Excerpt: ...0, the Court is to consider several factors: (1) whether the moving party selected the forum; (2) whether the deponent will be present to testify at trial; (3) convenience of the deponent; (4) feasibility of conducting the deposition by written question or by use of some other method; (5) number of depositions in the action taking place at a distance further than permitted under C.C.P. §2025.250; (6) the expense of the parties requiring the depo...

Excerpt: ...n of the Consumers Legal Remedies Act (CLRA). Defendant Ford and defendant Fritts (collectively “Defendants”) move for judgment on the pleadings as to each cause of action. As discussed below, the Motion for Judgment on the Pleadings is denied as to the first, second, third, fourth and fifth causes of action and granted with 20 days leave to amend as to the sixth cause of action. “A motion for judgment on the pleadings performs the same fun...

Excerpt: ...ust prove that she is a bona fide investor of the LLC (as opposed to a mere conduit for other investors), and the documents regarding the source of Shi's contributions must be produced. This argument is unpersuasive and lacks merit. This lawsuit was brought by Plaintiffs to recover their investment in the LLC that they allege Lee misappropriated for himself and ousted Plaintiffs from their interests in the LLC. Plaintiffs allege a failed joint ve...

Excerpt: ...s, Inc., (collectively “Plaintiffs”) raised a triable issue of material fact as to Issue I, UMF No. 25, and Issue II, UMF No. 25. Burden: A defendant meets its burden in a motion for summary judgment or summary adjudication by doing one of the following: (1) presenting affirmative evidence negating an essential element of plaintiff's cause of action; (2) showing a complete defense; or, (3) showing that plaintiff does not possess and cannot re...

Excerpt: ...ot provided evidence that there is an excessive amount of work required to provide responses to the 103 interrogatories. It argues that 103 interrogatories are excessive in the context of this “simple collection action.” LuLaRoe disagrees with the characterization of the Page 2 of 2 action as simple, given the work allegedly performed by Mad Engine before the parties' dispute and given its damages claim. On its face, 103 interrogatories is no...

Excerpt: ...urly rates are reduced from $950.00 and $650.00 to $550.00 (an overall reduction of in fees for his 11.5 hours from $10,175.00 to $6,325.00). Plaintiff Mr. Kelly is awarded THE ALTMAN LAW GROUP'S attorney's fees of $10,175.00. HOURLY RATES: The Court finds the requested hourly rates to be reasonable, except as to those which exceed $550.00 (i.e., the $1,280.00 rate for attorney Kiesel at KNIGHT and the $950.00 and $650.00 rates charged by Bryan A...

Excerpt: ...Plaintiffs cannot establish actionable misrepresentations were made upon which Plaintiffs relied to their detriment. The burden shifted to Plaintiffs, but Plaintiffs failed to produce sufficient evidence showing a triable issue of fact. Evidentiary Objections: Defendant's evidentiary objections are SUSTAINED in their entirety for lack of foundation, lack of personal knowledge, and relevance. Plaintiffs Teodora Q. Tuazon's and Joshua Ryan Tuazon B...

Excerpt: ... evidence of the reasonable necessity of the costs claimed. Plaintiff put certain costs at issue by her motion. Defendant properly submitted supporting documentation with the Opposition, including the invoices for the expert fees, deposition costs, subpoenas and court reporter fees. (Aarvig Dec., Exs. 6‐11.) Thus, the burden is on Plaintiff to show the costs were not reasonable or necessary. Expert Fees (Item 8): Defendant served a 998 offer to...

Excerpt: ...1.) The Retail Installment Sales Contract (“RISC”) does not “clearly and unmistakably” provide that Plaintiffs and BMW agreed to arbitrate arbitrability. While Plaintiffs may have agreed to arbitrate arbitrability in a dispute with the Dealership, the terms of the arbitration clause is expressly limited to Plaintiffs and the Dealership, i.e., “either you or we may choose to have any dispute between you and us decided by arbitration.” ...

Excerpt: ...ed. UNCERTAINTY: A Demurrer for uncertainty will be sustained only where the Complaint is so uncertain that a defendant cannot reasonably respond (i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her) (Khoury vs. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616). The allegations and causes of action in the Complaint are sufficient to put defendants ...

Excerpt: ...f action for concealment; and, sustained without leave to amend as to the first and fourth causes of action (for declaratory relief and remedy for equitable forfeiture of fees). The Motion to Strike is moot in part and granted in party with 20 days leave to amend. Request for Judicial Notice: Cross‐Defendant and Cross‐Complainant request judicial notice of a variety of legal documents and a transcript of a hearing. The requests for Judicial N...

Excerpt: ...laiming attorney‐client privilege to disclose contents of allegedly privileged communications to determine existence of privilege]; Solin v. O'Melveny & Myers, LLP (2001) 89 Cal.App.4th 451, 465. Regents of Univ. of Cal. v. WCAB (2014) 226 Cal.App.4th 1530, 1535.) “[T]he court's factual determination does not involve the nature of the communications or the effect of disclosure but rather the existence of the relationship at the time the commu...

Excerpt: ...males residing at the address at the time of service on 9/17/07. The description on the Proof of Service indicates the person served was “MRS. KHAN –, WHO REFUSED TO GIVE HER FIRST NAME, DOP SERVE on A Middle Eastern female approx. 40‐ 45 years of age 5'4”‐5'6” in height weighing 140‐160 lbs with brown hair.” (Proof of Service filed on 9/27/07.) Plaintiff Mr. Khan attests that his wife is of Asian and Pakistani descent, was 38 yea...

Excerpt: ...e or Reichart at their depositions. It objected to facts asserted in CISS' Separate Statement of Undisputed Material Facts (which is essentially a summary of their testimony). This is improper. Rule of Court 3.1354 requires objections be made to “specific evidence” and to “[q]uote or set forth the objectionable statement or material.” As to the remaining objections, the Court overrules number 8. It sustains numbers 9 and 10 for lack of pe...

Excerpt: ...r Daugherty nor Bardin preclude a duty to disclose material information known to a manufacturer and concealed from a consumer.” A material defect can be sufficient. (Id. at 1175‐1176.) Contrary to Daughtery, Plaintiffs specifically pled that the defect causes a sudden hard shaking during deceleration, violent jerking, and a complete failure to function. (Complaint ¶18.) The Complaint also alleges that the defect increases the risk of a crash...

Excerpt: ...n et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) §10:32 et seq., the Court has the power to grant summary adjudication as follows: that one or more causes of action has no merit; that one or more claims for damages has no merit; that there is no merit to a claim for punitive damages; that there is no affirmative defense to one or more causes of action or claims for damages; that there is no merit to one or more affirmat...

Excerpt: ...989) 48 Cal.3d 438, 447‐452; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133, 144.) Sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer even if the abuse occurred during work hours on the employer's premises. (Juarez v. Boy Scouts of America (2000) 81 Cal. App. 4th 377.) Sexual misconduct simply is not foreseeable, because it does not relate to employment duties or tas...

Excerpt: ...uld constitute a change in physical condition sufficient to defeat the design immunity. The Court granted the continuance and set a new hearing date of August 30, 2019. On August 14, 2019, Plaintiff filed a Supplemental Opposition. In the Supplemental Opposition, Plaintiff argued that another continuance was necessary to allow plaintiff to take the deposition of the other driver involved in the incident (Aguilar). The Court again continued the he...

Excerpt: ...he work performed by Plaintiffs' trial counsel, Hackler Daghighian Martino & Novak, PC (HDMN), took 21.5 hours to do. (Dec.Lebovitz, ¶13, Ex. “A”.) The tasks listed on the submitted billing are reasonable. They are also unchallenged on an individual basis. Defendant submitted a summary of the objectionable billing. (Dec.Gilefsky ¶2, Exs. “A” – “C”.) Defendant purports to demonstrate block billing. (Dec.Gilefsky ¶2, Ex. “A”.) ...

Excerpt: ...ed 3.5 hours, this is an overall reduction of $350. Under the Song Beverly Act, a vehicle manufacturer that willfully fails to comply with the act can be liable for civil penalties under Civil Code § 1794(c). Plaintiffs' fraud‐based claims overlap with the Song Beverly claims. Likewise, the negligent repair cause of action against Hemborg is based on the same facts as the Song‐Beverly claims. Therefore, apportionment is not necessary. The fa...

Excerpt: ...mber 4 and Document Request No. 1 to 5 years before the incident. Trade secret “means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circ...

Excerpt: ...red its right to transact business in California. (Exhibit “1” to Opposition, Certificate of Surrender.) Ms. Bozner's argument that MJB Inc., lacks capacity to defend itself in this action is without merit. A suspended corporation lacks capacity to defend itself [see Rev. & Tax Code § 23301; Center for Self‐Improvement and Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552]. No similar rule is applicable to a corporati...

Excerpt: ...88 Cal.App.3d 283, 299; Pianka v. State of California (1956) 46 Cal.2d 208, 211.) Defendants are not just attacking the sufficiency of the pleadings. The Motion relies on facts far outside of those pled in the Complaint. The Motion contains numerous statements about: what Plaintiff testified to at trial (Motion, 2:7‐8); the jury's factual findings (Motion, 2:13‐18); how the Court “is bound by the jury's factual findings” (Motion, 5:25); w...

Excerpt: ...sed on Govt. Code §87100 and Educ. Code §35107. Plaintiff clarified in the First Amended Petition that this cause of action is based on Gov. Code § 54957. Because Plaintiff's Brown Act Violation cause of action is based on Gov. Code § 54957(b), Section 54960.1 does not apply. He was not required to make a demand in writing within 90 days from the date that the disciplinary action was taken to challenge the disciplinary action was void. This c...

Excerpt: ...e United States or California Constitution in connection with a public issue” includes … any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Defendant contends the act in furtherance of her right of petition is “specifically, Plaintiff and Defendant entered into a note secured by a deed of...

Excerpt: ... Defendant requests judicial notice of the Court's file in the present action, the First Amended Complaint in the Los Angeles Action, and an Order Approving Compromise and Release in Plaintiff's worker's compensation action against Defendant. These documents are judicially noticed by the Court pursuant to Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticea...

Excerpt: ... motion for judgment on the pleadings, motion for summary judgment or raised as an affirmative defense. (Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036‐37.) The Court construes the present motion as a motion for judgment on the pleadings. Under the “Barton doctrine,” which is derived from the Supreme Court's decision in Barton v. Barbour, 104 U.S. 126 (1881), “a party must first obtain leave of the bankruptcy court befo...

Excerpt: ...�1094.5. Petitioner challenges the constitutionality of Riverside County Ordinance No. 630 and the County's administrative hearing process on the grounds that they fail to satisfy due process requirements. (Phillips vs. San Luis Obispo County Dep't. of Animal Regulations (1986) 183 Cal. App. 3d 372). Petitioner also alleges that because of various actions and omissions specific to this case, it was denied its due process rights. (For instance, Pe...

Excerpt: ...te whether VPE owned or controlled the Property, the evidence submitted does not demonstrate the existence of a triable issue of material fact. It is undisputed that: Levinson owned and kept the subject dog in a home he rented from Braswell; and, Braswell was the sole owner of the home and the Property on which it was located. There is no dispute that VPE leased a small portion of the Property (the dome area), which was not where the incident occ...

Excerpt: ...er of an injured worker for any injury that it within the scope of workers' compensation coverage (Lab. C. §3602(a)). If a complaint affirmatively alleges facts indicating coverage by the workers' compensation laws and fails to allege additional facts negating application of the exclusive remedy principle, no civil action will lie and the complaint is subject to demurrer (Colombo vs. State of California (1991) 3 Cal. App. 4th 594, 599). An emplo...

Excerpt: ...exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (C.C.P. § 2034.210(a).) C.C.P. § 2034.210 anticipates a simultaneous exchange by all the parties. Plaintiff Ms. Bozner cites to no authority that she can be excluded from such an exchange. Because the form...

Excerpt: ...arty. Defendant Long Ngoc Phan DMD, Inc., fails to cite to any portion of HIPAA to support that the subject information is protected by HIPAA. HIPAA protects the handling of personal medical information and provides privacy standards for said information. Brown v. Mortensen (2011) 51 Cal.4th 1052, 1066. Under 45 CFR § 160.103, “health information” is defined as any information that is created by a healthcare provider and relates to “the pa...

Excerpt: ...ce, and either partner may claim the privilege. (People v. Dorsey (1975) 46 Cal.App.3d 706, 717.) A communication is presumed to have been made in confidence in the course of a marital partnership, and the opponent of the privilege has the burden to establish that it was not confidential. (Evid. Code § 917.) The County fails to demonstrate that the communications were not privileged. Further, the questions invade the privacy associated with the ...

Excerpt: ...tion of an alleged debt by filing the lawsuit. (Cross‐Complaint, ¶58‐61.) As such, liability is based on the filing of the Complaint. This protected activity is not merely incidental or collateral to the abuse of process and Rosenthal Act violation claims. Cross‐Defendants do not concede their actions were illegal. Jon Lieberg indicates that in 2009, he entered into an oral agreement to represent Cross‐Complainant, Gary and other entitie...

Excerpt: ...se of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike, at least 5 days before the responsive pleading is due. (CCP § 430.41(a), § 435.5(a).). The moving party is then required to file a declaration stating either 1) the means by which the parties met and conferred and that the parties did not reach an agreement or 2) that the party who filed the pleading subject ...

Excerpt: ...e all currently scheduled hearing dates and discovery deadlines. It argues that the Burnell case involves the same PAGA claims as this case and that the Settlement subsumes all claims on behalf of the State of California and all Aggrieved Employees. Defendant contends this case will be barred once the settlement is approved and judgment is entered by the District Court. Plaintiff argues that Defendant has not established that the PAGA claims asse...

Excerpt: ...363(i) provides in pertinent part: Notwithstanding Section 3517.8 or any provision of an expired memorandum of understanding, this section shall apply to a state peace officer/firefighter member who is employed by the state for the first time and becomes a state peace officer/firefighter member of the system on or after January 15, 2011, and is represented by State Bargaining Unit 6 or 7. Section 21363.8 provides a 3% at 50 years of age, and appl...

Excerpt: .... (1992) 2 Cal.4th 1035, 1040; Parker v. Walker (1992) 5 Cal.App.4th 1173, 1190; Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 831.). The Second Amended Complaint provides a sufficient explanation of any alleged inconsistencies with the prior pleadings. Thus, it is not subject to the sham pleading doctrine. Although there is no appreciable difference between the fifth and sixth causes of action for fraud and false promise, the Second Amended...

Excerpt: ...ormation and Certification of Dissolution for CSJ and Ohio Secretary of State Agent/Registrant Information and Certificate and Application for License for CSJ. These documents may be judicially noticed pursuant to Evid. Code §452(c) as public records filed with the Secretary of State. (Cody F. v. Fattetti (2001) 92 Cal. App. 4th 1232, 1236, FN 2.) The requests for judicial notice of these documents is granted. Plaintiffs also request judicial no...

Excerpt: ...of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Defendants' “moot” argument is irrelevant because Defendants are going beyond the pleadings or judicial notice. On the merits, there is currently a split of authority on the issue. In two cases, courts have held that the damages cap is $500 per action, and not violation. (Nevarrez v. San Marino Skilled Nursing and Wellness Centre (...

Excerpt: ...e parties submitted a Joint Stipulation/Order to Continue the hearing again, and it was continued to 5/30/19. That Stipulation indicated that both parties planned on conducting extensive additional discovery. According to the 4/16/19 Joint Status Report, the parties believe that resolution of the issues presented in this motion will facilitate a settlement. The Court declines to consider any of papers filed after 3/6/19. The 3/6/19 Reply papers (...

Excerpt: ... LLC (2007) 152 Cal.App.4th 1106, 1117‐1118.) The Court notes that Plaintiffs improperly attached exhibits to their Opposition. The exhibits appear to be the same documents as those attached to the Second Amended Complaint. First Cause of Action for Intentional Misrepresentation: The cause of action was sustained in the Demurrer to the First Amended Complaint. Plaintiffs have made no substantive changes. Second Cause of Action for Negligence: T...

Excerpt: ...GRANTED. (Evid. Code § 452(c).) Evidentiary Objections: Defendant's evidentiary objections are OVERRULED as to numbers 1 and SUSTAINED as to numbers 2 ‐ 5. RULING PAGA Claim: Defendant argues, and Plaintiff does not dispute, that the Federal Arbitration Act (FAA) (9 U.S.C. §§1 et seq.) applies to this case. Zakaryan v. The Men's Wearhouse (2019) 33 Cal.App.5th 659 (“Zakaryan”), Williams v. Superior Court (2015) 237 Cal.App.4th 642 (“Wi...

Excerpt: ...ue and are not pled with particularity. It is not clear how Cambridge or its staff caused the bedsores, which may have resulted from ordinary negligence rather than recklessness, malice or oppression. Furthermore, improper monitoring may constitute professional negligence rather than elder abuse. (Carter v. Prime Healthcare Paradise Valley LLC,supra, 198 Cal. App. 4th at 411.) As currently pled, Plaintiffs have not stated facts with sufficient sp...

Excerpt: ...rga failed to meet his initial burden. (The Court notes the spelling of Michal Murga's first name.) On the Third Amended Cross‐Complaint, Michal Murga failed to address the 2nd ‐ 5th causes of action, and therefore, summary judgment is improper. The Court treats this solely as a Motion for Summary Adjudication on the 1st cause of action for partition, which the Court denies as premature in light of the pending quiet title claim. The Court not...

Excerpt: ... the burden and allows Plaintiff to determine whether the forms were provided to each employee and whether the employees signed the forms acknowledging the policy. Therefore, Defendant is Ordered to produce, within 30 days, responsive documents for a random sample of 15% of the employees described in the RFP. RFP No. 2: Please provide each and every earning statement (paystub), copy of check and pay detail for each pay period along with the compl...

Excerpt: ...join Defendants “from transferring, conveying, selling, distributing, paying, liquidating or otherwise disposing of any income or assets in their possession and, in addition, are prohibited from starting, forming, or otherwise creating an entity or other business to carry on or conduct the business of CSJ Services, Inc.” Defendants contend that there is no irreparable harm since Plaintiffs already have a judgment. They also argue that this Co...

Excerpt: ....4th 764, 774.) The North American Court stated: “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. (Citations omitted.) In such a hybrid circumstance, the plaintiff is entitled to pursue both legal theories until an occasion for an election of remedies arises.” (Ibid.) This i...

Excerpt: ... Cal.App.3d 749, 754.) Petitioner does not dispute she was ineligible for benefits she received from January 20, 2014, through July 29, 2014. Even after reducing her part‐time income by 25 percent, as required by Unemployment Insurance Code section 1252, Petitioner's income of at least $455.17 weekly exceeded her benefits of $256 each week. Under section 1252, Petitioner was not eligible for the unemployment benefits she received. Respondent al...

Excerpt: ....4th 764, 774.) The North American Court stated: “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. (Citations omitted.) In such a hybrid circumstance, the plaintiff is entitled to pursue both legal theories until an occasion for an election of remedies arises.” (Ibid.) This i...

Excerpt: ...ng repurchases for the same vehicle type and defect (no. 30); documents regarding complaints of the same vehicle regarding the same defect (no. 31); and surveys, summaries, reports and documents regarding owners of the same vehicle regarding the same defects. Plaintiff has shown good cause as they relate to the buyback policies, which are relevant for a Song‐Beverly claim. Civil Code § 1794(c), authorizes a civil penalty in lemon law cases “...

Excerpt: ...ist for revocation of the agreement; or, litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. CCP §1281.2. “[W]hen a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement, the defendant may enforce the agreement even though the defendant is not a party thereto.” Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614. The complaint asserts that the defen...

Excerpt: ...iability, such as and knowledge of defects and unauthorized sales. Other requests involve subsidiary liability and entities that are not named in the First Amended Complaint, such as LG Chem Michigan. The ownership of a subsidiary does not subject a nonresident parent company to personal jurisdiction based on the subsidiary's forum contacts unless the parent company deliberately directs the subsidiary's activities in the forum state. (HealthM...

Excerpt: ...isayans”). On 5/5/2018, counsel for all defendants withdrew as counsel, explaining that his clients were not cooperating or meeting with him. On 9/5/2018, the Court granted Plaintiffs' unopposed motion to strike the answers of the Entity Defendants which were no longer represented by counsel. The Sisayans are acting in pro per and have been without counsel since 5/5/2018. Plaintiffs move for terminating sanctions for the Sisayans' failure to co...

Excerpt: ...isayans”). On 5/5/2018, counsel for all defendants withdrew as counsel, explaining that his clients were not cooperating or meeting with him. On 9/5/2018, the Court granted Plaintiffs' unopposed motion to strike the answers of the Entity Defendants which were no longer represented by counsel. The Sisayans are acting in pro per and have been without counsel since 5/5/2018. Plaintiffs move for terminating sanctions for the Sisayans' failure to co...

Excerpt: ...intiff's allegations that she requested reasonable accommodation and/or that FMK failed to engage in the interactive process do not demonstrate opposition to or protest of unlawful conduct by FMK sufficient to support a claim for whistleblower retaliation. Plaintiff's complaints about her alleged mistreatment by Vela are not whistleblowing, but appear to be more akin to a disclosure made in the context of an internal personnel matter. (Levi v. Re...

Excerpt: ...nication was made for a purpose other than the realization of a litigation objective, the litigation privilege does not apply. A corporation can lose the right to its name during a period of suspension, necessitating a name change before reviver. (Boyer v. Jones (2001) 88 Cal. App. 4th 220, 225.) A suspended corporation is disqualified from exercising any right, power or privilege including the right to hold a corporate name and prevent others fr...

Excerpt: ... for the subject pipeline. In its original 8/03/18 Application and 8/10/18 Amended Papers, EMWD presented evidence (the Declarations of Joe Mouawad) of how it had the potential to be harmed should EXETER be allowed to continue covering the easement with fill dirt as it constructed its project (additional efforts, monies, and expenses would be required to access and maintain the pipeline if it remained at the 16‐18 foot depth under EXETER's addi...

Excerpt: ...ack. Plaintiffs allege (FAC §23) that FORD knew about and concealed the Engine Defect in Plaintiffs' vehicle, and instead of repairing the defects, performed superficial and ineffectual repairs that simply masked the symptoms; that FORD actively concealed the existence and nature of the defect from Plaintiffs at the time of purchase, repair, and thereafter (§40); that FORD had dealers implement a “BandAid” strategy that allowed limited repa...

Excerpt: ...of the pleading. (See Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) Court grants the motion as to the fourth cause of action, without leave to amend. (People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Board (2005) 125 Cal.App.4th 871, 878–879 (PETA).) For the first and second causes of action, judicial abstention is appropriate when the plaintiff requests relief that requires the trial c...

Excerpt: ...at three attorneys prepared the anti‐SLAPP motion, Mr. Tarwater at $240 per hour, Mr. Clifford at $400 per hour, and Mr. Cooper at $290 per hour. Those hourly rates are reasonable. However, the Court reduces the time allotted to each attorney as follows: Mr. Tarwater to 10 hours; Mr. Clifford to 3 hours; and, Mr. Cooper to 4 hours. Only costs specifically and reasonably related to the anti‐ SLAPP motion are recoverable. Costs for courier serv...

Excerpt: ...hich is credible given that Sunrise was suspended in 2014). (Sunday Dec., ¶ 8; Wilson Dec., ¶¶ 5, 8.) In support of alter ego liability, Plaintiff submits his own declaration stating that Sunday and Wilson disregarded Sunrise's corporate form to commit fraud, commingled funds with Sunrise, failed to maintain minutes or corporate records for Sunrise, and that Sunrise was undercapitalized from its inception. These statements lack foundation, are...

Excerpt: ...dence.” (Dec.Erving ¶11.) Petitioner's objection to this statement on grounds of lack of foundation, and lack of personal knowledge is sustained. Petitioner's IPA requests sought broad categories of documents and the purpose of the Petition was to obtain documents responsive to Petitioner's IPA requests. The Regents located documents presumably related to Petitioner (otherwise there would not have been a reason to identify them on the privileg...

Excerpt: ...and the Court grants the request as to those items. As to judicial notice of the contract, the Court denies the request. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 (quoting Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063‐1064. Post v. Prati (1979) 90 Cal.App.3d 626, 633.) Plaintiff's requests judicial notice: Plaintiff requests judicial notice of his claim and the denial of it. City does not object and...

Excerpt: ...le by him.” (Loughrin v. Superior Court (1993) 15 Cal.App.4th 1188, 1195.) It does not protect against intentional misrepresentation, fraudulent concealment or negligent concealment not related to the failure to inspect. (Id.) Additionally, the use of an “as is” provision does not protect from the statutory disclosure requirements. (Id.) While some of the alleged conditions may be observable by an inspection, it is not clear on demurrer whe...

Excerpt: ...from recovering money damages. The plaintiff argues that section 844.6 limits claims for physical injuries only. However, courts have applied that section to cases that involved claims other than physical injuries. (See Towery v. State of California (2017) 14 Cal.App.5th 226, 237; Wright v. State of California (2004) 122 Cal.App.4th 659, 672.) Motion for summary adjudication denied as to claim for injunctive relief. Although the defendant may hav...

Excerpt: ...th 528, 535.) Mr. Chu states that he inspected the property prior to leasing it to Lost and Found (Decl. of S. Chu, ¶7). He does not state that the raised lip was not present during the inspection. Mr. Chu concludes that there were no dangerous conditions on the premises at the time of inspection (Ibid). However, if reasonable minds could differ on whether a condition is dangerous, it is a question of fact for the jury. (Fielder v. City of Glend...

Excerpt: ...su and Defendants. The FAC does not set forth the existence of a contract on behalf of JBN. (FAC, ¶¶ 20‐21, 25‐26.) To the extent that Hasu seeks to recover individually under the second cause of action for services performed, he has not alleged that he was a licensed contractor, and to the extent that he asserts that he simply footed the cost of the remodel, the allegations are unclear. Further, the FAC does not adequately explain the disc...

Excerpt: ...h there is no pending foreclosure, given that Plaintiff is in default and there is no stay or loan modification, there is a reasonable potential that Defendant will restart the foreclosure process. Plaintiff's allegations that he was not provided a single point of contact are sufficient for pleading purposes. Whether the allegations are true cannot be decided on demurrer. (FAC, ¶¶49‐62.) Second cause of action for violation of CC section 2923...

Excerpt: ...ecause defendants did not act outside the role of a conventional lender and there are no facts alleged to the contrary. The demurrer is sustained with 20 days leave to amend as to the first, second, fourth, and sixth causes of action. As to the first cause of action, plaintiff improperly combines two claims, one under Civil Code section 2924(a)(6) and the other under Civil Code section 2924.11, both of which fail to allege facts sufficient to con...

Excerpt: ... (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Thus, Defendants' mootness argument (penalty paid) is irrelevant. Defendants are going beyond the pleadings or judicial notice. There is currently a split of authority. In two cases, courts have held that the damages cap is $500 per action, and not violation. (Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 135; Lemaire v. Covenant Care Calif...

Excerpt: ... a requirement under the present facts which would require the lender or servicer to consider plaintiffs' intent to pay off the first loan on the property. (See Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096; See also Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68 [refusing to impose a common law duty to offer or approve a loan modification, after reviewing the Biakanja factors (Biakanja v. Irving...

Excerpt: ...pitalist) The Court considered Defendant's contention that Dr. Klein is necessary, as the negligence of the hospital staff remains an issue. Plaintiffs did not make any argument as to why Dr. Klein's testimony is duplicative or unwarranted and the motion is denied as to this expert. Dr. David Karlin (Radiologist) and Dr. Lynn Connolly (Gastroenterology) The Court considered Defendant's contentions that these experts are necessary to address and d...

Excerpt: ...economic loss when its money is unlawfully diverted for defendant's personal benefit, even if the misappropriation resulted in public benefits such as public building improvements. (Ibid.) Page 3 of 5 1 st and 2nd causes of action (fraud and fraudulent concealment) Plaintiff alleges that “Kapanicas communicated to Plaintiff several false reasons . . . for the City's failure to remit TUMF funds to Plaintiff at meetings with staff for Plaintiff t...

Excerpt: ...n an application for an order has been made to a judge or to a court, and refused in whole or in part, granted, or granted conditionally, or on any terms, any party affected by the order, within 10 days of service upon the party of written notice of entry of the order and based upon new or different facts, circumstances or law, make application to the same judge or court to reconsider the matter and modify, amend, or revoke the order. A party who...

Excerpt: ...epted as true for the purpose of the Demurrer. Based on the allegations, Plaintiffs have stated sufficient facts to constitute a cause of action for concealment. As a result of the allegations, the cause of action falls within an exception to the economic loss rule. (Robinson v. Helicopter Co. Dana Corp. (2004) 34 Cal. 4th 979, 989 ‐ 990.) Page 2 of 2 Fifth cause of action for fraudulent inducement ‐ intentional misrepresentation: It is not c...

Excerpt: ...aused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injur...

Excerpt: ...laim for damages are limited to the insurance coverage available, pursuant to Probate Code section 550, et. seq. and Plaintiff's failure to comply with Probate Code section 554 bars him from seeking recovery for any of his claims for damages in excess of insurance coverage available. The Court notes that Defendants admit that Plaintiff filed a creditor's claim in the probate action on 6/23/17. Therefore, Plaintiff complied with Probate Code § 55...

Excerpt: ...ed in the Notice of Motion. The five page Separate Statement does not satisfy requirement that each cause of action be separately identified and supported by material facts that are relevant to that cause of action. The purpose of the Separate Statement and opposing Separate Statement is to permit the Court to determine quickly whether the Motion is supported by sufficient undisputed facts. (St. Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co. (20...

Excerpt: ...d Amended Complaint still currently alleges negligence. The Third Amended Complaint also alleges that Plaintiffs “regularly visited decedent during the time she was a resident at defendants' facilities, and thus were present during the injury‐producing events at or near the time they occurred and were then aware of these injury‐producing events and their effects ….” (Third Amended Complaint, ¶32.) However, no specific Plaintiff alleges...

Excerpt: ...ent places, during different times with different witnesses. Paragraph 42 does not tie these claims together because it does not allege any specific policy or procedure which was not properly implemented as to each Plaintiff nor does it show that deliberate acts of any of Defendant's employees caused common breaches of law resulting in each of the Plaintiffs' claims. There may be facts regarding the newly alleged policies and procedures of paragr...

Excerpt: ...t Defendant Medina for conduct unrelated to sexual harassment will in any way help her to prove her claims. Plaintiff has shown good cause for portions of Defendant Medina's personnel file. The Court requires that the following documents be produced at am in camera review hearing: 1. Any and all documents relating to the alleged sexual assault incident, including the complaint, the investigation(s) and results of the investigation(s); 2. Any othe...

Excerpt: ...he rights and duties of the parties under the contract. The Demurrer to the fourth and fifth causes of action is sustained because plaintiff fails to plead facts necessary to avoid the statute of frauds and the “Repurchase Agreement” attached to the complaint fails to satisfy the statute of frauds since it is not signed by the party to be charged. ...

Excerpt: ...y penalties are not the same as punitive damages. Punitive damages are governed by Civil Code §3294, which sets forth different standards and requirements than those set forth in Public Utilities Code §7951. Hence, any requirements in Civil Code §3294 that are not specifically required in Public Utilities Code §7951 or under case law specifically pertaining to Public Utilities Code §7951, do not apply to the third cause of action. The wrongf...

Excerpt: ...sponsive documents have now been produced. Hence, the motion is moot as to these responses. RFP Nos. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 31: Landscape is Ordered to produce responsive documents. If Landscape contends that some responsive documents are protected by attorney‐client privilege or the work product doctrine, it must produce a privilege log. Page 2 of 3 RFP Nos. 26, 27, 28, 30, 32, 33, 34, 38, 39, 40 an...

Excerpt: ... expert opinion, attorney‐client or attorney work product privilege, burdensome or invasion of privacy. 4. RIC1702898 BURTCH VS EMPIRECARE HEALTH ASSOCIATES INC MOTION TO/FOR COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS AND FORM INTERROGATORY BY BARBARA BURTCH Tentative Ruling: Request for admissions nos. 1, 2, 3, 4, 6, 7, 10, 14, and 15: The terms “notice” and “notified” are not ambiguous terms. The existence of medical documents...

Excerpt: ...rivacy Protection Act (Ins. Code §791.01, et seq.) prohibits an insurance institution, agent, or insurance‐support organization from disclosing any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is in response to a facially valid administrative or judicial order, including a search warrant or subpoena. (Ins. Code §791.13(h.) The Act does not create...

Excerpt: ...ns to the Morgan Declaration are OVERRULED as to numbers 1 ‐ 9. Defendants' evidentiary objections to the Young Declaration are SUSTAINED as to numbers 1, 5, 7 ‐ 9 and OVERRULED as to numbers 2 ‐ 4 & 6. The Motion for Summary Judgment is DENIED. The Motion for Summary Adjudication is GRANTED, IN PART, AND DENIED, IN PART, as follows: 1 st cause of action (sexual harassment). GRANTED. Defendants met their initial burden that the alleged sexu...

Excerpt: ...orney fees and costs in an interpleader action.” (Tri‐State, Inc. v. Long Beach Community College Dist. (2012) 204 Cal.App.4th 224, 232. Suit against public entity to enforce stop notice.) Civil Code §9506 specifically permits interpleader. Defendants contend that there are no other conflicting claimants as a matter of law. However, it provides no judicial notice of any documents demonstrating that. In a demurrer proceeding, the defects must...

Excerpt: ...atories, Requests for Production of Documents, and Requests for Admission (all set one) on or before March 28, 2018 and to pay sanctions in the total amount of $5,035.00 to defendant Alfa Business within 30 days of the Orders. Plaintiffs failed to comply with the three Orders, at all, which necessitated the filing of the subject motion by defendant Alfa Business. (Plaintiffs argued that they did produce some documents to defendant Alfa Business b...

Excerpt: ... Additionally, Plaintiffs did not properly plead the punitive damages claim against a corporate defendant. Civil Code Section 3294(b) sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer's (1) advance knowledge of the employee's unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. (See Grieves v. Superio...

Excerpt: ... 634, 653.) Harbor Ventures, LLC v. Morris Cerullo World Evangilism (2018) 4 Cal.5th 637 is not applicable to this case. Plaintiff argued in his Opposition to Defendants' Motion for Judgment on the Pleadings that his emotional distress causes of action are based on conduct by Defendants that extended “well beyond simply terminating Plaintiff's employment.” As Plaintiff alleged in the Complaint, “Defendant's false allegations of the crime we...

Excerpt: ...$6,510.00. The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) ...

Excerpt: ... or a Request for Judicial Notice. Defendant Banning Library District: The Demurrer is sustained as to the 8th cause of action with 30 days leave to amend. Plaintiff failed to plead compliance with FEHA claims presentation requirements. It is sustained as to the 9th and 10th causes of action without leave to amend. Defendant Rodriguez: The Demurrer is sustained as to the 8th cause of action with 30 days leave to amend. Plaintiff failed to plead c...

Excerpt: ...ns were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) A plaintiff must allege what was said, by whom, in what manner (i.e., oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) The first cause of action for violation of B&P Codes is based on the alleged fraud. ...

Excerpt: ...aining Order was in place. Hence, Plaintiff County of Riverside established the operation of a cannabis business at the subject property, in violation of Riverside County Ordinance numbers 348 and 725. Operating or allowing the operation of a cannabis business or a marijuana dispensary is an illegal use of the subject property under the Riverside County Ordinance. The proposed Preliminary Injunction prohibits defendants from operating or allowing...

Excerpt: ...ties regarding new service of the Summons, Complaint, etc., on Defendant. In that event, no personal appearances will be necessary at the hearing. The Court does not rule on whether service was proper. It finds that Defendant is entitled to relief under CCP §473.5. Service of the summons on Defendant, if any, did not result in actual notice to Defendant in time to defend the action. Moreover, the Judgment is void. Plaintiffs served the Statement...

Excerpt: ...ng waste or any other exceptional circumstance demonstrating a receivership is warranted in this case. Receivers may be used only where authorized by statute or where necessary to preserve the property rights of any party. (Miller v. Oliver (1917) 174 Cal. 407, 410; Turner v. Super. Ct. (Cooke) (1977) 72 Cal.App.3d 804, 811.) The burden is on the moving party to present evidence showing facts establishing one of the statutory grounds for receiver...

Excerpt: ...d must be based on a showing of mistake, inadvertence, surprise or excusable neglect. (Id.) The problem is that defense counsel is not taking the blame—he instead blames Plaintiff for bad faith tactics during settlement negotiations. Nor does Defendant provide a declaration from Defendant as to why it did not forward the complaint to its insurance carrier or failed to provide a response. However, Plaintiff did take default immediately without w...

Excerpt: ...element, the defendant must establish that plaintiff's claims fail as a matter of law. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 849.) To demonstrate that the plaintiff lacks evidence, the defendant must show that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) A defendant may not simply point to an absence of evidence, but must show that the p...