintiff filed his original DFEH complaint on December 20, 2017, which included allegations of harassment, discrimination and retaliation based on race and his request for a reasonable accommodation for his disability for the period of No...

Excerpt: ...se of action. Plaintiffs provide specific examples of defendant's conduct online of name-calling, blocking plaintiffs from posting on NextDcM false claims of criminal acts, identity theft and confronting plaintiffs while on a walk. On the 5th cause of action for violation of the Bane Act, plaintiffs fail to sufficiently allege that defendants threatened or committed a violent act in an attempt to interfere with their constitutional rights. (First...

Excerpt: ...al.R.Ct. Here, the court signed the judgment in this matter on January 19, 2023 and the Judgment was filed with the court on January 24, 2023. Also on January 24, 2023, the court generated a Minute Order Page 3 of 3 instructing the clerk to give notice of entry of judgment. The clerk mailed a copy of the court's minute order the same day, January 24, 2023. The clerk then filed a Certificate of Mailing on January 24, 2023, certifying that a copy o...

Excerpt: ...Plaintiff seeks prejudgment interest pursuant to Civil Code S 3291, which provides that when a defendant rejects plaintiff's CCP S 998 offer and plaintiff obtains a "more favorable" judgment at trial, the personal injury plaintiff is entitled to 10% interest on the entire judgment from the date of the offer. Plaintiff, however, is not entitled to prejudgment interest on the costs that are awardable to plaintiff. As defendants correctly note, the ...

Excerpt: ...e C. Yun, M.D., who is a board-certified physician in anesthesiology. (Yun Decl., Para.l) Dr. Yun opines that Dr.Le, at all times relevant in this case, met the requisite standard of care in the treatment of Plaintiff at Corona Regional Medical Center ("CRMC") and did not cause Plaintiff's injury. (Yun Decl., Para. 6.) Defendant Le has met his initial burden of proof on summary judgment by presenting expert evidence that his care and treatment me...

Excerpt: ...fendant is entitled to Plaintiffs mental health records for the last 5 years. However, Defendant is not entitled to Plaintiff's physical health records from SAC to see if she suffered an injury that might result in emotional distress. Defendant has not shown why any preexisting emotional distress would not appear in Plaintiff's mental health records. Nor has Defendant performed less intrusive forms of discovery to determine whether Plaintiff suff...

Excerpt: ...dditional early termination rights. The key event and condition precedent to Defendant Organic Page 3 of 3 Roots' right to cancel is Plaintiff's receipt of Organic Roots' gross sales statement for the fifth year of the lease. (Cook Decl., Ex.4, Section 6(f).) Organic Roots did not, and cannot, provide Plaintiff with a gross sales statement for the fifth year of the Lease prior to delivering its early termination notice, as it did not stay open fo...

Excerpt: ... and through her Guardian Ad Litem, Raul Soto and Raul Soto, individually. To prevail on summary judgment, the defendants must demonstrate that the entire achon has no merit. (CCPS 437c(a)(1); Cox v. State of California (1970) 3 Cal.App.3d 301.) Individual causes of action must be attacked by way of summary adjudication. (CCPS 437(f).) Here, the Sotos have not requested alternative relief by way of summary adjudication of all the issues, since th...

Excerpt: ...se to the request for admissions that it does not have a signed personal guarantee, (3) Plaintiff has no guarantee document that satisfies the Statute of Frauds, (4) the lack of a personal guarantee renders breach or repudiation of the lease contract impossible, and (5) there is no actual controversy regarding the interpretation of Paragraph 6(f) of the lease for the declaratory relief cause of action. Plaintiff fails to establish the existence o...

Excerpt: ...ow there are no triable issues of material fact regarding punitive or exemplary damages. The "facts" submitted by Defendants are limited to the contents of Plaintiff's First Amended Complaint (FAC). No other "facts" were submitted by Defendants in support of their motion. Plaintiff's MSA is essentially an attack on the sufficiency of the pleadings. "[lln preparing and ruling upon motions for summary adjudication, under Code of Civil Procedure sec...

Excerpt: ... hiring cause of action, however, the court finds that Plaintiffs' claims have been sufficiently alleged. Plaintiffs' allege that they were employed by DPSS, that DPSS hired Absolute Security to ensure the safety and security of Plaintiffs and the occupants of the Welcome Center, that a physical altercation ensued between the foster children, that Absolute Security failed to provide the presence of security guards at the time of the incident, and...

Excerpt: ...ngs this action against the manufacturer of the vehicle FCA US, LLC("FCA") and the servicer of the vehicle, Moss Bros. Chrysler Dodge Jeep Ram ("Moss Bros.") Both Defendants bring identical Motions to Compel Arbitration under the Retail Installment Sales Contract("RlSC") signed by Plaintiff and non-party Surf City. The only parties to the RISC are Plaintiff and the non-party dealer, Surf City. Neither FCA nor Moss Bros. is or claims to be an empl...

Excerpt: ...cause for the discipline, but not for termination. (AR 867—869.) B. Writ Petiton On June 24, 2022, the County filed the instant Petition, asking the Court to set aside the Hearing Officer's decision and uphold Respondent's termination from his employment with the Department. According to the County, the Hearing Officer's decision was based, in part, upon the incorrect conclusion that Respondent was not a sworn peace officer (i.e„ Deputy Sheri...

Excerpt: ... (1996) 45 Cal.App.4th 55, the court defined harassment and noted "[m]aking a personnel decision is conduct of a type fundamentally different from the type of conduct that consttutes harassment." (ld. at 64.) Making personnel decisions is an unavoidable part of being a supervisor, but conduct like derogatory slurs or engaging in unwanted sexual advances is not necessary as a supervisor and would constitute harassment. (Ibid.) Here, Plaintiff alle...

Excerpt: ...Defendants. The Statutory Scheme Education Code SS and 24502 set forth CalSTRS statutory rights to assert a subrogation claim against a tortfeasor when a member is injured by the tortfeasor, and as a result of those injuries, the member is approved for CalSTRS disability benefits. There is nothing in Education Code S 24502 that limits the application of Chapter 5 of Part 1 of Division 4 of the Labor Code to a direct claim of subrogation against t...

Excerpt: ...Defendants. The Statutory Scheme Education Code SS and 24502 set forth CalSTRS statutory rights to assert a subrogation claim against a tortfeasor when a member is injured by the tortfeasor, and as a result of those injuries, the member is approved for CalSTRS disability benefits. There is nothing in Education Code S 24502 that limits the application of Chapter 5 of Part 1 of Division 4 of the Labor Code to a direct claim of subrogation against t...

Excerpt: ...v. Pro. S 1094.5. Administrative mandate are used to review actions or decisions of an administrative body or officer acting in a judicial capacity. (Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, 101.) An administrative writ may be issued to inquire into the validity of any final administrative order or decision made as the result of a proceeding where a hearing is required to be given and evidence is required to be taken. (Cal...

Excerpt: ... is readily ascertainable. Here, the Sourcing Agreement provides that all purchase and sales of products shall be made pursuant to written purchase orders. (Choi Dec., Ex. A, Para. 1.2.) Providence, as the supplier, shall prepare and deliver written invoices to LLR, which shall set forth the amount of payment sought by Supplier and the terms and conditions of payments. (ld at 1.4.) Accordingly, the Sourcing Agreement contains a standard by which ...

Excerpt: ...witnesses identified in the District's letter to Plaintiffs dated April 3, 2018, statements provided to the District relating to the District's investigation as outlined in the April 3 letter, all complaints lodged by Plaintiffs against Martinez, Martinez's response to Plaintiff's complaints, and copies of complaints lodged by Grum against the District. The information sought is directly related to Plaintiffs' Negligence and Intentional Inflictio...

Excerpt: ...e interface between the asphalt road and the adjacent concrete gutter) (LJMF 12), sustaining serious personal injuries. Plaintiff now brings this action for premises liability and negligence against the home and street builder, Lennar Homes of California, LLC„ and against the City of Calimesa for dangerous condition. Defendants bring this motion for Summary Judgment alleging that the defect upon which Plaintiff tripped was trivial. "What consti...

Excerpt: ...2 and 3. Respondent does not have a mandatory duty to distribute the entirety of the Trust res upon Decedent's death (UFs 26-27) The trustee's duty to distribute under Probate Code § 16220 is subject to Respondent's paramount fiduciary duty under Probate Code § 16202. There is a triable issue of fact as to whether Respondent has properly withheld distribution of the Trust assets. On issue 3, Respondent asks the court to adjudicate the issue of ...

Excerpt: ... arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. (Sharp Decl., Exh. B, p. 2.) The parties to the RISC are Plaintiff and Corona Nissan. Nissan North America, Inc....

Excerpt: ...articulate a clear factual basis for a proper failure to warn claim. Plaintiff mixes in elements of a negligence claim along with her product liability claim by alleging issues of “duty”. The FAC fails to state facts sufficient to state a cause of action for strict products liability/failure to warn and the FAC is uncertain. 2 nd Cause of Action for Strict Products Liability‐Negligence‐Manufacturing Once again, the FAC pleads a lot on con...

Excerpt: ...Drilling is an independent subcontractor and not an employee or agent of HP. The test to be applied to determine whether an individual is an employee or independent contractor is the ABC test set forth in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903. To establish that a worker is an independent contractor under the ABC standard, the hiring entity must establish all three parts of the ABC test. However, a court need not examine the...

Excerpt: ...admissible evidence showing a triable issue of fact. Plaintiffs' warranty claims fail because the Song‐ Beverly Warranty Act is inapplicable to used vehicles under Rodriguez v. FCA US,LLC (2022) 77 Cal.App.5th 209 and Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385. The fact that Rodriguez had not been published at the time this action was filed is of no import. Judicial decisions are generally given retroactive effect. (Abramson v. Jupiter Netwo...

Excerpt: ...ct. Overrule the objections to Plaintiffs' Declarations. GRANT the Motion for Summary Judgment on the Kidwell Complaint. Kidwell fails to create a triable issue as to causation for negligence, and the intentional infliction of emotional distress claim is based on the same facts. The assault and battery claims are not asserted against the Café Sevilla Defendants. Plaintiffs fail to demonstrate that the Café Sevilla Defendants were required to pr...

Excerpt: ...ly the assignee or transferee is the party to seek substitution, CCP§368.5 “was not meant to be used as a shield.” (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App. 4th 117, 134.) The assignee, as real party in interest, cannot evade responsibility for fees and costs because of its own tactical choice to continue the action in the name of the original party. (Id. at 136.) Courts have recognized the right of an oppos...

Excerpt: ...bable validity” of the claim by a “preponderance of the evidence.” (CCP §§ 405.3‐405.32.) The court cannot take into account a cause of action for fraudulent inducement that Plaintiff has not yet pled. CCP § 405.31 specifically provides that the “court shall order the notice expunged if the court finds that the pleading on which the motion is based does not contain a real property claim.” (Emphasis added.) Moreover, even if the cou...

Excerpt: ...and age. Plaintiff claims he was discriminated on the bases of these protected classes, but does not provide factual assertions to support any of them. Plaintiff fails to allege facts that constitute circumstances suggesting discriminatory motive based on the protected class. With respect to the harassment claim, Plaintiff fails to allege the conduct by IA that he considered harassing in nature, how frequently the alleged harassment occurred, whe...

Excerpt: ...iction is precluded, jurisdictionally, from rendering declaratory relief or injunctive relief regarding the administration of another superior court. Here, petitioners are not seeking to reverse a decision of the San Bernardino Superior Court having coequal jurisdiction, but rather are challenging the administrative orders of the presiding judge of San Bernardino. Demurrer is overruled on the basis of lack of jurisdiction. First Cause of Action f...

Excerpt: ...dant has failed to place the medical records before the court under the business records exception to the hearsay rule, or to provide the authenticated documents in its Appendix of Attached Exhibits. OVERRULE Defendant's Objections to Plaintiff's Evidence in support of the Opposition in their entirety. DENY Motion for Summary Judgment/Summary Adjudication. The Defendant has not met her burden on this motion pursuant to CCP § 437c(p)(2). Therefor...

Excerpt: ...ptember 17, 2021 and the first amended complaint on March 7, 2022 against defendant State of California (the “State”) (erroneously sued as State of California Water Resources). On May 26, 2022, the court sustained the State's demurrer with leave to amend. On June 24, 2022, Plaintiffs filed the operative second amended complaint (“SAC”), and on September 7, 2022, the court sustained the State's demurrer with leave to amend. Plaintiffs file...

Excerpt: ...ed in Opposition to Motion for Summary Judgment are SUSTAINED in their entirety. The court finds that Griswold's Declaration has no evidentiary value. Defendant/Cross‐Complainant Town & Country Investments, LP (T&C) moves for summary judgment of its First Amended Cross‐Complaint against Plaintiffs/Cross‐Defendants King City Entertainment, Inc. and Minerva Munoz (KCE/Munoz), or in the alternative, summary adjudication of the 1st and 2nd caus...

Excerpt: ... 51 Cal.4th 764.) Here, whether or not MARIANO has breached that duty presents a question of material fact upon which MARIANO has offered no evidence. MARIANO therefor fails to meet his initial burden on Summary Judgment of showing that one or more elements of a cause of action cannot be established. Nor has MARIANO shown a lack of proximate causation in his moving papers. MARIANO argues that Griselda Arellano's (“ARELLANO”) negligent and cri...

Excerpt: ...). This is not a case where a dismissal was entered as a procedural equivalent to default. Plaintiff's counsel's supporting declaration is not dated nor signed. A declaration must be “subscribed by” the “person making” it. (Code Civ. Proc., § 2015.5.) Unless properly executed as required by section 2015.5, the declaration submitted in of support the motion has no evidentiary value. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198,...

Excerpt: ...t on the pleadings by a defendant may be made on the grounds either that the court “lacks jurisdiction of the subject of one or more of the causes of action alleged” or the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (Cal. Code Civ. Pro. § 438(c)(1)(B).) While a party may demur pursuant to Cal. Code Civ. Pro. §430.10(d) on the basis of the nonjoinde...

Excerpt: ...mmary Judgment on the Sixth Cause of Action (Retaliation in Violation of FEHA). Defendant CDCR argues that Plaintiff cannot establish a prima facie claim of retaliation under FEHA because she cannot demonstrate that she was subjected to an adverse employment action. Under FEHA, an adverse employment action is one that “materially affects the terms, conditions, or privileges of employment.”(McCoy v. Pc.Maritime Ass'n (2013) 216 Cal.App.4th 283...

Excerpt: ...the Federal Arbitration Act's (FAA's) exemption for transportation workers. The FAA ‘exempts certain contracts from its scope, specifically the employment contracts of ‘seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce.'” (Rittman v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, 909.) The exemption is a narrow one applying only to employment contracts of transportation workers. (Id. at 9...

Excerpt: ...er; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five‐year period.” (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032–33 [emphasis added].) “In no case shall adverse possession be considered established . . . , unless it shall be shown that the land has been occupied and claimed for ...

Excerpt: ...tenquist, now refuses to comply by turning over the raw data acquired during the exam to Plaintiff's counsel, citing ethical obligations and public policy and safety concerns, and stating that he will only turn over such data to Plaintiff's treating physician or other designated physician. While there is no basis to rescind the stipulation based on the unilateral mistake of Defense counsel, especially where the party seeking relief from the terms...

Excerpt: ...ther the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1178, internal quotation omitted.) “A worker is an independent contractor when he or she follows the employer's desires only in the result of the work, and not the means by which it is achieved.” (Id.) Here, Defendants have provided evidence that Hidalgo was an...

Excerpt: ...ond (1995) 35 Cal.App.4th 1070, 1086.) Where a plaintiff alleges a breach of a fiduciary duty against his or her broker or agent, the breach of such duty may constitute a constructive fraud. (See Michel v. Larry Moore & Assocs. Realtors (2007) 156 Cal.App.4th 756, 762 (Michel) [purchasers of real estate brought claims for negligent nondisclosure, fraudulent concealment after learning the house had poor top soil which caused significant instabilit...