Excerpt: ...o meet and confer in good faith as ordered may result in sanctions. The Court also notes that it has reviewed motions and oppositions at issue. Based on the tone of the documents, the Court finds it is necessary to remind all counsel that civility and professionalis m among counsel should be the norm and not the exception. Counsel need not always agree, but their disagreements, especially when relayed to the Court, should be free of rancor unbec...

Excerpt: ...alleges, amon g other things, that the City, and other public entities, are liable for wrongful death and the decedents' fatal injuries for a dangerous condition of public property. The Complaint alleges that on the evening of December 28, 2022, the two vehicles collide d at or near the intersection of Fred Waring Drive and Adonis Drive in the City of Palm Desert, California. (Complaint, ¶ 20.) It alleges that while the vehicle transporting the ...

Excerpt: ...ause of action for re stitution of money paid “pursuant to the Agreement” (Cross -Complaint ¶ 12). The basis of the Cross -Complaint is that The Altum Group is not a licensed contractor and that a contractor's license was required in order to lawfully perform the construction ser vices at issue in the Agreement. (Cross- Complaint ¶¶ 4, 5, 9, 12.) The Altum Group demurrers arguing that both causes of action are uncertain or insufficiently p...

Excerpt: ...ntiary and/or terminating sanctions. (Code Civ. Proc., § 2023.030(a) -(d).) The court has discretion to issue a terminating sanction in response to a misuse of the discovery process. (Code Civ. Proc., §§ 2023.030(d), 2030.300(e).) Terminating sanctions can take the form of (1) striking out the party's pleading or part thereof; (2) staying further proceedings by that party until he or she obeys the court order; (3) dismissing that party's actio...

Excerpt: ...l distress. Plaintiff argues that this motion should be denied because the arbitration agreement is unconscionable is prohibited under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. §§ 401, 402. The Court agrees and denies the motion. The parties agree that the agreement at issue is governed by the Federal Arbitration Act, which favors enforcement of arbitration provision in any contract “evidencing a tran...

Excerpt: ...mitted to th e Court as Exhibit 1 to the Edelstein declaration of February 29, 2024. On July 20, 2023 Defendant Apollo was named as Doe 1 in the action filed by Desert Concepts Construction, Inc. It was defaulted on September 7, 2023. Default was entered based on the r epresentation that Apollo was properly served. The proof of service that Desert Concepts filed states that the First Amended Complaint was personally served on Apollo Venture's A...

Excerpt: ...case, the Wac hters argue that Defendants should not recover their post -offer expert fees because Defendants' 998 Offer was made jointly to the Wachters, and failed to specify the sum offered to each Plaintiff individually. (Motion, 2:5 -9; 4:20 -22; 5:10- 12.) The Wachter s also argue that, even if the section 998 Offer is deemed valid, a significant portion of the fees should still be stricken or taxed as nonrecoverable, because they were inc...

Excerpt: ... Amended Compla int, which is entitled “fraudulent inducement -concealment,” alleged as against Ford, and the sixth cause of action for negligent repair alleged as against Fiesta Ford. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, ...

Excerpt: ...alleges, among other things, that the City, and other public entities, are liable for wrongful death and the decedents' fatal injuries for a dangerous condition of public property. The Complaint alleges that on the evening of December 28, 2022, the two vehicles collide d at or near the intersection of Fred Waring Drive and Adonis Drive in the City of Palm Desert, California. (Complaint, ¶ 20.) It alleges that while the vehicle transporting the d...

Excerpt: ...tion. Plaintiff has not addressed the deficiencies identified in the Court's ruling on the prior demurrer. In ruling on the demurrer to the First Amended Complaint, the Court finds that it did not sufficiently plead facts to support an inference that EMC had the re quisite intent, or facts from which could reasonably infer that they denied, or withheld Marshall's care by way of oppression, fraud, or malice, or extreme recklessness. The Court e...

Excerpt: ...nit and made repairs to common areas, all of which were paid by the HOA's insurer. Later, LaPay's sister, Plaintiff here, became Trustee of her brother's Trust and eventually sued the HOA and its Manager for breach of governing documents, negligence, conversion, nuisance, trespass, breach of fiduciary duty, and declaratory relief. The HOA now seeks to recover prevailing -party attorneys' fees under Civil Code sections 1717 and 5975, Code of Civi...

Excerpt: ...al relationship giv ing rise to a duty to disclose. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts suffic ient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High ...

Excerpt: ...ior demurrer brought on similar grounds. Plaintiff's First Amended Complaint now alleges causes of action for: (1) fraud; (2) misrepresentation; (3) violations of the Unfair Competition Law; and (4) elder abuse. Plaintiff alleges in the FAC that she executed a promis sory note and a deed of trust to the originating lender, and challenges Defendants' authority to pursue a non -judicial foreclosure on the ground that the originating lender is the o...

Excerpt: ...supervision. It moves, alternatively, for summary adjudication of the following issues: (1) Enterprise had no duty to warn because the condition was open and obvious; (2) any failure to warn by Enterprise was not a substantial factor in bringing about Plainti
¯'s injuries; and (3) Enterprise's conduct was not a substantial factor in bringing about Plainti
¯'s harm and Plainti
¯'s own negligence is the sole cause of her injuries. Summary judgme...

Excerpt: ...t leave of court, wrongfully re-Þlled their cross-complaint, which the Court previously dismissed. An attorney or unrepresented party who presents a pleading, motion, or similar paper to the court makes an implied certiÞcation as to its legal and factual merit, and a violation of this implied certiÞcation may result in sanctions. (Code Civ. Proc., § 128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code Ci...

Excerpt: ... Radiology. Plainti
¯ argues the subpoenas are overly broad in time and scope as they seek any and all records from February 1, 2011 to the present. Plainti
¯ argues she sustained injuries to her head, back, shoulders neck, ankle and leg, and that any subpoenas should be quashed in their entirety. The court is authorized to order that a subpoena be quashed, modiÞed, or that compliance be directed, with or without limitations, on the Þling of ...

Excerpt: ...h his LLC 1801 Boulevard Holdings, LLC, is alleged to have wrongfully taken Plainti
¯s' property at 1817 Pintura Circle West. Plainti
¯s' case against Bordewick and the LLC was Þled in 2019 and tried before Judge John Vineyard in September 2021. That case resulted in a verdict in favor of Bordewick and the LLC, and a statement of decision explaining that Plainti
¯s' transfer of the 1817 Pintura property was supported by adequate consideration...

Excerpt: ...nt of Horizon Mobile Village and RV Park, which is owned or operated by Defendant Laguna and, it appears, Horizon, which was added into the action as Doe 2. On December 17, 2020, another tenant, Raymond Bernal, stabbed McKee when McKee intervened to stop Bernal from assaulting another tenant. McKee asserts that moving Defendants breached a duty of care owed to the Plainti
¯ by creating a dangerous condition, failing to warn of danger, and failin...

Excerpt: ...of need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plainti
¯ need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549550.) A demurrer on the ground of uncertainty will only be sustained where a defendant cannot reasonably determine what issues must be admitted or denied, or ...

Excerpt: ...rator, Doe 3, demurrers once again to the only cause of action against it, for negligent hiring, supervision, and retention. The Court previously sustained a similar demurrer to the Complaint. Plainti
¯ has now addressed the deÞciencies in the prior complaint. Doe 1 contends that Plainti
¯'s third cause of action is barred by the applicable statute of limitations under Code of Civil Procedure section 340.1. Doe 1 contends that nothing in the F...

Excerpt: ...s to the breach of contract that was the subject of the Complaint. Khodaverdian's counsel declares in support of the motion that he learned in November 21, 2023, for the Þrst time through discovery responses that Eisenhower Defendants contend that the ConÞdential Separation Agreement and Release of all Claims, the subject of the sole existing cause of action for breach of contract, does not apply to acts by Wilson, and that Wilson is not part o...

Excerpt: ...t the fifth cause of action is not stated with particularity, that it fails to allege a transactional relationship giving rise to a duty to disclose. To withstand a demurrer the complaint must contain "a statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., S 425.10.) "[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually fo...

Excerpt: ...wer within 20 days. Plaintiffs have filed this post-foreclosure action against their mortgage lender alleging that Defendant Gateway wrongfully foreclosed on their property. Plaintiffs allege Defendant wrongfully foreclosed on their property located at 83065 El Greco Avenue, Coachella, CA 92263, through a trustee's sale upon Plaintiffs' default on their mortgage payments. (First Amended Complaint ["FAC"], 1, 9.) Plaintiffs allege that, beginning ...

Excerpt: ...ly identified deficiencies in the pleading, as explained below. The Court declines to award sanctions on fts own motion, but this does not preclude Defendants from filing a separate motion under Section 128.7, after complying with all safe harbor and other requirements of that section, if appropriate. Defendants again demurrerto the first cause of action for breach of written contract, the second cause of action for breach of oral contract, and t...

Excerpt: ...ion is granted, but responses are limited to documents from 2020, 2021, and 2022. All further responses are ordered to be served within 30 days of service of notice. (CCP S 2031.310). Plaintiff has made a factspecific showing of relevance as to these Demands, with the limitations noted above, and Defendant EMC has not justified its objections. The Court notes that with respect to objections based on the fact that requests are unduly burdensome, E...

Excerpt: ...d without the need for Court interventon. The Court notes that in her reply, Plaintiff claims that the only injuries at issue are to her "shoulder, back, head neck [sic.], ankle and leg (these body parts are listed in Plaintiff's discovery responses)." (Reply 2:24-25.) Notably, the motion does not specify the body parts at issue. But in her discovery Page 3 of 3 responses, Plaintiff identified her injuries in response to Form Interrogatory number...

Excerpt: ... position on the Del Web at Rancho Mirage Community Association for a full two-year term and (2) prohibiting the HOA Board from removing board members without complying Corporations Code sections 7221 and 7222. The injunction is granted as to request 1, and the Court orders Andrew be restored to her position on the Board, but only for the remainder of her existing term and not for an additional two-year term. The injunction is denied as to reques...

Excerpt: ...t where they address an entire paragraph, cause of action, count, or defense; none of those things are at issue here. For that reason alone, the Court could deny this motion with respect to Issue 2. As to all issue, Defendant argues that there are no allegations against it beyond mere negligence and no specific allegations against it supporting punitive damages based on malice. Here the First Amended Complaint alleges intentional torts against De...

Excerpt: ...r the purchase price of $37,000 to be paid in installments over the course of 25 years, accruing interest at the rate of per annuum. The sole surviving buyer, Plaintiff Gardner, alleges in her Complaint that she and her late husband made continuous payments and paid the loan in full in and around 2005. (Complaint, 14.) Both the sellers are now deceased. After John Gustavsen died, in 2018 Patsy Gustavsen transferred title to the property into her ...

Excerpt: ...tentional infliction of emotional distress, breach of contract, and fraudulent concealment. The second cause of action is for intentional infliction of emotional distress. The First Amended Complaint sufficiently pleads intentional infliction of emotional distress. Allegations that room 988 was "dirty" during Plaintiff's stay, and that there had been complaints by prior guests documented in an online platform in June 2022, July 2017, May 2016, an...

Excerpt: ...ment the Court retained jurisdiction under Section 664.6. Plaintiff Dumas, however, contends that he did could not clearly hear all terms of the agreement because he was appearing by telephone while his attorney appeared in court in person. He also claims that the agreement should not be enforced because Defendant utilized more than one interpreter during the proceedings. He also contends that the Court should not enforce the agreement because it...

Excerpt: ...Plaintiff's operative Second Amended Complaint alleges seven causes of action for (1) negligence, (2) negligent infliction of emotional distress, (3) intentional infliction of emotional distress, (4) sexual battery (Civ. Code, S 1708.5), (5) gender violence (Civ. Code, S 52.4), (6) Ralph Act Violation (Civ. Code, S 51.7), and (7) false imprisonment. The motion here concerns further responses to DHSE's Special Interrogatories, Set One, and Demands...

Excerpt: ...rt on December 1, 2023. An abstract of judgment was issued on December 5, 2023. Defendants argue that the judgment entered on November 29, 2023 is not final because post-judgment motions are pending and the judgment may be appealed. These arguments are not persuasive or supported by law. A money judgment that requires payment of money is enforceable against all property of the judgment debtor. (Code Civ. Proc., SS 681.0110(a), 695.010(a).) "In or...

Excerpt: ... deemed the prevailing party. Plaintiff now moves for an award of attorney's fees and costs in the total amount of $58,586.28, which includes: (1) a lodestar of $33,914.50; (2) $6,000 for anticipated fees for reviewing opposition, drafting reply and appearing at the hearing on this matter; (3) a 1.35 multiplier in the amount of $11,870.07; and (4) $6,801.71 for litigation costs. GM opposes the motion arguing that the billing is excessive or fabri...

Excerpt: ... a deterioration in their business relationship. In 2019, Carrick sued Gonzalez for breach of express and implied pool agreements, declaratory relief, and breach of support contract in case PSC1901644. In 2020, the parties resolved the action via a written settlement agreement and voluntarily dismissed the lawsuit. In 2022, Carrick sought to vacate the dismissal and enforce the settlement agreement under Code of Civil Procedure section 664.6. The...

Excerpt: ... 2023, along with allegations pertaining to punitive or exemplary damages. "[A1 moton to strike is generally used to reach defects in a pleading which are not subject to demurrer." (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be brought to strike the portion of a pleading on the grounds that that pleading contains "irrelevant, false, or improper matter" or "not drawn in conformity with Californ...

Excerpt: ... when it vacated the leased premises without notice, failed to pay rent for the balance of the lease, and failed to mediate in compliance with the terms of the lease. The Complaint further alleges that Defendant defrauded Plaintiff when it promised to pay rent for the duration of the lease, promised to mediate disputes, and made other promises without any intention of performance and with the intent to defraud and induce Plaintiff's reliance. Fur...

Excerpt: ...titute a cause of action, and that it fails to allege a transactional relationship giving rise to a duty to disclose. To withstand a demurrer the complaint must contain "a statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., S 425.10.) "[Tlhe complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof...

Excerpt: ...inging this motion. The parties are ordered to meet and confer by telephone, in person, or on video. Failure to meet and confer in good faith may result in sanctions. If the parties resolve the issues before the Court, the moving party is ordered to contact the Court and request that the Motion be taken off calendar. After meeting and conferring, moving party shall, at least 10 days before the continued hearing date set above, do one of the follo...

Excerpt: ...the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike." Here, the declaration filed by Defendant refers to a meet and confer pertaining to a prior motion and does not state that anyone met and conferred with respect to this moton arising from the First Amended Complaint. It may well be that a meet and confer wil...

Excerpt: ...this wrongful foreclosure action. Plaintiffs allege the following causes of action: (1) violation of Civil Code section 2923.5; (2) violation of Civil Code section 2923.6; (3) violation of Civil Code section 2923.7; (4) negligence and negligence per se; (5) UCL violations; and (6) wrongful foreclosure. The first, second, and third causes of action are premised on statutory violations. Civil Code section 2923.5 requires that a mortgage service, mo...

Excerpt: ...der. Plaintiffs now move for an order removing the case from arbitration and putting it back on the active calendar because they argue that Defendants failed to timely pay arbitration fees. Defendants admit that they did not timely pay the fees but assert that the oversight was unintentional and that the Court should not remove this case from arbitration because Plaintiffs failed to comply with this Court's order requiring the matter to but submi...

Excerpt: ...al Integrity. Plaintiff initially sought to recover for, among other things, anxiety she claimed to have suffered as a result of the accident. She now has withdrawn her claims relating to anxiety and has not and does not assert any claim for psychological injury. She has amended some or all of her responses to discovery to eliminate any such claims, and will amended remaining responses to avoid any confusion about the claims she is pursuing. For ...

Excerpt: ...emurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." Here, the parties have not met and conferred as required. It may well be that a meet and confer will not resolve this demurrer. The likelihood of a resolution is, however, irrelevant. The C...

Excerpt: ...cularity that constitute a cause of action, and that it fails to allege a transactional relationship giving rise to a duty to disclose. A moton for judgment on the pleadings addresses defects in a pleading that are disclosed on the face of the pleading or that are subject to judicial notice. (Cloud v. Northrop Gruman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in the complaint are deemed admitted and the complaint is given a reasonab...

Excerpt: ...ces of the Riverside Branch. Petitioner seeks a writ commanding the Department to provide services, to create and implement an Individualized Plan for Employment, and for "damages in the sum of $57,CM through May 2022 and continuing at $2,880." In her opening brief Petitioner also seeks orders requiring the Department and its employees from engaging in conduct that she considers to be unprofessional. More specifically, Petitioner asserts that she...

Excerpt: ...ry of judgment as a matter of law. (Code Civ. Proc., S 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Prcyc., S 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made ...

Excerpt: ...nses, and further responses, as previously ordered by this Court prior to the hearing on this motion, or the tme this tentative ruling is adopted per Local Rules, the Plaintiff is prohibited from arguing or putting on evidence at trial as to all of the following specific issues: (a) "Defendants held themselves out to Plaintiff as experts with respect to the preparation of an offer in compromise (OIC) with the Internal Revenue Service (IRS)," as a...

Excerpt: ...ckson argues that punitive and exemplary damages should be stricken under Code of Civil Procedure section 436 because the facts pleaded are insufficient to support a claim of oppression, fraud, or malice. The Court disagrees. The allegations are specific and they, and inferences that may drawn from them, are sufficient to survive the moton to strike. The Complaint pleads that on the night of the accident Jackson, who lost his license as a result ...

Excerpt: ... Marshall's wife, Plaintiff Eaton, sued EMC and its alleged administrator, Martin Massiello alleging: (1) dependent adult elder abuse (Welt & Inst. Code 515600, et seq.); (2) Medical Malpractice Survival Action (Code Civ. Proc., 5377.20); (3) Willful Misconduct; (4) Negligent Infliction of Emotional Distress; and (5) Wrongful Death. Massiello demurrers to the First Amended Complaint and all causes alleged against him on the basis that it fails to...