Excerpt: ...he exemption argument had to be raised in Lubrano's answer, and was not, and because Lubrano has not shown the absence of triable issues of fact as to whether Plaintiff was a “personal attendant” throughout her employment. The Court rejects Plaintiff's assertions. “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more is...

Excerpt: ...el or initiate litigation without approval of the probate court or the conservator, stating: “because of the establishment of the conservatorship, the proper jurisdiction to seek appointment of a GAL was in the probate court.” The Court takes judicial notice of that opinion (Exhibit 18 to the Request for Judicial Notice), the logic of which controls in this matter. The Court of Appeal adopted the same logic in its opinion in Conservatorship o...

Excerpt: ...kin, that she developed a “pressure injury” that caused extreme pain and untimely death. Plaintiff also asserts that this failure was caused by intentional understaffing at the nursing facility where Nancy was living. Demurring party asserts that the entire First Amended Complaint fails based on the statute of limitations, but nothing on the face of the pleading shows that it is time barred and the Court will not look behind the pleadings to ...

Excerpt: ...ose of these causes of action in their entirety; the Court addresses these causes of action in its ruling on the motion to strike being heard concurrently with this motion. The Court previously granted the County's motion for judgment on the pleadings as to the First Amended Complaint, wherein the causes of action were differently numbered, as to the 2d (negligence) and 3d (dependent adult abuse) causes of action, without leave to amend, and as t...

Excerpt: ...impede its interest. Black Diamond's action in intervention is for quiet title and for declaratory relief as to Plaintiffs and existing Defendants, meaning that none of the current parties to the litigation have an incentive to represent Black Diamond's interest. Black Diamond's participation as an intervening party is necessary and appropriate. (Ziani Homeowners Association v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282.) Moving party i...

Excerpt: ...ed Complaint, and without leave of Court. The Court did grant Plaintiff leave to amend with respect to his claims against the County, but not as to the City. The demurrer is sustained without leave to amend as to the 3d cause of action for violation of Section 1983 as against the City. The 4th cause of action is for violation of the Unruh Civil Rights Act, and it also contains new allegations that Plaintiff added without leave to amend, but the C...

Excerpt: ...or “tort of another” also fails as a matter of law because there is no “third person”; “A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred.” (Prentice v. North Amer. Title Guar. Corp...

Excerpt: ... principal on the bond and Federal is the surety. Cell‐Crete asserts that Federal, by this bond, is bound to pay for labor and materials that Cell Crete furnished to Granite on the Project, that Granite did not allegedly pay for. The claims between Cell‐Crete and Granite were resolved in an arbitration that resulted in a judgment for Granite and against Cell‐Crete (although not before the Court it would appear that the judgment would make i...

Excerpt: ... Civ. Proc., § 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.) On demurrer the court must assume the truth of all facts properly pled, facts that may be implied or reasonably inferred from the facts expressly alleged, and evident...

Excerpt: ...sert Regional Medical Center and that a nurse told Almanza's son about Almanza's bedsores and said “‘[t]his is the fault of the nurses for not caring for your mom the way we should. We had to report this to the State because of its severity.'” Allegedly this same nurse, or another nurse, also told Almanza's son that the hospital had been fined relating to this conduct and that it wanted to move Almanza to another facility in advance of a fo...

Excerpt: ...hat “The court determined that Desert Mist Farms incurred damages of $36.00 for the Larsons' trespass.” In fact, the Court specifically found that DMF did not prove any actual damages as a result of the Larsons' trespass, and in rendering a verdict after trial found, as stated in both the minutes and in the ultimate judgment, that “neither plaintiff has put forward reliable or credible evidence of any actual damages suffered as a result of ...

Excerpt: ...6, 685‐686.) The Complaint does not set forth facts demonstrating that the publication was false at the time it was made. In fact, the Complaint sets forth facts demonstrating that at the time the abstract of judgment at issue was recorded it was valid. Additionally, recording a valid abstract is an absolutely privileged action under Civil Code section 47. (See Brown v. Kennard (2001) 94 Cal.App.4th 40, 44‐45.) Plaintiff Storck has not provid...

Excerpt: ...t to an affirmative defense as to any cause of action, [or] that there is no merit to a claim for damages. . .” (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A moving defendant bears the initial burden of proving that there is no triable issue of material fact, and may do so ...

Excerpt: ...ause 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 of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to t...

Excerpt: ...ndquist. Mark and Jered Lundquist are named as alter egos. The demurrer asserts that the Complaint fails to state a cause of action against Mark and Jered Lindquist as alter egos. There are two basic requirements for imposing alter ego liability. First, the shareholders sought to be held liable have treated the corporation as their “alter ego,” rather than as a separate entity; and second, it would “sanction a fraud or promote an injustice�...

Excerpt: ....” Section 1033.5, subdivision (a), sets forth allowable costs, and Section 1033.5, subdivision (b), sets forth the non‐allowable costs. A verified fee bill is prima facie evidence the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Furthermore, a declaration attesting to the accuracy of the fee bill is presumed credible. (Horsford v. Board of Trustees of California State Univ...

Excerpt: ...ntiff filed an ex parte in Department 1 seeking a continuance on the basis that his attorney, Mr. Summers, was in the midst of an unanticipated mental health crisis. The ex parte specifically requested a continuance of trial so that Plaintiff could obtain new counsel. At the time the ex parte was heard, Plaintiff appeared telephonically. The minutes of April 9, 2019 reflect that Plaintiff informed the Court that: “He has problems with his couns...

Excerpt: ...), 4th (Conversion), and 5th (Negligence) causes of action, on the grounds triable issues of material fact exist. SUMMARY OF MATTER This is a damages complaint by former tenant at property owned by Defendant MICHELLE FISHER. In July 2014, Plaintiff XENA VIMERCATI and co‐tenant WILLIAM SWYERS entered into a five‐year lease with FISHER for the property at 40050 De Portola, Temecula. In October 2015, FISHER filed an Unlawful Detainer action (SWC...

Excerpt: ...ement and Notice of Posting Jury Fees (7/28/17); $136.70 for Ex Parte to Continue Trial (12/5/18); $530 for MSJ (9/11/18); and $90 Ex Parte motion fee (9/11/18). Plaintiff claims two filing fees are associated with a motion for summary judgment that Yamaha ultimately took off calendar after Plaintiff prepared and filed his opposition. Plaintiff also objects to Yamaha's claimed courier costs.  Deposition costs. Plaintiff objects to: $4,493.48 r...

Excerpt: ...d Notice of Posting Jury Fees (7/28/17); $136.70 for Ex Parte to Continue Trial (12/5/18); $530 for MSJ (9/11/18); and $90 Ex Parte motion fee (9/11/18). Plaintiff claims two filing fees are associated with a motion for summary judgment that Yamaha ultimately took off calendar after Plaintiff prepared and filed his opposition. Plaintiff also objects to Yamaha's claimed courier costs.  Deposition costs. Plaintiff objects to: $4,493.48 related t...

Excerpt: ...NMAC assigned its interest via a Deed of Transfer, which assignment was duly recorded, to Citimortgage, on November 9, 2018. As PNMAC no longer has a legal interest in the property, and did not have an interest in the property as of the date the Plaintiffs seek to quiet title, Plaintiffs have not properly asserted a claim to quiet title against PNMAC, and their first cause of action fails. Plaintiffs' second cause of action, for declaratory relie...

Excerpt: ...n they purchased their vehicle. But Plaintiffs have not pleaded facts sufficient to demonstrate that Defendant Hyundai was in fact aware of and concealed this alleged steering defect at the time of Plaintiffs' purchase. Plaintiffs' fraud causes of action in the Third Amended Complaint are substantively identical to those pleaded in the First Amended Complaint and Second Amended Complaint, and the Court sustained a demurrer as to each of those com...

Excerpt: ...ly exempts Olson from “liability” when in fact that Section contains no such statement and states in its entirety: The driver of an authorized emergency vehicle is exempt from Chapter 2 (commencing with Section 21350), Chapter 3 (commencing with Section 21650), Chapter 4 (commencing with Section 21800), Chapter 5 (commencing with Section 21950), Chapter 6 (commencing with 22100), Chapter 7 (commencing with Section 22348), Chapter 8 (commencin...

Excerpt: ...nated against and harassed by Defendants on the basis of her pregnancy and retaliated against when she filed a worker's compensation claim, took time off under the FMLA for pregnancy‐ related conditions, requested a reasonable accommodation for her pregnancyrelated conditions, and when she made internal discrimination and retaliation complaints to the CDCR and that the retaliation and discrimination continued until Plaintiff was wrongfully term...

Excerpt: ...To recover under a theory of bystander negligent infliction of emotional distress, Mr. Campbell must show, among things, that he was at the scene of the injury‐ producing event at the time it occurred and was contemporaneously aware that it was causing injury to his wife Janice Campbell. (Thing v. LaChusa (1998) 48 Cal. 3d 644, 688.) Because Mr. Campbell was not in the operating room, his claim cannot be based on the attempts to perform a spina...