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: ... 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: ...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: ...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: ...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: ...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...