Excerpt: ... food product. (Complaint, Para. 17). Plaintiff also mixes in elements of a negligence claim along with his product liability claim, e.g., Defendant “owed a duty to Plaintiff as a consumer of defendants' products to warn Plaintiff that said products were dangerous, contaminated, unsafe and unfit for consumption.” (Complaint Para.17.) The Complaint is uncertain and unintelligible. SUSTAIN Second Cause of Action Plaintiff combines claims of str...

Excerpt: ...) a dangerous condition of public property; (2) a proximate causal connection between the condition and the injury sustained; (3) a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condition; and (4) the entity either created the condition, or had actual notice or constructive notice of its existence, and there was sufficient time before the injury for it to have taken remedial action. (Gov. Code �...

Excerpt: ...duct. LLR contends that Providence lacks standing to prosecute this action because its assets, including its interest in this litigation, were foreclosed upon by its lender, East West Bank, which then sold the assets to Cresden, LLC. The court finds that Providence has standing and that this action can go forward under the Providence name pursuant to CCP § 368.5. A motion for summary adjudication shall be granted only if it completely disposes o...

Excerpt: ...ile Club of Southern California (2020) 59 Cal.App.5th 694, 704; Parkview Villas Assn., Inc v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1214. Failure to comply with the separate statement requirement constitutes ground for denial of the motion. C.C.P. § 437c(b)(1). “To ensure that the opposing party has notice of the factual issues in dispute and an opportunity to present the evidence needed to defeat the motion, the statute ...

Excerpt: ...demonstrating that their care and treatment of Plaintiff was within the standard of care and did not cause Plaintiff injury. The opinions by Dr. Morgan that Plaintiff was not sexually assaulted, and his opinions regarding what the premise of the CDPH report was, are objectionable and improper. Whether the actions and touching by Ryan and Jesus amount to sexual assault are factual issues within the province of the fact finder. Any opinion regardin...

Excerpt: ...he factual findings made below. It does not weigh the evidence presented by both parties to determine whose position is favored by a preponderance. Instead, it determines whether the evidence the prevailing party presented was substantial – or, as it is often put, whether any rational finder of fact could have made the finding that was made below. If so, the decision must stand.” (Sweeney, supra, 61 Cal.App.5th at 1130.) II. Substantial Evide...

Excerpt: ... 14 Cal.App.4th 1692, 1718; Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 608‐610.) In the absence of a fiduciary relationship, a duty to disclose can arise only under the circumstances described in Warner Constr. Corp. v. L.A. (1970) 2 Cal.3d 285, 294, but all of these circumstances presuppose the existence of some transactional relationship between the plaintiff and the defendant from which a duty to disclose can arise, such as the rel...

Excerpt: ...material fact remain as to whether the “friendly foreclosure” and transfer of assets was done for the purpose of avoiding liability on the selling entities' debts after the application of the “badges of fraud” analysis under the Uniform Voidable Transfers Act (UVTA).(MSA Issues 1 through 6). There are also triable issues as to the claims under the UVTA based on the same factors.(MSA Issues 7 and 8). Factual / Procedural Context: This case...

Excerpt: ... issuance of TSB's, complaints by other purchasers of the same make, model and year automobile, and complaints of similar defects) may be relevant in a Song—Beverly Act case, (See Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 967, 976‐977,n.2; Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 154) or may be probative of the manufacturer's willful violation of CC § 1794(c). (A violation is willful if the manufacturer knew of its...

Excerpt: ...arland, dated March 16,2022, stating that the electrical cabinets that the decedent had been working on or around had been damaged in a lawnmower accident, requiring that the cabinet unit be rebuilt, and further alleging that the rebuilt unit had not been certified or inspected for safety, and further alleging that this fact had not been disclosed to Amtek prior to the start of work on the Garretson Blend Station. The court has read and considere...

Excerpt: ...d, and OVERRULE the remaining objections. SUSTAIN Defendants' evidentiary objection 8, and OVERRULE as to the remaining objections. GRANT Motion for Summary Judgment The First and Second Causes of Action are Untimely The parties agree that the first and second causes of action are subject to the five‐year statute of limitations set forth in CCP § 336(b), which provides in relevant part: Page 3 of 6 An action for violation of a restriction, as ...

Excerpt: ..., when two state courts have concurrent jurisdiction over the same parties and subject matter, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and parties until the matter is resolved. (Plant Insulation Co. v. Fiberboard Corp. (1990) 224 Cal.App.3d 781, 786‐787; Franklin & Franklin v. 7‐ Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) The exclusive concurrent jurisdictio...

Excerpt: ...ntent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.” (Klopping v. City of Whittier (1972) 8 Cal.3d 39, 52; see also Dryden Oaks, LLC v. San Diego County Regional Airport Authority (2017) 16 Cal.App.5th 383, 404; City of Escondido v. Pacific Harmony Grove Development, LLC (2021) 68 Cal.App.5th 213, 237‐38.) An owner's claim f...

Excerpt: ...� Complaint. SUSTAIN the Demurrer, with 30 days leave to amend, as to all causes of action alleged in the Cross‐Complaint for failure to state facts sufficient to constitute a cause of action. The original deal between buyer and seller was consummated, therefor the allegations do not support a damages element of Four Sisters' causes of action under the first, second, and fourth causes of action for breach of fiduciary duty, constructive fraud, ...

Excerpt: ...Officer's Sworn Statement fails to identify the exact time Officer Navarro observed the symptoms of intoxication, the hearing officer is entitled to draw inferences and deductions from the facts. Respondent correctly asserts that it is reasonable to infer that the observation occurred sometime after the traffic stop at 1:16am and before petitioner's arrest at 1:25am, nine minutes after the stop. It would be illogical and unreasonable to conclude ...

Excerpt: ...y for lack of foundation, speculative and improper perception, and (3) Declaration of Arif Qadri in its entirety for lack of foundation, speculative and improper perception . Defendant's Objections to the evidence are Overruled as not material to the court's determination herein. Plaintiff has presented sufficient evidence creating a triable issue of material fact as to the existence of a dangerous condition. In their depositions, both Yvonne and...

Excerpt: ...ovided by statute.” (See Creason v. Department of Health Services (1998) 18 Cal.4th 623, 630‐31.) Thus, in California, “all government tort liability must be based on statute.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, n. 2; see also Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 [direct tort liability of public entities must be based on a specific statute].) Moreover, every fact e...

Excerpt: ...because the First Amended Complaint (FAC) does not allege specific facts, only legal conclusions. (FAC Paras. 67‐73.) For express contract, Plaintiff alleges only that there was an express oral contract that Plaintiff would not be terminated except for good cause. ( Id. at Para. 68.) This does not provide sufficient detail to state a claim. For breach of implied contract, Plaintiff alleges there was such a contract based upon “oral assurances...

Excerpt: ...is brought by plaintiffs against defendants Anuradha Sathya M.D. and Quality Care Family Practice. Plaintiff's request summary adjudication of Issue No. 1, that: “Defendant Dr. Sathya's proscribing of a 90‐day supply of Lexapro/Escitalopram was below the applicable standard of care.” Under CCP §437(c)(f)(1): A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a cla...

Excerpt: ...he City's demurrer to the 4th cause of action for dangerous condition of public property was sustained, without leave to amend. (3/9/22 Notice of Ruling.) The deadline to file this motion was extended by five days under CCP §1013 for service by mail so, the deadline was extended to 3/24/22. This motion was filed on 3/18/22 – 9 days after the notice of ruling. Thus, the motion was timely. The City argues that the motion is untimely based on the...

Excerpt: ...ecial motion to strike. CCP § 425.16(b)(1). The critical issue is whether the plaintiff's causes of action are based on an act in furtherance of the defendant's right of petition or free speech. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78. Once the defendant makes such a prima facie showing, the burden then shifts to the plaintiff to establish a “probability” that it will prevail on whatever claims are asserted against the moving defe...

Excerpt: ...on (failure to accommodate and failure to engage in the interactive process). The court will treat the MSJ/MSA as a Motion for Judgment on the Pleadings as to the second cause of action (for discrimination on the basis of engagement in protected activity) and GRANT the Motion without leave to amend, as this cause of action is duplicative of the first and sixth causes of action. Page 3 of 4 First Cause of Action for Disability Discrimination Defen...

Excerpt: ...iverside from the dangers related to the property until the action was filed. Defendant has presented no evidence that a resolution had been achieved prior to litigation or that abatement had been completed prior to litigation. Attorney's Fees While the Declaration of Attorney Mary Hanna sets forth a statement of charges in Exhibit “A”, the claimed time expended is not connected to the nature of the tasks as outlined on the second page of Exh...

Excerpt: ...oticed is not relevant to the court's determination.(See Mangini v. R.J.Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) SSM's contention that the documents sought are protected trade secrets or subject to Civil Code § 3295 are without merit. The party claiming the trade secret privilege has the initial burden of establishing the existence of a protected trade secret. Here, SSM has failed to provide a privilege log in support of it's objection...

Excerpt: ...subject to the Privette Rule (articulated in Privette v. Superior Court (1993) 5 Cal.4th 689, 693‐696 (Privette)), which precludes an action against a hirer of an independent contractor for liability over injuries sustained by the contractor's employee. The City argues that Privette Rule applies to a claim filed pursuant to section 835, and hence Plaintiffs have no viable claim under this section because, as the City has previously argued on Fe...

Excerpt: ...does confer immunity because immunity for discretionary acts is restricted to basic policy decisions and does not apply to subsequent ministerial actions that merely implement those basic policy decisions. The actions of the teacher and the administrative staff in the classroom setting here do not involve basic policy decisions, but rather operational decisions that implement the initial decision of placing the student in the class. Causes of Act...

Excerpt: ... was the result of the exercise of discretion vested in him, whether that discretion is abused”, also does not apply here. Immunity for discretionary acts is restricted to basic policy decisions and does not apply to subsequent ministerial actions that merely implement those basic policy decisions. The actions of a school teacher in the classroom setting do not involve basic policy decisions, but rather operational decisions that implement the ...

Excerpt: ...iff cites to no evidence showing that any request for an accommodation was ever denied. On the 6th COA, a demotion by itself is not sufficient to trigger a constructive discharge. Rather, “[t]he standard by which constructive discharge is determined is an objective one, and the proper focus is on the working conditions themselves.”(Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1270) Here, Plaintiff never returned...

Excerpt: ...ercentage of final compensation to be provided for each year of credited prior and current service as a local safety member shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at 50 Full). The required member contribution rate is 9% of reportable compensation.” (Exhibit 20 to Cacho Declaration and UF No. 22). The contract amendment was approved by the Board of Supervisors. This clause in the County's contract with ...

Excerpt: ... Resp.7). Plaintiff testified that she tripped on the curb and fell. (Decl. of Schaus, Ex.K, p.59). Pursuant to the General Services Agreement (“GSA”), JLL was to provide, or was to procure a third party to perform, Facilities Management Services on the property, to include “day to day operation of each of the Properties, including without limitation, all preventive maintenance, routine and emergency break—fixes, cleaning, upkeep of roads...

Excerpt: ... first and fourth causes of action, without leave to amend. The TAC contains no specific factual allegations concerning the individual City employees and fails to plead facts to state a cause of action for each of these claims. ANALYSIS 1. First Cause of Action: Negligence i. Liability of City Vicarious liability: TAC fails to state a cause of action for Negligence based on vicarious liability (respondeat superior). The TAC fails to allege a clai...

Excerpt: ...g the award. Respondent has failed to establish the illegality of the contract. The licensing statutes in the Health and Safety Code (Sections 1569.11 and 1569.19) set forth the obligations of the licensee in transferring the license for a residential care facility to the buyer. The only obligation by the prospective buyer is stated in Health and Safety Code Section 1569.191(b). Respondent has failed to establish that the proposed ownership struc...

Excerpt: ... was 70 years old is not dispositive to the prima facie case, but rather goes towards pretext. The stray remark has nothing to do with the prima facie case, but once again goes to pretext. As for being replaced by a younger employee, this is a classic sign of a prima facie case. Defendant focuses on whether Plaintiff was qualified, which goes to both prima facie and a legitimate business reason. Defendant asserts Plaintiff did not meet expectatio...

Excerpt: ... vandalism, or other crimes; and We are not liable to any resident, family member, guest, occupant or invitee for personal injury, death or damage/loss of personal property from incidents related to the perimeter fencing, automobile access gates and/or pedestrian access gates; bars any claim by Plaintiff based upon the criminal conduct of a third party. The court disagrees. A landlord's attempt to exculpate itself from the duty of care owed to a ...

Excerpt: ...iff's prima facie elements cannot be met, or that the adverse employment action was based on a legitimate nondiscriminatory/nonretaliatory reason. The Declaration of Genevieve Hismatullin submitted in support of the motion provides ample evidence that plaintiff did not perform her job duties satisfactorily and plaintiff was not meeting her employer's expectations. However, Defendant submits portions of Plaintiff's deposition transcript that shows...

Excerpt: ...ing medical treatment to Plaintiff following a Hepatitis C virus (“HVC”) diagnoses while Plaintiff was incarcerated at the California Department of Corrections at Norco, Ca. (“CDCR”). The Eighth Amendment's prohibition on cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate medical care and protection from undue harm. Plaintiff must show a deliberate indifference t...

Excerpt: ...ired to show that he was satisfactorily performing his job at the time he was discriminated against. The facts giving rise to the 2017 lawsuit supported claims that the Plaintiff expressly released in a settlement agreement. Plaintiff is barred from bringing any claims on the facts giving rise to the causes of action asserted in the 2017 lawsuit. The only facts that Plaintiff can use in this case are those occurring after May 21, 2018, when the s...

Excerpt: ...o the fourth and fifth causes of action. While it is true that an unjust enrichment claim does not lie where there is an enforceable contract, an unjust enrichment claim can be supported if the contract is found to be unenforceable or ineffective for some reason, and Plaintiff is allowed to plead alternative and inconsistent allegations. There is no reason Plaintiff cannot plead unjust enrichment in the alternative. On the Conversion claim, the P...

Excerpt: ...ow Co. (1989) 190 Cal.App.3d 1051, 1062.) Hourly Rates. A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The relevant community is “the community where the court is located.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700.) The party seeking the fee award has the burden to prov...

Excerpt: ...intiff the gross sum of $ 275,001 which sum includes all damages and any other amounts that may be recoverable by virtue of the cause of action in the above‐captioned action…” The Judgment does not indicate what portion of the “damages” is allocated to lost income and what portion is allocated to emotional distress, punitive damages and/or other compensatory damages. The party extending the statutory offer to compromise bears the burden...

Excerpt: ...sing facility and knew that she was unable to provide for her own basic needs due to Alzheimer's Disease and dementia. (FAC, ¶20‐24.) Plaintiff asserts that Defendant denied or withheld personal hygiene services by failing to properly clean Decedent's gastronomy tube leading to multiple infections of the tube site. (Id at ¶27.) Plaintiff further asserts that Defendant failed to bathe Decedent despite repeated requests (Id at ¶28) and failed ...

Excerpt: ...uffered harassment that deprived Plaintiff to equal access; actual knowledge; and deliberate indifference) Plaintiff has sufficiently alleged these elements in Paragraphs 37, 39, and 40 of her Complaint. District correctly asserts that negligence per se is not a separate cause of action, but rather a mere negligence claim. The court will treat the fourth cause of action as a Negligence claim. While the decision to undertake a school sponsored act...

Excerpt: ...g party will comply with the particular demand, that party “shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production,” (Code Civ. Proc., Section 2031.220, it...

Excerpt: ...ging over the table while dining at the Applebee's restaurant in Corona. Defendant now moves for summary judgment or summary adjudication in the alternative, contending Defendant had no duty to warn Plaintiff of an open and obvious condition. A defendant meets its initial burden under CCP Section 437c(p)(2) of showing a cause of action has no merit if that party has shown one or more elements of the cause of action cannot be established, or that ...

Excerpt: ...icle was purchased by Plaintiff in Oklahoma. (See RSSUMF Paras. 2,10, 32, 40, and 48; Defendant's Exhibit D; Lewis Decl. and Exhibit A. ) Plaintiff fails to meet her burden to demonstrate the existence of a triable issue of material fact. There is nothing within Civil Code Sections 1791(t) or 1795.8 that would include a spouse within the definition of “Member of the Armed Services”. Moreover, the statutes only apply where the member of the ar...

Excerpt: ...ranted. Plaintiff, Scott Corliss, the infant son of Hannah and Dorian Corliss, died while in the child care of Defendant Karina Giorgianni, who leased the subject premises from owners Jorge and Armando Sanchez, moving Defendants herein. Defendants have met their initial burden on summary judgment of showing that Plaintiffs cannot establish the essential elements of a negligence claim, by submitting as evidence Plaintiffs' responses to written dis...

Excerpt: ... must allege the prerequisites of section 815.4, including the factual allegation that the employee's injury must have been proximately caused by a tortious act or omission of the independent contractor. The FAC does not establish any factual support as to how Amtek, the independent contractor, caused Plaintiffs' injuries either by tortious act or omission. On Mandatory Duty, the Plaintiff must specifically identify the statute or regulation alle...

Excerpt: ...“continuing in nature..” This language in both the lease and guaranty indicates that both agreements are still in effect and there are continuing obligations between the parties. For this reason, there are still triable issues of material fact as to the First Cause of action. The FAC titles the Second Cause of Action as “Fraud”. The allegations under this title set forth a cause of action for fraudulent concealment, (FAC Para. 53‐76). A...

Excerpt: ...amount Plaintiff seeks to attach is supported by the Declaration of Plaintiff Mark Gomber and authenticated copies of wire transfer receipts and checks written to EMG. Defendant Haydee Perchemlian(“HP”) challenges the formation of a contractual relationship between Plaintiff and her late husband, Tony Perchemlian(“TP”) and EMG. HP argues that the breach of contract claim cannot be pursued against her because she was not a party to the tra...

Excerpt: ...poration, or other legal relationship that manufactures, assembles, or produces consumer goods.” (Civ. Code Section 1791(j).) The Declaration of Mandyjay Lewis does not define Defendant's legal relationship to the manufacturer of the Subject Vehicle. Nor does his declaration provide the warranty information, nor any explanation as to who provided the manufacturer's warranty. As such, there are triable issues of material fact as to whether Kia M...

Excerpt: ... was the general contractor for the roof replacement project, and moving defendants are the building owners. Defendants argue that the Privette doctrine applies and they are not liable because they did not create the dangerous condition nor did they exercise control over the roofing project that resulted in Plaintiff's death. Privette v Superior Court (1993) 5 Cal.4th 689. The Privette doctrine bars a contractor's employee from suing the hirer on...

Excerpt: ...1350(f).) If it is disputed, then the opposing party must state the nature of the dispute and supporting evidence. (Id.) Plaintiff fails to comply with CRC 3.1350(f) on several facts, merely stating “disputed,” or “unknown” to Plaintiffs. Plaintiff improperly relies on his interrogatory responses, in violation of CCP §2030.410. A party may not use its own interrogatory response in support of its papers for summary judgment. (Great Americ...

Excerpt: ...igen retained the right to approve or disapprove the appointment of a service provider, and no misrepresentations were made. Altigen contends that the Unfair Competition cause of action fails for the same reasons. Intellitalk alleges the independently wrongful conduct arises out of Altigen rejecting customer requests for transfer of their accounts to Intellitalk starting in mid‐2016, and representing falsely that they had to be serviced by West...

Excerpt: ...d causes of action for breach of express and implied warranty under the SongBeverly Act is four years. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215.) “A cause of action normally accrues when under the substantive law the wrongful act is done and the liability or obligation arises, that is, when action may be brought.” (Mosesian v. County of Fresno (1972) 28 Cal. App. 3d 493, 500.) However, under the “discovery rul...

Excerpt: ...pplicable standard of care; (2) there was no neglect or abuse on the part of Moving Defendant; (3) no conduct by Moving Defendant caused Plaintiff's injuries; and (4) there is no basis for the enhanced remedies sought by Plaintiffs. These are four of the six issues set forth in the separate statement. With respect to the issues of standard of care and causation, Moving Defendant offers the expert opinion of Daniel Bessler, M.D., who affirms that ...

Excerpt: ...e risk to invitees, have a duty to make the condition reasonably safe for the use of customers or to provide warnings adequate to enable them to avoid the harm. CAR fails to show that it did not have actual notice of the obstruction of the doorway, or would not have known about it through a reasonable inspection. The short duration of the obstruction, without more, is not dispositive proof to negate constructive notice. Whether a dangerous condit...

Excerpt: ...nder this agreement, Petitioner agreed to pay the commodity rate for reclaimed water at the same rate adopted by the Respondent for other reclaimed water customers. In 2015, Respondent substantially increased its rate for reclaimed water. Petitioner objects to this increase. It asserts Respondent's facilities consist of a North City Plant and South Bay Plant. It contends it is improperly being forced to pay for fees associated with the North City...

Excerpt: ...d under accepted accounting methods should not have been comingled in the one account held by defendant. (See Undisputed Material Fact (UMF) Nos. 2, 4, and Declaration of Jim Vitelli, CPA at ¶¶ 8‐10.) Vitelli, a certified public accountant, explains in his declaration filed in support of the opposition that deposits are a debit to the cash account and a credit to the liability account and held as a liability until the service is rendered, at ...

Excerpt: ...eceived her Declaration in support of a motion for reconsideration. Both Sherron and Williams separately and specially move to strike based on the litigation privilege and either CCP Section 425.16(e)(1)‐(2). Sherron and Williams have met their initial burden to show that their actions are protected speech under the first prong analysis of the Anti‐Slapp statute. The opposition now has the burden of proof to establish that she will prevail on...

Excerpt: ...where Plaintiff fell did not constitute an unreasonabley dangerous condition and that the disabled parking space where Plaintiff's mother was parked met all ADA requirements. (Snyder Decl., ¶¶ 9‐10 14‐16.) Based upon Snyder's testimony – which is accepted as admissible without argument – SGMH meets its initial burden to demonstrate that it did not breach a duty of care and that Plaintiff, therefore, cannot establish all of the necessary...

Excerpt: ...aint arises from Defendant's exercise of free speech or petition rights as defined in CCP Section 425.16(e). Courts have adopted an expansive view of protected speech to include any statements or writings made before any judicial proceeding, including pleadings, statements, and writings “ in connection with” litigation. A statement or writing is ‘in connection with litigation' if it relates to the substantive issues in the litigation and is...

Excerpt: ... CCP Section 2030.230 is response to the discovery. To invoke Section 2030.230, a responding party must specify the writings, with sufficient detail, from which the answer may be ascertained. The responding party must show that a compilation is required to answer. Plaintiff provides no basis as to why a compilation is required. Further, Plaintiff asks Defendant to review the repair orders to determine the basis for Plaintiff's contentions under F...

Excerpt: ...ed to raise a triable issue of material fact. Plaintiff does not properly cite to his supporting evidence (BURNETT010 and PVE, Ex.”4”[DT‐Nunez} for PRSS, UMF No.14 and PRSS, UMF No.127) The court cannot determine whether the evidence in support is admissible, nor can the court rule on any potential objections to that evidence. The balance of the Motion for Summary Adjudication is otherwise Denied on the ground that MFS has failed to meet it...

Excerpt: ...lity cause of action. As for the negligence/premises liability causes of action, Defendants produced evidence that they had no prior knowledge that the dog that caused Plaintiff to fall and/or attempted to bite him had any vicious or dangerous propensities. They had never witnessed or received any reports or complaints regarding the dog nor did the dog exhibit any vicious tendencies. (UMF 35‐41 and Plaintiff's response thereto.) The burden shif...

Excerpt: ...ed to raise a triable issue of material fact. Plaintiff does not properly cite to his supporting evidence (BURNETT010 and PVE, Ex.”4”[DT‐Nunez} for PRSS, UMF No.14 and PRSS, UMF No.127) The court cannot determine whether the evidence in support is admissible, nor can the court rule on any potential objections to that evidence. The balance of the Motion for Summary Adjudication is otherwise Denied on the ground that MFS has failed to meet it...

Excerpt: ...st cause of action for breach of contract). The only new evidence that Defendant cites as a basis for this renewed motion is the deposition testimony of Plaintiff's PMQ (Madge). Defendant argues that based upon the testimony of Madge, there is no evidence of fraud: (1) Madge did not speak with anyone from the Defendant, including Defendant's broker; (2) neither Defendant nor any of its representatives made any representation about the warehouse o...

Excerpt: ...analysis the court must ignore the unprotected acts and focus on the protected activity. However, the court must still determine whether the protected acts constitute the gravamen of the actions alleged in the Cross‐Complaint. The court agrees with Cross‐Defendant that she is being sued for her filing of the complaint and lis pendens, which caused, in part, the breach of the settlement agreement for which Cross‐Complainant is seeking damage...

Excerpt: ...'s Declaration – Overrule on 1‐10, Sustain on Objections11 and 12; Lotze Declaration – Objection 13 – Overrule as to the first sentence and sustain as to the second sentence. Overrule on 14‐21; Erdman Declaration—Overrule on 22, 24, 25 and 28. Sustain on 23, 26 and 27; Hamilton Declaration—Overrule on 29, 30, 32‐35. On 31, Sustain as to the last two sentences, otherwise overrule; Griffin Declaration – Overrule on 36, 39, and 40....

Excerpt: ... to the alleged date. Here, the Complaint was not filed in close proximity to April 12, 2020, therefor, it was not timely filed under the one‐year contractual limitations period set forth in the insurance policy. However, Judicial Council of California, Emergency Rule 9, provides, in pertinent part, “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2...

Excerpt: ...ur Reply To Motion To Contest Application For Good Faith Settlement Determination. Court finds that Murphy has still not submitted any evidence of Plaintiff's total damages as required under Tech‐Bilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499. The factors to be considered under Tech‐Bilt include, “ a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation...

Excerpt: ...urt to reconsider its ruling and reasoning in light of Malott under CCP section 1008(b). However, this matter is not like Malott. Petitioner did not fail to attend the public hearings held by Respondent, unlike Malott. Respondent held at least 8 hearings or meetings in which the issue was discussed and where Petitioner attended, presented evidence, had its representatives speak at each meeting, gave Power Point presentations at several meetings, ...

Excerpt: ...re Overruled because the Declarant has provided the actual photographs of the scene. Defendants attack the causation element of a negligence claim (premises liability), which is the only cause of action asserted against these Defendants. The tragic accident occurred when Defendant Gall exited the Farmer Boys restaurant using the westerly exit, attempted to cross multiple lanes of westbound Van Buren, seeking to reach the left turn pocket on Van B...

Excerpt: ...cable standard of care and causation. Welf. & Inst. Code Section 15610.57(a); Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405‐ 407; Flatt v. Superior Court (1994) 9 Cal.App.4th 275, 293. CPA's expert, Karen Josephson has provided a declaration indicating that CPA's conduct did not breach its applicable standard of care or cause Plaintiff's injuries. (Karen Josephson's Declaration, ¶¶ 6.D. and 7.) Due to this, C...

Excerpt: ...herently dangerous about the stairway and Plaintiff tripped merely because it was dark outside. Failure to provide adequate lighting may create a dangerous condition on property. Defendants have not produced any evidence that the subject stairway was adequately lit. The only evidence offered by Defendant, Plaintiff's special interrogatory responses, indicate that the lights in the stairway were not working. (Exh. B, Response No.1) Defendants have...

Excerpt: ... seek immediate review of the court's Ruling sustaining the Demurrer without Leave, nor was this issue raised on Appeal. The disposition on appeal was to reverse the judgment with directions to the trial court “to vacate its ruling on summary adjudication and enter a new order denying the motion on this issue.” (RJN iso Opposition, Exh.2.) The appellate court noted : “The body of the cause of action alleges intent to defraud, suggesting tha...

Excerpt: ...herently dangerous about the stairway and Plaintiff tripped merely because it was dark outside. Failure to provide adequate lighting may create a dangerous condition on property. Defendants have not produced any evidence that the subject stairway was adequately lit. The only evidence offered by Defendant, Plaintiff's special interrogatory responses, indicate that the lights in the stairway were not working. (Exh. B, Response No.1) Defendants have...

Excerpt: ...need not prove those facts at the pleading stage. Plaintiff complaint is adequate because it apprises the defendant of the factual basis of the complaint. On the second cause of action, Plaintiffs have alleged several theories as a basis for liability. Defendant only challenges the Peculiar Risk doctrine in its Demurrer. A Demurrer does not lie as to only parts of a cause of action; it must address the entire cause of action. Plaintiff has allege...

Excerpt: ...ed Complaint. Plaintiff has not waived his right to object to the Answer's lack of verification as there has been no trial on the merits yet. Plaintiff must still establish that the Complaint states a sufficient claim upon which Judgment on the Pleadings can be rendered, in addition to showing that the Answer is defective. Here, Plaintiff only brings the motion on the first cause of action, for enforcement of an on ‐ the‐record settlement agr...

Excerpt: ..., resulting in over 1 million dollars in damages. CVWD brings this Motion for Summary Judgment/Adjudication, arguing that an express written release, executed by the County in favor of CVWD, operates as a complete defense to County's claims against CVWD. County argues that the hold harmless clause at issue is conditional on CVWD consulting with the County prior to the work on the channel being performed and that no consultation took place. Paragr...

Excerpt: ...Para. 13), amounts to a judicial admission that cannot now be contradicted. When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee's activities, a “special employment relationship” arises between the borrowing employer and the employee. Caso v. Nimrod Productions, Inc. (2008) 163 Cal. App. 4th 881, 888. If a special employment relationship exists, the employee ...

Excerpt: ...Murphy and the “Maxim Defendants”. MVUSD correctly asserts that Murphy has not provided any evidence of Plaintiff's total damages; the allocation of settlement proceeds among plaintiffs; or the financial condition/insurance policy limits of the settling Defendants per Tech‐Bilt. Neither the Application nor the Oppositions discuss Murphy's (or Maxim's) proportionate share of liability. Her reliance on MICRA caps is misplaced as the cap on no...

Excerpt: ...o not aid in the resolution of the demurrer or motion to strike. Plaintiff's Request for Judicial Notice is granted as to the Kohler v. Presidio Int'l, Inc. (C.D. Cal. 2016) 782 F.3d 1064 case and the Stipulation for Dismissal filed in the Federal Action; otherwise, denied as duplicative of Defendant's request for judicial notice. Demurrer is Overruled on the grounds of uncertainty. Demurrer is Sustained without Leave to Amend as to Irene Mitsos,...

Excerpt: ...ludes watching a baseball game at the university campus. Defendant has not met its initial burden of showing that the undisputed facts support each element of this affirmative defense. There is no question that being struck by a foul ball is an inherent risk of watching a baseball game, and that primary assumption of the risk bars claims for injuries common to baseball. While there is generally no duty to protect plaintiff from risks inherent in ...

Excerpt: ...not that the plaintiff will obtain judgment against the defendant on that claim.” CCP § 481.190. There is no dispute that cross‐defendants entered into a Commercial Lease and Personal Guaranty, and that rent and other charges are due and owing. Unless Plaintiffs can show that the loan evidenced by the Baker Note was repaid or somehow forgave the obligations of other parties to the lease (by Novation, for example), the rent is still due by th...

Excerpt: ... Equitable Indemnity. The Court overrules the demurrer as to the fifth cause of action for Declaratory Relief. The Motion to Strike is denied. With respect to the evidentiary objections, the Court declines to rule on these objections as they were immaterial to the Court's analysis. Requests for Judicial Notice: The Court grants judicial notice as to Ex. D. As to Exs. E‐F, the Court grants judicial notice only to the extent these records exists ...

Excerpt: ...) The Court declines to rule on the request for judicial notice as those documents were not material to this ruling. Factual / Procedural Context: Plaintiff Taimara Coleman was hired by Defendant California Department of Corrections in December 2016 as a laboratory assistant, and later worked as a correctional supervisor cook. On January 15, 2018, Defendant Danny Walston, a corrections officer, was working with Plaintiff in the “Alpha 5 kitchen...

Excerpt: ...the motion; the motion was filed as soon as reasonably practicable after completing discovery (“but not more than two years after commencement of the action); and, defendant will not suffer surprise or prejudice by any shortened time period. (Id. at 1645.) (emphasis added.) Page 4 of 12 The Court sustains the demurrer to the 4th cause of action with 30 days leave to amend. FACTUAL / PROCEDURAL CONTEXT Decedent William Wick was 69 years old at t...

Excerpt: ...lody Pascale (“Plaintiff”) purchased a 2016 Kia Sorento vehicle on 4/17/15. The vehicle was manufactured by defendant Kia Motors America, Inc. (“Defendant”). Plaintiff alleges the subject vehicle came equipped with Defendant's 2.4‐liter Turbo GDI engine and that Defendant failed to disclose that it knew that vehicles equipped with the engine, “including the 2018 Kia Sorento contained one or more design and/or manufacturing defects in ...

Excerpt: ...RCRMC for depression. Her parents, Plaintiffs Stephanie Patton and Kendrick Knighten allege she was misdiagnosed and overprescribed medication while she was under the care of several of the Defendants. They allege that on 3/23/16, Defendants, Dr. Patel and Dr. Tang began treating Kennadi with a new medication, Lexapro, which can have serious side effects, including worsening symptoms of depression and suicidal ideation. Defendants, Dr. Sathya and...

Excerpt: ...ed for some purpose other than to prove the truth of the matter asserted, such as for impeachment of the declarant (Evid. Code Section 1200(a).) The court declines to rule on Objections Nos. 1‐9, 11 and 12, as these objections are immaterial to the court's ruling under Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 and CCP § 437c(q). A defendant moving for summary judgment has the burden of showing that a cause of action cannot be established...

Excerpt: ...by finding that Amal Zaky was a party to the purchase and sale agreement; not that he exceeded his authority. This is not a proper grounds to modify or correct the arbitration award. With respect to Defendants refusal to mediate, the arbitrator found that there had been no mediation offer properly made to Wafick Zaky or Amal Y. Zaky in his decision to grant attorney's fees. Again, Plaintiff's argument is not that the arbitrator exceeded his power...

Excerpt: ...e no allegations in the Complaint that CBU was aware of Ro's violent tendencies. There are no factual allegations that indicate that CBU failed to act once the attack took place. With respect to the Negligent Supervision cause of action, there are no allegations that CBU employees acted wrongfully or caused harm to Plaintiff. There are no allegations that employing a certain employee created a risk or hazard to Plaintiff. ...

Excerpt: ...d on the asserted errors or omissions of the attorney. A prior adjudication, judgment or settlement is not a necessary precursor to “actual injury”. Based on the facts alleged, Plaintiff sustained an actual injury by November 2016 when Wayne Dixon filed the Underlying Petition seeking to invalidate the 2016 Trust. As a result of Defendant's alleged negligence in failing to ascertain Ronald Dixon's mental capacity by communicating with him alo...

Excerpt: ...nstrate jurisdiction. With respect to Defendant Jeffries Financial Group, Inc., a New York corporation, the simple fact that Jeffries may have an ownership interest in an LLC or corporation which owns the dealership in not sufficient to confer jurisdiction. Plaintiff fails to demonstrate how either Defendant has a continuous and systematic affiliation with California other than an ownership stake in another corporation that did. Specific jurisdic...

Excerpt: ...ct to be determined on a case by case basis. The key inquiry is the employee's authority to change or establish corporate policy. The Declarations of Davy Williams and Erik Calderon offered in this case are conclusory and do not satisfy Defendant's initial burden, they simply parrot the standard set forth in White v Ultramar and Davis v. Kiewit Pacific Co. The court finds that the declarations filed in support of the motion of Issues 1 and 2 are ...

Excerpt: ...e.” On its face, the statute applies retroactively, since the term “lifetime” can apply to something existing both before and after Measure J was adopted. Petitioner argues that Government Code § 36502 governs the scope of term limits for charter cities, such as Indian Wells, and 36502 provides that term limits may only apply prospectively. The City argues that it has the general authority under the California Constitution, Art.XI, sec. 5(...

Excerpt: ... the party must state they made a reasonable inquiry to obtain sufficient information. Plaintiff objects to certain terms as undefined, but these are common terms with ordinary dictionary meanings or common medical terminology. Request #10 is not compound as “immobile” and “unable to ambulate” are synonymous terms. If a request calls for Plaintiff to admit or deny a specific medical condition or diagnoses, the respondent is not relieved o...

Excerpt: ...apable of managing without assistance. Plaintiff's First Cause of Action contains only vague allegations of this relationship. The Court cannot ascertain what type of relationship Plaintiff and Dr. Young had, whether the relationship is one of caretaker‐patient, how often Plaintiff saw Young, whether Young visited Plaintiff at her care facility, whether Young provided Plaintiff care on an outpatient basis or whether Young worked as a physician ...

Excerpt: ...cted class and CDCR's actions, instead focusing on the officer's conduct as the discriminatory action. For Whistleblower Retaliation, Plaintiff has failed to exhaust administrative remedies since her pre‐litigation claim does not apprise CDCR of CDCR's alleged unlawful actions. For Harassment and Failure to Prevent Harassment, there are no allegations that CDCR knew or should have known about the harassment, and since the underlying claim fails...

Excerpt: ...nies and one named company (Dart Container Corporation) and its owners (including but not limited to Kenneth B. Dart and Robert C. Dart). The release should be limited to the Defendant together with its officers, directors, employees, and agents, successors and assigns. If any other parties are sought to be released, the motion and Settlement should explain the facts that justify their inclusion. • The Settlement contemplates using Simpluris, I...