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