Excerpt: ... amendment. The court may grant permission on ex parte application to amend a pleading “by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect …” (CCP § 473(a)(1).) Plaintiff argues that the amendment is simply a correction of the Defendant's true name and that it therefore “relates back.” Defendant is correct that the amendment does not “relate back” an...

Excerpt: ...ner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460. (b) This article does not bar any other cause of action or claim for relief by the owner of the property. A release order does not bar any other cause of action or claim for rel...

Excerpt: ...nts have no other means by which to obtain this information. (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933‐934.) Defendant Desert Regional Medical Center argues that Ms. Munson‐Baker's records are relevant because Plaintiffs have put at issue the health of their marital relationship, as well as their mental health, by alleging as injuries and damages: ( A) a detrimental impact on the plaintiffs' marital relationship; (B) damages...

Excerpt: ...unlawful foreclosure action against Wells Fargo in INC11066 on August 15, 2011. The parties reached a settlement which was entered into on August 2, 2012.  As part of the settlement, the parties entered into a loan modification agreement which was to bring the loan current and rescind all previously recorded foreclosure documents.  Wells Fargo did not void all foreclosure documents, which caused Plaintiff to be wrongfully placed in default ...

Excerpt: ...and that the misdiagnosis resulted in delayed treatment and the “inoperable spread of infection that required amputation of her leg below her knee.” The purpose of the Elder Abuse and Dependent Adult Civil Protection Act is “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) A claim of “neglect” by a person hav...

Excerpt: ...n or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.” (Code Civ. Proc., § 391(b)(1).) A “vexatious litigant” may also be a person who: “[a]fter a litigation has been finally determined against the person repeatedly relitgates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the ...

Excerpt: ...as arguably a separate contract and it cannot be determined from the First Amended Complaint which of these contracts was oral, which was written, and which was implied by conduct. As to the second cause of action, the First Amended Complaint fails to plead fraud with the requisite degree of specificity. This appears to be a basic case of non‐payment for goods and services not rising to the level of fraud. For similar reasons, the third cause o...

Excerpt: ...with the deposition and document request propounded in this case, and failed to serve any objection thereto. Defendant's claim that she has 5th Amendment concerns is unavailing, particularly as attendance at a deposition would not require a waiver of 5th Amendment privileges, and because she herself is not apparently claiming any privilege. Rather, she appears to claim that forcing her to be deposed would circumvent her husband's 5th Amendment pr...

Excerpt: ...e Court previously sustained a demurrer to this cause of action, but the deficiencies addressed in that demurrer have not been remedied in the Second Amended Complaint. The elements of intentional misrepresentation are: (a) misrepresentation; (b) knowledge of falsity (or scienter); (c) intent to defraud; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.) This type of fraud must b...

Excerpt: ...ing obtaining surveys, permits and variances at his own expenses, except that Beatrice shall contribute no more than $5,000.00 for the costs such as surveyor, application and permit fees, etc. C.C.P. §664.6 provides that: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgmen...

Excerpt: ... All causes of action are properly plead and the demurrers are therefore overruled. Defendant to answer within 20 days. Defendants California Food Management, LLC and Mark Daly demur to Plaintiff Veronica Avila's complaint's four causes of action for: 1) sexual harassment, 2) retaliation, 3) failure to prevent and correct harassment, and 4) failure to provide reasonable accommodation on the grounds they fail to state facts sufficient to c...

Excerpt: ...o Plaintiff's mechanical refrigeration equipment caused by power failure and damage to its building. Plaintiff alleges that HSB has failed to timely and properly adjust the claim and has unreasonably failed to pay the proper scope of covered damages. Plaintiff also alleges that the demurring Defendants, Pacific Coast Process Solutions, INC. and George White, were both HSB's agents and are not agents of Defendant HSB. FAC ¶¶ 7, 34. The demurrer ...

Excerpt: ...iently detailed, it was not supported by evidence and did issue in accord with the City's own rules, which required an investigation. Relief is not available under Code of Civil Procedure section 1094.5 or section 1085. “Administrative mandamus under section 1094.5 is appropriate to inquire ‘into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evi...

Excerpt: ...iance, and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.) Fraud must be pled with specificity; the plaintiffs must allege facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, quoting Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.) As pleaded the 10th cause of action does not contain the re...

Excerpt: ...nts are not correct, however, that the breach of implied warranty claim accrued upon tender of delivery. The same case cited by Defendants to support the argument that the statute accrues upon Page 3 of 3 delivery states “[u]nder that statute, a cause of action for breach of warranty accrues, at the earliest, upon tender of delivery. (U. Com. Code, § 2725, subd. (2).)” (Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1310‐1311 [empha...

Excerpt: ...apex” depositions and because these individuals are protected by the legislative process/deliberative process privilege. The Court rejects these contentions. Top government officials are subject to deposition in California when they have direct personal factual information pertaining to the material issues in the action and the deposing party shows the information from the deposition is not available from any other source. (Nagle v. Superior Co...

Excerpt: ...rivacy must give way to their opponent's right to a fair trial. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) Plaintiffs have claimed that the incident at issue in the complaint detrimentally impacted their marital relationship, that Marler was depressed and anxious and unable to work as a result of the incident, that Dickinson also suffered emotional injuries including depression, and that counseling services were needed to address these...

Excerpt: ...plaint. Responses to interrogatories are to be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP §2030.220(a), (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and go...

Excerpt: ...onal misrepresentation are: (a) misrepresentation; (b) knowledge of falsity (or scienter); (c) intent to defraud; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.) This type of fraud must be pleaded with specificity. A plaintiff must allege facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal....

Excerpt: ... not the invalidity of the contract as a whole, but rather the arbitration provision itself, then the federal courts [as opposed to the arbitrator] must decide whether the arbitration provision is invalid and unenforceable under 9 USC § 2.” (Davis v. O'Melveny & Myers (9th Cir. 2007) 485 F3d 1066, 1072 (“Davis”) (brackets in original; internal quotes omitted), overruled on other grounds in Ferguson v. Corinthian Colleges, Inc. (9th Cir...

Excerpt: ...esentative, though ultimately the complaint was not amended to add her until after the Court's most recent ruling on the issue of amendment in April of 2019. This situation is analogous to other situations where amendment has been allowed to add plaintiffs after the statute of limitations has run to cure what are essentially technical defects. Amendments naming a new party plaintiff are permissible if there is no change in the claim being asserte...

Excerpt: ...ing that Page 2 of 5 summary judgment as to Gore is appropriate absent dismissal of Gore prior to the hearing on this motion. The motion for summary judgment as to Defendant DeSantis, to the extent DeSantis moved for summary judgment, is denied. There are numerous triable issues of material fact precluding summary judgment, which are more particularly identified below. The motion for summary adjudication as to Defendant DeSantis is granted only a...

Excerpt: ...il after a notice of judgment is served. Nothing in Rules of Court, rule 3.1700 suggests that the memorandum here was improperly filed such that it should be stricken. In the alternative, Plaintiff argues that the Court strike all costs identified in the memorandum because they are excessive and unreasonable. Plaintiff did not address any specific costs as being objectionable. If an item of cost is expressly allowed by statute and appears to be a...

Excerpt: ...ble search and seizure,” but this appears to be an attempt to reargue the case put before the jury, not a basis upon which to enter judgment notwithstanding the verdict. Other similar statements in the motion appear to merely reargue law and evidence at issue during the trial. These statements do not demonstrate any basis upon which to grant the instant motion. The motion appears to argue that there was some error connected with CACI Jury Instr...

Excerpt: ...son took place in HSCA offices, and that Nicholson was using the HSCA name to legitimize his conduct. Plaintiff does not allege that HSCA knew about Nicholson's alleged fraudulent or otherwise inappropriate conduct. It is also unclear how HSCA benefitted from Nicholson's “flipping” or that it benefitted beyond its standard brokerage fees for work performed that is not alleged in the Third Amended Complaint to be wrongful. Plaintiff is granted...