Excerpt: ...hat “one might reasonably conclude that a 24‐hour health facility…or a residential care facility for the elderly… could have the ‘care or custody' of an elder.” (Id. at 165.) Welfare & Institutions Code section 15610.17 defines “care custodian” as “an administrator or employee of…twenty‐four‐hour health facilities.” A caretaker or care custodian is someone who has “accepted responsibility for attending to the basic nee...

Excerpt: ...vacated. Any party may use Riverside Superior Court Local Form RI‐CI024 to request that this case be restored to Active Status. “Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, 98 (Armendariz).) Similar to California law, any ...

Excerpt: ...e of action is sustained without leave to amend. The cause of action is based solely upon the breach of a contractual promise. (The Court notes that Western Pacific makes no argument in opposition to the contention that the negligence cause of action is barred by the economic loss rule.) City Ventures is Ordered to file and serve an Answer to the First Amended Complaint within 20 days. BREACH OF CONTRACT Indemnity does not require a claim by a th...

Excerpt: ...ntirely different claims, addition of new parties, or a request for a different or greater remedy. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The amendment must be based on the same general set of facts. (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207; City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.) This determination is entrusted to the Court's discretion, and an order allowing an amendment will not be r...

Excerpt: ...ants “breached their duties of care that were owed to Plaintiff.” (FAC ¶¶25‐26.) However, no facts to support these claims are alleged. Additionally, the FAC does not allege any facts that Defendant Yankee either owed Plaintiff Josiah Camp (“Plaintiff”) a duty as the former owner of the storage facility, or that Defendant Yankee breached any duty to Plaintiff. The FAC does not allege that Defendant Yankee was responsible for the condi...

Excerpt: ...n multiple occasions from the District to stop engaging in unprofessional behavior. Petitioner continued to do so, either because Petitioner Page 6 of 10 failed to recognize the District's expected standards or because he willfully disregarded those standards. Petitioner failed to meet his burden to convince the Court that the Commission's administrative findings and decision upholding the dismissal were contrary to the weight of the evidence so ...

Excerpt: ...st Commonwealth Partners LLC (“West Coast”) and Defendant Traditions Senior Management, Inc. (“Traditions”) is OVERRULED. Reche Canyon, West Coast, and Traditions (sometimes “Defendants”) are Ordered to file and serve Answers to the Fifth Amended Complaint (“5AC”) of plaintiffs Tim Brockus, Carie Brockus, and the Estate of John Brockus (collectively “Plaintiffs”) within 30 days. Defendants demur to the first and fourth causes ...

Excerpt: ...aintiffs waited over 13 years after purchasing the subject vehicle and more than 8 years after the end of the warranty period before filing suit. The statute of limitations for Plaintiffs' 1st, 3rd 4 th and 6th causes of action for common law intentional misrepresentation and concealment, and violation of CLRA is three years. (CCP § 338(d); Civil Code § 1783.) The statute of limitations for Plaintiffs' 2 nd cause of action, for negligent misrep...

Excerpt: ...int (“FAC”) and the City of Beaumont's First Amended Cross‐Complaint (“FAXC”) are SUSTAINED WITH 20 DAYS LEAVE TO AMEND. DOE/ROE Defendants' Request for Judicial Notice is granted as to the existence of the pleadings, but not as to the truth of the contents. Request for Judicial Notice DOE/ROE Defendants' Request for Judicial Notice is granted as to the existence of the pleadings but, not as to the truth of the contents. (Evidence Code ...

Excerpt: ... BRIGHT FUTURES ACADEMY, LLC (f.k.a. MOJAVE RIDGE ACADEMY).” Complaint, ¶2. Defendant Universal Health Services (“defendant Universal Health”) specially appears in order to move to quash the service of summons. Defendant Universal Health contends that it is a holding company incorporated in Delaware, with a principal place of business in Pennsylvania, with no presence in California, and thus no minimum contacts in this state. To the extent...

Excerpt: ...mend the Complaint and add any causes of action in a good faith belief they are based in fact. The fact that the cause of action was ultimately unsuccessful does not cause it to be unreasonable. This $90 fee is not stricken/taxed. The $180 for two ex parte applications to continue trial were solely to benefit Plaintiffs' counsel and accommodate his schedule. The $180 is stricken/taxed. The $90 filing fee for the Motion to Compel the deposition of...

Excerpt: ...ion is OTHERWISE DENIED on the ground that Plaintiff has failed to demonstrate a “plausible factual foundation” for discovery of any of the other officer's personnel records. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019). The Court Plaintiff and the City appear at the hearing of the Motion, telephonically and through counsel, to discuss the in camera review of responsive documents. The City's request for sanctions is DENIED. Meet a...

Excerpt: ...lying action”); 2) the Opinion issued by Court of Appeal, Fourth Appellate District, Division Two on 10/17/13 on the underlying action; and, 3) the Fifth Amended Complaint by Plaintiff and his spouse in the underlying case. (The Court notes that copies of the documents were attached as exhibits to the request for judicial notice filed by the County on 2/24/20, before federal, state, local, and court COVID‐ 19 related declarations and orders. ...

Excerpt: ...pecific Code of Civil Procedure section and subdivision, if any, in the Answer. Plaintiff's Request for Judicial Notice: Plaintiff requests judicial notice of Defendants' Answer to the Complaint. The Answer may be judicially noticed as a court record under Evid. Code §452(d). The request for judicial notice is granted. Defendants' Request for Judicial Notice: Although Defendants have not filed a separate request for judicial notice, in his decla...

Excerpt: ...Admission. Code of Civil Procedure section 2033.280 provides: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:…(b) the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010 ). Sanctions are impos...

Excerpt: ... the court. (See Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1604.) Until a petition for approval is presented to the court and granted, any settlement agreement is voidable by the minor or the minor's guardian ad litem (Id. at 1603, 1605.) On October 8, 2019, at the hearing on the petition to approve the minor's compromise, the Probate Court asked Plaintiff's why a settlement of $127,000 was reasonable and commented that this cas...

Excerpt: ... the July 20, 2020 hearing. The Court received a timely request for oral argument from defendant Secured Income Group I Inc. Defendant Secured Income Group appeared through counsel and plaintiff Padial. Both did so telephonically. An interpreter was not available and defendant Secured Income Group 1 Inc., began to argue that the hearing was moot because the sale of the subject property had already occurred. The hearing was continued to July 22, 2...

Excerpt: ...sider several factors in determining the reasonableness of a party's attorney's fees. These include "the nature of the litigation, the difficulty of the litigation, the attention given to the issues, the success of the attorney's efforts, and time consumed. [Citation omitted.]" (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Although a fee request ordinarily should be documented in great detail, the Court is entitled to make its own e...

Excerpt: ...y of their authorized agents” may initiate the foreclosure process. The statute does not provide for a judicial action to determine whether the person initiating the foreclosure process is authorized to do so. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1156.) The Complaint alleges Defendants failed to comply with Civ. Code §2924 because the Notice of Default is void or avoidable as the purported beneficiary was not the...

Excerpt: ...entered against him. On July 27, 2019, Defendant was personally served with the summons and complaint filed in this case. (Motion, Exh. B.) Upon Plaintiff's filing of a Request for Entry of Default and Court Judgment, default was entered against Defendant on September 11, 2019. Judgment was entered on December 24, 2019. On February 04, 2020, Defendant filed the instant Motion to set aside the default judgment entered against him to be heard on Ap...

Excerpt: ...ted by Plaintiff Francisco Padial (“Plaintiff”) to enjoin Defendant Secured Income Group (“Defendant”) and its officers, employees and agents from any action in furtherance of foreclosing on the subject Hayden Avenue property (the “Property”) before any final judgment, dismissal, or other disposition in the case. Plaintiff is Ordered to post bond in the amount of $14,400.00. Plaintiff is Ordered to serve and submit a proposed Prelimin...

Excerpt: ...e second mortgage debt was discharged through the bankruptcy proceedings. In July 2019, Plaintiffs were contacted by Specialized Loan Servicing, LLC (“SLS”) and were informed that they could apply for available foreclosure alternative. Plaintiffs submitted the requested documents to apply for said alternative. On July 27, 2019, SLS informed Plaintiffs that due to their income, they did not qualify for a foreclosure alternative. Plaintiffs ask...

Excerpt: ...rguing that the cause of action combines an oral and written contract so he cannot determine whether the claim against him is oral or written. A judgment on the pleadings is limited in scope to two grounds: the court does not have jurisdiction; and, the complaint fails to state facts sufficient to constitute a cause of action. Section 430.10(g), relied upon by Defendant is not a proper challenge to the complaint on a motion for judgment on the pl...

Excerpt: ...luntary dissolution of Allen & Durrant Corp. The case arises out of the joint operation of Allen & Durrant Corp. by Plaintiff Durrant and Defendant Sipera. On 9/5/19 the court signed an order, based on the stipulation of all parties, ordering the parties to binding arbitration and staying these proceedings. However, the parties never arbitrated their claims, but rather informally attempted to resolve Plaintiff's claims. The parties entered into a...

Excerpt: ...Code of Civil Procedure section 425.16. In addition to relying on the declaration of Defendants' attorney Erika Peterson (“attorney Peterson”), the Court reviewed the legal work performed. The Court finds that the 69.6 attorney hours claimed for the preparation and prosecution the anti‐SLAPP motion is reasonable in this highly contentious case between family members. The Court reduces the attorney hourly rate from $550 to $450. Defendants a...

Excerpt: ...(CCP § 1985.3(b)‐(c), (k) and § 2020.410(d).) Defendants have not demonstrated the application of any exception to the taxpayer privilege. It covers tax returns and related documents and applies to both personal and corporate taxpayers. Meet and Confer Requirement The parties exchanged email messages regarding the general substance of the motion. Unfortunately, they were not able to reach an informal resolution. (See Hanchar Decl., ¶¶ 12‐...

Excerpt: ...dment were discovered; and, 4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 3.1324(b).) Here, Plaintiff submitted a declaration [begins at p. 91] and a proposed FAC [begins at p. 4.]. Plaintiff's counsel, Paul Molinaro, attests that on 12/18/19 he took defendant Kristiana Joy Peters' (“Peters”) deposition and that she testified: to earning $3,000 ‐ $4,000 a month from her own retail website but,...

Excerpt: ...s they are immaterial to resolution of this motion. The motion for attorney's fees is GRANTED IN THE REDUCED AMOUNT OF $70,335. The Court declines to rule on the request for costs as there is a motion to tax set for August 10, 2020. The matter of reasonableness of a party's attorney fees is within the sound discretion of the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Fee motions should be based on detailed ...

Excerpt: ...position in the case. Plaintiff is Ordered to post bond in the amount of $14,400.00. Plaintiff is Ordered to serve and submit a proposed Preliminary Injunction to the Court within 5 days. (Cal. Rules of Court, Rule 3.1150.) Plaintiff demonstrated a reasonable probability of prevailing on some of his claims. A. Negligence Plaintiff may succeed on a claim for negligence. As a general rule, a financial institution owes no duty of care to a borrower ...

Excerpt: ...nerally, one who has not created a peril has no duty to affirmatively act so as to prevent harm to third persons. Absent an applicable statute, the law does not require one to act as a “Good Samaritan.” (Regents of Univ. of Calif. v. Sup. Ct. (Rosen)(2018) 4 Cal.5th 607, 663‐664.) However, the law does impose a legal duty to affirmatively act to protect someone else from danger or to control the conduct of a third person if there is a “sp...

Excerpt: ...and Other Tangible Items, Set One (“DFP”) No. 9, within 20 days. Monetary sanctions in the amount of $1,125.00 (4.5 hours @ $230.00, plus $90.00 filing/court reporter fee) are imposed against Plaintiff. The sanctions shall be paid to defendant William Reyes, through his attorney of record, within 30 days. The Court will complete, file, and serve the proposed order submitted by Defendants. Additionally, the Court invites the parties to file a ...

Excerpt: ..., 149 Cal.App.4th at p. 180.) However, the plaintiff “may try to show it actually dismissed because it had substantially achieved its goals through a settlement or other means.” (Ibid. [citing Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107].) Plaintiffs contend their objective in the litigation was to have a vehicle that they could legally operate with proper registration. (P's Motion 7:14‐16.) They contend they achieved their litigati...

Excerpt: ...��5; Duale v. MercedesBenz USA, LLC (2007) 148 Cal.App.4th 718, 729; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1010.) While it is true that there is and was no dispute regarding the purchase price of the subject vehicle, several questions remained for the jury to resolve. As in Warren and Duale, whether any alleged defects represented nonconformity under the Act and if so, the extent they substantially impaired the use, value or...

Excerpt: ...ence of the Court. Shortly thereafter, Plaintiff and counsel for Defendant Enterprise Rent‐A‐Car appeared before the Court again. The hearing was continued to permit Plaintiff and counsel for Defendant to meet and confer. Apparently, the efforts to meet and confer, if any, were unsuccessful. The motion is DENIED. Plaintiff failed to meet his burden showing the costs claimed were unreasonable or unnecessary to the conduct of litigation. Defend...

Excerpt: ...lson v. Specialty Records, Inc. (1970) 11 Cal. App. 3d 126), “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048; see also Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or add...

Excerpt: ...egal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) Ordinary negligence may be alleged in general terms without specific facts showing how the injury occurred. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) On the other hand, a plaintiff may not have a bare statement that the defendant's negligence caused injury. (Ibid.) The existence of a duty is a question of law for the court. (Kentucky Fried Chicken...

Excerpt: ...ra's actual and or propensity for engaging in prior serious sexual misconduct and or molestation involving other persons as is alleged in herein and either disregarded and or intentionally failed to take appropriate action to ensure that De Vera would not engage in any similar action as has been alleged herein.” (TAC, ¶ 9.) Plaintiff alleges Integro failed to properly investigate De Vera's prior acts of sexual misconduct before hiring him, tha...

Excerpt: ...ogatories Nos. 10 ‐ 24 and Requests for Production Nos. 11 ‐ 14 within 20 days. No further responses are required for Special Interrogatories Nos. 4 ‐ 9 and Requests for Production Nos. 9 & 10. The request for sanctions is denied. Meet and Confer: On February 3, 2020, the Court continued hearing and ordered the parties to meet and confer. The Court ordered Plaintiff to file a supplemental meet and confer declaration. In the supplemental dec...

Excerpt: ...es liability is based on the possession of the premises and the property owner/manager/renter's right to control and manage the property. Id. “But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” Id. A storeowner is “not an insurer of the safety of his patrons, but owed them Page 2 of 5 the duty to exercise reasonable care in keeping the premises safe for h...

Excerpt: ...2011) 198 Cal. App. 4th 1187, 1198.) The elements of an action for fraud and deceit 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 ha...

Excerpt: ...e sought to show disparate treatment of Plaintiff, who was relieved of duty for minor or trivial problems, while Bennett was not (even though one of the shootings was a homicide which is still under investigation). Request No. 2 (as to Bennett) seeks records concerning his termination from the Riverside Sheriff's Department for lying about his name when he was pulled other by other law enforcement officers. They are sought to show Bennett's credi...

Excerpt: ... The Los Angeles Court found that venue was not proper in Los Page 3 of 5 Angeles and transferred the case to this Court. Given there was no proceeding which resulted in a final judgment on the merits, the 7/9/19 order does not act as a bar to Plaintiff's claims. DFEH Complaint/ Statute of Limitations Dates are not in dispute. Plaintiff was terminated on 1/15/17. (FAC ¶ 15(g).) Plaintiff, through his attorney, sent a letter on 2/14/18 demanding ...

Excerpt: ...set forth below. The motion to strike the complaint under Code of Civil Procedure section 425.16 filed by defendant Mr. Papp and defendant Mr. Tye (collectively “Defendants”) is GRANTED. Defendants meet the first prong of the analysis under section 425.16(e)(1)(2). The complaint arises from the pending Riverside Superior Court action entitled Matthew Tye v. Justin Tye, et al., Case No. RIC 1601881 (the “Tye 1 matter”). Hence, it arises ou...

Excerpt: ...A's Offer of Correction, and the Court's tentative ruling on Defendants' Motion for Judgment on the Pleadings. The Court takes judicial notice of the tentative ruling, pursuant to Evid. Code §452(d), which permits judicial notice of court records. Defendants have not provided a basis for judicial notice of the Notice of Violation or Offer of Correction. Accordingly, judicial notice is denied. Page 2 of 4 Motion to Strike: Pursuant to CCP §436(a...

Excerpt: ...xplanation for failing to provide the evidence earlier, which can only be describes as a strict requirement of diligence.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Facts know by the party seeking reconsideration when the original ruling was made are not considered “new or different.” In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. “[T]he party seeking reconsideration must provide not only new evidence but also a satisfa...

Excerpt: ...17.) Such fee awards are allowable as court costs under CCP § 1032. (CCP § 1033.5(a)(10)(A).) Entitlement to Attorney Fees Paragraph 40 of the Commercial Lease Agreement between the parties provides as follows: ATTORNEY FEES: In any action or proceeding arising out of this agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs from the non‐prevailing Landlord or Tenant, except as pr...

Excerpt: ...reement does not unreasonably favor Defendant substantively (other than the limitations provision which Defendant has agreed to sever and the court hereby severs). The action is stayed pending arbitration. The stay shall not affect any deadline, cut‐off date, statute of limitations, etc. Plaintiff and/or Defendant may request that the stay be lifted and the action restored to civil active status by filing Riverside Superior Court form RI‐CI02...

Excerpt: ...e elements of fraud are: (1) misrepresentation of a material fact (consisting of a false representation, concealment or non‐disclosure); (2) knowledge of the falsity (i.e., scienter); (3) intent to deceive and induce reliance; (4) justifiable and actual reliance on the misrepresentation; and, (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) Fraud actions are subject to strict r...

Excerpt: ...ng: The Motion to Compel Further Responses to Form Interrogatories, Set One, is GRANTED as to numbers 7.1, 9.1, 9.2, 50.3, 50.4 and 50.5. It is DENIED as to numbers 8.7 and 8.8. Verified, Further Responses, without objections, shall be served within 20 days. Sanctions are imposed on plaintiff Citrus El Dorado in the amount of $5,500.00 and are payable to defendant Stearns Bank within 30 days. The Motion to Compel Further Responses to Requests for...

Excerpt: ... nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (CCP § 1021.5). The statute is not intended to reward litigants motivated by their own pecun...

Excerpt: ...on system from Defendant; (2) at the time of the purchase, Defendant was in the business of installing and selling solar power Page 2 of 3 production systems and held itself out as possessing special knowledge and skill regarding such systems; (3) the solar system installed by Defendant was not of the same quality as those generally acceptable in the trade and was not fit for the purpose for which such goods are used; (4) Plaintiff took reasonabl...

Excerpt: ...n of the agreement; or, litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP §1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause ve...

Excerpt: ...iff's fraudulent inducement/concealment is, for pleading purposes, alleged with sufficient specificity. (Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217, 231 [less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff].) Fraudulent intent is most often established through circumstantial evidence. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) While performance may not in and of itse...

Excerpt: ...es claim, including “loss of income, loss of earning capacity, loss of job opportunity, and other financial losses.” (FAC, ¶ 72.) Defendant has shown good cause for the documents. Plaintiff responded with objections. Her main objection is that the request is overly broad because it asks for documents relating to income from sources other than from employment. Plaintiff agrees to produce documents relating to her earnings from employment. She...

Excerpt: ... limited by the time to appeal. Here, the time limit is not governed by the date judgment is entered and the timing of an appeal. The MOU is incorporated into the judgment as a method of enforcing its provisions in the event one party refused to cooperate. The time for an appeal of the judgment entered on 3/4/16, has no bearing on the timing of this motion. The Court does not equate the date of the order entered on the ex parte as the date to com...

Excerpt: ...cident”. (Motion, page 2, line 4.) Plaintiff shall not be questioned regarding her sex life or the intimate details of her relationship with her boyfriend. Simply put, defendants Long Ngoc Phan, Ngoc Phan DMD, Inc., Long Ngoc Phan (collectively “defendants”) shall not construe the granting of the motion as a license to inquire into plaintiff's sex life. The motion is denied as to the request for issue sanctions. The Court has weighed the pr...

Excerpt: ...01881 (the “Tye 1 matter”). Hence, it arises out of a written statement or writing made in connection with an issue under consideration or review by a judicial body. Plaintiff Matthew Tye (“Plaintiff”) cannot avoid the first prong by arguing the subject declaration was not invited by the Court. Though not solicited by the Court, the declaration filed by defendant Papp in the Tye 1 matter sought to inform the Court about the facts surround...

Excerpt: ...roduce responsive documents as to California complaints, reports, buy‐backs, etc., as discussed below. Sanctions are imposed in favor of Plaintiffs and against GM in the amount of $1,860. They are payable within 30 days. Meet and Confer. Plaintiffs' initial meet and confer letter is very detailed and provides authority in support of Plaintiffs' request for further responses. GM provided a detailed response explaining its objections. (Morse Dec....

Excerpt: ...bitration unnecessary or create conflicting rulings on common issues. (CCP §1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by refe...

Excerpt: ... fact with intent to defraud; (4) the plaintiff was unaware of the fact and would not have acted had she or he had knowledge of the concealed fact; and, (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment may be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cann...

Excerpt: ... Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) If a nonsettling party opposes the application, it must file a notice of motion to contest the good faith settlement within the statutorily provided deadline. C.C.P. § 877.6(a)(2). The nonsettling party has the burden of proof to establish lack of good faith. C.C.P. § 877.6(d). Cross‐Defendant A Road Runner Garage Doors & Gates (“Road Runner”) identifies the settling parties, t...

Excerpt: ...he nature of the litigation, the difficulty of the litigation, the attention given to the issues, the success of the attorney's efforts, and time consumed. [Citation omitted.]" (PLCM Group, Inc. v. Drexler (1999) 72 Cal.App.4th 693, 708.) Although a fee request ordinarily should be documented in great detail, the court is entitled to make its own evaluation of the reasonable worth of the work done in light of the nature of the case and the credib...

Excerpt: ...ecutive, and judicial departments of the United States and of any state of the United States. Materials prepared by private parties that are on file with governmental agencies are not official records of which judicial notice may be taken. (People v. Thacker (1985) 175 Cal.App.3d 594, 598‐99; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 608.) The Court notes that there are several unpublished cases which do allow judicial notice of the ...

Excerpt: ...d Complaint against Defendant Omega and other defendants. It sets forth ten causes of action: (1) child abduction (all Plaintiffs against all defendants); (2) attempted extortion (Plaintiff Ms. Allen and Plaintiff Mr. Jasper against all defendants); (3) child abuse and endangerment (all Plaintiffs against all defendants); (4) intentional misrepresentation (Plaintiff Ms. Allen and Plaintiff Mr. Jasper against all defendants); (5) conspiracy (all P...

Excerpt: ...This is malicious prosecution action. Plaintiff Lawrence D. Maberry (“Plaintiff”) alleges that he was a tenant on property located at 36310 Singleton Road in Calimesa and owned by defendant Christine Elaine Chetta (“Defendant”) pursuant to a lease dated February 26, 2017. (Complaint, ¶ 6.) Plaintiff alleges Defendant's son, who resided on the same property, physically attacked Plaintiff. (Id., ¶ 7.) Defendant then filed a Request for Ci...

Excerpt: ...).) The written objections procedure applies to nonparty consumers. (CCP §1985.3(g).) The party consumer may bring a motion to quash. Plaintiff's contention that Defendants failed to move to enforce the subpoena is without merit. Serving a written objection is not appropriate for a party. Upon the filing of a motion, the Court may order a subpoena be quashed or modified. (CCP§1985.3, 1987.1.) A motion to quash or modify may be granted on the gr...

Excerpt: ...en contract; (6) breach of fiduciary duty; and, (7) breach of settlement agreement (specific performance or compelling arbitration). Page 2 of 3 Corporations Code §9418: Corporations Code §9418(a) permits a director, member, or any person with the right to vote in the election at issue after that person “has exhausted any remedies provided in the articles or bylaws” to bring a judicial action to challenge the validity of the election or app...

Excerpt: ...rocedural History: Petitioners and plaintiffs Garner Valley Property Owners' Association and James Martens (collectively “Petitioners”) are property owners in Garner Valley. Their properties are serviced by Respondent and defendant Lake Hemet Municipal Water District (“Respondent”) provides water to Garner Valley properties via one system and provides water and other services to Hemet/San Jacinto properties via another, separate system. R...

Excerpt: ...ing she was not the owner or operator, but just the manager and she did not employ Muse). An attack on Page 2 of 2 the factual allegations of the Complaint is not permitted. The Court must accept the factual allegations of the Complaint as true, unless the challenge is based on judicially noticed facts. Finally, Meer is incorrect that plaintiff's allegations regarding her role are conclusions of law. Meer's alleged ownership of the home and her e...

Excerpt: ...at these causes of action are deficient. She asks for leave to reassert the first, third, fourth, and fifth causes of action. Plaintiff concedes that the tenth cause of action is barred by the statute of limitation, but asserts that she has additional facts to fix this issue. Unlike the other causes of action that she concedes, she addresses the merits of the cause of action. It is also deficient because it is unclear what Plaintiff's protected a...

Excerpt: ...gatory #13, Special Interrogatory #17, Special Interrogatory #42, and REQUEST FOR Admission #14 are sufficient. No further response to Special Interrogatory #41 is Ordered, as the interrogatory is not full and complete in itself. The remaining responses are insufficient. For the reasons stated below, further verified responses are necessary and shall be served within 20 days. The request for sanctions is Denied. Both parties achieved partial succ...

Excerpt: ...nt of the 1st cause of action or the other causes of action. Even if it were, declaratory relief is a cumulative remedy. (CCP § 1062.) 1 st cause of action (reformation): Generally, a party who agrees to a contract is bound by its provisions and cannot complaint of unfamiliarity with its terms. (Madden v. Kaiser Found. Hosps. (1976) 17 Cal.3d 699, 710.) Nevertheless, an action for “reformation” is the appropriate remedy where the contract do...

Excerpt: ...ice. It does not comply with CRC 3.1112(l), which requires that a request for judicial notice be set forth in a separate document. Moreover, a Court ruling on a Demurrer cannot take judicial notice that a contract submitted in support of a Demurrer is binding and enforceable if the plaintiff claims the contract is unenforceable due to fraud. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115. Defendant's reliance on Sco...

Excerpt: ...year sold in California. The motion is GRANTED as to all requests in the second category. The Court will issue a Protective Order and the production of documents shall be subject to the Protective Order. The Court Orders that the parties meet and confer regarding the Protective Order before or at the hearing of the motion. Finally, other Trial Court rulings in discovery in similar cases are neither binding nor relevant to the motion. The Court de...

Excerpt: ...oncealment are: (1) the Defendant concealed a material fact; (2) the Defendant had a duty to disclose the fact to the plaintiff; (3) the Defendant intentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware of the fact and would not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008...

Excerpt: ...ror to refuse permission to amend; and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has discretion to deny leave to amend. See Hirsa v. S...

Excerpt: ... further response if it deems the responding party's objections are without merit or too general. “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) The Discovery Act requires a meet and confer declaration under CCP § 2016.040 be submitted Page 3 o...

Excerpt: ...intiffs' claim of a design defect. The parties' experts take opposing positions. (See Raff decl., ¶ 23; Gill decl., ¶26 [“The Subject Machine should have been fitted with audio and visual cues that would announce to users of the machine that the robot arm was starting to move.”]; cf. Schroder decl., ¶ 14 [“Awareness devices such as signs, whistles…or horns are not acceptable safeguarding methods, but can be used in conjunction with pos...

Excerpt: ...es, and the likelihood the applicant will prevail on the merits at trial. (White v. Davis (2003) 30 Cal.4th 528, 554; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286; Robbins v. Superior Court (1985) 38 Cal.3d 199, 205 ‐ 206). However, before the Court can exercise its discretion, the applicant must make a prima facie showing of entitlement to injunctive relief and must demonstrate a real threat of immediate and irreparable injury due t...

Excerpt: ...which can be used by either the pltf or the Defendant (or in a proper case, both) (Smith vs. John (1957) 154 Cal. App. 2d 508, 511‐512). As set forth in CACI number 452, the doctrine applies when: (a) there is a sudden and unexpected emergency situation in which someone was in actual or Page 2 of 2 apparent danger of immediate injury; (b) that the party claiming the doctrine did not cause the emergency; and, (c) that the party acted as a reason...

Excerpt: ... is a sufficient basis to sustain a Demurrer on the basis of uncertainty. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Here, the Complaint does not identify what causes of action are being asserted against each defendant. There are no factual allegations regarding defendant Dr. Carr, but rather allegations against defendants collectively. It is unclear if one, two, or three causes of action are being asserted agai...

Excerpt: ...ause judicial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the Court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” (...

Excerpt: ...ase Closure, and obtained a Right‐to‐Sue letter for her FEHA claims. Defendant DeBolt cites no authority requiring that such dates must be alleged. A prerequisite to bringing a civil action under FEHA is the filing of an administrative complaint with the DFEH no later than one year after the alleged unlawful practice occurred, and obtaining a “right‐to‐sue” notice from the DFEH. (Gov. C. § 12960, § 12965(b)). Under FEHA, exhaustion ...

Excerpt: ...t GRANTS the Requests for Judicial Notice of the Judgments entered in Chen vs. Allen, case number RID 1604419. It DENIES the Requests for Judicial Notice of all other Exhibits. Agent Immunity Rule (i.e., individual defendants cannot be held personally liable for acts committed in the course and scope of their employment): The cases Defendants rely upon all concern situations involving alleged conspiracies (e.g., Applied Equipment Corp. vs. Litton...

Excerpt: .... (Barilich Decl. ¶5.) The eventual transaction that is subject to the Complaint is the transfer to Defendants Novorr and Pezzuto, which was done by the Asbra's Trust. (Barilich Decl. Ex. C.) There is a difference between liability as an individual versus a trustee. “A trustee thus cannot be held personally liable under [Probate Code] section 18001 for any obligation arising from his Page 4 of 4 ownership or control of trust property, nor can ...

Excerpt: ...on for summary judgment on the Complaint. Denies summary adjudication of the following seven Affirmative Defenses: Eighth Affirmative Defense; Twelfth Affirmative Defense; First Affirmative Defense to the First Cause of Action; Second Affirmative Defense to the First Cause of Action; First Affirmative Defense as to the Fourth Cause of Action; Second Affirmative Defense as to the Fourth Cause of Action; and First Affirmative Defense as to the Fift...

Excerpt: ... Court grants summary adjudication to Schaffer as to the first cause of action for conversion, the second cause of action for trespass to chattel, and the demand for punitive damages. The Court denies summary adjudication as to the eighth cause of action for dissolution. Conversion (First Cause of Action) Schaffer meets her initial burden to demonstrate that she was entitled to withdraw accounts from the Partnership's business account from which ...

Excerpt: ...establishes that Defendant's Page 2 of 3 documents pertain to trade secrets or confidential materials; and, review argument as to whether the breath of the protective order is proper, based on the grounds set forth in the motion. Plaintiff may file and serve a Supplemental Opposition Brief, Declarations, etc., in Opposition to Motion for Protective Order on or before October 3, 2019. The Court is empowered to issue whatever order “justice requi...

Excerpt: ...rnia Nonprofit Corporation. It is governed by the California Corporations Code, Part 4, Nonprofit Religious Corporations. The Corporations Code includes a specific provision governing the Superior Court's determination as to the validity of any election or appointment of any director of such corporation: § 9418. Determination by court of election or appointment of director; Hearing; Notice; Findings (a) Upon the filing of an action therefor by a...

Excerpt: ...ditions Senior Management, Inc., (“West Coast”) are SUSTAINED, IN THEIR ENTIRETY WITH 20 DAYS LEAVE TO AMEND. Alter Ego Doctrine (West Coast): A plaintiff must plead facts from which it appears that there is a unity of interest and justice cannot be accomplished if the court does not disregard the corporate entity. (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 414.) Factors to consider in applying the doctrine of alter ego include: comminglin...

Excerpt: ...st Amended Complaint, Notice of Related Cases, and Notice of Ruling on Motion to Dismiss or Stay Proceedings. The Court grants the request and takes judicial notice of the existence of each document in the District Court's file. The Court can only take judicial notice of the truth of facts asserted in Orders, findings of fact and conclusions of law, and Judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879. Evid. Code §452(d).) “...

Excerpt: ...m from driving (Complaint ¶22‐26), blocking him from entering his home (¶30), and all three defendants pushing and shoving him to the ground (¶32). This also supports battery. Even if there was no actual contact by this Defendant, he would still be liable as Plaintiff alleged conspiracy and aiding and abetting. (¶12.) Conspiracy is a form of vicarious liability. (Patrick v. Alacer (2008) 167 Cal.App.4th 995, 1016 n.11.) A conspiracy only re...

Excerpt: ...ment Code § 911.2. They argue that all of the causes of action are insufficiently alleged. They argue that County and Waters are immune from prosecution. Plaintiff contends that Waters and County should be estopped from asserting noncompliance with Government Code § 911.2. No evidence is provided to support Plaintiff's opposition. County and Waters reassert the arguments set forth in their moving papers, and argue that plaintiff's separate stat...

Excerpt: ...based on an entirely new set of facts and Defendant cannot show prejudicial delay. Nevertheless, with the exception of the common law claims (notably the causes of action for intentional infliction of emotional distress and negligent supervision), the proposed amendment fails to set forth viable claims or claims that can be cured by further amendment. Overall, with the exception of these common law claims, the proposed amendments do not contain v...

Excerpt: ...der statute, tort, or contract. Plaintiff lumps together all of the defendants and fails to articulate facts which may place liability on Defendant MTC. This ruling is based on the sufficiency of Plaintiff's allegations and not on Defendant MTC's privilege argument. First cause of action for violation of Cal. Civ. Code §2923.5 and Second Cause of Action for Violation of Cal. Civ. Code §2923.7: The requirements of Civil Code sections 2923.5 and ...

Excerpt: ...Department 7 on 6/5/19, and a new hearing date was set for 7/10/19 due to the newly assigned Court's unavailability. (Minute Order of 6/28/19.) Based on the Minute Order of 5/28/19, and the fact that the Court allowed a new opposition to be filed, notice of the motion and the hearing date for this motion was proper/waived. Forum Shopping Defendants refer to loan documents “Section C on Page 3 of 5” under “Arbitrators Qualifications and Powe...

Excerpt: ...dian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Defendants' argument about the issue being moot because Page 3 of 6 it paid is irrelevant. Defendants are going beyond the pleadings or judicial notice and are relying on the declaration of their counsel, Christopher Washington, to prove the matter. The issue may be resolved on summary judgment/adjudication, demurrer. B. Defendants Renew and Extended Care The complaint alleges Defendants ...

Excerpt: ...d to the broad language used in Larsen v. Johannes (1970) 7 Cal.App.3d 491, there is a triable issue of fact as to whether it is “the complete expression of the agreement of the parties” or whether extrinsic evidence may be considered. Because of the competing declarations, the Court finds a triable issue of fact as to whether the scope of the release should be read to include the claims here. Disregarding the statements of purely subjective ...

Excerpt: ...is GRANTED. Defendant Long Ngoc Phan DMD, Inc., shall serve verified Further Responses to the discovery within 20 days. Sanctions in the amount of $4,426.00 are imposed on Defendant Long Ngoc Phan DMD, Inc. They shall be paid to Plaintiff Galvan within 30 days. The Court will file the proposed Order submitted by moving party. Defendant Long Ngoc Phan DMD, Inc., fails to cite to any portion of HIPAA to support that the subject information is prote...

Excerpt: ...eparate issue or of any number of causes of action Page 2 of 2 or issues, preserving the right of trial by jury required by the Constitution or statute of this state or of the United States. (Cal. Code Civ. Pro. §1048(b).) A cause of action for writ of mandate may be separated from causes of action for damages. (See Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725, 735.) California laws allows for a separate tort action when a petitione...