Excerpt: ...ded. The Demurrer is overruled as to the remaining causes of action. The extrinsic evidence produced by Defendants may not be considered in ruling on a demurrer. Because all allegations must be accepted as true, Plaintiff has stated sufficient facts to show that the subject property is an owner‐occupied residence subject to the Homeowners Bill of Rights for the purpose of the demurrer. A party may object by demurrer to a complaint on grounds th...

Excerpt: ... true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged.” (Washington Int'l Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 984, fn. 2.) A motion to strike is the proper vehicle Page 4 of 4 to attack a claim for punitive damages where facts alleged may not rise to the level of fraud, malice or oppression. Cal. Civ. Proc. Code §§ 435‐436; Truman v. Turning ...

Excerpt: ...defendant Wade Faerber. Plaintiff contends that Dr. Christian Daniel at California Institute for Men in Chino removed the shoulder immobilizer two days after surgery, instead of the required six weeks. The result of the early removal was a series of dislocations, beginning in 2017 until the implant fractured and fell apart. Plaintiff alleges that due to the medical negligence and lackadaisical attitude of the doctors and representatives of CDCR, ...

Excerpt: ...from a limited to an unlimited action. CCP § 403.040(b) provides that a party may file a motion for reclassification after the initial pleading and response period, and the court shall grant the motion and order reclassification if “(1) [t]he case is incorrectly classified[; and] (2) the moving party shows good cause for not seeking reclassification earlier.” A motion to reclassify a limited civil case as an unlimited civil case must be gran...

Excerpt: ... July 31, 2021). (Han Decl., ¶¶ 18, 56.) Under the terms of the Settlement, Defendant agrees to pay the Gross Settlement Amount (“GSA”) of $187,000. (Settlement, ¶ 5.) The Net Settlement Amount (“NSA”), which is estimated to be $69,050, is determined by subtracting the following from the GSA: attorney fees ($65,450); litigation costs ($20,000); settlement administration costs ($7,500)2 ; Service Awards to Class Representatives ($15,000...

Excerpt: ...sel. After this has been corrected, preliminary approval will provisionally be granted. Set for hearing March 25, 2022. Analysis: The Class includes all current and former hourly employees employed by Defendant in California between August 15, 2016 and July 31, 2021. (Settlement, ¶ 1; Proposed Order, ¶ 3.) There are approximately 46 Class Members (and approximately 32 aggrieved employees employed during the applicable PAGA period, July 14, 2020...

Excerpt: ...2.) A motion to strike may be brought to strike the portion of a pleading on the grounds that the pleading contains irrelevant, false, or improper matter. (Code Civ. Proc., §436(a), italics added.) “Irrelevant matter” as used in section 436 for a motion to strike shares the same meaning as “immaterial allegation” as defined by section 431.10. (Code Civ. Proc., §431.10(c).) The Code defines “immaterial allegation” as one of the follo...

Excerpt: ...iff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) “If the employer meets its initial burden in this manner, the plaintiff then has the burden to produce ‘substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer...

Excerpt: ...en it comes to education the courts “have been reluctant to apply contract law to general promises or expectations. [Citation.] Courts have, however, not been hesitant to apply contract law when the educational institution makes a specific promise to provide an educational service, such as a failure to offer any classes or a failure to deliver a promised number of hours of instruction.” (Kashmiri v. Regents of University of California (2007) ...

Excerpt: ...k update because the 2/2/22 minute order references a supplemental brief. Plaintiffs' counsel filed a supplemental declaration on 1/13/22, to which he attaches a copy of Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942 (Ngo). This 9th Circuit case agrees with plaintiff's argument that arbitration cannot be compelled if the dealer is not a party. In the context of this workup, though, Ngo adds nothing to the discussion below and is ju...

Excerpt: ...�FAC”) on January 20, 2022 against, among others, defendants Nicolas Perez (“Perez”), Greater Riverside Hispanic Chamber of Commerce, Inc. (“GRHCC”), California Hispanic Chambers of Commerce (“CHCC”), Sal Ayala (“Ayala”), Carmen Lainez (“Lainez”), and Liza Sosa (“Sosa”).1 The FAC sets forth sixteen causes of action arising out of the alleged sexual harassment of Plaintiffs during an event hosts by GRHCC. Plaintiffs alleg...

Excerpt: ...d and that the co‐trustees managed the personal and financial affairs of their mother, Veva, including Veva' s direct care needs ( Complaint ¶ 9) Plaintiff alleges that Rod interviewed and hired Plaintiff to care for Veva on 9/23/16 and that Defendant at some unspecified time thereafter promised to provide Plaintiff with free room and board and to pay the Plaintiff a salary in an unspecified amount to care for Veva. (Complaint ¶¶ 10 & 17); P...

Excerpt: ...lo as to Request for Admission No. 9; 3. GRANT Plaintiff's Motion to Compel Further Responses from Defendant, Crystal Badillo to Form Interrogatory No. 17.1 as it relates to Requests for Admission Nos. 4 and 9; 4. GRANT Plaintiff's Motion to Compel Further Responses from Defendant, Crystal Badillo to Special Interrogatory Nos. 4‐6, 10‐11, and 29‐30; 5. Monetary sanctions are imposed against Defendant, Crystal Badillo, and her counsel in the...

Excerpt: ... they are not reasonably particularized as required for a statutory claim. Defendant is incorrect. Plaintiff alleges that defendant Greenfield “physically and mentally abused” plaintiff and “[o]n May 23, 2019, …Greenfield battered Roe.” (FAC, ¶¶ 1, 21‐22.) Further, plaintiff alleges that Greenfield “forced plaintiff into physical restraints, slapped him, pulled his hair, and verbally chastised him.” The allegations are reasonabl...

Excerpt: ...to April 4, 2022, 8:30 a.m. in this department. Guidelines for a motion for preliminary approval of class action settlement is contained in the court 9/22/20 class action case management order (CMO). It appears some of the areas listed in the CMO still need attention. Complete responses should be provided as follows: section H.3.a.ii(b) requires an explanation of how the estimate of total amount of damages or penalties or other relief that the cl...

Excerpt: ...§ 2924 et seq., as reflected in the Trustee's Deed Upon Sale; and (2) Plaintiff's remedy in the Unlimited Action is limited to money damages under Cal. Civ. Code § 2924.12. Breckenridge argues that if the court is inclined to grant relief, it should be conditioned upon Mora's deposit of holdover damages calculated at $43.67, the reasonable rental rate of the Property, as well upon future monthly deposits. In unlawful detainer proceedings, ordin...

Excerpt: ...petitioner contends that the DA wrongfully denied the petitioner's request, and seeks a writ of mandate directing the DA to release the records requested. The DA answered the petition on 2‐ 18‐21. On 1/19/21, the Court had established a briefing schedule requiring an opening brief by 5/5/21, a responsive brief by 6/4/21, and a reply brief by 6/24/21. However, the petitioner never filed anything denominated as his opening brief. Instead, on 4/...

Excerpt: ...remises and who has the power to remedy the condition (i.e., by removal of the animal or eviction of the tenant) may be liable to third persons injured by the animal. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514; Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838‐ 1839; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163.) “The general duty of care owed by a landowner in the management of his or her property is attenuated when the pr...

Excerpt: ...e following: CMO ¶H.3.a: Counsel estimates a range of $5.00‐$680, but does not provide an average. (Aiwazian Decl. ¶23.) CMO ¶H.3.b: There is no declaration from defendant's counsel. It appears a document was rejected by the clerk's office on 12/6/21. CMO ¶H.3.d: Contrary to the representation in the compliance chart, Aiwazian does not state if there was competitive bidding. (Aiwazian Decl. ¶15.) Nor is there a declaration from the propose...

Excerpt: ...nd VTSquared is sustained in part and overruled in part. Specifically, it is sustained as to both defendants as to the first through fourth causes of action, and as to VTSquared as to the seventh cause of action and otherwise overruled. The plaintiff is granted 21 days' leave to amend. Analysis: The defendants' assertion that the plaintiff is seeking to enforce the Consent Judgment is incorrect. At most, plaintiff uses the Consent Judgment to sup...

Excerpt: ...ximum recovery, counsel appears to include damages for causes of action not included in the FAC. (See Han Decl., ¶¶ 41‐44 [paystub violations]; 45‐49 [failure to pay final wages]; 50‐52 [failure to reimburse necessary business expenses].) While those claims provide bases for the claim for PAGA penalties, counsel calculates PAGA penalties separately. (Han Decl., ¶¶ 53‐56.) Thus, it appears that the estimate potential recovery is overst...

Excerpt: ...l within that statute of limitation. An unlawful employment action “is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind…; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823; see Birschetein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1003.) “A continuing violation may be establish...

Excerpt: ...ords to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” The amount the defendants have agreed to pay is not a trade secret. Nor is there any showing that revelation of the information in court records “would interfere with the party's ability to effectively compete in the marketplace.” Indeed, the sole declaration submitted in support of the motion is absolutely silent as to the poten...

Excerpt: ...AA and JAMS. The applicable arbitration provision provides that “arbitration shall be filed with, and administered by, the American Arbitration Association (‘AAA') or JAMS under their respective rules and procedures.” (Declaration of William Floratos, ¶ 17, Ex. 14 [Declaration of Justin Lyon, Ex. 405].) Thus, a claim can be adjudicated in either AAA or JAMS. The circumstances here suggest substantial justice will be achieved if the cases a...

Excerpt: ...ent In response to the Separate Statement, Plaintiff purports to dispute thirteen of the twenty proffered factual statements. (See RSSUMF, ¶¶ 5‐7, 9‐17, 20.) The responses, however, consist of lengthy argument and recitation of factual details, as well as dozens of citations to evidence unrelated to whether the fact is actually disputed. For example, in response to the proffered statement that the District never received any complaint or re...

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

Excerpt: ...be filed and served within 15 days. Page 4 of 5 If the plaintiffs choose to amend the seventh cause of action, they shall omit statements of or citations to the law from that cause of action. Unlike a trial brief, a complaint is properly limited to a “statement of the facts constituting the cause of action” and a “demand for judgment.” (Code Civ. Proc., § 425.10, subd. (a).) By contrast, statements of law in a complaint are improper. (Gr...

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: ... Attorney's fees: Mankin and Nasser indicate that they have agreed to divide the fee award between them, 50‐50. However, the extent to which any of those fees benefit the estate of Ms. Kautz is not clear. For instance, Mankin indicates that when Kautz left Mankin's firm, a fee‐splitting agreement was entered between them, but the terms of that agreement are not described. Is any portion of Ms. Kautz's share of the fees coming out of the fees ...

Excerpt: ...cond declaration of Palmer are irrelevant to the issue of the plaintiff's need for a stay.) Palmer's initial declaration asserts that a stay is necessary because (1) the only secure way to communicate with Mr. Williams while he is imprisoned is by phone, (2) “Mr. Williams' ability to communicate by phone is intermittent,” and (3) communication by email is neither secure nor privileged because emails sent to Mr. Williams can be accessed and re...

Excerpt: ...tial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” (Code Civ. Proc., § 425.13, subd.(a).) Despite the Legislature's Page 3 of 4 use of “probability,” a plaintiff is merely required to allege and substantiate a legally sufficient claim. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.) “In other words, the court must deny the section 425.13(a) motion where the fact...

Excerpt: ...ax lien . . . .” (Ex. B to FAC, p. 7, ¶ 8.e.) That coverage is limited by an exclusion of “[r]isks: . . . that are created, allowed, or agreed to by You….” (Id., p. 4, ¶ 4.a.) That exclusion applies here. The plaintiffs (or more specifically, Mr. Caffrey) affirmatively agreed to borrow money on the $50,000 line of credit. That is a conscious, deliberate act that creates an obligation. The failure to satisfy that obligation thereafter is...

Excerpt: ...employer as “Starbucks Coffee Company” rather than “Starbucks Corporation.” The question is whether that is sufficient to comply with section 226. “Section 226 does not expressly require that the name registered with the California Secretary of State be included on the wage statement.” (Noori v. Countrywide Payroll & HR Solutions, Inc. (2019) 43 Cal.App.5th 957, 964.) Nor does it “expressly require that the employer state its comple...

Excerpt: ...tc., to wit:” (1) Assuming that the Court would consider documents that were in the Court's file but that were not offered in support of the plaintiff's opposition to the motion to expunge; (2) “[E]rrant factual statements made in Plaintiff[']s pleadings, including but not limited [to] Plaintiff's FAC, which errors the Court has deemed to be judicial admissions;” (3) “[D]ifficulties and delays in finding papers, producing papers to the Co...

Excerpt: ...her (a) the plaintiff's mental health diagnoses Page 3 of 5 or (b) any treatment, therapy, or medications that any medical professional has prescribed or recommended in relation to any mental or emotional distress or other mental health condition. The defendants shall pay $600 in sanctions to plaintiff. Analysis: The plaintiff offered that he would not introduce at trial any evidence of his therapy, mental health diagnoses, or treatment. (Schaffe...

Excerpt: ...thout leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The plaintiff “must show in what manner he ca...

Excerpt: ...st cause of action is alleged solely against the dealer, Murrieta Automotive. The second cause of action is alleged solely against the bonding company, Westchester Fire. The plaintiff has expressly conceded that the motion for summary judgment should be granted on the second cause of action: “Plaintiff concedes that as there are no specific fraud allegations, the claim against the dealer bond is not viable.” (Opp. p. 7:6‐7.) Accordingly, We...

Excerpt: ...nd the fourth, for wrongful death. Because the plaintiffs failed to comply with California Rules of Court, rule 2.112(3), it is not clear whether all of those causes of action are alleged by all four plaintiffs. For purposes of this analysis, therefore, the Court assumes that all plaintiffs assert all three claims. The county demurs to the entire FAC on the ground that it fails to identify a valid statutory basis for any of the causes of action a...

Excerpt: ...terests, resulting in denial of access to the courts. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792.) If there is a denial of access, then some form of relief must be granted. (Smith v. I. Ogbuehi (2019) 38 Cal.App.5th 453, 468, citing Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 200‐201.) Among the alternatives to be considered are deferral of the action until the prisoner is released, appointment of counsel, transfer of the prisoner t...

Excerpt: ... 15, 2021. Plaintiff's counsel shall file a declaration no later than October 25, 2021, proving compliance with that order. A case management conference shall occur on 10‐28‐21 at 8:30 A.M. in department 1. Fifteen days before that date, the plaintiffs shall file a case management statement that describes the nature and extent of the damages claimed by each plaintiff. The plaintiff shall file a summons on the first amended complaint within th...

Excerpt: ...o be heard. (Brinker v. Sup. Ct. (1991) 235 Cal.App.3d 1296, 1299.) The remedy available to litigate the validity of the sister state judgment is provided by section 1710.40(a), which states that a sister state judgment may be vacated “on any ground which would be a defense to an action in this state on the sister state judgment.” Under the Law Revision Commission Comments to section 1710.40, it states: “Common defenses to enforcement of a ...

Excerpt: ...l.4th 394, 411 (“Rosenthal”) quoting Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prer...

Excerpt: ... The proposed order is signed as modified to conform to that ruling. However, because the motion is granted on a question of law, rather than by showing that there is no factual dispute, the plaintiff is entitled to an opportunity to amend that cause of action. If the plaintiff desires leave to amend, the plaintiff shall appear and explain how the fifth cause of action can be successfully amended. Analysis: Section 437c does not authorize the fil...

Excerpt: ...that offer by noticing the deposition for that date. (Reply, p. 3.) Therefore, the motion is moot, and could be denied on that basis. However, because of the history of the plaintiff's attempts to take this deposition over the last 13 months, the Court instead shall continue the hearing September 29, to confirm that the deposition was conducted as agreed. The motion can be moot only if the defendant's objections, both as to the date of the deposi...

Excerpt: ... present the information at the first hearing, i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; California Correctional Peace Officers Ass'n v. Virga (2010) 181 Cal.App.4th 30, 47.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilbe...

Excerpt: ...ion. Analysis: The plaintiff asserts a variety of factual representations that are not supported by any citation to the TAC and that therefore do not appear to be alleged in the TAC. (See, for instance, Oppo, p. 5 [representing that plaintiff is unemployed, and that a representative of Microport was present during the surgery].) Any such unpled facts must be disregarded. Page 5 of 5 The third cause of action seeks to allege a cause of action for ...

Excerpt: ...But later the plaintiff says (at memo., p. 8) that the motion is limited to the claim under Business and Professions Code section 17200, which would be the fifth cause of action. The Court cannot determine whether common issues predominate over individual issues unless the Court knows what claims are being asserted on a class basis. 2. The definition of the proposed class is vague. a. The definition refers to persons, purchasers and individuals. ...

Excerpt: ... does not demonstrate that MCI issued those SDTs. Similarly, that MCI objected to discovery propounded to it does not constitute a general appearance, because those objections do not ask the court for any relief or otherwise recognize the authority of the court to proceed. For the same reason, asking plaintiff's counsel for extensions of time does not invoke or otherwise recognize the authority of the court.(Cf. Busching v. Superior Court of Vent...

Excerpt: ... 1. There is to be both a short form notice that is mailed and a long form notice that is available online. The information in the short‐form notice is minimal. It does not, for instance, inform the reader of the release that the class members will give as consideration for their settlement payments. Moreover, to object or opt‐out, the class members will need to obtain the necessary forms online. Given the age of the class, all of whom are 55...

Excerpt: ... the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689‐90; see also Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 552; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895.) In the present case, Plaintiff alleges that the radiologist pr...

Excerpt: ... the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689‐90; see also Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 552; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895.) In the present case, Plaintiff alleges that the radiologist pr...

Excerpt: ...o file their proposed first amended cross‐complaint is denied. The denial is without prejudice to a renewed motion for leave to amend in proper form. Any such renewed motion must be filed and served no later than 8‐27‐21. Any such renewed motion shall fully comply with California Rules of Court, rule 3.1324. Before filing the motion, the proposed FAXC shall be revised to cure the types of ambiguities and inconsistencies described below, and...

Excerpt: ...ute, [courts] look to the gravamen of the instant action. . . . [T]he gravamen of an action is the allegedly wrongful and injury‐producing conduct, not the damage which flows from said conduct.” (Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 387 [italics in original].) The plaintiff's complaint does not attribute any wrongful conduct to anyone. The complaint refers to a prior action (which is not identi...

Excerpt: ... not filed “within 10 days after service upon the [moving] party of written notice of entry of the order.” (Code Civ. Proc., § 1008, subd (a).) In his “limited opposition,” the plaintiff contends that the motion is untimely, but offers no evidence whatsoever as to when such a notice was served on the officers. The City offers evidence that Mr. Okazaki emailed all counsel, including Mr. Smith, the officers' counsel, on 6‐28‐21 and tol...

Excerpt: ...gs are governed by California Rules of Court, rule 3.1324. Subdivision (a) of that rule requires the motion to identify, by page, paragraph, and line number, both the allegations in the prior pleading that are being deleted, and the allegations in the proposed pleading that are being added. The plaintiff has failed to do either. The same rule requires the declaration in support of the motion to state “[w]hen the facts giving rise to the amended...

Excerpt: ... the examination, as well as the identity and the specialty, of the physician who will perform the examination.” (Code Civ. Proc., §2032.220(c).) The defendant's demand specified that the exam would include “the taking of a complete medical history,” but did not specify any condition regarding the signing of a consent form, the showing of identification, or the presence during the examination of other members of the examining doctor's staf...

Excerpt: ...n is inconsistent regarding the number of aggrieved employees. The declaration of Aiwazian at ¶ 9 says 185, but the same declaration at ¶ 74 says 202. That inconsistency must be explained. 3. The estimates of the value of the various claims are all based on certain assumptions. See, e.g., ¶ 33 (“assuming that it could be proven the Defendant failed to pay an hour of overtime every workweek”) and ¶ 39 (“assuming that it could be proven t...

Excerpt: ...osecution of this case is granted and the action is stayed pending completion of the arbitration. The proposed order is signed without modification. Analysis: Judicial Notice The RJN submitted with the reply is denied. The two documents are irrelevant. Evidentiary objections Objection #1 is overruled. The evidence is relevant to the issue of good faith efforts to mediate; the evidence is not more prejudicial than probative; and the evidence to wh...

Excerpt: ...e no more than six months after the TSC. Analysis: The plaintiff contends that the defendant is subject to the specific jurisdiction of California's courts. A non‐resident defendant can be subjected to specific jurisdiction, “if the defendant has purposefully availed himself or herself of forum benefits. . . and the ‘controversy is related to or ‘arises out of' a defendant's contacts with the forum.'” (Vons Companies, Inc., v. Seabest F...

Excerpt: ...aw declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) In particular, “[d]ecisions of every division of the District Courts of Appeal are binding . . . upon all the superior courts of this state . . . .” (Ibid.) Thus, even if this Court were to disagree with the analysis of the opinion in Felisilda, ...

Excerpt: ... & Institutions Code §15657.) Malice and oppression, along with ratification, are pled. (FAC ¶12‐ 15, 17.) Whether Plaintiffs can prove it is another issue. As to Civil Code section 3345, this statute permits senior citizens or disabled persons to seek treble damages to redress unfair competition where the recovery sought permits a fine or a penalty. “[T]rebled recovery may be awarded under Civil Code section 3345, subdivision (b) only if t...

Excerpt: ...��defendants' unopposed request for judicial notice is granted. The cross‐complainants' request for judicial notice is granted solely on the issue of whether the hearing should be continued as requested. The unauthorized argument in the cross‐complainants' amended separate statement is not considered. The motion for summary judgment is denied. The motion for summary adjudication is granted as to first through fifth, seventh through ninth, and...

Excerpt: ...the contract is procedurally unconscionable to a small degree. It is also procedurally unconscionable because the arbitration provision is hidden. The plaintiffs signed the Premier Membership Application. The application is five pages long. Nowhere in that document is arbitration mentioned. However, in the last paragraph before the signature lines on the fourth page, the application states: “I hereby acknowledge receipt of The Club at PGA WEST ...

Excerpt: ...he sum of $610,567.00 shall be signed. Analysis: As the court explained in Graylee v. Castro (2020) 52 Cal.App.5th 1107, at pages 1114‐1115: Section 1671, subdivision (b), provides that a liquidated damages clause “is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.” Under Page 4 of 4 this subdivision, “a liquidate...

Excerpt: ...able unless there is a duty to disclose. There are four circumstances that give rise to a duty of disclosure, and thus in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the...

Excerpt: ...ns, and that the defendants revealed the positive results of that test to coworkers. Those allegations alone are insufficient to establish a hostile work environment. Although the plaintiff relies upon the assertion in ¶ 49 that the defendants' “abusive behavior” became routine, there is no description of what abuses occurred other than the two facts stated above. That Aceves was “callous” and that Aceves appeared to be annoyed are too v...

Excerpt: ... 24‐21, effective upon filing a proof of service of that order on the plaintiff. No such POS appears in the register of actions. If counsel has not already done so, counsel shall file a POS immediately. Analysis: The defendant moves pursuant to Code of Civil Procedure section 2025.450, which provides in subdivision (a): “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Secti...

Excerpt: ...d orally, either in person or over the telephone. The Court will not deem efforts limited to letters or emails to constitute a reasonable and good‐faith attempt at an informal resolution of the dispute. (§ 2016.040.) Analysis: The plaintiff noticed the deposition of the defendant's PMQ regarding 17 different topics and 13 categories of documents. The defendant objected, and the PMQ failed to appear. Page 3 of 3 The plaintiff has moved under Co...

Excerpt: ...Members and their facility with the English language. b. The motion does not comply with Class CMO, ¶ H.9.b., which requires an explanation of how the amount of the settlement allocated to penalties was calculated. c. The declaration of Moore says that the maximum administration cost is $10,500, but the quotation attached to that declaration says $10,500. Moreover, the Young declaration (at ¶¶ 35 & 50) refers to that expense as being $8,000, a...

Excerpt: ...ciations, (and now is known as the Conference of California Bar Associations) from approximately 1999 through 2003. My late wife and I once had dinner at the home of Ms. Stewart and Mr. Mangini 10 years or more ago. More recently, my current wife and I, together with another couple, had dinner together at a restaurant sometime in 2019. The Court does not believe that this limited and infrequent social relationship requires the Court to recuse its...

Excerpt: ...ire deposition subpoena is denied. Their request that the subpoena be modified is granted. The subpoena is modified as follows: • The scope of the subjects on which Huskey may be deposed is limited to: o The trailer on Dennis Babcock's property; o The garage on Dennis Babcock's property; Page 3 of 4 o The nature and extent of any personal property stored in either the trailer or the garage; o The removal of any personal property from either the...

Excerpt: ...oncealment 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 fact; and (5) as a result of ...

Excerpt: ... evidence.” In fact, they are not objections to specific evidence, but instead are objections to portions of the separate statement. The separate statement is not evidence. As such, these objections are meritless. The defendants raised eight evidentiary objections. They are unnecessarily difficult to evaluate because the defendants do not identify where in the plaintiff's 89‐ page response to the statement of undisputed material facts the pla...

Excerpt: ....” Both paragraphs 21.a. and 21.c. are sufficient to allege a breach of contract. The demurrer is therefore overruled. The second cause of action, for breach of the implied covenant of good faith and fair dealing: The allegations describe nothing other than a breach of contract. The demurrer is therefore sustained. That sustention is without leave to amend unless Shih can articulate how he can amend the FACC in a way that will change the legal ...

Excerpt: ...conduct must be pleaded separately.” Although professing to “respect” that ruling, the plaintiff once again attempts to plead both torts in a single cause of action, and asserts that the Court's previous ruling was mistaken. Contrary to Plaintiff's argument, “[w]illfulness and negligence are contradictory terms. If conduct is negligent, it is not willful; if it is willful, it is not negligent.” (Donnelly v. Southern Pac. Co. (1941) 18 C...

Excerpt: ...ally unconscionable because the arbitration provision is hidden. The plaintiffs signed the Premier Membership Application. The application is five pages long. Nowhere in that document is arbitration mentioned. However, in the last paragraph before the signature lines on the fourth page, the application states: “I hereby acknowledge receipt of The Club at PGA WEST Premier Membership Plan and Rules and Regulations and that I have read and underst...