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...