Excerpt: ...each of contract and negligence. 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 action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Pr...

Excerpt: ...th a similarly named business, “Ellis Hospitality Services, LLC” and that that entity is the one that is or should be addressed in Plaintiff's complaint, along with its managing member “Tim Ellis,” and that instead of “Ellis Hospitality Group LLC” and “Jyoti Patel” have no relationship with Plaintiff. They cite Exhibit 12 to the Complaint, a Letter of Intent signed by the various Defendants named in this action, including “Ellis...

Excerpt: ...nd otherwise overruled the demurrer. Plaintiffs subsequently amended the complaint. Defendant now demurrers to the first cause of action for Elder Abuse in the First Amended Complaint arguing that the pleadings are insufficiently specific and do not set forth recklessness, malice, oppression or fraud. The Court disagrees. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary a...

Excerpt: ...xual advances. (Complaint ¶ 22.) Avilez alleges Cortez regularly groped and fondled her body in an unwanted sexual manner, made unwanted harassing comments of a sexual nature, and offered her $10,000 to go on vacation with him and have sex with him. (Id. at ¶ 23-24.) Avilez alleges that on August 12, 2022, Cortez groped her in front of Hildebrandt, her supervisor, who acknowledged seeing the conduct when Avilez complained to him, but took no ac...

Excerpt: ...thstand 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, 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 pla...

Excerpt: ...ctor, he or she must record the claim of lien after the contract work is “completed” and prior to the expiration of either: (1) 60 days after recordation of a notice of completion or notice of cessation; or (2) 90 days after the completion of the work of improvement if no notice of completion or notice of cessation of labor has been recorded. (Civ. Code, § 8412.) A mechanic's lien attaches to the property on which work of improvement was per...

Excerpt: ...ailed to join necessary party the La Residence Homeowners Association. Because it was unclear whether the HOA should be added as a nominal party, or whether it intended to intervene, the Court continued the hearing on this matter to allow counsel to meet and confer. Counsel have not taken this hearing off calendar or provided evidence that they met and conferred to resolve this matter. To withstand a demurrer the complaint must contain “a state...

Excerpt: ...k by a truck owned by Defendant U-Haul of Arizona, which was leased by Defendant Mary Mills and operated by Defendants Travis Alexis and Michael Mills. Decedent suffered severe injuries and died in the hospital. Plaintiffs allege negligence on the part of the Defendants. Plaintiffs noticed the deposition of Roehl's PMK and sent corresponding request for production. Libby Block, as PMK for Roehl, was deposed on January 24, 2023. During the deposit...

Excerpt: ...o such relief as part of this motion, it now seeks to have the Court reconsider its ruling raising arguments it could have raised at the hearing, had it sought one in conformity with the Local and Department rules. Notably, it does not appear that the failure to timely request argument in this case was excusable. Code of Civil Procedure section 1008, subdivision (a) provides in relevant part: When an application for an order has been made to a ju...

Excerpt: ...Hearing re: Demurrer on 1st Amended Complaint for Other Personal Injury/Property Damage/Wrongful Death Tort (Over $25,000) of GINO SCOPESI Tentative Ruling: Sustain with 20 days leave to amend as to the fourth cause of action per Health and Safety Code section 1430. HCR Manor Care Services, LLC, Doe 21, demurrer to the fourth cause of action in the First Amended Complaint arguing that it is not a licensee and therefore cannot be held liable under...

Excerpt: ...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. 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 m...

Excerpt: ...FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract. It further argues that it is a third-party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract, tort or statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrabi...

Excerpt: ...es that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Plaintiffs should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third-party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract...

Excerpt: ...ntity or employees must first present a claim to the public entity, which must be acted upon or deemed rejected by the public entity. (Govt. Code, §§ 945.4, 950.2, 950.6(a).) To be timely, a claim for damages must be presented to the public entity within six months of the date the cause of action accrued. (Govt. Code, §911.2.) If a plaintiff fails to file a government claim within the sixmonth period, he or she may apply to the public entity f...

Excerpt: ... 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.) The same liberal policy regarding amendment of pleadings applies as on sustaining demurrers. Therefore, as long as the defect is correctible, an amended pleading will usually be allowed. (Code Civ. Proc., §576; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168; Pri...

Excerpt: ...ranties, or representations of any kind must be filed in the courts within the state of Indiana.” In support of its motion, Defendant submitted the declaration of Dan Evans. Plaintiffs submitted four objections to the declaration of Dan Evans, submitted by Defendant with its moving papers. The Court sustains these objections. All of the evidence Defendant attempts to submit relating to the forum selection clause is not admissible. There is no c...

Excerpt: ...ive First Amended Complaint (“FAC”). Defendants' motion is based on the court's lack of subject matter jurisdiction, and alternatively, based on an official immunity, and insufficiency of Lamar's pleading. Moving Defendants have not met their burden to demonstrate they are immune from suit. Defendants specially appear to challenge the Court's lack of subject matter jurisdiction under the protection of sovereign immunity and the official immun...

Excerpt: ... Civ. Proc., §§473, subd. (a), 576, 422.10 [pleadings in civil action include answers].) “Leave to amend a pleading, including an answer, is entrusted to the sound discretion of the trial court.” (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it has been held as an error to refuse permission to amend and where the...

Excerpt: ...Turner and DPP was in effect until August 12, 2022. Plaintiff seeks leave to remove allegations relating to its claims against the developer defendants, Coachillin and Kenneth Dickerson, and to add new allegations to support its claims for negligence and breach of fiduciary duty asserted against Turner and DPP. Plaintiff also proposes to include an additional cause of action against these defendants for constructive fraud (Civil Code, § 1573). P...

Excerpt: ...otions were to be heard. Oppositions to the motions at issue were required to be filed and served at least nine court days prior to the scheduled hearing per Code of Civil Procedure section 1005, subdivision (b). Further, the Court posted a tentative ruling for both motions on Friday November 23, 2022, granting the motions and stating that no oppositions had been filed. Plaintiff did not timely request oral argument per Local Rule 3316 or Rules o...

Excerpt: ...end after granting a motion for judgment on the pleadings. The Court indicated in its order granting the motion that Plaintiff appeared to seek tort damages for the damage to the leased property, and theft, and granted leave to amend on this basis. Accordingly, the new causes of action are within the scope of the Court's order granting leave to amend. The motion is denied. Page 3 of 4 4. CVPS2104820 NOROOZI vs GIBBS Hearing re: Demurrer Tentative...

Excerpt: ...y or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference....

Excerpt: ...lisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Gonzalez should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third‐party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract, tort or statut...

Excerpt: ...y 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 issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit 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)...

Excerpt: ...ction, otherwise overrule. 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, 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...

Excerpt: ...of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.” (Code Civ. Proc., § 391(b)(2).) The term “repeatedly” refers “to a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Holcomb v. U.S. Bank, Nat. Ass'n (2005) 129 Cal.App.4th 1494, 1505.) “Although section 391, subdivi...

Excerpt: ...ce of a dangerous condition, Plaintiff was negligent, and that she had no duty to eliminate a trivial hazard. The Court finds disputed 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., § 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...

Excerpt: ...e court makes an implied certification as to its legal and factual merit, and a violation of this implied certification subjects the attorney and/or party to sanctions. (Code Civ. Proc., §128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code Civ. Proc., § 128.5 [authorizing the imposition of sanctions “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of acti...

Excerpt: ...tiff claims that there are additional improper charges included in the memorandum of costs, or charges that were miscategorized. As an initial matter, the Court rejects Plaintiff's unsupported contention that the Court lacks jurisdiction to award costs after an appeal is filed. That is not correct. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.) Further, there is no bas...

Excerpt: ...Court reconsider its ruling based on an argument Plaintiff claims to have raised at oral argument on the demurrer, but which was not included in Plaintiff's opposing papers, specifically that Plaintiff has a right of privacy under Article I section 1 of the California Constitution to be free from unwarranted medical toxins and the excessive use of force, citing Hill v. National Collegiate Association (1994) 7 Cal.4th 1, 8. Plaintiff argues that i...

Excerpt: ...ectuate the purchase. It argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Pelton should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third‐party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or d...

Excerpt: ... in El Dorado Hills, California. Plaintiffs allege in their Complaint that they are residents of Sacramento County and that they lived in the property at issue here for 17 years. (Complaint ¶ 1.) They further allege that all business was conducted in El Dorado County and that venue is proper in El Dorado County. (Complaint ¶ 18.) Defendants Boudier and Dance Hall Investors move to change the venue of the present action from Riverside to either ...

Excerpt: ...ifically, at the deposition Gunberg was asked to locate certain portions of Plaintiff's heart on an ultrasound image. While Gunberg pointed to the portions at issue, his counsel instructed him not to label the ultrasound images. Plaintiff argues that it is entitled to nonverbal answers – like labeling an ultrasound image. He argues the information sought is not privileged or private information. He contends that the questions pertain to relevan...

Excerpt: ...leges causes of action for (1) defamation, (2) invasion of privacy, and (3) declaratory relief‐ tort of another. Solis alleges that Madison made false statements in its insurance claim to Plaintiff Federal Insurance Company, that Solis had embezzled cash payments from Madison's patients and manipulated records to cover up his fraud, and Madison was thereafter paid on its claim by Federal Insurance Company in the amount of $260,234.50. (SACC, ¶...

Excerpt: ... of the following: [¶] (1) A statement that the party will comply with the particular demand…. [¶] (2) A representation that the party lacks the ability to comply with the demand…. [¶] (3) An objection to the particular demand…. (Code Civ. Proc., §2031.210(a)(1)‐(3).) Where a response to request for document has been made, which the demanding party deems unsatisfactory, the demanding party may move to compel further responses on follo...

Excerpt: ... argues that at the time of the accident, Hernandez and Corona were “going and coming” and not in the course and scope of their employment such that MOC is entitled to judgment as a matter of law. The Court disagrees and finds that the existence of triable issues of material fact preclude summary judgment or adjudication. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. ...

Excerpt: ...rrer as to the entire Complaint as it pertains to Plaintiff Damien Garcia, who is listed in the caption and signature block but whose name does not appear in the body of the Complaint. Defendants demurrer as to the other named Plaintiffs only as to the sixth and ninth causes of action alleging that these causes of action fail to state a sufficient cause of action. To withstand a demurrer the complaint must contain “a statement of the facts cons...

Excerpt: ...t. Cross‐Complainant argues that the inadvertent typographical error identifying River Falls, LLC as a corporation does not express the intent of the parties. Cross‐ Complainant argues that the parties intended that Notes and Deeds of Trust that are the subject of this litigation would accurately identify the business classification for the lender, River Falls, LLC. Cross‐Defendant argues that River Falls, LLC was always a limited liability...

Excerpt: ...or fees incurred in proving at the arbitration the truth of matters that they claim Defendant unreasonably denied. Specifically, proving matters addressed in Requests for Admission numbers 8, 58, 69, which state as follows: (1) RFA No. 8: Plaintiff asked Defendant to “[a]dmit that on at least one occasion during the LEASE PERIOD, YOU were notified in writing of at least one Mold or Mildew (common definition) CONDITION at the PROPERTY.” (2) RF...

Excerpt: ...pel arbitration. Upon the petition of a party to an agreement to arbitrate, a court must compel arbitration unless it finds: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2.) A proceeding to compel arbitration is in...

Excerpt: ...ive damages allegations. Plaintiff was not otherwise granted leave to amend the operative complaint. Nevertheless, a review of the Second Amended Complaint filed by Plaintiff reflects that Plaintiff made numerous unauthorized amendments with the intent to avoid this motion and in direct defiance of this Court's order of November 4. Plaintiff did so even though a motion to amend to make these additional changes was pending. For example, Plaintiff ...

Excerpt: ...onnection with an alleged wrongful foreclosure of their home in El Dorado Hills, California. Plaintiffs allege in their Complaint that they are residents of Sacramento County and that they lived in the property at issue here for 17 years. (Complaint ¶ 1.) They further allege that all business was conducted in El Dorado County and that venue is proper in El Dorado County. (Complaint ¶ 18.) Defendants Boudier and Dance Hall Investors move to chan...

Excerpt: ...ant, 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 First Amended Complaint. Such a motion lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression...

Excerpt: ...in violation of Government Code section 12955; (3) retaliation in violation of Government Code section 12955; (4) intentional infliction of emotional distress; (5) violation of the Bane Act; (6) violation of the Ralph Act; and (7) violation of Unruh Act. Defendant Bressier and Casenhiser Inc. demurrer to the only causes of action stated against it, i.e., the first, second, third, fourth, and seventh causes of action. The Court agrees that these c...

Excerpt: ...d as a result of negligence while he was a resident at ManorCare, Defendant's skilled nursing facility. Plaintiffs allege that Plumhof suffered multiple pressure injuries and multiple infection, including septic shock, as a result of ManorCare's neglect. (Complaint, ¶¶ 17, 20‐22, 29.) Plaintiffs allege Plumhof died on May 20, 2021 as a result of ManorCare's negligence and neglect. (Id. at ¶¶ 47‐49.) The Complaint sets forth four causes of...

Excerpt: ...ion (promissory estoppel). Defendants do not demurrer to the sixth cause of action for private nuisance brought only by Plaintiff LaRue. 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, each evidentiary fact that might eventually form par...

Excerpt: ...filed the Complaint in this matter on August 8, 2022. Hansen graduated from Rancho Mirage High School in 2020 and was over the age of 18 at all relevant Page 7 of 8 times. He alleges that Cundari, a high school theater teacher, approached him in May 2021 and asked him to be the lead in an upcoming theater production. (Complaint, ¶¶ 7‐8.) Cundari gave Hansen his telephone number and asked him to keep their communications and friendship a secre...

Excerpt: ...e Court cannot find that Mack has met his burden, and therefore must deny the motion. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 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 c...

Excerpt: ...s claims against the remaining “Realtor Defendants.” The Realtor Defendants oppose this motion, arguing that severing the claims will prejudice them because they intend to file a cross‐ complaint against Coachillin' and Dickerson, and that this will run afoul of the one‐judgment rule. The Court disagrees. Code of Civil Procedure section 579 provides that “[i]n an action against several defendants, the court may, in its discretion, rende...

Excerpt: ...covery 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 action, or any part thereof; or (4) rendering default judgment against that party. (Code Civ. Proc., § 2023.030(d).) Terminating sanctions are appropriate where there is a ...