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...

Excerpt: ... following grounds: (1) "A statement of compliance with the demand is incomplete"; (2) "A representation of inability to comply is inadequate, incomplete, or evasive"; or (3) "An objection in response is without merit or too general." (Code Page 4 of 5 Civ. Proc., S 2031.310(a).) However, unlike any motions to compel responses of other forms of written discovery, the motion to compel further responses to RFPs must set forth specific facts showing...

Excerpt: ...n for judgment on the pleadings have not all been addressed. The first cause of action for breach of written contract is based on the "contract" attached as Exhibit Ato the FAC. It is not clear that this is a contract at all, but assuming it was intended to be a contract, it is not clear from the pleadings or the fact of this document what the essential features of the agreement were and whether there was a meeting of the minds. Although is clear...

Excerpt: ...ituting 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 form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary "to acquaint a defendant with the nature, so...

Excerpt: ...feco as part of an insurance claim, made contradictory statements about the cause of the property damage "rais[ing] serious concerns about the objectivity and integrity of SAFECO'S investigation and HAAG Engineering's conduct." {FAC '1 30.} The fourth cause of action for negligence and fifth cause of action for violation of Business and Professions code 17200 are brought as against HAAG and all other defendants. As the demurrer correctly argues, ...

Excerpt: ...ess. {FAC, "1 11, 20.} The only remaining issue in this demurrer is the second cause of achon for battery. The tort of battery is an intentional and offensive touching of a person who has not consented to the touching. (Conte v. Girard Orthopaedic Surgeons Med. Group, Inc. (2CG) 107 Cal.App.4th 1250, 1265.) "The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the in...

Excerpt: ...J& A Havendale, LLC move to strike the follow-ng portions of the Palm Cross-compliant: 1. Heading B ("Facts re the Cross-Defendants' Efforts to Commingle the Sale of the Carmona Real Property with the Restaurant Lease"), page 7, in its entirety. 2. Paragraphs 23-26, page 7, in their entirety. (General Allegations) 3. Paragraph 33, page 8, the portion of which states "reasonable attorneys' fees and." (2nd Cause of Acton) 4. Paragraph 54, page 11, ...

Excerpt: ...rer 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 form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead...

Excerpt: ... a friend at Defendant's premises. (FAC, 12.) On April 15, 2019 Plaintiff discovered that there was a bedbug infestation in her room and took photos of the bedbugs to inform the hotel management. (FAC, '1 13.) After Plaintiff the incident, a hotel security guard assisted Plaintiff inspect her and confirmed that bedbugs were nesting in the room. (FAC, '1 14.) Later that day, Plaintiff realized that she and her friend had been bitten by bed bugs. (...

Excerpt: ...room door shut on him. Isenia Salcedo and Hernan Cortez, Ivan's parents, also observed Ivan's suffering after the accident. Plaintiffs allege the following six causes of action: (1) Dangerous Condition on Public Property; (2) Vicarious Liability of Public Employee; (3) Public Entity Liability for Failure to Perform Mandatory Duties; (4) Negligent Hiring, Supervision, Training and Retention; (5) Vicarious Liability of Public Employee; and (6) Inte...

Excerpt: ...se 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 form part ofthe plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary "to acquaint a defendant with the nature, source and extent o...

Excerpt: ...er abuse in the First Amended Complaint. Defendants allege that this cause of action is insufficiently pleaded and not pleaded with particularity. 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 suffic:ient to state a cause of action, each evidentiary fact that might eventually form...

Excerpt: ... of the accident. At that event they served alcohol to Defendant Arnold Vivas. Arnold is Ronald's younger brother. When Arnold drove away from the event, he was intoxicated. While driving he struck the Heynens' car, which Joanna Heynen was driving. Joanna was pregnant at the time. The Heynens' car was totaled. The operative complaint alleges three causes of action, only two of which are as against demurring defendants, Ronald Vivas and Civet Gonz...

Excerpt: ... first cause of achon is for administrative mandate and for a stay of enforcement. CrossDefendants no longer own the property that is the subject of this action, and have no basis to seek writ relief or a stay of any actions as against the property. This property is also now the subject of a receivership, and the receiver has tasked with remediating the hazardous conditions on the property to bring it into compliance with all local and state heal...

Excerpt: ...red by experts designated by State Farm in its initial expert disclosure, and Plaintiff has not previously listed any expert on these subjects. "After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses to exchange by all parties of a list containing the name and address of any natural person, including...

Excerpt: ... demurring 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, Defendant neglected its duty to meet and confer as required. It may well be that a meet and confer will not resolve this demurrer. The likelihood of a resolution is, however, irrele...

Excerpt: ...th Cause of Acton, item 40, 'Attorney's fees, witness fees and costs of litigation incurred by Plaintiffs to obtain policy benefits in an amount to be determined at trial' because the FAC fails to allege a contract between Plaintiffs and DKI providing for attorney fees to the prevailing party." The eighth cause of acton is for negligence. Plaintiff has not pleaded any basis for recovery of attorney fees under a negligence theory. The motion is gr...

Excerpt: ...not addressed in the moving papers and is therefore not properly before the Court. Responses to these Demands 1-5, 6-8, 17-20, 26, 36, 44-52, and 50 are not Code compliant. The party to whom a demand for inspection, copying, testing, or sampling has been directed shall separately to each item or category of item by any of the following: [91 (1) A statement that the party will comply with the particular demand.... [q] (2) A representation that the...

Excerpt: ... Homeowners Association and The Management Trust (collectively "HOA"), the causes of action for (1) negligence (3rd cause of action), (2) trespass (4th cause of action), and (3) private nuisance (5th cause of action). HOA moves to strike portions of Plaintiffs' Complaint concerning the request for award of punitive damages and attorney's fees. "[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer...

Excerpt: ...e was financed with a loan from BMC Mortgage, lnc„ which was secured by the property. Richard, the borrower, died on November 7, 2021. On September 15, 2022, Defendant Western Progressive Services LLC recorded a Notice of Default on of Defendant PHH Mortgage Corp. Thereafter Plaintiff recorded the Order awarding him the property. Plaintiff contacted PHH seeking to cure the default, but PHH refused to speak to Plaintiff because he was not the bo...

Excerpt: ...ice. No formal opposition to this motion was filed. Instead, counsel for DHSO filed a declaration stating that he provided Plaintiff with a check to cover the sanctons. The check was dated September 6, 2023. The declaration also stated that DHSO served further verified responses, without objections, to Demands for Production 1 and 15, and Interrogatory 4.1. The Court finds that DHSO has not complied with the June 28, 2023 order. As to request for...

Excerpt: ...o which portions of the motion is denied. Moving parties move to strike portions of the 3rd, 4th, 5th, 6th, 7th, 8th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st, 22nd, and 23rd causes of achon in the Second Amended Complaint, arguing that they are predicated on the alleged fraudulent representation made by Defendants regarding River Falls which was a non-existent entity at the tme of Plaintiff's execution of the notes and the related de...

Excerpt: ...Mellon in an unlawful detainer action against Plaintiffs and that all causes of action here arise from that protected conduct. "The ant-SLAPP statute, secton 425.15, allows a court to strike any cause of action that arises from the defendant's exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances." (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 ("Flatley").) Because not all speech or petit...

Excerpt: ...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 form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 851, 872.) Generally, a plaintiff need only plead facts necessary "to acquaint a defendant w...

Excerpt: ..., if applicable, in these causes of action along with liability, defenses, and damages on the remaining cause of action fifth cause of action (fraud or deceit—promissory fraud), including liability for punitive damages, shall be determined in Phase II after the conclusion of the Orr Builders appeal; Phase Ill will involve determination of the amount of punitive damages, if applicable. Defendants move for a stay of this case pending resolution o...

Excerpt: ...ber 3. Defendants assert that the Court should strike these portions of Plaintiff's Complaint because there are no material allegations of fact sufficient to support punitive damages. The Court agrees. Code of Civil Procedure section 436, subdivision (a), provides that a court may "[s]trike out any irrelevant, false, or improper matter inserted in any pleading." In ruling on a motion to strike, the allegations in the complaint are considered in c...

Excerpt: .... Castro allegedly convinced Kleczka to purchase The 19th Hole restaurant or contribute funds to do so through an LLC, Castriinilexini, LLC. These are commercial claims that are not secured, and are premised on, among other things, elder abuse allegations. Here, Plaintiff seeks a temporary restraining order and right to attach order. Attachment is a purely statutory remedy by which the property of a defendant is "seized" in advance of trial and j...

Excerpt: ...sition Subpoena for Personal Ap#arance and Production of Documents and Things issued by Plaintiffs on July 14, 2023, to third-party Victor Monteleone. underwriters brings this motion on the ground that the deposition is untimely as fact discovery has been closed in this case since March 15, 2023, with the original trial date being April 21, 2023. On March 22, 2023 the Parties executed a Stipulation to continue trial until October 2, 2023 ("Stipul...

Excerpt: ...ly identified deficiencies in the first three causes of acton. The Third Amended Complaint still fails to allege a definite oral easement or interference with particular rights. A grant of an oral easement may overcome the statute of frauds if formed by an executed oral agreement. Here, Plaintiffs allege that since the early 1960s, Dunlevie, as the owner, agent, and offcer of the three entities, Desert Bermuda Development Company, Jamaica Sands, ...

Excerpt: ...his Court after a trial on the merits awarded Orr Builders, the general contractor on the Sunniva Project, several million dollars in connection with its mechanic's lien foreclosure action as against Bobs. Bobs appealed on August 3, 2023. A jury trial in the action at bench is set for hearing on September 15, 2023. The basis for the request for stay is that the damages sought by Bobs in this case are partially premised on the damages awarded in t...

Excerpt: ...ied in April. Marshall's wife, Plaintiff Eaton, sued EMC and its alleged administrator, Martin Massiello alleging: (1) dependent adult elder abuse (Welf & 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 complaint and all causes alleged against him on the basis that fails to st...

Excerpt: ...ing of April 11, 2023 deeming admitted the Defendant's Request for Admissions, Set One. Plaintiff argues that the Court abused its discretion in granting the motion to deem matters admitted, because responses to the Request had been provided and one hour after the hearing Plaintiff "cured the administrative procedural mistake or excusable neglect by having Plaintiff's response verified and served the verified response to Defendant." Plaintiff ass...

Excerpt: ...ent, with a balance of approximately $205,cm. The second mortgage, however, is not current and over $582mo was owed at the time it was foreclosed upon. Defendant Glenhill Asset Management LLC is alleged to be the beneficiary of the note on the second mortgage; Defendant Equity Wave is the loan servicer on the second mortgage. The value of the property allegedly exceeds $1.5 million. Landers alleges that from March 2020 through September 2020 he r...

Excerpt: ... (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) The burden is on the prevailing party to demonstrate that fees were allowable, reasonably necessary, and in a reasonable amount, "both from the standpoint of time spent and the amount charged." (Warren v Kia Motors Inc. (2018) 30 Cal.App.5th 24, 35-36.) This is consistent with the lodestar calculation, a function of hours reasonably expended multiplied by the reasonable hourly...

Excerpt: ...issued in connection with a loan by hard-money construction lender Bobs to the developer of the Sunniva Campus, a multi-million-dollar warehouse for production and distribution of cannabis and cannabis products. Months after project construction was under way, in March 2018, Bobs originated a $27 million loan to the developer, which was processed through escrow. Defendants Orange Coast Title Company ("OCTCSC") and Real Advantage Title Insurance (...

Excerpt: ...nt on the pleadings has the same function as a general demurrer and the same rules govern except as provided by Code of Civil Procedure secton 438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Section 438 sets forth the grounds and procedures for the motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notce. Secti...

Excerpt: ...ended Complaint fails to specifically plead facts sufficient to support these claims and that both are barred by the economic loss doctrine. 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 form part o...

Excerpt: ...r, Doe 3, demurrers to the only cause of action against it, for negligent hiring, supervision, and retention. 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 need no...

Excerpt: ...Lloyds's of ü)ndon Subscribing to Policy No. ACNA8PP1477-04 ("underwriters") moves for summary judgment or, alternatively, adjudication of the three causes of achon pleaded against it for breach of contract, breach of implied covenant of good faith and fair dealing, and negligent misrepresentation, all of which are alleged by Plaintiff Prower. The motion for summary judgment is denied. The motion for summary adjudication is granted as to Issue 3...

Excerpt: ...dant from opposing Plaintiff's claims that Defendant Primoris Services Corporation had possession and control of the vehicle that Defendant Cody Joseph Bryan was operating at the time of the incident on May 30, 2021. Plaintiff also seeks an order establishing that Defendant Primoris Services Corporation knew or should have known that the Defendant Cody Joseph Bryan was incompetent or unfit to drive the vehicle." When reviewing a moton for issue o...

Excerpt: ...he existence of triable issues of material fact preclude summary judgment. Summary judgment is granted when a moving party establishes the right to entry 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 achon cannot be established or that there is a complete defen...

Excerpt: ...s to compel arbitration under the Retail Installment Sales Contract that Plaintiff and San Diego Chrysler Dodge Jeep (a nonparty) signed to effectuate the purchase. Crystal argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the Contract. It argues that it may enforce the arbitration provision under the doctrine of equitable estoppel because the claims against it are inext...

Excerpt: ...Procedure section 435, subdivision (a), provides that a court may "[sltrike out any irrelevant, false, or improper matter inserted in any pleading." In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Here, the motion seeks to strike punitive damages allegations from the Complaint. Such a motion lies where the facts alleg...

Excerpt: ...pics identified in the deposition notice. For instance, Burding testified that he looked at five documents to prepare for the deposition, including the preliminary title report and three drafts of the closing instructons given by Bobs before closing of escrow. (Exh. D [25:2-26:181.) He testified that he did not speak to anpne else in preparation for the deposition. (ld. at p. 64:21-25.) He did not take the steps to familiarize himself concerning ...

Excerpt: ... reasonable amount, "both from the standpoint of time spent and the amount charged." (Warren v Kia Motors Inc. (2018) 30 Cal.App.5th 24, 35-36.) This is consistent with the lodestar calculation, a function of hours reasonably expended multiplied by the reasonable hourly rate, which may be adjusted to fix a fee at the fair market value of comparable services in the community. (ld.) "Padding" is not subject to compensation. (See Graham v. DaimlerCh...

Excerpt: ... interfere with Plaintiffs' rights. This case was set for trial, and Defendants had filed a motion for summary judgment that was pending when Plaintiffs voluntarily dismissed the case. Now Defendant Associations move for prevailing party attorneys' fees under Civil Code sections 1717 and 5975. Each Defendant asserts that it is a prevailing party under the Annexation Agreement (Section 1717) and that it defeated Plaintiffs' action seeking to enfor...

Excerpt: ...r claims that in January 2023 it and Respondent each conducted independent appraisals of the property at issue and could not come to an agreement as to value. For that reason Pettioner has brought this action. Property insurance policies may call for "appraisal" of the value or amount of any claimed property loss. It is the insured's initial responsibility to establish the "actual cash value" of the property damaged. If the insured disagrees with...

Excerpt: ...generally that he had been working at the Saks store in Palm Desert since 2004, and that in 2017, when he was in his late-40s, he became the assistant general manager. Thereafter, Saks hired a new General Manager, Flaig-Mtnre, who was in his mid-30s. In November 2018, the Regional Marketing Director, Horwitch, asked Peavy for a "favor" consisting of paying $15,Cü3 of his store budget to her store, in Beverly Hills. Peaw,' refused, causing Horwit...

Excerpt: ... and Dickerson, for (1) total equitable indemnity, (2) partial equitable indemnity, (3) contribution, (4) negligence, (5) breach of fiduciary duty, (6) constructive fraud, and (7) declaratory relief. This Cross-complaint was filed after this Court confirmed an arbitration award of $1,552,760.83, pursuant against Defendants Coachillin' Holdings, LLC and Kenneth Dickerson, jointly and severally in the underlying action. The arbitration involved onl...

Excerpt: ...97) 53 Cal.App.4th 1113, 1117.) Responding party, has not met its burden to justify its objections, which are meritless. The requests are not vague, ambiguous, protected by trade secret privilege, work product doctrine, or attorney-client privilege. Notably, there is no privilege log that respond-ng party can point to regarding any of these issues, nor does the Lu declaration support a claim of trade secret. Plaintiff has demonstrated by a fact-s...

Excerpt: ...n paragraph 8. Plaintiff is ordered to comply with Rules of Court, rule 2.112 when filing an amended complaint; failure to do so may result in any amended complaint being stricken in its entirety. Defendants Abramowitz individually, and as trustee of Skyline Holdings, and Alemany move for judgment on the pleadings as to all causes of action. A motion for judgment on the pleadings has the same function as a general demurrer and the same rules gove...