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: ...ome special pecuniary loss or damage.”' [Citation.] The elements of the tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. [Citations.] If the publication is reasonably understood to cast doubt upon the existence or extent of another's interest in land, it is disparaging to the latter's title. [Citation.] The main thrust of the cause of action is protection from injury to the salabili...

Excerpt: ...OUP VS ALVARADO RE: MOTION TO/FOR STRIKE PORTIONS OF FIRST AMENDED CROSSCOMPLAINT BY H & N GROUP INCOMETAX PREPARATION &, ENRIQUE PEREZ, JOAQUINA ESCARTIN Tentative Ruling: The hearing will be continued to January 13, 2020 at 8:30 a.m. in this department so that the parties can meet and confer as required by Code of Civil Procedure section 435.5. Section 435.5 (a) states in relevant part: “Before filing a motion to strike pursuant to this chapt...

Excerpt: ...its ruling, the Court noted that the First Amended Complaint was uncertain because each “purchase” was arguably a separate contract, and the Court could not determine which contract was oral, which was written, and which was implied. The Court still is unable to ascertain from the first and second causes of action, for breach of contract and breach of implied contract, whether Plaintiff is alleging breach of a single agreement (oral, written,...

Excerpt: ...d so could not be held liable for intentional interference with the contract between HSB and Plaintiff. This issue was already before the Court in a prior demurrer, which was sustained with leave to amend to allow Plaintiff an opportunity to plead facts showing Pacific and White were not HSB agents. Plaintiffs have failed in this Second Amended Complaint to plead those facts and, as evidenced by their proposed Third Amended Complaint, it is clear...

Excerpt: ...line item veto” and the moving party has not met his burden to demonstrate that these allegations should be stricken. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682‐1683.) The motion also challenges Paragraph 66 and the Prayer to the extent it seeks punitive damages and attorneys' fees. Attorneys' fees are available as a remedy for Financial Elder Abuse, and Plaintiff has pleaded sufficient facts to support that cause of ...

Excerpt: ...y Page 2 of 3 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 spinal block that are at the heart of his medical malpractice claim. His claim is necessarily limited to what he observed. Although Mr. Campbell alleges in detail his efforts to learn about his wife's medical condition, ...

Excerpt: ...f good faith and fair dealing, (3) breach of fiduciary duty, (4) wrongful interference with hospital privileges, (5) intentional interference with contractual relations, (6) intentional interference with prospective economic relations, (7) negligent interference with prospective economic relations, (8) violation of Cartwright Act and (9) violation of Unfair Competition Law. Although the Second Amended Complaint includes additional factual details...

Excerpt: ...her. The Complaint alleges that after Hinds hired Frantz and Aman that she demanded Nicolette transfer to them the settlement proceeds received from the insurer. The Complaint alleges breach of contract, quantum meruit, and declaratory relief causes of action against Hinds alleging that per its engagement agreement it is entitled to onethird of the settlement proceeds as compensation for services rendered, and that Hinds has not paid. The demurre...

Excerpt: ...omplaint alleging that the first through sixth causes of action fail to state facts sufficient to constitute any cause of action and are uncertain. The Third Amended Complaint alleges nine causes of action for (1) TRO, Preliminary and Permanent Injunctions, (2) Cancellation of Documents, (3) Nuisance, Injunction, (4) Fraud and Misrepresentation, (5) Breach of CC&Rs/Contract/Violation of Meetings Act, (6) Set Aside Settlement Agreement/Amendment N...

Excerpt: ...e resigned from the Department but was recruited back in 2018 by Chief of Police Travis Walker.  Chief of Police Travis Walker on 6 to 8 separate occasions, over the course of a year, tried to fondle Plaintiff, both over and under her shirt. On one occasion, Plaintiff alleges Walker pulled his penis out and placed it in Plaintiff's hand. He also would grab Plaintiff's hands and force her to touch him. On another occasion Walker allegedly direc...

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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

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: ...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: ... 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: ...mplaint must include the following: (1) a description of property; (2) the basis of plaintiff's title; (3) the adverse claims to the title against which a determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for determination of the title of the plaintiff against the adverse claims identified. (Code Civ. Proc., §760.020(a).) The First Amended Complaint seeks to quiet title as of April 8, 2019 at which p...

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: ... food drive organized by Defendant Rock Church of Coachella Valley, Inc., a tenant in the center. The commercial center is owned by Defendant SG&H Partners L.P. and managed by Defendant NAI Capital Management (hereafter “Defendants”). Rock Church moves for summary judgment or, in the alternative, summary adjudication of Plaintiff's complaint for premises liability and negligence. The motion is made on the following grounds: (1) Rock Church di...

Excerpt: ...m. The complaint alleges that the Defendants knew about maintenance issues prior to the incident, including the existence of Page 2 of 6 leaky pipes in the bathroom's walls, and that Defendants failed to take any action to fix the problem. The operative complaint states: “Despite having actual knowledge of the dangerous conditions caused by the leaky pipes in the walls and ceiling of the SUBJECT PREMISES, Defendant SB HOSPITALITY PALM SPRINGS, ...

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...

Excerpt: ... in such a program because the operative collective bargaining agreement between the District and the Palm Springs Teachers Association states at paragraph 4.3: “Part‐Time Employment With Full Fringe Benefit and Retirement Credits. Upon mutual agreement of the teacher and the District, the District shall provide a voluntary part‐time employment plan for teachers after the age of 55 in accordance with the provisions of Education Code 22713.�...

Excerpt: ...American One Home Inspections, LLC owed Plaintiff a fiduciary duty of utmost care, integrity, honesty and loyalty in their dealings with Plaintiff, including the fiduciary duty to disclose all material information that moving parties knew or could reasonably obtain regarding the property and to act in Plaintiff's best interests. The demurrer speaks generally of a home inspector's duty, but does not specifically set forth a separate argument relat...

Excerpt: ...y the case was reopened in 2014 and the Court denied a motion to enforce the settlement agreement of 2011. In 2015 a default judgment was entered, which was also set aside. The Court then held a trial in April 2017. In May 2017 Judge Chapman entered judgment following the court trial determining that the net proceeds of the partition sale, which totaled $94,804 be distributed $44,272.50 to Sylvester and $50,272.50 to Woodard. Woodard served notic...

Excerpt: ...ts alleged to support liability under a direct liability theory. The demurrer to the 5th cause of action for hostile work environment under the FEHA is overruled. Plaintiff has pleaded sufficient facts to establish that the conduct complained of was severe or pervasive. Page 2 of 3 The demurrer to the 6th and 10th causes of action for negligent hiring, retention and supervision and for negligence is overruled as to PSH, HRH, and Shepherd. Reviewi...

Excerpt: ... Amended Complaint is deficient as it does not allege facts sufficient to overcome the immunity provisions in Government Code section 820.2. Instead, Plaintiff pleads the following facts: “Plaintiff reported her harassment by Aldridge with her social worker, Jason Calarze [sic]. She requested placement in another drug treatment program because of her fear and anxiety due to the sexual harassment. Defendant GALARZE forced her to continue said cl...

Excerpt: ...laims that Defendant's employee, Dr. Howard Aronow, failed to refer Plaintiff to cardiac care and failed to change Plaintiff's prescribed statin medication or change the dosage of that medication. Plaintiff alleges that as a result of these alleged instances of malpractice he suffered a heart attack on January 31, 2017. The third cause of action is also labeled “medical malpractice,” but it appears to be based upon Aronow's alleged expression...

Excerpt: ...ne, and brakes defects.” FAC ¶ 8. The next 100 paragraphs of the First Amended Complaint consist of allegations regarding a timing chain tensioner defect alleged to be present in numerous Volkswagen and Audi models which are powered by the EA888 engine. Nowhere do Plaintiffs allege that their Passat has experienced any problems with the timing chain tensioners. That is, there is no actionable defect alleged only a potential for a latent defect...

Excerpt: ...quityComp® has three components: (1) standard workers' compensation insurance policies issued by licensed insurers, such as CIC; (2) a reinsurance agreement; and (3) a separate risk‐ retention and profit sharing arrangement between the participant and AUCRA, a third‐party segregated cell captive via an agreement called the Reinsurance Participation Agreement (the "RPA").” (CrossComplaint, ¶ 8.) The demurrer by Cross‐Defendan...

Excerpt: ...travel” category) is not a reasonably incurred expense for which Defendants should be liable. There is no explanation of these charges beyond the schedule listed in the Declaration of Mr. Mikhov in opposition to the motion, and the Court finds the charges as stated to be unreasonable and their inclusion in the cost bill troubling, particularly in light of the Court's recent finding that Plaintiffs sought attorneys' fees in this matter at inflat...

Excerpt: ..., and the HOA. {Defendant RJN, Exh A.} The agreement contains waiver provisions that preclude re‐litigation. Cause of action five does not specifically allege what statute or portion of the CC&Rs was violated, or how a violation occurred. Plaintiff appears to assert that he was excluded from HOA meetings, but that claim is contradicted by detailed allegations regarding the events at the meetings and Plaintiff's claim that “he excluded himself...

Excerpt: ...neborn and his wife, Defendant Nancy Sonneborn, own the restaurant; Page 2 of 4 they are franchisees. The franchisor, Defendant Round Table Franchise Corporation, has moved for summary judgment alleging that it is not vicariously liable for Plaintiff's injuries, which were caused by Sonneborn. Generally, a franchisor is not vicariously liable for its franchisee's torts where the franchisor retains only that degree of control necessary to prot...

Excerpt: ...ess are: “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of Page 2 of 2 causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [Citations.]…conduct to be outrageous must be so extreme as to exceed all bounds of that usu...

Excerpt: ... material should be sealed, and has not articulated any basis to seal the entire cross‐complaint. The Court has no basis upon which to find that the cross‐complaint or any portion thereof should be sealed. (See Cal. Rules of Court, rule 2.550(d); McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988.) Additionally, the request to seal the entire cross‐complaint and settlement agreement is overbroad and improper. Normally...

Excerpt: ... 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 Second Amended Complaint are substantively identical to those pleaded in the First Amended Complaint, to which the Court sustained a demurrer. What Plaintiffs continue to allege is that Hyundai recalled other model year Elantras for power steering issues, specifically...

Excerpt: ...emurrer, the allegations related to tremors are not “irrelevant, false or improper.” As to the allegations related to the risks of vascular necrosis, neither Defendant nor Plaintiff provided any individualized argument such that this Court can determine whether the allegations should be stricken as improper based on the statute of limitations. “[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough...

Excerpt: ...le to appreciate that as he was sitting at his wife's bedside she was being injured. That is, he has not pleaded that he perceived medical negligence as it was occurring. Plaintiff is granted 20 days leave to amend. ...

Excerpt: ... Defendant negligently failed to disclose the fact that he had tremors in both of his hands at the time of the surgery and that, had Defendant informed Plaintiff of that fact, she would not have Page 2 of 2 consented to the surgery. In addition, the First Amended Complaint asserts that Defendant negligently failed to disclose the fact that up to 30 percent of the bunion surgeries result in death of the large toe bone, information that, if disclos...

Excerpt: ...viduals had personal knowledge relevant to this case. These are not apex officials with little or no knowledge of the facts of this case. As to Foat, the motion is also denied. Although no declaration was offered by her, Kors' declaration in opposition to the motion to expunge lis pendens concerns a conversation with Foat that the City apparently relied upon to establish its probability of prevailing. Because this information was offered by the C...

Excerpt: ...nnot 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 action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,...

Excerpt: ...t succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 339.) The Defendants did prevail on their anti‐SLAPP motion. Plaintiff does not attack the specific rates charged or time expended, other than to assert that detailed time records were not provided. Such records are not required. (Rancho Mirage Country Club ...

Excerpt: ... action arising from the same facts related in the Petition. Denial of leave to amend is appropriate where a proposed amendment “open[s] up an entirely new field of inquiry without any satisfactory explanation as to why this major change in point of attack had not been made long before trial.” (Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311.) The policy favoring liberal amendment of pleadings “should be applied only ‘wher...

Excerpt: ...reclassification within the time allowed to respond to the initial pleading. (Code Civ. Proc., §403.040(a).) If a defendant files a motion for reclassification after that time period, the court shall grant the motion only if: (1) the case is incorrectly classified; and (2) the moving party shows good cause for not seeking reclassification earlier. (Code Civ. Proc., §403.040(b).) A motion for reclassification must be granted “regardless of any...

Excerpt: ...t seeks to depose him in California. The Court finds it is not appropriate to compel a non‐ resident to attend a deposition in California. (Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1113 [harmonizing Code of Civil Procedure sections 1989 and 2025.260.) The Court also finds that Plaintiff did not waive his objection to the location of the deposition, which objection was asserted in a December 24, 2018 email by Plaintiff's...

Excerpt: ...uested was appropriate or excessive. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1746; Adams v. Murakami (1991) 54 Cal.3d 105, 111‐112.) Further, it does not appear that the Request for Entry of Default was served on any of the Defendants. ...

Excerpt: ...25 (Any and all documents relating to maintenance, repairs, inspections, invoices, or work performed at the premises for a period of three (3) years preceding the incident). To date, Defendant has not produced responsive documents. Defendant also has failed to provide documents responsive to Requests for Production relating to the PMK Deposition of Mr. Cho. Specifically, Defendant has not produced documents responsive to Requests 6 (Defendant's p...

Excerpt: ...kruptcy estate.” (Id. at p. 1003.) Consequently, a debtor lacks standing to bring suit on those claims that are property of the bankruptcy estate. (Id.) Plaintiff here lacks standing to allege the claims at issue as they appear to belong to the bankruptcy estate. The Plaintiff is granted 20 days leave to amend to establish standing, or to substitute in the bankruptcy trustee as the proper plaintiff. (See id. at p. 1000.) ...

Excerpt: ...ding to render the judgment ineffectual.” (Code Civ. Proc., § 536(a)(3).) Here, Plaintiff seeks an injunction and also additional relief for which it provides no legal basis. As to the preliminary injunction, Plaintiff has not met its burden to put forth competent evidence that it has both a probability of prevailing on the merits and that the balance of the hardships favors issuance of the injunction. (See O'Connell v. Superior Court (2006) 1...

Excerpt: ...der Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, however, some of the objections to the “contention questions” had merit. For example, a question regarding whether Tradition should have taken steps to prevent the fall at issue, is easily reframed as “What steps do you contend Tradition Golf Club should have taken to prevent your fall?” These types of questions are improper under Rifkind. Although some of Plaintiff's objections ha...

Excerpt: ...installment payment. There is no dispute as to these terms. Defendants made the first payment and delayed the second payment because of a competing claim asserted by creditor Goodell. Goodell did not take the steps required to prefect his rights and Defendants subsequently made the second installment payment of $50,000 on January 3, 2019. Rather than pay the third installment, which would have been due on or about February 3, 2019 per the terms o...

Excerpt: ... the Court could consider Defendant's argument that the explicit language of Exhibit A made clear that no contract was formed and that demurrer was appropriate. Having now reviewed Exhibit A, the Court overrules Defendant's demurrer to the Complaint and the First Amended Complaint on the grounds that a breach of contract is adequately pleaded. On demurrer the court must assume the truth of all facts properly pleaded and facts that may be implied ...

Excerpt: ...instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of the pla...

Excerpt: ...tached to the First Amended Complaint is devoid of any reference to recovery of attorney fees or costs. Plaintiff contends that recovery is available under Civil Code section 1717.5. But subdivision (a) of that section expressly states: “If there is a written agreement between the parties signed by the person to be charged, the fees provided by this section may not be imposed unless that agreement contains a statement that the prevailing party ...

Excerpt: ...3.) “[T]he period of three months … within which the claimant must bring his action upon a rejected claim, begins to run on the date when the executor first gives to the claimant written notice of such rejection.” (Fifield v. Bullwinkel (1927) 81 Cal.App. 440, 442.) However, a claim that is deemed rejected based on the representative's failure to act on the claim within 30 days does not commence any limitations period. (Hinkel v. Crowson (1...

Excerpt: ... (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 pleaded, 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 determ...

Excerpt: ... party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Here, Defendants neglected their duty to meet and confer as required. Defendants' counsel sent a letter to Plaintiff's counsel on or about December 28, 2018 regarding the demurrer, and made no further attempt to meet and confer before filing the instant demu...

Excerpt: ...t (1996) 12 Cal.4th 631, 645; Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) In addition, in fraud complaints against a corporation, a plaintiff must allege: the names of those who made the misrepresentations; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written. (Lazar, supra, 12 Cal.4th at 645.) Plaintiff has not alleged specifically whether Adrian o...

Excerpt: ... 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 action. (Aguilar v. Atlantic Richfield Co. (20...

Excerpt: ...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 action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 82...

Excerpt: ....) In addition, in fraud complaints against a corporation, a plaintiff must allege: the names of those who made the misrepresentations; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written. (Ibid.) Here, Plaintiffs allege that two loan servicers sent Plaintiffs letters telling them specifically not to make payments on the Second Mortgage, and that those two servicers and one ot...

Excerpt: ...d upon mere nondisclosure [concealment] involving no fiduciary or confidential relationship are: (1) Nondisclosure by the defendant of facts materially affecting the value or desirability 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 nondisclosur...

Excerpt: ... 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 Page 2 of 3 cause of action. (Aguilar v. Atlanti...

Excerpt: ...d Duke from the case. The Agreement, which was signed by all parties, provides that the parties may recover their reasonable attorneys' fees and costs to enforce the Agreement and specifically notes that the Agreement is enforceable under Code of Civil Procedure section 664.6. Duke made efforts to resolve this dispute with Fortner prior to filing a motion, and it is clear to the Court that in the absence of this motion Duke would not receive the ...

Excerpt: ...ysical intrusion or physical invasion.” The 7th cause of action, as pleaded, fails to allege facts supporting a cause of action against Mental Health for negligent training, retention, or supervision. To hold an employer liable for negligent retention and supervision, the facts must support that the employer knew, or should have known, that hiring the employee created a particular risk or hazard and that particular harm materialized. (Doe v. Ca...

Excerpt: ...nly if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury‐producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. “ (Thing v. LaChusa (1989) 48 Cal.3d 644, ...

Excerpt: ...ion v. Superior Court (2014) 227 Cal.App.4th 226.) Here, Cross‐Complainants fail to provide undisputed evidence that Cross‐Defendants have “no defense” to the quiet title cause of action. Although the moving parties appear to assert that the only issue before the Court is the validity of the 1950 survey, which they contend resolves the boundary‐line issue as a matter of law, the Court finds a triable issue exists as to affirmative defen...

Excerpt: ... trial. 2. PSC1500485 WARING PLAZA VS ROSS DRESS MOTION TO/FOR ORDER COMPELLING FURTHER RESP & DOC PRODUCTION RE BOYER DEPOSITION BY WARING PLAZA PROPERTIES LP, ESTATE OF CHARLES EAMASH BY AND THROUGH Tentative Ruling: Deny. Waring moves this Court to compel further responses to deposition Request for Production numbers 7‐11, which are associated with Mr. Boyer's continued deposition—this deposition has been the subject of numerous ex parte a...