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...

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...