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