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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...s forfeited by a defendant if the defendant fails to request arbitration within 30 days of receipt of the notice. The undisputed evidence establishes that the plaintiff mailed the notice was sent to Tumbrello at 26142 Williams Way #A, Murrieta, CA 92563. Plaintiff has shown proof that it was mailed on January 13, 2018, pursuant to a Certificate of Mailing issued by the United States Postal Service. (Karas Dec., Ex. 1; Declaration of John Karas, �...

Excerpt: ...1, subdivision (g), allows a court to grant relief from such a forfeiture, the Court is not aware of any authority that requires the court to do so when the failure to deposit jury fees is deliberate rather than inadvertent. Accordingly, the moving party must present competent evidence of inadvertence, not merely a conclusion that it was inadvertent. Although the original declaration of Mr. Quinones states that the omission was inadvertent, no ev...

Excerpt: ...laintiff seeks to justify every redaction in the 61‐page log on identical grounds: that the redacted information pertains to the plaintiff's “private medical history unrelated to the parts of the body at issue in the instant lawsuit” and also pertains to the plaintiff's “private sexual history with person(s) other than the perpetrator of the abuse.” That privilege assertion is problematic for multiple reasons. First, it vague. This is n...

Excerpt: ...efendants' demurrers to Count Two of the Fifth Cause of Action. The demurrers of both defendants are sustained with 20 days' leave to amend as to the Fourth Cause of Action. With those exceptions, the demurrers are overruled. The case management conference is continued to November 18, 2020, at 8:30 A.M. in Department 10. Analysis: Request for Judicial Notice Exhibits C and D are capable of being judicially noticed, but they appear to be immateria...

Excerpt: ...y as to his own losses and hardships (objections 1‐ 3), he does not establish personal knowledge with respect to the hardships and losses of other persons, including tenants and alleged customers (objections 4, 6‐8). With respect to what the appraiser did or did not consider (objection 5), Van Loon has not demonstrated personal knowledge. Further, Van Loon's testimony regarding whether the Property is located above the flood plain (objection ...

Excerpt: ...ssion, or control has been unequivocally Page 3 of 5 established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) Starlight contends that the questions concerning the allegedly dangerous condition of the property are immaterial, because the plaintiff testified that he slipped on something, not that he tripped on a stair. That argument fails, because the defendants addressed the issue of potential...

Excerpt: ... days. The case management conference is continued to October 28, 2020, at 8:30 A.M. in this department. Page 3 of 6 Analysis: No. 1: The plaintiff seeks to strike the phrase “and meal and rest period premiums” in the general allegations section. (TAC p. 9:26 in ¶37.) This phrase is not alleged to be specific to any particular claim. Without a showing that the phrase is irrelevant to every claim alleged in the TAC, the motion is denied. No. ...

Excerpt: ...: In the event of a breach of any provision of this Agreement, including re‐filing or realleging the same claims and/or parties being released, the alleged 2011 amendment, the alleged 2015 amendment, or any other contest to the 2009 KFT, may give rise to damages for breach. In an action to enforce any term or terms of this Agreement or to seek damages for breach of this Agreement, the prevailing party in that action shall be entitled to recover...

Excerpt: ...le a pleading in response to the First Amended Complaint no later than October 20, 2020. Analysis: The documents of which the plaintiff asks the Court to take judicial notice are irrelevant to the issue presented by this motion. Cooke does not deny that he lives at the Serrento Drive address, only that he was served at that address. Therefore, the request is denied. The defendant's objection to the Bradford declaration is sustained because the fa...

Excerpt: ...idence of any past or future loss of income or earning capacity of Carla Alvarez for any purpose, at trial or at any hearing, without leave of court, and that any motion seeking leave to rely on such evidence must be heard no later than 90 days before the initial trial date. The plaintiff's motion to quash the subpoenas served by the defendants on Blue Cross of California, and Blue Shield of California is denied to the following extent, but other...

Excerpt: ...and ratification by any of the three demurring defendants. Vague allegations that the “District” knew of the alleged assaults is insufficient. Because such facts might exist, the Court grants leave to amend. As to the fifth cause of action for negligent supervision, that is a theory of liability against employers who hire or retain an incompetent or unfit employee whose characteristics might pose a danger to persons the employee is expected t...

Excerpt: ...he hearing, as required by RSC Local Rule 3116, the Court dismissed the action on August 2, 2019. Over 10 months later, on June 6, 2020, the plaintiff moved for attorney's fees pursuant to the settlement agreement with the defendant. The court to which the motion was assigned denied Page 4 of 4 the motion on the ground that the action had been dismissed. The plaintiff now moves for an order vacating the dismissal. The defendant contends that the ...

Excerpt: .... Analysis: “Except as provided in (b), an opinion of a California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).) Neither of the exceptions in subdivision (b) apply in this instance. Therefore, the plaintiff's reliance upon the Court of Appeal's unpublished opinion in Doe v. GlobalLogic, Inc., 201...

Excerpt: ...ant to Code of Civil Procedure section 394. The only disputed issue is the identity of the neutral county to which it is to be transferred. A neutral county is one “other than that in which the defendant resides, or is doing business, or is situated.” (Ibid.) The defendant offers no evidence that the counties to which it requests a transfer, Los Angeles and Orange, are neutral counties. The only evidence it offers is the declaration of Fletch...

Excerpt: ...dition, the Court does not consider the declaration of the plaintiff filed August 17, 2020. Page 3 of 3 The plaintiff's request for oral testimony at the hearing on the demurrer is denied. The general demurrer of the County of Riverside to the First Amended Complaint is sustained. The proposed order is signed. The plaintiff has leave to file a second amended complaint provided that she does so within 30 days of the date of this hearing. Any secon...

Excerpt: ...le a sur‐reply exists under any statute, rule, or case law. Nor was leave of court sought or granted in this particular instance. Accordingly, the sur‐reply will not be considered. A motion to quash a subpoena may be granted on the ground that the matters sought to be discovered are privileged, protected, or beyond the scope of discovery. (CCP §§ 1987.1(a); 2017.010; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 929.) “At a hearing on a...

Excerpt: ...al demurrer to the fifth cause of action is overruled. Analysis: The defendants claim that the second cause of action is uncertain. The Court disagrees. Although the title of the complaint refers to the second cause of action as being one for “hostile work environment/retaliation in violation of FEHA,” the cause of action itself is expressly entitled as one for a “hostile work environment.” That inconsistency does not render the cause of ...

Excerpt: ...ty” (id., subd. (a)) and states the general rule that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding” (id., subd. (b)). In proceedings under the Probate Code, cost recovery is within the discretion of the court: “Unless it is otherwise provided by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to ...

Excerpt: ...e the issue of enforceability of arbitrability to the arbitrator. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891‐892.) To be effective, the language “must be clear and unmistakable” and that there is no “contract defense such as fraud, duress, or unconscionability.” (Id. at 892, 894.) The arbitration agreement contains a delegation clause that provides: “The Arbitrator shall have exclusive authority to resolve any dispute ...

Excerpt: ...x. 3), the Design‐Build Contract (Ex. 4), Assembly Bill 2098 (Ex. 6), State regulations (Ex.7), and Index to Plans and Construction Sequence (Ex. 9). It is denied as the Falsework Manual (Ex. 5) and the Bridge Construction Manual dated April 30, 2008 (Ex. 8). Page 3 of 9 EVIDENTIARY OBJECTIONS Plaintiffs' objections are sustained as to Nos. 2, 42, 44‐62, 71, 72, and 80, and overruled as to Nos. 1, 3‐41, 43, 63‐70, 73‐79, and 81‐89. Ac...

Excerpt: ... four corners of the complaint. The case management conference is continued from 9‐ 22‐20 to 10‐20‐20 at 8:30 A.M. in Dept. 1. Analysis: The general demurrers are sustained because there is no allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty t...

Excerpt: ...t cannot take judicial notice of the truth of what Zellers said. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569.) Since the fact that Zellers said these things is not relevant to this suit, the declarant is irrelevant, and judicial notice is denied. Without the evidence that Zellers's factual representations are true, the factual foundation for the motion is lacking. 2. The description of the area in which burials are proposed to be en...

Excerpt: ... the complaint. The case management conference is continued to 9‐28‐20. The plaintiffs and plaintiffs' counsel, Knight Law Group, LLP, are sanctioned $150, jointly and severally, for the failure to appear at the 6‐9‐20 CMC, payable to the clerk of the court within 20 days. Analysis: The general demurrer is sustained because there is no allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fr...

Excerpt: ...use as to why sanctions should not be imposed on the plaintiff for the failure to dismiss the settled action. The OSC was returnable on 1‐15‐20, and expressly defined “sanctions” to include dismissal. The OSC also advised the plaintiff that RSC Local Rule 3116 required the plaintiff to file a declaration five calendar days in advance of the return date in order to avoid any sanctions. Five calendar says before the return date of the OSC w...

Excerpt: ...ning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 895‐896.) “One who willfully consumes alcoholic beverages to the point of intoxic...