Excerpt: ... of 3 elevator to get to the ground floor.” Plaintiff also asserts that the failure to warn that the ground floor was under construction, that there was no exist, and that a key card was required, created an unreasonable risk of pedestrian accidents and injuries. (PSS, UMF No. 32.) She asserts that these dangerous conditions contributed to/caused the subject incident. (PSS, UMF Nos. 33, 40.) Plaintiff asserts that under the circumstances, she a...

Excerpt: ...fy a good faith settlement. Furthermore, she does not provide a copy of the Mikhail settlement to confirm that Mikhail actually settled the claims as asserted against her. The stipulation between McShane, Mikhail and Plaintiff regarding the Mikhail's assumption of liability has no bearing on the Pharmacy Defendants' cross‐complaint as it is not binding as to them. ...

Excerpt: ...me, particularly where the receiver would be engaging in the same action – to evict the tenant. There is nothing for a receiver to do at this point. There is no reason to incur the significant expense of a receiver. ...

Excerpt: ...court earlier that a cross‐complaint had been filed. Hence, reconsideration is appropriate. However, upon reconsideration the Motion to Quash is GRANTED. When one weighs the privacy rights of the Tatums against James' need to conduct discovery into claims presented in a cross‐complaint that had been filed by his co‐defendant and that he does not have any interest in, the privacy rights of the Tatums prevail. Without being a party to the cro...

Excerpt: ... of 3 More importantly, the Motion was not supported by declaration containing the information required under Rule 3.1324(b). The Motion is supported by the Declaration of Jessica R. Underwood, who indicates that Plaintiff was deposed on March 16, 2018 and testified as to Hurtado's involvement with the vehicle. However, the declaration does not state that the information was discovered at the deposition or why leave to amend was not sought earlie...

Excerpt: ...s of its sixth cause of action are sufficient to support a defamation cause of action. See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38‐39 (if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer). With regard to the remaining causes of action, the allegations of the Complaint are sufficient for pleading purposes to support the causes of action as alleged agai...

Excerpt: ...vides no basis for application of Gov. C. §815.6. Moreover, as discussed in Hoff vs. Vacaville Unified School District (1998) 19 Cal. 4th 925, 939, Ed. C. §44807 requires teachers to hold pupils to a strict account for their conduct, and does not purport to impose a mandatory duty more broadly on any public entity. Ed. C. §44807 merely imposes a discretionary duty to supervise the conduct of pupils. Nothing in Ed. C. §44807 requires that any ...

Excerpt: ...t belong to them, fraudulently sold it and retained the profits. As stated by the U.S. Supreme Court: Page 2 of 2 [W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally indicate that he expected to benef...

Excerpt: ...h PPSM‐70. Petitioner's argument that he is not challenging the termination of his employment but is only challenging the Title IX investigation is unavailing. The Title IX investigation and Final Report do not constitute a final administrative decision upon which a writ of administrative mandate may be issued. See CCP § 1094.5(a); Security Nat. Guar., Inc. v. California Coastal Com'n (2008) 159 Cal.App.4th 402, 415 (CCP § 1094.5 “permits c...

Excerpt: ... and Darryl Clare. Defendants failed to show that the filing of the cross‐complaint against such parties would be in the interest of justice. (CCP § 428.50(c).) ...

Excerpt: ... Impac Funding's evidentiary objections are OVERRULED as immaterial. The Motion for Summary Judgment is GRANTED. Impac Funding meets its initial burden to demonstrate that Plaintiff's Loan was not table funded, and Plaintiff fails to raise a triable issue of fact as to whether the sale of his Loan was anything but a bona fide transaction. More importantly, even assuming that the Loan was part of a table‐funded transaction, there is no authority...

Excerpt: ...rty to the first cause of action for cancellation of instruments. BANA has never had an interest in the Note and DOT and is not a successor to any instrument that Plaintiff seeks to cancel. See Miller & Starr, Cal. Real Estate (4th Ed. 2016), § 40:113; Lord v. Luse (1931) 214 Cal. 10, 11; Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 444‐45. Moreover, the entire basis for Plaintiff's cancellation claim – that Plaintiff's ...

Excerpt: ...r § 2923.5(e)(1), but also that Plaintiff responded to Lewis's correspondence. Further, the factual basis for Plaintiff's contract‐based claims (second and third causes of action) is entirely inaccurate and ignores the salient provisions of the Note. Contrary to Plaintiff's argument, Lewis did not accelerate Plaintiff's loan; rather, as evidenced by the Notice, the loan fully matured and the final balloon payment had come due. Plaintiff's four...

Excerpt: ..., even assuming that Autry could revoke or be entitled to a refund of her charitable donation (i.e., the $5,000), Plaintiffs offer no explanation as to how the banking records would demonstrate that her particular donation was misdirected or why Plaintiffs should be entitled to discover the personal banking information for Louise and Gentile. Lastly, Plaintiffs offer no explanation as to how the banking records will demonstrate the extent of dama...

Excerpt: ... was corrected and clarified. (Dec.Dossey, ¶21, Exs. Page 3 of 3 “12”, “13”.) The parties have engaged in extensive meet and confer efforts, which led to Plaintiff correcting its responses. No discovery abuse has been established. As to the sanctions for Plaintiff's erroneous responses to RFAs. The statute contemplates having to prove the truth at trial, or in a dispositive motion for summary judgment. Neither situation has occurred here...

Excerpt: ...able claim to ownership of stock in the corporation. She provides no corporate governing documents, no stock certificates, no corporate minutes. As defendant notes, the plaintiff in a shareholder derivative action must own stock throughout all relevant time periods. Corp. Code §800(b); Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1119. Furthermore it is unclear that this is appropriately brought as a shareholder derivative action. To the extent tha...

Excerpt: ...alleged personal loans were part of the prior litigation and regardless of whether some portion of Vega's claims may be barred, a general demurrer does not lie to only a part of a cause of action. See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167. Further, the doctrine of judicial estoppel is inapplicable, as Vega was not successful in asserting his allegedly inconsistent position in the prior action. See Aguilar v...

Excerpt: ...nt's position that Mr. Garcia's deposition should not go forward until he is properly served with an appropriate subpoena is reasonable. In the absence of a subpoena, Mr. Garcia has no obligation to respond to Defendant's document demands, and in the absence of a voluntary production, Defendant would be forced to serve a subpoena and potentially move to compel a response to its demands (and possibly a further deposition). Moreover, the proposed d...

Excerpt: ...ight of the significant number of administrative claims pending, the notice should expressly advise/warn those with administrative claims pending that if they wish to continue their administrative claim, they must exclude themselves from this class action and/or that if they do not exclude themselves they will lose the right to pursue their administrative claim. Plaintiffs shall submit a new proposed order with the revised forms attached and with...

Excerpt: ...issues in the case. Further, Plaintiff has asserted a basis for deposing the MERS PMK. Plaintiff alleges the loan resulted from an illegal transaction in which Sea Breeze misrepresented it was the lender when the actual lender was the unlicensed Impac. Plaintiff asserts that this allegation leads to two issues: (1) that MERS was not identified as a beneficiary in violation of California law (10 CCR §1406(b)); and (2) who owns the loan and contra...

Excerpt: ...lass of persons is made up by all licensed EMTs in the state. It potentially could be even a larger class of persons including all professionally licensed employees. While only a small number of EMTs are disciplined through the administrative hearing process each year, the benefit is available to all licensed EMTs. Cullen incurred significant attorneys' fees in vindicating this important right, and he had no financial gain in pursuing writ relief...

Excerpt: ...il 24, 2018 at 8:30am in Department 6. The defendants who filed the demurrer and motion to strike are ordered to meet and confer with the plaintiffs who filed the complaint for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer and motion to strike. As part of the meet and confer process, the defendants shall identify all of the specific causes of action that they believe are su...

Excerpt: ...ect to a criminal proceeding; the privilege against self‐incrimination is personal to an individual criminal defendant and does not apply to co‐defendants in a civil action. See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886‐87. Further, an evaluation of the factors set forth in Avant! Corp. does not favor a stay: (1) Plaintiffs have a strong interest in proceeding expeditiously; (2) any threatened infringement on the privile...

Excerpt: ...demarks on the part of defendant John Suhr. As to the 2nd and 3rd causes of action, the court rejects the argument that abuse of control and corporate waste cannot be asserted as separate breaches of fiduciary duty. As to the 5th cause of action, the FAC adequately states the basis for irreparable harm to support an injunction claim. Plaintiff alleges that defendant John Suhr has claimed ownership of the trademarks, has sought to license the trad...

Excerpt: ... through illusory modification proposals in order to charge exorbitant processing and late fees. (FAC, ¶73.) This allegation arguably constitutes an unfair business practice. Although many of the other allegations are unclear or improper, Plaintiff has stated a cause of action based on this allegation. Although, Nationstar argues that Plaintiff does not have standing to bring a UCL cause of action because he was granted a loan modification and n...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ...s GRANTED. Defendant has established that the acts that form the basis of Plaintiff's complaint were taken in furtherance of Conkwright's right to petition. Therefore, the burden shifts to Plaintiff to establish a probability of prevailing on the merits. Malicious Prosecution: First, Bosco appears to argue that the malicious prosecution applies to Conkwright's claims against Camarena by arguing that Conkwright shot at Camarena knowing that he was...

Excerpt: ...the new client. California Rules of Professional Conduct, rule 3‐310(E). Plaintiff fails to indicate what this prior lawsuit was about and does not provide evidence that Mr. Larkin obtained any confidential information. Since there is no evidence to support a showing of conflict, this argument is not persuasive. Further, Plaintiff has failed to provide evidence that Mr. Larkin has intimidated or harassed witnesses. His declaration contains conc...

Excerpt: ...ting sanctions nor issue/evidentiary sanctions under CCP § 2023.030(b)‐(c) are warranted. While there is no question that Defendants have been remiss in timely complying with the court's discovery orders, Defendants have taken steps toward full compliance by agreeing to a third‐ party vendor to extract the ESI, although the actual data extraction must still take place. Moreover, while Plaintiff may have been inconvenienced by Defendants' tar...

Excerpt: ... to the FDCPA is when a person collects a debt due to another if the debt was not in default when it was obtained. (15 USC §1692a(6)(F)(iii).) Plaintiffs do not plead when they were in default. According to the recorded documents, Defendant obtained the assignment on 3/29/16. Thus, there Page 3 of 3 are no allegations that Plaintiffs were in default at the time Defendant obtained the interest (assuming it was transferred to another). 2 nd Cause ...

Excerpt: ...lead a viable theory as to why the sale is void. As such, Plaintiffs have not alleged any facts to get around the presumption of Civil Code §2924(c) ...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ......

Excerpt: ... to eject Plaintiff from the property without first resolving whether Plaintiff is entitled to specific performance of the agreement between the parties, which would moot the unlawful detainer issues. Defendant contends that Plaintiff cannot prevail as her case is barred by the statute of limitations. However, Plaintiff has presented evidence that she continues to pay Defendant $780 a month. Further, Defendant admits there is no time for performa...

Excerpt: ...endants. While NJP performed services for the benefit of defendant James Bradley, its written contract was with Kenner & Greenfield. To the extent that Bradley agreed to pay the costs of NJP's services, his agreement was with Kenner & Greenfield. With respect to PPI, it cannot be determined from the allegations of the FAC whether the alleged contract was oral or in writing, nor can it be determined whether the alleged contract was between PPI and...

Excerpt: ...d.” Penal Code § 11165.12(b). Child abuse and neglect is defined to include “physical injury or death inflicted by other than accidental means upon a child by another person,” which includes “the willful harming or injuring of a child or the endangering of the person or health of a child.” Penal Code § 11165.6. The willful harming of a child “means a situation in which any person willfully causes or permits any child to suffer, or i...

Excerpt: ...s. Exchange (1991) 231 Cal.App.3d 481, 487.) Despite initial noncompliance with the court order, Plaintiff has since produced verified responses and paid monetary sanctions. ...

Excerpt: ...ake judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879). Defendants request for judicial notice of the DOT, Substitution of Trustee, Notice of Default and Notice of Trustee's Sale is GRANTED. The Demurrer is SUSTAINED with 20 days leave to amend. 1 st Cause of Action: Although Plaintiff alleges violations of HB...

Excerpt: ...dants concede the items listed on Exhibit C were “personal items left behind in the warehouse” that did not belong to Hageman, they never admitted that all of the items listed on Exhibit C belong to Plaintiff. In fact, Plaintiff concedes in the Complaint that her parents also stored personal items at the warehouse for which they sued the Koll Company. (Complaint, ¶¶ 13, 18.) Plaintiff failed to establish ownership or right to possession of ...

Excerpt: ...305, where the Court denied a C.C.P. §664.6 motion because the statutory prerequisites were not met since all parties on both sides of the agreement had not personally signed it. In Harris, the Court noted that C.C.P. §664.6 did not contemplate enforcement against the “party to be charged” – here Ramos ‐ as Plaintiff suggests in the motion. In addition, according to the language of the statute, any written settlement agreement outside o...

Excerpt: ...NED with 20 days leave to amend as to District as to the 1st, 2nd, 4th, 5th and 6th causes of action as Plaintiffs fail to state the statutory basis of liability. The general demurrer is SUSTAINED with 20 days leave to amend as to Merlo and Nunez as there are no factual allegations as to them other than their positions and that they were on notice of Plaintiff Azucena's medical history. The general demurrer is OVERRULED as to Phillips. The “dem...

Excerpt: ...ndant Chandi and Defendant Limonite, Plaintiff installed” the equipment and provided employee training. (Compl. ¶10.) On its face, the Complaint clearly alleges that Plaintiff was dealing directly with Limonite, the property owner. Further, the Complaint alleges that it is a limited liability company. (Compl. ¶1.) Plaintiff alleges it “specializes in servicing and installing commercial car wash equipment, chemicals and related accessories f...

Excerpt: ...wer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.” Ba...

Excerpt: ...uous acts. The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” In re Gould (1961) 195 Cal.App.2d 172, 175. An order to show cause is issued by the court, after the initiating of an affidavit stating the facts constituting the contempt is presented to the court and then a hearing must be held. Arthur v. Superior Court (1965) 62 Cal.2d 404, 407‐408. The...

Excerpt: ... court order was willful. However, the request for monetary sanctions is GRANTED in the amount of $150.00. The objections to Mr. Torres' declaration as to paragraphs 4, 5, 6, 7 and 12‐18 are OVERRULED. The objections are SUSTAINED as to the exhibits referenced in Page 2 of 4 paragraphs 9 and 10, but not to the actual testimony portions of these paragraphs. The objection is SUSTAINED as to paragraph 11. All objections to Carol C. Ignacio's decla...

Excerpt: ...on because Plaintiff fails to plead an actual, present controversy. ...

Excerpt: ...unconscionability. Sanchez v. Valencia Holding Co, LLC (2015) 61 Cal.4th 899, 915. Further, the DRA's unilateral requirement that Plaintiff first submit her disputes to DMSI's internal grievance procedures and that any written demand for arbitration first be sent to DMSI's Human Resources Vice President render the DRA substantively unconscionable. See Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1282‐83. See also Pokorny v. Qu...