Excerpt: ...20. The notice is therefore untimely. Moreover, the notice of intention is deficient in that it fails to comply with the requirement that it state whether the motion “will be made upon affidavits or the minutes of the court, or both . . . .” (§ 659, subd. (a).) The memorandum in support of the motion is 22 pages long, and thus exceeds the maximum length of a memorandum in such a motion. (Cal. Rules of Court, rule. 3.1113(d).) On the merits, ...

Excerpt: ...overruled as to the remaining causes of action. The defendant shall file and serve her answer within 10 days. The trial setting conference currently set for 6‐15‐21 is vacated. A case management conference shall be conducted on March 22, 2021. Page 3 of 5 Analysis: Because the plaintiff did not sign the declaration she filed on 1‐12‐21, it does not comply with Code of Civil Procedure section 2015.5. Accordingly, the Court does not conside...

Excerpt: .... Generally, new evidence is not permitted with reply papers. It should only be allowed in the exceptional case, and only on the condition that the opposing party should be given the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) No exceptional circumstances are shown in the Biondi declaration. After weighing the likelihood that the defendant will prevail at trial and balancing the relative harm to be suffered...

Excerpt: ...ffs (i.e., still or video images recorded either on photographic film, on magnetic tape, digitally, or otherwise) and edited recordings. However, the plaintiffs did not thereafter argue that the distinction was significant in this instance. The defendant ignored that distinction entirely. Accordingly, the Court does not make that distinction either. To the extent that there were any unedited recordings that were not taken or created by or at the ...

Excerpt: ...ount of the past loss of earnings. In response, on 8‐8‐20, the Court ordered the plaintiff to file a CMS within 2 weeks that described both the nature and the amount of the damages being sought. The Court at the same time issued an order to show cause why sanctions should not be imposed for initialing filing an incomplete CMS, returnable on 9‐15‐20. On 9‐14‐20, having received neither a revised CMS or a declaration in response to the ...

Excerpt: ...ranted as to the following requests: #13 as to years 2018 and 2019; #29 to the extent that the plaintiff has failed to identify the documents that are responsive to that request, as required by Code of Civil Procedure section 2031.280, subdivision (a); #30 as of May 1, 2019; and #31 from May 1, 2019, to April 21, 2020. In all other respects, the motion is denied. The defendant's request for sanctions is denied. The plaintiff's request for sanctio...

Excerpt: ...l Code § 2923.6 (letter denying modification); and 3) Civil Code §§ 2923.6 and 2923.11 (dual tracking). (FAC, ¶¶ 38‐46.) i. Single Point of Contact (“SPOC”) Civil Code § 2923.7 provides that upon request from a borrower seeking a foreclosure prevention alternative, the mortgage servicer shall promptly provide an SPOC and one or more direct means of communicating with the SPOC. Plaintiffs allege that their assigned SPOC gave them “in...

Excerpt: ...ourt in resolving the issues raised regarding the sufficiency of the allegations of the FAC. With regard to the second cause of action, Defendants argue that Plaintiff was not damaged by any alleged disclaimer of warranty because Plaintiff did not make a claim during the implied warranty period. (Memo in Support, p. 7:16‐22.) As to the third cause of action, Defendants argue that there is no allegation that the Motorcycle did not conform to the...

Excerpt: ...“The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to performance of that duty.” Keyes v. Bowen (2010) 189 Cal.App.4th 647, 657. Page 4 of 5 As the Department points out, the ministerial duty runs in exactly the opposite direction from that urged by the petitioner: the DMV has a mandatory duty to suspend th...

Excerpt: ...just enrichment/restitution claim are the receipt of a benefit and the unjust retention of the benefit at the expense of another. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Shih alleges that ERC charged for repairs to the roof and attic that were never performed and that the request that Shih pay for such services unjustly enriches ERC. (Cross‐Complaint, ¶¶ 23‐26.) ERC's request for payment of its invoice is not a b...

Excerpt: ...h 28 of the first cause of action is not alleged against her and paragraph 3 of the prayer does not seek any relief against her. As to the motion of the medical group, it seeks to strike paragraph 28 from the first cause of action and paragraph 3 of the prayer. Both assert the right to collect punitive damages from the medical group. In moving to strike those portions of the complaint, the medical group relies upon Code of Civil Procedure section...

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed ...

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed ...

Excerpt: ...ct or omission of the public entity or a public employee or any other person.” (Gov. Code § 815.) Thus, the complaint must specifically identify the statutory basis for liability against a public entity, including citing the statute. (Gov. C. § 815; Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) Since all liability under the Act is statutory, each tort cause of action must be specifically alleged and every element of...

Excerpt: ...negligence. The agreement provides in relevant part: “Tenant acknowledges that the use of this space is at tenant's sole risk and responsibility, and owner, and owner's partners, employees and agents, shall have no liability to tenant for any damage or loss to the property stored by tenant…from any cause, including acts or omissions as well as active or passive negligence by owner or its agents.” (SAC Ex. 1, ¶5.) Under this express languag...

Excerpt: ...cause of action, for unjust enrichment, is sustained without leave to amend as to Miramontes but otherwise overruled. The demurrer to the third cause of action, for declaratory relief, is overruled. Analysis: The District's unopposed request for judicial notice filed 10‐28‐20 is granted. The District's second request for judicial notice, submitted with its reply, is denied. Generally, a Court will not consider evidence submitted with a reply ...

Excerpt: ...d 11‐4‐20. The motion is granted. Analysis: “Plaintiffs' Evidentiary Objections to Declaration of Betsy Lanza,” etc., filed 10‐1‐20 is not considered. Although the title indicates that the objections are directed to a declaration of Lanza, the heading of the chart of objections indicates that, to the contrary, the objections are directed to a declaration of Urrutia. As will be seen, the plaintiffs repeated – and sometime enlarged up...

Excerpt: ...er that cause of action is brought by Silvia Hernandez, Sissi Perez, or both. Any Third Amended Complaint shall fully comply with California Rules of Court, rule 2.112(3). Analysis: The plaintiff has failed to allege facts giving rise to a duty of care. “‘[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.' " (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal...

Excerpt: ...that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) The conduct of nurses, however, is measured by that of other nurses under similar circumstances. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the...

Excerpt: ...ears from the date of the wrongful act which could not be later than the actual breach of contract by the person who was wrongfully induced. However, Plaintiff contends he did not have the opportunity to discover the facts until 2/23/18 as stated in his Complaint. The “discovery rule” is an exception to the general rule that an action accrues when appreciable harm occurs. (Fox v. Ethicon Endo‐Surgery (2005) 35 Cal.4th 797, 807.) The discove...

Excerpt: ...omplaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the co...

Excerpt: ...pears to be based on a possessory right to the funds based on an equitable lien. Page 3 of 3 Flagstar asserts a right to the property based on equitable lien cannot exist due to Civil Code § 8500. It argues that Civil Code § 8500 abolished equitable liens regarding construction funds and due to this, Plaintiff lacks a possessory interest in the property at issue. Civil Code § 8500 states: “[t]he rights of all persons furnishing work for any ...

Excerpt: ...is not allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff Page 3 of 4 must hav...

Excerpt: ...nt's motion for summary judgment has been granted. “[W]hether a matter is ‘embraced' in or ‘affected' by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal.” [Citation.] “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 ...

Excerpt: ...the supplemental declaration of Wakeman are sustained as to Nos. 1 and 3, but otherwise overruled. The plaintiff's evidentiary objections filed 10‐22‐20 to the declaration of Sanchez are sustained. The plaintiff's evidentiary objections filed 9‐23‐20 to the declaration of Nagata are overruled as to No. 1 and sustained as to No. 2. The Court does not consider the second supplemental declaration of Anderson, filed with the reply. Therefore,...