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...