Excerpt: ...Code §2429.17 and TILA). The demurrer is sustained with leave to amend as to the second, fourth and seventh causes of action because the First Amended Complain does not contain sufficient facts concerning the acts or omissions of Second Chance Mortgage. Judicial Notice Requests: Cal. Evid. Code §452(b), permits judicial notice of regulations and legislative enactments issued by or under the authority of the United States or any public entity in...

Excerpt: ...ty, the Plaintiff was suddenly and without warning or provocation viciously attacked Plaintiff, mauling her arm. Plaintiff filed her Complaint on 7/22/19 alleging two causes of action for strict liability (animal with known dangerous propensity) and negligence. Page 4 of 5 On January 24, 2020, Defendants propounded a series of Requests for Admission (RFAs) against the Plaintiff. Without repeating verbatim each of those requests, generally the RFA...

Excerpt: ...ent as involving the enforceability of the Project Labor Agreements, what the Unions actually challenge is the District's December 29, 2020 decision to void and rescind its approval of the Project Labor Agreements. (FAC, ¶¶ 26‐30, 34.) There is no present and actual controversy between the parties, only allegations of a past wrong, i.e., that the District improperly rescinded the Project Labor Agreements. This is substantiated by the fact the...

Excerpt: ...., §430.10(e).) Additionally, any “objections that a complaint is ambiguous or uncertain…must be raised by special demurrer.” (Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court assumes the truth of all material fa...

Excerpt: ...d by defendants Cox Automotive, Inc. and Manheim Investments, Inc. dba Manheim Riverside (“Manheim”)(collectively “Defendants”) and was severely injured when he struck his head on an after‐market “Wink‐Mirror” installed in the club car. (Complaint, ¶ 9, 10.) Plaintiff filed the Complaint on 1/5/21, alleging a single cause of action for negligence. Defendant Manheim now demurs to the Complaint, arguing that there are insufficient ...

Excerpt: ...er or Fisher) worked as a police officer for the City of Banning Police Department for 26 years. (Petition, ¶1.) In April, 2018, the City Council appointed Petitioner Fisher to serve as the interim police chief. (Petition, ¶2.) The Petition alleges Petitioner Fisher was targeted in a personal feud of involving other city officials. Respondent Doug Schulze (Schulze) was the City Manager. In February 2019, Schulz appointed Matthew Hamner (Hamner)...

Excerpt: ...e states the documents/items he reviewed and lays foundation for his statements and offers opinions bases on his experience). DECLINE TO RULE on objections 9 through 13 as not dispositive. DENY the MSJ. GRANT the MSA as to the fourth cause of action. DENY as to the first, second, third, and fifth causes of action. 1st CofA: Defendant argues that Plaintiffs only presented the vehicle to Perris Valley Auto Center for repair one time – on Septembe...

Excerpt: ...sessing $2.3 million in additional pension contributions to fund enhanced benefits, even though said decision was reached after discussions, does not fall within the first prong of the anti‐SLAPP statute. Id. at 353. But here, an act of governance is not at issue. Petitioner is not challenging a decision made by the City Council or City Manager. Instead, he is challenging speech on the part of a City employee and said employee's refusal to spea...

Excerpt: ...ordered off‐calendar. This case is deemed related to CVRI 2103685. The action is stayed until the writ of administrative mandamus is decided. A status hearing is set for January 31, 2022 at 8:30 am in Department 7. The court at the last hearing asked for supplemental briefing regarding the impact, if any, of the writ proceeding based on judicial exhaustion. Both parties have submitted supplemental briefs. City asserts the court is correct regar...

Excerpt: ...t the court can determine the maximum amount of punitive damages before the issue can be presented to the jury, and therefore limit the amount of discovery. The motions provide no authority for this proposition. It is the province of the jury to determine punitive damages. (Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560.) The jury typically will first determine the amount of the award, which “is then reviewed by the trial and appellate courts...

Excerpt: ... judgment is denied. As to Defendants Leah Marie Photography, Inc. and Leah Faddis, the motion for summary adjudication is denied as to the 1st‐ 10th causes of action as Defendants fail to address the ABC test. Summary adjudication is denied as to the 11th cause of action as Defendants merely repeat the same arguments. As to Defendants Leah Marie Photography, Inc. and Leah Faddis, summary adjudication is granted as to the 12th‐16th causes of ...

Excerpt: ...mount of $85,009.00 Counsel's billing records indicate a lodestar figure of $94,660. The two firms billed 250 hours (which includes 7 hours of anticipated time for reviewing the opposition, drafting a reply and Page 3 of 7 appearing at a hearing on the present motion) at hourly rates ranging from $200 to $595 for KLG and $250 to $1,110 for Boucher LLP. (Mikhov Decl., Exhibit A; Boucher Decl., Exhibit 3.) The two firms representing Plaintiffs util...

Excerpt: ...4th 1475, 1484.) If the items on the memorandum of costs appear to be proper, the burden is on the party seeking to tax costs to show that they were not reasonably necessary. (Ladas v. California State Automotive Association (1993) 19 Cal. App. 4th 761, 773‐774.) It is not necessary for the prevailing party to attach bills, invoices or statements until the costs have been put in issue by a motion to tax, at which time supporting documents are r...

Excerpt: ...s or the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” The prevailing party shall be the party that recovers a greater relief on the contract claims. Civil Code § 1717(b)(1). “Civil Code section 1717 is not the only basis for an award of attorney fees. A...

Excerpt: ... as a dual employer. Preliminarily, Plaintiffs concede there is no viable premises liability claim against Sahara. Plaintiffs do not dispute that all of its other claims against Sahara are based on the theory of respondeat superior. (Opposition, p. 3.) The material facts are undisputed. On October 2, 2019, workers Perez and Villafranco dropped a heavy piece of metal scaffolding from the second story onto Hernandez's head and shoulder at the const...

Excerpt: ...oceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. “In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.” (Varian ...

Excerpt: ...ent was motivated by either her race, age, or disability. Third, Fifth, Sixth, and Seventh Causes of Action Plaintiff does not oppose the demurrer as to these causes of action and requests leave to amend the Complaint to plead additional facts to support these claims. Second Cause of Action – Harassment Based on Race Plaintiff argues that under Government Code § 12923, the Court is no longer required to determine whether the conduct alleged is...

Excerpt: ...tion to dismiss or stay for forum non conveniens on the ground that the forum selection clauses contained in the contracts require Plaintiffs to bring this action in Alberta, Canada where there is already a pending first‐filed lawsuit involving the same issues, parties, and horses. (CCP §§ 410.30; 418.10.) Dixon asserts that the mandatory forum selection clauses state the contracts are governed and construed in accordance with the laws of the...

Excerpt: ...ch, M.D. (“Dr. Friedlich”). Dr. Vong further argues that there is no evidence of any extreme and outrageous conduct supporting the IIED claim. Defendant submits the expert declaration of Dr. Hebert who is board‐certified and experienced in obstetrics and gynecology. (Defendant's Separate Statement of Undisputed Material Facts (“UMF”) 35; Hebert Dec., ¶ 1.) After reviewing the patients' medical records, the complaint, various deposition...

Excerpt: ...ected from disclosure by the peer review privilege. Evid. Code §1157(a) provides that the proceedings and records of hospital staff committees “having the responsibility of evaluation and improvement of the quality of care rendered” are not subject to discovery. Moreover, persons who attended such meetings cannot be compelled to testify as to what transpired. (Evid Code §1157(b); University of Southern Calif. v. Superior Court (1996) 45 Cal...

Excerpt: ...5‐28, 30, 31, 33 are sustained. Plaintiff's supplemental evidentiary objections to the Shively Declaration as to nos. 1, 3, 5, 7, 9, 10 are overruled; The objections as to nos. 2, 4, 6, 8 are sustained. Plaintiff's supplemental evidentiary objections to the Cummings Declaration as to nos. 2, 3 are overruled; The objection as to no. 1 is sustained. Plaintiff has failed to show probability of success on the merits. The hearing on this matter was ...

Excerpt: ...ination, Plaintiff has not met her burden of demonstrating that answering discovery would tend to incriminate her. Plaintiff cites to California Rules of Court, rule 3.515, which governs the procedures for a motion for stay of proceedings, filed under Code of Civil Procedure section 404.5, in any action while determination is pending on a petition for coordination. Section 404.5 et seq. authorize coordination for trial of civil cases pending in d...

Excerpt: ...ng this motion seeking $2,988,589.00 in attorneys' fees and costs. They contend they are entitled to attorney's fees under the Construction Loan Agreement (“CLA”) and the Deed of Trust (“DOT”). Plaintiff contends that Defendants are not entitled to attorney's fees because the cause of action at issue was a tort claim not a contract claim. It asserts that Rescon should not be entitled to attorney's fees because the bills for said fees were...

Excerpt: ...se Plaintiff did not allege this cause of action against Defendant F&B Healthcare as Doe 1. Essentially, Defendant argues this makes the allegations against them uncertain. Defendant also argues the allegations for the elements of the claims themselves are insufficient. First Cause of Action – Negligence To maintain a cause of action for negligence, the plaintiff must show: (1) a legal duty to use due care; (2) breach of such duty; (3) the brea...

Excerpt: ... App. 4th 97, 113.) Plaintiffs request judicial notice of three documents: 1) The FAC in this case; 2) The original Complaint in this case; and, 3) the Court's ruling on Dixon's motion to quash service of summons on 8/12/21. Evid. Code §452(d) provides for judicial notice of court records. In general, the court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of re...

Excerpt: ... (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment was based on the protected status; (4) the harassment unreasonably interfered with her work by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Daeron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) Since the enactment of Government Code § 12923, courts hav...

Excerpt: ...he current shareholders, Shively v. Jones, RSC Case No. RIC 1904175. Judicial notice of court records is proper under Evid. Code § 452(d). Both requests for judicial notice are granted. The Substance The parties do not dispute that the court has jurisdiction under CCP § 1281.8 to consider this motion for preliminary injunction despite the stay in place pending arbitration. The purpose of a preliminary injunction is to preserve the status quo un...

Excerpt: ...entire anti‐SLAPP motion and dismiss the complaint as to Randall D. Naiman and Naiman Law Group, PC. The Appellate Court also found that the trial court should award attorneys' fees and costs incurred by Randall D. Naiman and Naiman Law Group, PC both in the trial court and on appeal. The remittitur was received by the Court on 10/9/13. No additional action was taken by Randall D. Naiman and Naiman Law Group, PC or the Court until 11/6/13, when...

Excerpt: ...s a sham pleading is without merit. Special Demurrer While Plaintiff specially demurs to each cause of action on the ground of uncertainty, he fails to explain how any of the claims are uncertain such that he cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (CCP § 430.10(f); Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Accordingly, the demurrer is overruled on g...

Excerpt: ... right to compel further response to the discovery. (CCP §§ 2030.300(c) and 2031.310(c).) The 45‐day time limit is mandatory and “jurisdictional” (court has no authority to grant a late motion). (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) The Discovery Act omits an earlier statute that gave courts authority to extend the time for making a motion to compel. This “indicates an intention by the Legislature no...

Excerpt: ...ad the right to control and direct the activities of Plaintiff and/or the manner and method in which the work was performed. The burden shifted to Plaintiff, but Plaintiff failed to show any triable issue of material fact. Request for Judicial Notice Frize requests judicial notice of the Compromise and Release submitted by Plaintiff to the Workers' Compensation Appears Board and the Order Approving the Compromise and Release Page 4 of 6 issued by...

Excerpt: ... of $500 per week to Plaintiff for 204 weeks ($102,000.) (FAC ¶¶ 15‐16.) Hernandez and De La Torre made the payments until Plaintiff's husband died on 3/28/16. (FAC ¶ 19.) Thereafter, no further payments were made. (FAC ¶¶ 19, 50.) Thus, Plaintiff's claims against Hernandez and De La Torre, for failing to make weekly payments, accrued on or about 4/12/16. The first three causes of action in this case for interference with contractual relat...

Excerpt: ..., §1005(b).); Mackey v. Board of Trustees of Calif. State Univ. (2019) 31 Cal. App. 5th 640, 657 [held proper for trial court to exclude late‐filed declarations where no order permitting late filing or continuance of hearing was sought].) “A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for...

Excerpt: ...es she is at least entitled to an order limiting her liability, if any, to her statutory liability under Vehicle Code sections 17150 and 17151, as an owner of the vehicle involved in the collision. Moving Party has Met the Initial Burden The moving party has met the initial burden by demonstrating evidence that defendant Bills, the owner of the vehicle, never gave permission, either express or implied, to Garza, and neither did her granddaughter;...

Excerpt: ...re the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Demurrers for uncertainty are to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Id.) A failure to specify wh...

Excerpt: ...not filing defaults. Defendants now contend the insurance adjuster did not understand the distinction and the motions are proper. It is unclear what was actually understood by the parties and Plaintiff has not provided any legal argument supporting his contentions that the Demurrer/MTS should not be considered. The Court also finds that the meet and confer process was sufficient. Slander/Libel/Defamation The elements of a defamation claim are (1)...

Excerpt: ... a claim for the enhanced remedies for neglect under the Elder Abuse Act, the plaintiff must allege, and prove by clear and convincing evidence, facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult, such a nutrition, hydration, hygiene, or medical care”; “(2) knew of the conditions that made the elder or dependent adult unable to provide for his or her own basic needs”;...

Excerpt: ...,” Temecula, California, which was the location where the second accident caused by the other Defendants allegedly occurred. However, by filing a certificate of counsel along with the Summons and Complaint, Plaintiff is complying with the requirements of the Court's Local Rule for designating the proper branch of the Court in which the matter should be tried or heard and is not subject to demurrer. (See Local Rule, Title 3, Division 1, Rule 311...

Excerpt: ...r which no discovery was conducted and no dispositive motion addressed, Cross‐Defendant has established that he will be prejudiced by the amendments. In her Reply, Moving Party appears to concede that the present Motion is a premature motion to conform to proof, but argues that the Opposition is unripe and the Court should reserve ruling on the Motion. Leave to amend may be denied where inexcusable delay and probable prejudice to the opposing p...

Excerpt: ...of additional allegations with the court and Defendant at the hearing, Defendant will not suffer any significant prejudice by addressing the substance of the added allegations through the present motion. Through the meet and confer process, the parties reached an agreement that the references to lost wages, lost employment benefits and property damage be stricken from the FAC. Accordingly, the motion is granted in accordance with the parties' sti...

Excerpt: ...ee. Nor is a receiver necessary over the LLC. Neither are orders prohibiting Kunio from distributing more than $5,000 without his sister's permission, as suggested in the opposition. Any management decision over the affairs of the LLC (such as who should be running it) are controlled by the majority of Class A units. LLC Agreement, ¶5.1. Since Kunio owns 50% of the Class A membership interests and Kimiko owns the other 50%, if they disagree on w...

Excerpt: ...b)(2).) Likewise, a motion to compel a further response to an interrogatory requires a meet and confer declaration. (Cal Code Civ Proc § 2030.300(b).) The purpose of the meet and confer requirement Page 3 of 4 is to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) The declaration must state facts showing a re...

Excerpt: .... Cisneros cites the following reasons for his failure to participate in the action: his uncle was sick and then passed away from Covid‐ 19; he lost his job; he couldn't make his mortgage payments so he had to sell his house; his father in law was diagnosed with stage 4 cancer; Cisneros did not have available funds to hire new counsel to represent him in this action. On July 7, 2021, Cisneros was finally able to retain new counsel who now seeks...

Excerpt: ... to the protective order. Monetary sanctions are imposed against Plaintiff and its counsel in the amount of $1,935.00. Defendant, Molina, brings this motion to compel further responses to Request for Production of Documents (Set One) [RPD] Nos. 1‐4, 6‐12, 14‐15, 17‐30, and 32‐34, and to produce all responsive documents. (CCP § 2031.310.) Molina argues that good cause exists for this motion because Plaintiff's responses are inadequate, ...

Excerpt: ...l to the existence of statutory liability must be pled with particularity. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) Plaintiff has cited to Government Code §§815.2 and 820. The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's...

Excerpt: ... disclose or any actionable omissions. Defendant argues that the Fraud cause of action is barred by the economic loss rule. Third Cause of Action ‐ Violation of Civ. Code §1793.2(a)(3): Civil Code §1793.2(a)(3) provides: “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: … (3) Make available to authorized service and repair facilities sufficient service literature an...

Excerpt: ...hological records for Decedent. Plaintiff requested that subpoenas be withdrawn, but Defendant refused. Plaintiff now moves to quash the Valley Star and Arrowhead subpoenas. A motion to quash a subpoena may be granted on the ground that the subpoena is defective or that the matters sought to be discovered are privileged, protected, or beyond the scope of discovery. (Cal. Code Civ. Pro. § 1987.1(a); 2017.010; Rudnick v. Superior Court (1974) 11 C...

Excerpt: ... to Sell recorded 1/6/21; 5. Notice of Rescission of Notice of Default recorded 5/7/21. The request for judicial notice is granted under Evidence Code section 452. The court may take judicial notice of recorded documents and the particular documents identified concern the subject matter of the present complaint. First Cause of Action for Fraud The allegations of fraud are based upon the representation purportedly made by defendant Hu in January 2...

Excerpt: ...e type of personnel records sought. The Court conducted an in‐camera review, and declined to produce any documents. This is Plaintiff's third Pitchess motion. Although the request is narrow, once again, he is seeking information from Captain Horn's personnel file about his personal data (employment history and religion.) Specifically, Plaintiff seeks another in camera review by the Court as to the following: where Horn became a police officer; ...

Excerpt: ...tiff. He contends defending in California is unfair. Plaintiff contends that specific jurisdiction applies because of his activities with Thurman which impacted Plaintiff. He contends that Field assisted Thurman in the scheme to commit fraud. He argues purposeful availment based on Gilmore Bank v. AsiaTrust New Zealand, Ltd. (2014) 223 Cal.App.4th 1558. Field promoted his services to Thurman and others for asset protection via Nevada laws. Field ...

Excerpt: ...e requests to include only records of similar misconduct no older than five years. Categories 7, 8 and 10 include records showing the impressions and conclusions of the investigating officer, which are not discoverable. The Motion is denied as to these categories, as well as Categories 9 and 13 for which Plaintiffs have not established good cause. A Pitchess motion must be accompanied by a declaration showing good cause for disclosure, setting fo...

Excerpt: ... of a 664.5 motion constitutes a rendition of a judgment as soon as the decision is entered in the minutes of the court. (Casa De Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.app.3d 1182, 1193.) (1) In accordance with the terms of the Agreement, PHC rescinded the Termination and reinstated the Purchase Agreement as of the date of the execution of the Agreement by PHC, resetting the closing date of Hanson's purchase of the Subject Propert...

Excerpt: ...th no actual responses. Defendant also notes the responses were not verified. As to the lack of verification, if discovery responses consist entirely of objections, as they do here, only the attorney's signature is required. (CCP §2030.250(a), (c); see Blue Ridge Ins. Co. v. Sup. Ct. (Kippen) (1988) 202 Cal.App.3d 339, 344.) As to the substance of the responses, Plaintiffs assert the work product and attorney client privileges in refusing to pro...

Excerpt: ...ir Competition includes derivative claims and seeks dissolution. Chaparro alleges among other things, that Basford exposed the corporations to liability by fraudulent participation in the Federal Paycheck Protection Loan Program, and that he forged checks and embezzled/converted corporate funds. (See, e.g., Compl., ¶¶ 17, 18.) Chaparro now seeks to disqualify The Watkins Firm based upon its concurrent representation of Basford and the Corporati...

Excerpt: ...) 213 Cal.App.3d 131, 138.) Absent the injunction, Plaintiff will suffer harm because she will lose her home. Thus, the issue is a probability of prevailing on the merits. 1st Cause of Action – Promissory Estoppel Plaintiff alleges that she relied on Defendant's assertions to send documentation affirming the debt and forewent alternative loans and refinancing. (FAC ¶27.) Her declaration does not add to her claims. She contends that after Speci...

Excerpt: ...n asserts that she is not a resident of California, and resides in Alberta, Canada; that she does not own property nor conduct any business in California, and does not consent to jurisdiction. Dixon argues that there is no general nor specific jurisdiction in California, and that this dispute is currently being litigated in Alberta, Canada. In general, a court may exercise personal jurisdiction over a defendant who is physically present in the fo...

Excerpt: ...Plaintiff's motion to reopen the case for the limited purpose of entry of the judgment pursuant to CCP §998(b)(1). The court notes that the court did not enter the dismissal pursuant to section 998, but rather dismissed because Plaintiff failed to respond to the OSC. The court noted that until Plaintiff moved to set aside the dismissal, the court lacked jurisdiction to enter judgment under CCP §998. Page 5 of 7 Plaintiff now moves for relief fr...

Excerpt: ...spond. [Citation.]” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.) “Even as against a special demurrer, a plaintiff is required only to ‘set forth in his or her complaint the essential facts of the case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his or her cause of action.'[Citation.]” (County of Santa Clara...

Excerpt: ...of Action – Violation of Labor Code §1102.5 Defendant argues that Plaintiff fails to establish a prima facie case because there is no causal connection, since it asked him to stay. It also argues legitimate business reason based on the investigation. Plaintiff argues temporal proximity for prima facie and pretext. Labor Code §1102.5(b) precludes an employer from retaliating against an employee for disclosing information to a government, law e...

Excerpt: ... all documents were produced. (Decl. of Bernhoft, ¶3.) Defendants do not identify any particular documents that have not been produced. Instead, the separate statement shows only that, at the time of the deposition, Dr. Bernhoft could not confirm that the entire file had been produced because his employee who made the production was not present. In light of Dr. Bernhoft's declaration that he has now confirmed that all documents have been produce...

Excerpt: ...hile relevant, the request seeks the identity of individuals who stayed in a medical facility. As such, it infringes on third party privacy rights. The fact that a person is or was a resident of a skilled nursing facility arguably relates to “the physical or mental condition” of an individual within the meaning of HIPAA.” (See 45 CFR § 160.103 (“Health information means any information … that … [r]elates to the past, present, or futu...

Excerpt: ...ander III: Objections 1 to 20 are overruled. 3. Declaration of Dustin L. Collier: Objections 1 to 30 are overruled. Each of the declarations provides a basis for the court to make a determination of whether the hourly rates are reasonable and in keeping with counsel of similar experience and expertise as plaintiff's counsel. The court considers the evidence even though not binding because it provides evidence of the reasonableness of the fees cha...

Excerpt: ...are no allegations that Guerrero took or assisted in taking property belonging to Plaintiffs in order to support the third cause of action for financial elder abuse Negligent Misrepresentation (First Cause of Action) Negligent misrepresentation must be pleaded with particularity to demonstrate how, when, where to whom and by what means the representations were made. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028; SI 59 LLC v. Variel Warner Ven...

Excerpt: ...any tolling applies based on lack of mental capacity or pending criminal proceedings. Due the Court's unavailability on July 20, 2021, if oral argument is requested the hearing is continued to July 23, 2021 at 8:30 in Department 7. Plaintiff seeks relief from the claim presentation requirement. Plaintiff asserts that on February 13, 2021, she applied to the County of Riverside Administrators for leave to present a late claim, which was denied on ...

Excerpt: ... dangerous condition, and whether such breach was a substantial factor in bringing about harm to Plaintiff. Due the Court's unavailability on July 20, 2021, if oral argument is requested the hearing is continued to July 23, 2021 at 8:30 in Department 7. West Riverside has failed to meet its initial burden. Store owners who know, or through the exercise of reasonable care should know, that a defective condition on the premises creates an unreasona...

Excerpt: ...rden by presenting controverting evidence showing that a triable issue of one or more material facts exists as to whether the specific loss which Plaintiff alleges to have suffered is a type subject to the waiver. Evidentiary Objections The matters which the parties objected to were not material to the analysis and ruling herein. Objections properly presented in compliance with CRC 3.1352, but not ruled on, are preserved for appeal. (Code Civ. Pr...

Excerpt: ...urden of establishing: (1) the action is proper in the county he or she seeks transfer to; and (2) the county where the action was filed is an improper venue. (La Mirada Community Hospital (1967) 249 Cal.App.2d 39, 42.) Plaintiff's choice of venue is presumed correct and the individual moving to change venue has the burden to show that venue is incorrect. (Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666.) Venue for a breach of...

Excerpt: ... its discretion, and upon terms it deems proper.” (Code Civ. Proc., §436.) The Court exercises its discretion to consider the motion, even though it is not timely filed. The grounds for a motion to strike must appear on the face of the challenged pleading or from matter which is judicially noticeable. (Code Civ. Proc., §437(a).) In ruling on a motion to strike, “judges read allegations of a pleading subject to a motion to strike as a whole,...

Excerpt: ...n issues of property management, and his declaration testimony is based upon a review of the accident site and on Plaintiff's deposition testimony. (See Snyder Decl. ¶¶ 1‐2, Exhibit 1 [CV].) The remaining objections made on the same grounds are likewise overruled. Generally speaking, expert testimony is admissible where (1) the subject matter is sufficiently beyond common experience that the opinion would assist the trier of fact, (2) the exp...

Excerpt: ...135, fn. 1.) Decedent's criminal history may be relevant in the defense of the wrongful death claims, but these records are not relevant to the issues raised by the Motion to Quash. It is not clear how these criminal records affect the relevancy or privacy implications of Plaintiff's medical or employment records. Accordingly, the request for judicial notice is denied. A deposition subpoena for production of business records may be used to obtain...

Excerpt: ...ligent conduct and the injury; and (4) resulting loss or damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson's common knowledge.” (Ibid.) Plaintiff's separate statement does not dispute facts 89‐95, which state that medical ca...

Excerpt: ... proceeding.” Code of Civil Procedure section 1033.5 provides that the costs which a prevailing party is allowed to recover under section 1032 includes attorney's fees authorized by contract, statute, or law. (Code Civ. Proc., §1033.5(a)(10)(A),(B)&(C).) Courts have construed the term “statute” to include “municipal ordinances.” (City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, 833‐834.) Here, the City seeks attorneys' f...

Excerpt: ...avid Smith, filed with this Court on October 4, 2019; (D) Statement of Decision and the Judgment after trial in Case No. RIP 1600410; and (E) Relevant portions of Celestine Barnes' trial Testimony‐ March 10‐ 11, 2020. Court documents may be judicially noticed pursuant to Cal. Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statemen...

Excerpt: ...hall designate…a date not more than 30 days after filing of the notice.” (CCP §418.10(b).) This motion was not filed within thirty days of the date the proof of service was filed – the proof was filed on March 12th and the motion was not filed until April 19th. However, “the trial court is authorized to extend the time for filing such a motion.” (Olinick v. BMG Entertainment (2006) 138 Cal.app.4th 1286, 1296.) The motion is accompanied...

Excerpt: ...rtherance of justice and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (CCP §576.) “This statutory provision giving the courts the power to permit amendments in the furtherance of justice has received very liberal interpretation by the courts of this state.” (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19.) “That the trial courts are to liberally permit such amendments at an...

Excerpt: ...n v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Lodestar is the objective starting point to determine if attorney's fees are reasonable. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.) Lodestar is calculated by assessing the reasonable rate for comparable services in the local community, multiplied by the reasonable number of hour spent on the case. (Id.) Lodestar requires the court to determine what a reasonable rate a...

Excerpt: ... issue whether a special relationship exists giving rise to a duty to protect (or warn) comprehends consideration of the same factors underlying any duty of care analysis.” (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 646.) The existence and scope of a landowner (or possessor's) duty turns on whether the third‐party conduct could reasonably be anticipated. (Robison v. Six Flags Theme Parks, Inc. (1998) 64 Cal.App.4th 1294, 1300‐1305)...

Excerpt: ...nt agreements for sexual harassment cases in California Defendants still did so.” Information is regarded as relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (See Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611; Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Importantly, admissibility is not the test, and information, unless privileged, is discoverab...

Excerpt: ... informed Plaintiff that she would be filing a motion for judgment on the pleading and would follow up with a meet and confer letter. (Declaration of Heather K. Cox [“Cox Decl.”], ¶2.) On April 30, 3021, Defendant's counsel sent a letter to Plaintiff, indicating that the Complaint fails to state any claim against Defendant, especially in light of the recent ruling of the Court granting the special motion to strike in favor of Defendants Jime...

Excerpt: ...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) 162 Cal.App.4th...

Excerpt: ...f's prosecution of the action was not in good faith.” The CLRA does not define the term “prevailing plaintiff” and courts have employed different approaches in deciding that issue to award CLRA fees and costs. (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 178‐179; see e.g., Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1149 (the prevailing party is the “party with the net monetary recovery” as general...

Excerpt: ...dure Before Trial (The Rutter Group 2020) (“Weil & Brown”), § 8:598.) “At a hearing on a motion to quash, the court must determine whether the party seeking the discovery has made a showing of good cause for the production of said matters and whether the items sought are material and relevant to the case.” (M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐33.) A. The Subpoena Requests Are Narrowly Tailored and Seek Documen...

Excerpt: ...ement must identify each material fact in respect to the cause of action. (Cal. R. Ct. 3.1350(d)(1)(B).) It should only include material facts and not facts that are not relevant to the disposition of the motion. (Cal. R. Ct. 3.1350(d)(2).) “The separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permit...

Excerpt: ...d wages while employed by Zhang. As such, there appears to be no bad faith on Lan Zhao's part. Zhang contends that Lan Zhao did act in bad faith, but she provides no evidence to support this assertion. In order to establish that good faith does not exist, substantial evidence must be presented. Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 99‐100. Under C.C.P. § 473(a),“[t]he court may, in furtherance of justice, and on any terms as may be...

Excerpt: ...as it had nothing to do with the state of the asphalt. The elements of a negligence claim are: (1) legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) To the extent that this is based on premises liability, it is also a form of negligence. Accordingly, the elements of a claim for injuries suffered by an inv...

Excerpt: ...“If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410, fails to appear for examination …, or to produce for inspection any document …, the party giving notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection for any document … described in the deposition notice.” (Code Civ. Proc., §2025.450(b)(2), ita...

Excerpt: ...ry 24, 2017 regarding the adoption of Ordinance 771.2 amending Ordinance 771. The Court takes judicial notice of this document under Evid. Code §452(b), which permits judicial notice of regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States Demurrer: Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out o...

Excerpt: ...t. (Dec.Janssen ¶3; Dec.Johnson ¶16; and Notice of Lodgment [NOL] Ex. “11” [arbitration agreement.]) Defendants assert that since Decedent was unresponsive and sedated upon admission, Anthony necessarily signed the documents as Decedent's agent and bound all claims to be resolved in arbitration. Anthony Sanchez declares that he was informed by Defendants' staff that as his mother's sons, any of them could sign on her behalf. (Oppo., Dec.Ant...

Excerpt: ...party required to serve and file a request for dismissal within 45 days after the dismissal date specified in the notice does not do so, the court must dismiss the entire case unless good cause is shown why the case should not be dismissed.” (Cal. R. Ct. 3.1385(c)(2).) This is the basis of the dismissal. “The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list.” (Irvi...

Excerpt: ...” whether the offer for reinstatement was for a job substantially equivalent to her prior position, and whether the rejection of the offer was reasonable. Defendant's motion is also procedural defective because Defendant failed to show summary adjudication would dispose of all of Plaintiff's claim for economic damages, as opposed to lost income only. A motion for summary adjudication can be granted only if it completely disposes of the cause of...

Excerpt: ...submitted with the original declaration without explanation, and is therefore untimely, is stricken, and has not been considered by the Court. A motion for preliminary injunction must show (1) a probability of prevailing on the merits, and (2) that the balance of hardships favors issuance of the injunction. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a real threat of immediate and ...

Excerpt: ....) The motion by the defaulting party based on equitable grounds may be made at any time, provided the party acts with diligence upon learning of the relevant facts. (Trackman v. Kenney, 187 Cal.App.4th at 181; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226‐1230.) Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been “deliberately kept in ignorance of the action or proceeding, or i...

Excerpt: ...that the defendant's conduct was deceptive and the deception caused plaintiff harm. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292.) Plaintiff alleges that TOD violated the CLRA by: (1) misrepresenting the Vehicle's condition; (2) concealing the Vehicle' s condition; (3) telling Plaintiff the Vehicle was in excellent condition when it was not; (4) telling Plaintiff the Vehicle was a certified vehicle, when ...

Excerpt: ...f alleges that the District discriminated against him by siding with Sanchez and terminated him without a proper investigation because she is a woman. (Compl., ¶13, 14, 17.) The District argues that Plaintiff was terminated based on the allegations and subsequent investigation and findings of theft. However, other than vague statements made by Plaintiff, the District produced no evidence of the investigation. Plaintiff does not dispute that the ...

Excerpt: ...duct by subjecting him to unnecessary and unwarranted police investigations. (Compl., ¶31.) He asserts that Sanchez published a false accusation of grand larceny. (Ibid.) Sanchez argues that this conduct was not outrageous because the accusations were true based on Plaintiff's guilty plea in the criminal proceedings. Plaintiff testified that he pled guilty to misdemeanor embezzlement in the criminal matter concerning the alleged stolen property....

Excerpt: ...l's Remittitur states that Plaintiff is entitled to recover costs on appeal. That is incorrect. The Remittitur states “The parties shall bear their own costs on appeal.” That is also in the Opinion's Disposition at p. 10 (“The parties shall bear their own costs on appeal”). Although Plaintiff does not expressly seek recovery of anything but attorney's fees, the motion includes (Exhibit 2) documentation regarding $485.26 in “disbursement...

Excerpt: ...case, and this motion, the Court tentatively finds that Moving Party Carol Pulliam is a vexatious litigant pursuant to CCP 391(b)(3) and sets the following Order to Show Cause: Carol Pulliam is Ordered to Appear and Show Cause as to why she should not be declared a vexatious litigant pursuant to CCP 391(b)(3) and why the Court should not require her to obtaining a prefiling order, per CCP 391.7(a), before she may be allowed to file any further li...