Excerpt: ...efendant demonstrates that a claim “arises from” defendant's exercise of free speech or petition rights, the burden shifts to the plaintiff to establish a “probability” that it will prevail on whatever claims are asserted against the moving defendant. (CCP § 425.16(b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (...

Excerpt: ... defendant's declaration in support of the motion to vacate the default is too vague to support her claim of surprise. While she insists that she was not served, she does not address the factual details in the process server's declaration of service. For instance, the process server states that the documents were left in the presence of the defendant's father. The defendant contends that three adult males live with her at the address, but does no...

Excerpt: ...87 Reform Act, Civil Code section 3294 defines “malice” as “conduct ‘intended by the defendant to cause injury to the plaintiff,' or ‘despicable conduct which is carried on the by defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725, emphasis in original.) a showing of malice or oppression requires either an intentional conduct or a desp...

Excerpt: ...'s analysis of the issues presented by this motion. The defendants' objections to the declaration of Wirtz are sustained in part and overruled in part, as follows: #1: Sustained as to the attorney's employment and experience between being licensed and being hired at the Wirtz firm. Otherwise, overruled. Page 3 of 5 #2: Overruled. #3, #4, #5: Sustained as to the attorney's employment and experience between being licensed and being hired at the Wir...

Excerpt: ...amended complaint is sustained without leave to amend as the first cause of action, and overruled as to the second and third causes of action. The defendant shall file and serve her answer to the SAC within 10 days. Analysis: There is no evidence offered by the defendant in either her notice of motion or her memorandum of points and authorities. The plaintiff's objections to factual recitals or references in those documents are therefore meritles...

Excerpt: ...ck informed consent – which sounds in negligence – arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) If a treating professional does not make this minimal disclosure of material facts, he or she may be liable for all injuries sustained during the course of treatment, regardless of whether the treatment was negligent or not. (Willa...

Excerpt: ...with the CMO. Instead of being limited to a release of the causes of action alleged and any claims based solely on the facts alleged, it also purports to release claims ‘arising from' the claims states in the complaints. Not only does that provision exceed the limitations in the CMO, it is also vague, because it is not clear what sorts of claims would ‘arise from' the claims stated.” Nevertheless, the release in the third amended settlement...

Excerpt: ...amended complaint is sustained without leave to amend as the first cause of action, and overruled as to the second and third causes of action. The defendant shall file and serve her answer to the SAC within 10 days. Analysis: There is no evidence offered by the defendant in either her notice of motion or her memorandum of points and authorities. The plaintiff's objections to factual recitals or references in those documents are therefore meritles...

Excerpt: ... not assume the selling corporation's debts and liabilities.” (Fisher v. Allis‐ Chalmers Corp. Product Liability Trust (2002) 95 Cal.App.4th 1182. However, the rule against successor liability does not apply when: “(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the transfe...

Excerpt: ...tements made by Mr. Gritton in connection with any litigation proceeding are absolutely privileged under Civil Code section 47.” To the extent that the motion is directed against the entire FAC, it fails. The FAC alleges eight causes of action. Only half of them – the 3rd, 4th, 5th, and 8th ‐‐ appear to be asserted against Norman. (The uncertainty arises from the fact that several other causes of action – the 1st and 2nd ‐‐ are asse...

Excerpt: ...The motion fails to comply with California Rules of Court, rule 3.1324. Although the declaration of Loo describes when he learned various facts, it ignores the fact that Wolfe knew from the beginning that the LLC was the true owner of Activate. There is no declaration from Wolfe explaining why the amendments to the first six causes of action are being brought at the 11th hour or otherwise complying with rule 3.1424. Although the proposed amended ...

Excerpt: ...ly as “attorney service” and (b) by the filing fee and any other expense incurred regarding the second motion for preliminary approval. Simpluris must explain why it is entitled to more than its “capped fee” of $7,500. The proposed order must be modified. Analysis: Enhancement Awards Re Saldana: $7,500 is excessive for a plaintiff who was not deposed, did not attend a mediation or settlement conference, and suffered no adverse consequence...

Excerpt: ...ils to cite to any persuasive authority that the time limit under § 473(b) applies to a motion under § 2033.300. The case relied upon by Plaintiff, Billings v. Edwards (1981) 120 Cal.App.3d 238, is inapplicable because it analyzes former section 2033, in which the party who failed to provide timely responses could file a motion for relief under § 473. On the merits, a court may allow a party to withdraw deemed admissions only if the court find...

Excerpt: ...roperty and does not claim the right to possession of the property. It does not even assert the right to continue to rent the property. Instead, Rashid claims the right to enforce the lease addendum which is exhibit E to his declaration. Even if that addendum were enforced, however, it would not necessarily result in a new lease affording him the right to maintain possession. The addendum merely says that, 90 days before the expiration of the lea...

Excerpt: ...ution of the class claims is stayed through December 16, 2021. The Court sets a status conference to be conducted at 8:30 A.M. on that date. No later than December 10, 2021, the parties shall file a joint status conference statement, describing the results of the motion for preliminary approval in the coordinated cases in Los Angeles Superior Court, currently expected to be heard on December 2. If LASC Judge Highberger grants that motion, the sta...

Excerpt: ...��21 are vacated. Analysis: The moving party has established a prima facie showing in its statement of undisputed facts, shifting the burden to the plaintiff to demonstrate a triable issue of material fact. Plaintiff's response to the UMF appears to have inadvertently omitted the second page. As a result, the response consequently does not address UMF, ¶¶ 1‐3. However, as reflected in Plaintiff's opposition, the facts set forth in the missing...

Excerpt: ...1, not 6‐ 24‐ 21. An order compelling compliance with the 6‐24‐21 order is unnecessary, because as the plaintiff conceded in the supplemental brief filed 9‐7‐21, the records were produced on 9‐2‐21, the day after the motion was filed. Thus, there has been no failure to comply with the order that must be remedied at this time. The plaintiff's request for monetary sanctions pursuant to Code of Civil Procedure section 177.5 for viola...

Excerpt: ...AC TURLEY and DEFENDANT STACEY TURLEY.” Since the motion does not seek to vacate the resulting dismissal, the relief sought by the plaintiff is valueless because it does not restore the individual defendants to the case. The motion is denied on that basis. Even if the Court were to interpret the “order granting the demurrer” to include the order of dismissal, the motion would be denied. The basis for the plaintiff's claim against the two in...

Excerpt: ...grossly negligent. (FAC, ¶ 31.) To the contrary, they understood the allegations of gross negligence and demurred to them generally. Accordingly, the special demurrer fails. The general demurrer is sustained. Generally, California does not recognize a distinct cause of action for gross negligence apart from negligence. (Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 330.) “[I]n light of the adoption of the do...

Excerpt: ...Analysis: Third Cause of Action for Intentional Infliction of Emotional Distress As the Court explained when it sustained the demurrer to this same cause of action as pled in the FAC, the mere allegation that the plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant' s alleged outrageous conduct, failed to state a cause of action for intentional in...

Excerpt: ...es the motion as to Edward. Analysis: Edward was purportedly served by substitute service by leaving a copy of the summons and complaint at the business run by Edward. That is not valid service under Arizona law, because Arizona does not allow substitute service at a business. (Ariz. R. Civ. P. 4.1(d) & 4.2(b)‐(c).) The question is whether Edward forfeited objections to the service by filing an answer. (Ariz. R. Civ. P. 4(f)(3)‐(4).) As filed...

Excerpt: ... the plaintiff's settlement demand was met. The insurer did not agree to the plaintiff's demand. On 3‐31‐ 21, plaintiff's counsel advised the defendant's insurer by email that the plaintiff had filed a lawsuit against the defendant and would be sending the summons out for service shortly. Months later, the defendant was served by substituted service. The documents were left with Robert Cordaway, the defendant's father, on 5‐12‐21, and mai...

Excerpt: ...on for summary judgment is denied. The motion for summary adjudication is granted as to issue nos. 1 and 3, but denied as to issue no. 2. If the plaintiff were to dismiss the second cause of action, to which issue no. 2 relates, the Court would grant the motion for summary judgment. Analysis: It is proper to take judicial notice of recorded documents if they are relevant. The defendants' objections to the declaration of Hubner are not consecutive...

Excerpt: ...ial notice are not relevant to the issues presented by this motion. Nor are they relevant to the defendants' analyses of those issues. Although both mention the documents in the opening pages of their respective memoranda, neither the Association nor the Society ever cite to them again in any part of their analyses of the motion. Accordingly, those requests are denied. Class Claims Being Asserted The motion is inconsistent as to the scope of the ...

Excerpt: ...ede that the subpoenas are overly broad. (See oppo. at p. 4, ll. 9‐10: “Defendants acknowledged the scope of the subpoenas may be overly broad, and therefore agreed to limit the scope of the subpoenas . . . .”) That concession was given, at least in part, “in recognition that Plaintiff is not making a claim for past or future earnings . . . .” (Id., p. 5, ll. 3‐4.) However, instead of conceding that the motion should be granted, the d...