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and actual controversy between the parties, only allegations of a past wrong, i.e., that the District improperly rescinded the Project Labor Agreements.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: ... (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: ... 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: ...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: ... 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: ...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: ...,” 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 ...