Excerpt: ...laintiff Sears generally alleges that Defendant Fort CRE fraudulently and wrongfully refused to complete the sale of certain assets, including a senior loan and deed in lieu of foreclosure, for the Colony Palms Hotel. Sears was interested in buying a senior lien on the hotel property being sold at auction through Fort CRE's broker, Debt Exchange. Sears did not enter a bid at the auction that took place July 23, 2020. But after the action, Sears l...

Excerpt: ...arty establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of 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 complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa...

Excerpt: ...a)(1), 576; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19.) But proposed amendments seeking to add new or different claims or causes of action should not be permitted if they seek to add causes of action that are not sufficiently pleaded. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652.) The Court finds moving party has demonstrated a valid basis to add TFS as Doe 1 and to amend the complaint to include causes o...

Excerpt: ... CSD move for judgment on the pleadings as to the remaining causes of action in the Second Amended Cross Complaint. The first cause of action for defamation is sufficiently pleaded and the Court rejects the arguments by moving party that on the face of the operative cross complaint it is evident that the statements are unpublished “opinion” that are insufficiently alleged, protected by the litigation privilege or not “of and concerning” V...

Excerpt: ...esirability of the property; (2) Defendant's knowledge of such facts and of their being unknown to or beyond the reach of the plaintiff; (3) Defendant's intention to induce action by the plaintiff; (4) Inducement of the plaintiff to act by reason of the nondisclosure and (5) Resulting damages. [Citations.]” (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 738.) With respect to the sixth cause of action, Plaintiff has failed to adequately plead mis...

Excerpt: ... such that liability and damages be bifurcated. The Court grants the motion only as to “design immunity,” and will reserve ruling on any of the other issues raised in the motion until conclusion of the design immunity bench trial. “A major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.) “[T]he court may, when the convenience of witnesse...

Excerpt: ...stay orders from the United States District Court for the Western District of Texas San Antonio Division in Case No.18‐CV‐462. Receiver's motion to intervene is made under Code of Civil Procedure section 387, subdivisions (d)(1) and (d)(2). In its proposed complaint in intervention, the Receiver seeks a declaration from this Court finding that (1) ISI has not breached a sub‐subcontract construction agreement between ISI and Plaintiff Budget...

Excerpt: ...uses of action as they related to damages sought by Nationwide and denied summary adjudication as to the first through forth causes of action in the First Amended Cross Complaint as they related to Government Code section 835 damages, sought by Sun World. In this motion, Woodspur seeks summary judgment, or adjudication as to IID's first through fourth causes of action as they relate to Government Code section 835 damages sought by Sun World. As t...

Excerpt: ...ues identified by the Court in its order sustaining, in part, the last demurrer. The First Amended Complaint alleges, among other things: • Defendant knew of the bed bugs in the unit before it was rented to Plaintiffs, but the information was not shared with Plaintiffs. • Plaintiffs complained about the bed bugs to Linda the manager within a few days of moving into the unit. • Defendant ineffectively treated the unit on 2/8/18, 2/15/18 and ...

Excerpt: ...ues identified by the Court in its order sustaining, in part, the last demurrer. The First Amended Complaint alleges, among other things: • Defendant knew of the bed bugs in the unit before it was rented to Plaintiffs, but the information was not shared with Plaintiffs. • Plaintiffs complained about the bed bugs to Linda the manager within a few days of moving into the unit. • Defendant ineffectively treated the unit on 2/8/18, 2/15/18 and ...

Excerpt: ...The First Amended Complaint appears to allege that abandoned cannabis plants were “personal property” assigned in some fashion by Go‐Green and GGMP Veterans. But the pleading does not contain allegations that Coachillin assigned or otherwise conveyed any interest in the plants to Plaintiff or any named Page 3 of 5 defendant. It is not clear how Plaintiff or any party to this action came to claim rights to title or interest in the plants suc...

Excerpt: ...tion 916 and the actions are barred by the statute of limitations under Civil Code section 896. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code of 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...

Excerpt: ...arbitration ‘“is in essence a suit in equity to compel specific performance of a contract.”'” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411 (“Rosenthal”) quoting Spear v. California State Auto. Assn. (1992) 2 Cal. 4th 1035, 1040.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine...

Excerpt: ...al neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) A claim of “neglect” by a person having the “care or custody” of an elder under the Act requires a caretaking or custodial relationship where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able‐bodied and fully competent adult would ordinarily be capable of managing without assistance, wh...

Excerpt: ...to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where the defendant is guilty of malice, oppression or fraud. “‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried o...

Excerpt: ...ree causes of action in the Third Amended Complaint, for breach of oral contract, promissory estoppel, and constructive trust. Aside from arguing that these causes of action are insufficiently pleaded, Wiese argues that the oral promises at the heart of the pleadings are covered by the statute of frauds and are, on their face, barred by the applicable statute of limitations. The Court agrees. It also finds that the new set of promises alleged in ...

Excerpt: ... of 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 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 ...

Excerpt: ...anguage.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that Page 4 of 5 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, source and extent of his claims.” (D...

Excerpt: ...on for (1) Trade Libel, (2) Tortious Interference with Business Relations, and (4) Conspiracy. The Complaint alleges that Defendant Melissa Swauger along with her parents, moving Defendants Cathleen and Michael Marmon, harassed JLS and its clients, by discrediting JLS's director and sole shareholder Jonathan Swauger, who is Melissa Swauger's ex‐husband. According to JLS, this harassment ruined JLS's reputation and caused it to lose business. Mo...

Excerpt: ...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 plaintiff need only plead facts necessary “to acquaint a defendant with the...

Excerpt: ...n 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 plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his c...

Excerpt: ...l claim is that the Association Board violated the governing documents and breached its fiduciary duty when it jettisoned an existing common area deferred maintenance schedule in favor of completing repairs and deferred maintenance quickly, and that these repairs were paid for using proceeds from a substantial loan taken out on behalf of the Association. Plaintiffs assert that the loan was not properly approved, that the Board had an obligation t...

Excerpt: ...Id. at p. 387; Cal Sierra Const., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845.) The inquiry into probable validity does not go to the ultimate merits of the case but “to whether the contractor should be entitled to retain the security of the mechanic's lien… pending resolution of the matter.” (Id. at p. 850.) In essence, “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be ...

Excerpt: ...one Velma Frothingham to Defendant Bartolini in March 2019, more than seven years after Frothingham's death. Bartolini sold the property to NCEM, which alleges in its CrossComplaint that Rivera negligently represented that Frothingham appeared before her and executed the Grant Deed, when she knew or should have known that Frothingham did not personally appear before her. The Cross‐Complaint alleges that Rivera negligently performed her duties a...

Excerpt: ...se 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 plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and e...

Excerpt: ...and breach of governing documents, but it did not eliminate all portions of those causes of action, substantial portions of which remain. The Flanagans now move for attorneys' fees and costs under the antiSLAPP statute. “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion…; or as part of a ...

Excerpt: ... reference agreement exists between the parties: (a) To hear and determine any and all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to enable the court to determine an action or proceeding.” (Code of Civil Procedure § 638.) Section 9.2 of Plaintiff's employment agreement included the following language: Dispute Resolution. In the event of any contr...

Excerpt: ...ition to the summary judgment. While it is true the motion may have been continued several times while the court was closed due to the coronavirus pandemic, eventually the hearing on the motion for summary judgment was vacated by a general order issued by the Presiding Judge of this court, which order vacated all law and motion hearings. The Court will not detail here the numerous implementation and general orders issued between March 17, 2020 an...

Excerpt: ...of process, respectively. Defendants assert that these causes of action are barred under Government Code section 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The immunity conferred by Government Code section 821.6 is construed broadly and “in furth...

Excerpt: ...tled. The Court denies the motion and the request by Plaintiffs for sanctions. An attorney or unrepresented party who presents a pleading, motion or similar paper to the 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 C...

Excerpt: ...of 5 Code section 1102.5, (2) disability discrimination, (3) failure to engage in the interactive process, (4) failure to accommodate, (5) disability harassment, (6) failure to prevent discrimination and retaliation, and (7) intentional infliction of emotional distress. According to Ross, the relevant facts are that: (1) he was retaliated against when he repeatedly raised issues and concerns as to whether the evidence in the Robert Wayne Parker m...

Excerpt: ...regarding res judicata is that Plaintiff Linn previously litigated all of the issues in this case in case PSC1405184. A request for judicial notice filed in support of the motion contains an unfiled, unsigned, and undated document purporting to be a “fourth amended complaint” by Plaintiff and the entity International Apparel in that case. This document is not part of the Court's record and not subject to judicial notice. Furthermore, as point...

Excerpt: ...rom a dangerous condition of public property. In its demurrer, the County argues that Second Amended Complaint fails to state facts sufficient to constitute a cause of action against the County for a dangerous condition of public property because the County did not have a legal duty to close Box Canyon Road or to warn of the possibility of flooding in anticipation of an approaching storm/hurricane. In addition, the County asserts that the operati...

Excerpt: ... 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” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where t...

Excerpt: ...ating Plaintiff at the jail). A court may allow the amendment of any pleading, at any time, in furtherance of justice. (Code Civ. Proc., §§ 473(a)(1), 576.) Although there is a policy favoring leave to amend, it should be denied where it will be meaningfully prejudicial to an opposing party or where a party has inexcusably delayed in seeking leave. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) A court may permit an amendment to a ple...

Excerpt: ...tuting 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 Page 7 of 8 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 wi...

Excerpt: ...stop discrimination and harassment) causes of action in the First Amended Complaint. The First Amended Complaint alleges, in pertinent part: • Plaintiff Funkhouser was hired by Defendant Desert Sands Unified School District in August of 2010 as an English teacher. • Funkhouser started experiencing urological issues, including frequent and painful urination. After examination, Dr. Faulkner concluded that these urological issues would be a perm...

Excerpt: ... in the complaint and that it, and not Aspects, Inc. contracted for and performed all of the work at issue. The motion also asserts that Aspects, Inc. did not comply with the legal prerequisites to bring an action on a stop notice release bond or payment bond. Triable issues of material fact exist as to these issues and preclude summary judgment or adjudication. Summary judgment is granted when a moving party establishes the right to entry of jud...

Excerpt: ...ed Plaintiff for having leased the Subject Properties to them which was on Native American land, and were filled with anger, hatred and ill will towards Plaintiff. As part of such intentional malice, and with the intent to vex, injure, annoy Plaintiff, and/or with a conscious disregard of Plaintiffs rights, Defendants stole Plaintiffs property, damaged Plaintiffs property, and vandalized Plaintiff's property in a purposeful attempt to cause monet...

Excerpt: ...ial date was vacated by general orders issued by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motions on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 10, 2020. DRMC has actually been litigating this matter outside of arbitration since 2016, when named Respondent ...

Excerpt: ...cts showing a unity of interest between Arbid and Power Brokers to show a unity of interest between the two and alleged that injustice would result if they were considered wholly separate. 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: ...sation insurance company) initial decision finding Clausman's injuries were not work related. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of 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 ...

Excerpt: ... action for conspiracy or tortious interference with contractual relationship. Plaintiff contends that the cause of action was erroneously titled and that it seeks to recover for conspiracy or, alternatively, for tortious interference with the Settlement Agreement and the Lease, neither of which demurring Defendants are party to. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actua...

Excerpt: ...invested in Crossley, or other entities, in connection with a “build out” of numerous lease properties. CrossComplainants allege two causes of action, one for fraud and deceit and one for negligent misrepresentation. With respect to Cross‐Complainant King, the individual, both causes of action are uncertain. As pleaded, the Cross Complaint does not plead any individual claim for fraud or deceit or negligent misrepresentation, and appears to...

Excerpt: ...urally or substantively unconscionable. Per the Agreement, this matter is to be submitted to the American Health Lawyers Association Alternative Dispute Resolution Service. Parties are ordered to submit this matter to the AHLA ADRS within 15 days from the date notice of this order is served by Defendants on Plaintiffs. This matter is stayed with respect to Dr. Solof only, per Code of Civil Procedure section 1281.4 Page 5 of 6 and an OSC re comple...

Excerpt: ...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 the cause of act...

Excerpt: ...r Code of Civil Procedure section 437c, subdivision (h), or otherwise, nor has it provided the Court with any explanation for why the opposition was untimely and served it a way unlikely to ensure that moving defendants would receive it before the hearing. The Court will not consider the late‐filed and served opposition or any of the related filings. As to the merits of the motion, there are no triable issues of material fact. Moving defendants...

Excerpt: ...ate facts constituting a cause of action. Jurado asserts that the first and second causes of action are barred by the applicable statute of limitations, which is either 1 year or 3 years under Code of Civil Procedure section 338, subdivision (f), in an action brought against a notary acting in an official capacity based on misfeasance or malfeasance. Based on the allegations in the complaint, it appears that Plaintiff Sanchez's first and second c...

Excerpt: ...ithout leave to amend only as to the minor Plaintiffs, who lack standing to pursue those causes of action. The demurrer to those causes of action is overruled as they relate to Plaintiffs Manuel Dominguez and Marisella Benavidez. The demurrer to the 5th (nuisance), 6th (battery), and 7th (intentional infliction of emotional distress), causes of action is sustained with 30 days leave to amend as to all Plaintiffs. The demurrer is overruled as to t...

Excerpt: ... they are fatally uncertain and that Plaintiff Jeanne Gonzales lacks standing to sue on decedent Ana Gutierrez's behalf. 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 plainti...

Excerpt: ...elief asserting that Plaintiff HOA has not alleged any actual, present, existing, or ripe controversy pertaining to the parties' respective rights and duties under the HOA's governing documents. Under Code of Civil Procedure section 1060, a party may seek a declaration from the court as follows: Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or ...

Excerpt: ...ded sufficient facts to support their fourth cause of action. Specifically, they allege that the PownerNet in the Subject Vehicle is defective and thus fails to reliably control and distribute power to various electrical systems and component parts throughout the vehicle, including but not limited to its electronic gear shifter and its supplemental restraint system. (Complaint ¶¶ 26‐ 20 28, 179‐182.) They allege that the PowerNet architectu...

Excerpt: ...all fail because Cross‐Defendants Lamas and Sanders were agents or employees of Lamas Beauty Inc., and therefore could not have interfered with a contract to which Lamas Beauty Inc. was a party. Although it is true that corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594), here the Fifth A...

Excerpt: ...t cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The First Amended Complaint is not uncertain, nor does the demurrer contain any specific arguments as to this issue. The demurrer also asserts that each cause of action fails because Diamond Generating is not an “owner” of the premises where the accident occurred...

Excerpt: ...d been vacated, and in informing banks and lenders not to refinances or otherwise encumber said properties due to said void abstracts, Lis pendens and liens [sic.], EDELSTEIN knew and intended to thereby cloud STORCK's tilte [sic.] to said properties and to thereby influence the conduct of third parties to not lend[,] finance, encumber or in any manner transact with said properties.” The Court found these allegations were insufficient to state ...

Excerpt: ... decisions of the Appeals Board on a petition for writ of mandamus, the trial court “ ‘ “exercises its independent judgment on the evidentiary record of the administrative proceedings and inquires whether the findings of the administrative agency are supported by the weight of the evidence.” ' ” (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 562 (“Paratransit”).) Petitioner has the burden of proving that ...

Excerpt: ... on September 11, 2020, which trial date was vacated by general orders issued by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motions on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 8, 2020. DRMC has actually been litigating this matter outside of arbitration sin...

Excerpt: ...d by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motion on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 4, 2020. DRMC has actually been litigating this matter outside of arbitration since 2016, when named respondent Fontana filed a wage claim with the Labor Comm...

Excerpt: ...ith leave to amend. To support a demand for punitive damages under Civ. Code §3294, a plaintiff must plead and prove facts demonstrating malice, oppression or fraud. (Civ. Code, § 3294(c).) Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct Page 5 of 5 which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,” while oppression is d...

Excerpt: ...ng Shawkat's deposition. As to financial condition discovery Plaintiffs demand, among other things: (1) salaries, fees, dividends and other compensations paid by 68‐444; (2) disbursements from account receivables, including cash receipt journals, cash disbursement journals, payroll journals, sale journal and all general ledgers since June 1, 2018; (3) contracts (including financing) related to the premises; (4) the net worth of 68‐444; and (5...

Excerpt: ...s, however, appropriate to deny leave to amend where a proposed amendment fails to state a cause of action, where a plaintiff has inexcusably delayed seeking permission to amend, or where probable prejudice to an opposing party supports denial of the amendment. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652; Estate of Murphy (1978) 82 Cal.App.3d 304, 311.) Here, all defendants appear to oppose the motion on the groun...

Excerpt: ...eed auto accident where liability was not contested. During the course of litigation, Defendant Bertone served two offers under Code of Civil Procedure section 998. Under section 998, if a defendant makes an offer of settlement that plaintiff fails to accept, then the defendant's allowable costs under Code of Civil Procedure sections 1031 and 1032 may be shifted to the plaintiff, and plaintiff precluded from recovering its post‐offer costs, if ...

Excerpt: ...demurring Defendant under any theory. It is unclear what if any Miracle Education is alleged to have taken against Plaintiff. The Second Amended Complaint merely alleges, as to each cause of action, that Miracle Education is liable for the actions of its agents, representatives, or directors, the Digiulios. The Second Amended Complaint does not, however, state sufficient fats to demonstrate that the Digiulios had authority to act on behalf of Mir...

Excerpt: ...rom Plaintiffs' employment relationship and Plaintiffs do not adequately allege that Desert Falls Villas Master Association is their employer. {See FAC ¶¶ 7‐8.} Plaintiffs' allege in the First Amended Complaint that all Defendants “are a single employer for purposes of liability” and that they “jointly employed” Plaintiffs. {See FAC ¶ 17.} Here, the First Amended Complaint is not uncertain. (See Khoury v. Maly's of Calif. Inc. (1993)...

Excerpt: ...nd grants the motion with respect to all requests at issue (numbers 26‐ 29 and 32‐35). “[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena'. Such a subpoena may be used to conduct an ‘oral deposition,' a ‘written deposition,' or a ‘deposition for production of business records and things.'” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130.) Here, Moreland has produced some documents in response...

Excerpt: ...ry and Davis. Singletary and Davis seek fees totaling $228,033.50, which amount was the amount jointly and severally owed by each of the four defendants, two of whom did not participate in the appeal. Plaintiff Alexander asserts that fees should be one half of the lodestar amount sought, because Singletary and Davis are not entitled to all fees incurred on behalf of all four defendants. Alexander also asserts that the fees sought are excessive an...

Excerpt: ...h 1253, 1255.) Here, the motion seeks to strike punitive damages allegations from the Complaint. Such a motion lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where the defendant is guilty of...

Excerpt: ...t the matters sought to be discovered are privileged, protected, or beyond the scope of discovery. (Code Civ. Proc., § 2017.010; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 929.) Under the discovery statutes, information is discoverable if it is not privileged and is either relevant to the action's subject matter or reasonably calculated to reveal admissible evidence. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.) When discovery con...

Excerpt: ...a matter of law. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of 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 complete defense to that cause of ac...

Excerpt: ...ablishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of 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 complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (...

Excerpt: ...and (4) dangerous condition of public property. IID's motion argues summary judgment or adjudication should be granted because IID Regulation 14 bars liability as a matter of law as to the fourth cause of action for dangerous condition under Government Code section 835. The motion does not address any other cause of action. IID Regulation 14, provides that “[t]he District will exercise reasonable diligence and care to furnish and deliver a cont...

Excerpt: ...Amended Complaint actually alleges that the County's liability stems from a dangerous condition of public property. Specifically, the First Amended Complaint alleges: • Hurricane Rosa caused severe flash flooding which destroyed Box Canyon Road and cost over $3 million to repair. • On September 30, 2018, Box Canyon Road was in a dangerous condition due to "flooding from Hurricane Rosa, combined with the layout and the topography of Box Canyon...

Excerpt: ...ry and concise language.” (Code Civ. Proc., § 425.10.) 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 evidentiary facts that are in exhibits attached to the complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The court's task is to treat well‐pleaded allegations in the complaint as true and determine whether the complain...

Excerpt: ...ies or that statements allegedly made by Dalton are attributable to CSD under any theory of vicarious liability. (See Civ. Code § 2339 [“A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section [negligence or omission], unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service”]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal...

Excerpt: ...123 Cal.App.3d Supp. 11 (App. Dep't Super. Ct. 1981).) This does not mean that a court ignores other “interests of justice as to parties. (See Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d 94.) But in a “convenience of witnesses” motion under Code of Civil Procedure section 397, subdivision (c), the moving party has the burden of proof. (Hamilton v. Superior Court (1974) 37 Cal.App.3d 418.) Moreover, a corporate defendant seeking c...

Excerpt: ...s favor each claim in IID's FACC seeking equitable indemnity, implied indemnity, contribution, apportionment, or declaratory relief from Woodspur arising from Nationwide's subrogation action, or the Sun World FACC as it relates to the Nationwide subrogation action (causes of action 1‐3 in the Sun World FACC). Adjudication is denied as to the remaining claims seeking equitable indemnity, implied indemnity, contribution, apportionment, or declara...

Excerpt: ...ium unit. Plaintiff contends that he purchased the condominium believing that he would have access to, and the right to use, the immediately adjacent pool area. Plaintiff alleges in the First Amended Complaint that after he completed his purchase of the condominium, he learned that the pool area was owned by a home owners' association other than the one he belonged to as an owner of the condominium; meaning Plaintiff had no right to access or use...

Excerpt: ... on each of them asserting lack of personal jurisdiction. Defendants argue that they did not receive mailed copies after substituted service was effectuated by a licensed processed server, and that service on the agent for service of process for either LLC was improper because “Steve Doe,” the person who answered the door at the agent's address was not authorized to accept service on behalf of the LLCs. In addition, Defendants argue that the ...

Excerpt: ...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 rate, which may be adjusted to fix a fee at t...

Excerpt: ...ieves that the employee disclosed or may Page 3 of 4 disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that th...

Excerpt: ...ntiary 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, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549‐550.) A court considering a demurrer must assume the truth of all facts properly pled, fac...

Excerpt: ...]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of ...

Excerpt: ...62, 1066.) Demurring party argues that the Cross‐Complaint is insufficiently pleaded in that it does not establish that Cross‐Defendant Peters exerted dominion or ownership over the property in question and that Culverson could have retrieved his property. The Court rejects these arguments. The Cross‐Complaint sufficiently pleads all elements of conversion, and alleges that Peters entered the home Culverson was renting from Peters, and the ...

Excerpt: ...418, subdivision (e)(3), so the Court considers this request on the motion of Defendant Smith. “The doctrine of forum non conveniens is rooted in equity. It allows a court to decline to exercise its jurisdiction over a case when it determines that the case ‘may be more appropriately and justly tried elsewhere.' [Citation.] The Legislature endorsed the application of this principle by enacting section 410.30, which states, in subdivision (a), ...

Excerpt: ...ctivity is constitutionally protected, not all speech or petition activity is protected by the anti‐SLAPP statute. (Id. at p. 313.) To prevail on an anti‐SLAPP motion, the moving party must first make a prima facie showing that the claims arise from the defendant's exercise of free speech or petition rights as defined in Code of Civil Procedure, section 425.16(e). (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330.) Once...

Excerpt: ...ave an outstanding balance of $112,619.47. Plaintiff filed this action on 7/3/19, and filed the First Amended Complaint (FAC) as a matter of right on 8/1/19. The FAC asserts: (1) breach of contract; (2) open book account; (3) recovery on release of mechanic's lien; (4) account stated; (5) quantum valebant; (6) guaranty; and (7) recovery on contractor's license bond. SR Construction seeks to intervene as a defendant in intervention as it has an in...

Excerpt: ...des: If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property that belongs to a principal under a power of attorney, or has taken, concealed, or disposed of property that belongs to a principal under a power of attorney by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the...

Excerpt: ...wish to burden the court.” Aside from the obvious impropriety of withholding all of the supposedly new evidence from the Court and opposing party so that it could be put forward in “a supplement prior to the hearing date,” and then including other portions only in the reply and not in the motion itself to eliminate the opposing party's ability to respond, the Court finds that: (1) the evidence was not “newly” discovered; (2) Yann was no...

Excerpt: ...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 plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent...

Excerpt: ...e a cause of action, and that Plaintiffs are not entitled to bring this action because they have failed to comply with Code of Civil Procedure section 377.32. The Court rejects these arguments. Plaintiffs allege that they are the decedent's only heirs and that Page 3 of 3 they take through intestate succession. (FAC ¶ 3.) They also allege that “[a]t the time of the incident, THE PROPERTY was or had been previously owned, maintained, constructe...

Excerpt: ...all Claims” against JFK and any of its “employees,” “joint venturers,” and “affiliate entities,” “relating to or arising from” the dispute between Dr. Lifschutz and JFK as part of the August 14, 2015 Settlement Agreement between Lifschutz and JFK. The release is a complete bar to all causes of action against all named Defendants in this action. The Agreement, which was signed with the benefit of counsel, contains the following p...

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...