Excerpt: ...aintiff's harm. (CACI 1201; see also Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1500.) The SAC here alleges that Defendant manufactured the battery and it was defective as it was manufactured with wire insulation that was not of adequate resistance and a rem ovable or loose terminal cap (SAC ¶ 24.) It further alleges that Plaintiff was harmed and the defect was a substantial factor in causing the harm. As such, the Demurrer to this c...

Excerpt: ...uit occurre d in Wyoming (Compl. ¶¶ 6, 8– 9); Plaintiff's claims are not time -barred in Wyoming;1 and all Defendants are subject to and have agreed to submit to jurisdiction in Wyoming regarding this lawsuit. (Razavi Decl. ¶ 3; Hahn v. Diaz - Barba (2011) 194 Cal.App.4th 1177, 1190 [“It is well settled under California law that the moving parties satisfy their burden on the threshold suitability issue by stipulating to submit to the juris...

Excerpt: ...ime to defend the action and a default or default judgment has been entered against him or her in the action...” (C.C.P. § 473.5(a).) “This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2022) ¶ 5:420, p. 5 -1222...

Excerpt: ...1) 91 Cal.App.4th 875, 881.) “It is not sufficient that the complaint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.) Fraud is subject to a 3 -year statute of limitations from the date of discovery. (C.C.P., §338(d).) “The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 ...

Excerpt: ...“IIED”); 6th Caus e of Action for Violation of the Ralph Act [California Civil Code §51.7]; and 7th Cause of Action for Gender Violence in Violation of California Civil Code § 52.4 “[A]n employer is vicariously liable for the torts of its employees committed within the sco pe of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.).) An employer's vicarious liability may extend to an empl...

Excerpt: ...are entitled t o reasonably incurred costs, including attorney's fees. Counsel provided detailed billing records showing a lodestar total of $104,626.50 based on 256.9 hours. (Kirnos Decl., Ex. A.) Defendant argues that hours are excessive due to overstaffing by 17 atto rneys. “[I]t is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that signi�...

Excerpt: ...ff's first (breach of written contract) and second (money had and received) causes of action are based on the terms of the Lease entered between the parties. (FAC ¶¶ 14 –16, 19.) With respect to the first cause of action, the FAC alleged that “Defendants and each of them br eached the Lease on or about August 2, 2022 . . . by failing and refusing to compensate and reimburse Plaintiff for the damage Plaintiff has incurred as a result of th...

Excerpt: ...xpenditures, does not make every proposed action by the administrative board a petitioning activity before a governmental entity. Here administrative board meetings of a non -profit organization, even one whose fiscal sponsor and oversight falls to a City, cannot be de emed part of any “legislative,” “judicial,” or “official” proceeding, or indeed any proceeding “authorized by law” and reviewable by writ of mandate. (See Slaught...

Excerpt: ... (C.C.P. § 437c(q).) Plaintiffs object to Vance and Downey's own deposition testimony. These are not welltaken and are overruled. Plaintiffs objections to portions of the traffic collision report regarding the officer's conclusion that Vance caused the collision by fa iling to stop at the stop sign at Via Zapeda and Canyon Crest Drive are sustained as hearsay. (People v. Sanchez (2016) 63 Cal.4th 665. 694695.) The objections to the declarations ...

Excerpt: ...ims XP breached the Contract by entering into an agreement with Safeco to with regard the value of the property without his consent in violation of Section 18(J) of the NAIC Model Laws, Regulations, Guidelines and Other Resources (October 2015), which provides that an adjuster may not agree to any loss settlement without the insured's knowledge or consent. (FAC, ¶31.) However, Plaintiff does not point to any contractual terms relating to Claims ...

Excerpt: ...mounts, and is reluctant to accept the funds because of a potential fee dispute (¶ 16), as hearsay, as well as lacking foundation and personal knowledge. The statements are hearsay and do not appear to fall within any exception, so the objections are sustained. II. C.C.P . § 664.6 C.C.P. section 664.6 provides, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before th...

Excerpt: ... expert testimo ny to create a triable issue of fact regarding either the standard of care or the causation of her injuries. (Hakhamian Dec.) A dentist is required to have and to use that degree of learning and skill ordinarily possessed by dentists of good professional r eputation practicing in the vicinity. (Barham v. Widing (1930) 210 Cal. 206, 213). Failure to use such ordinary skill and care in the application of such knowledge renders a den...

Excerpt: ...” notwithstanding the s tay. (CCP §425.16(g).) The court should allow reasonable and specified discovery “when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees.” (Lafayette Morehouse, Inc. v. Chronicle Pub lishing Co. (1995) 37 Cal.App.4th 855, 868.) To show good cause, however, plaintiff must make a prima facie showing at least as to the elements of the claim for ...

Excerpt: ...th 97, 113.) Her e, Defendant, Wanhoo, requests the Court take judicial notice of: 1) a print -out from the California Secretary of State's website of the Statement of Information for Wanhoo, LLC, filed on 7/22/22; 2) the subject POS filed on 12/8/22; 3) three invoices issu ed by Cheung & Chu, CPA to Wanhoo, LLC, in 2022 and 2023, for accounting services; and, 4) a letter dated 11/15/23 from Wanhoo's counsel challenging substitute service as im...

Excerpt: ...f Expert Mark Blanchette on grounds stated. Declaration of Mark Giannamore: OVERRULE Objections Nos. 1-9. SUSTAIN Objections Nos. 9-14 on grounds stated. Declaration of Mark Burns: SUSTAIN Objections Nos. 15, 17, 19 (1st), 19 (2nd), 20 ,21 and 22 on grounds stated. [The Court notes that in there is no Objection 16 indicated in the objections, and that there are two Objections Nos. 19, identified here as "19(1st) and IS(2nd). OVERRULE Objection No...

Excerpt: ...ostic tests and procedures, conditions, scope, and nature of the examination. CCP § 2032.320(d). It is unclear what types of tests and what neurological issues the examination will cover. In reply, Defendants make no attempt to fix this issue, even though it is pointed ou t by Plaintiff. Based on this alone, the motion must be denied without prejudice. Defendants' request that Plaintiff be precluded from audio recording the examination is also ...

Excerpt: ...he FAC is uncertain based on incorporating by reference paragraphs. (See FAC, ¶¶ 45, 70, 79, 89, 111, 124, 140, 145, 155, 163, 168.) Incorporating by reference is a common pleading practice and the demurrer is overruled to the extent it is based on this practice. Defendant also contends that Plainti
¯s fail to state who the eighth, ninth, tenth, eleventh, and twelfth causes of action are brought by. Typically this is indicated in the heading t...

Excerpt: ...olved in a project, Ro cket must b e named as an addition al insured under the subcontractor's policy or the SNIC Policy does not apply to the occurrence and thus there is no coverage. (FACC, Exh. B.) SNIC argues Rocket's ailure to allege it was an additional insured under Divine's policy means that Rocket has not stated a cause o action. However, SNIC cites to no authority requiring it to make such a speciÞc allegation. Indeed, Rocket's alleg...

Excerpt: ...stantial cause of Plaintiffs injuries. Defendants' Evidentiary Objections. The matters to which objections are made were not material to the preparation of the analysis on this motion, and therefore are overruled on such grounds. Objections not ruled upon by the trial court are presumed overruled and preserved for appellate review. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [summary judgment motionl.) l. Defendants met their initial bur...

Excerpt: ... injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued." (Smith v. Adventist Health System/west (2010) 182 Cal.App.4th 729, 749.) This test functions on a sliding scale, such that a greater showing on one factor ...

Excerpt: ...lleged injury that served as the basis for her claims in Henry v. Henry, RIC1906267. (See, RFJN, Exs. 1, 5.) Additionally, Defendant was also a defendant in that action. However, while the Court entered judgment against Plaintiff in RIC1906267, that judgment is currently on appeal. Under California law, a judgment is not final for purposes of res judicata during the pendency of and until the resolution of the appeal. (The Inland Oversight Comm. v...

Excerpt: ...9.) Because Jayco seeks to stay the action rather than dismiss, this Court will retain jurisdiction and Plaintiffs may move to lift the stay if the Indiana court refuses to apply California law. (See Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal. App. 4th 1363, 1376.) Because Jayco stipulates to the application of California law, it has met its burden of establishing that the forum selection will not result in the loss of any statut...

Excerpt: ...e moving Declaration of Mark Blanchette, who earned a Ph.D. in Biokinesiology with specialization in Biomechnics and has experience with premises liability accidents, etc. (See Ex. I to moving Compendium of Exhibits.) The evidentiary objections are based on lack of personal knowledge (Ev. Code SS 702, 800), and improper expert opinion (Ev. Code S 803.) For example: Objection No. 1 to entire Blanchette Declaration. As to lack of personal knowledge...

Excerpt: ...Gregory Nylen, which the court rules on as follows: 1. SUSTAIN 2. OVERRULE Here, Plaintiff's claims fall into two categories—individual and derivative. Plaintiff's individual claims are clearly covered by the Arbitration Agreement. As to the derivative claims, it is well established that the initiator of a derivative suit "stands in the shoes" of the company whose rights such person seeks to enforce, and "[t]he causes of action do not belong to...

Excerpt: ...ir reply. As the defects these objections are directed to are easily fixable (and if remedied, the expert declaration is likely sufficient to create a triable issue of material fact), the motion is continued to allow Plaintiff to submit the necessary evidence to properly support her expert's opinion. A. General Objection to Plaintiff's Declaration Defendants first raise a general objection to Plaintiff's declaration, in which she disputes certain...

Excerpt: ...les of justice and equity ... paths neither marked no traceable by judicial review." (Moncharsh v. Heily & Blase (1992) 3 cal.4th 1, 11; Noguerio v. Kaiser Found. Hospitals (1988) 203 cal.App.3d 1192, 1195.) Courts will not review the validity of the arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Moncharsh v. Heily & Blasé, supra, 3 Cal.4th at 12-13.) By agreeing to arbitration, parties agree to bea...

Excerpt: ...e the initial filing fee is the only amount that has been properly documented. Defendants argue fees to download copies of documents from the court are not recoverable because they are not filing or motion fees. In Opposition, Plaintiff provides invoices to support the following costs: 1. Legal Lawgic eFiling (11/1/23): $43.70 2. Legal Lawgic eFiling (10/26/23): $43.70 2 Even if the Court was inclined to find that Defendant's had met their burden...

Excerpt: ...(2001) 25 Cal.4th 826, 855.) The California Supreme Court has held that the conduct of teachers who sexually molest students under their supervision will not be imputed to school districts to permit recovery by injured students from the employing districts under the doctrine of respondeat superior. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447-52; Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545, 547-...

Excerpt: ...project contained a fungus that caused Valley Fever; he contracted Valley Fever; his predecessor at the project also contracted Valley Fever; Defendants did not inform Plaintiff about the predecessor or that he had Valley Fever; and his symptoms got worse. (Complaint at "1 12-22.) However, there are no allegations indicating Defendants knew the fungus that caused Valley Fever was in the soil at the project, that they knew how Plaintiff's predeces...

Excerpt: ... and Second (Money Had and Received) Causes of Action. Compliance with CRC Rules 3.1350(b) and 3.1350(h) he Notice of Motion ("Notice") filed by Plaintiff states that it is seeking summary adjudication as to the following two issues: (1) Defendants have no defense to Plaintiff's first cause of action for breach of written contract, and (2) Defendants have no defense to Plaintiff's second cause of action for common count (money had and received). ...

Excerpt: ...e habitually practiced and carried on as a business."' " Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1787. One wrongful act does not show acts of lewdness that are habitually practiced and carried on as a business. "The Red Light Abatement Law declares to be a public nuisance any place which is used for the purpose of lewdness, assignment or prostitution." People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50. There is no evide...

Excerpt: ...as properly been established that an arbitration agreement existed between the parties. Here, the only evidence of Campagna's alleged incapacity to contract is the declaration from his son, Thomas Keith Campagna. He claims his father lacked capacity to enter into an arbitration agreement at the time it was executed because he was 92 years old, suffered from McCardles disease, and had just endured a six- hour flight from New York to California. Th...

Excerpt: ...ry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." 1 CCP S 1008 gives the court no authority when deciding whether to grant a motion to reconsider to 'reevaluate' or 'reanalyze' facts and authority already presented in the earlier motion." (Crotty v. Trader (1996) 50 Cal.App.4th 755, 7...

Excerpt: ...la
Ÿng to the subject of the ac
Ÿon and is so situated that the disposi
Ÿon of the ac
Ÿon in his absence may (i) as a prac
Ÿcal ma
©er impair or impede his ability to protect that interest or (ii) leave any of the persons already par
Ÿes subject to a substan
Ÿal risk of incurring double, mul
Ÿple, or otherwise inconsistent obliga
Ÿons by reason of his claimed interest. If he has not been so joined, the court shall order that he be made ...

Excerpt: ... during the relevant time frame]. Request 33- Any and all audio or video tape recordings involving any discussions concerning the SUBJECT VEHICLE. Request 66- YOUR dealership agreement with Moss Bros. Chrysler Dodge Jeep Ram Riverside, in Riverside, California. These requests specifically relate to the subject vehicle, the repair facility and/or the warrant and procedures directly related to the vehicle. FCA fails to justify its objections (RFP 8...

Excerpt: ...exatious litigant and "there is not a reasonable probability that she will prevail in the litigation against the moving defendant." (CCP S 391.1.) If the motion is granted, the case is automatically stayed from the time the motion was filed until 10 days after plaintiff posts the required security. (CCP S 391.6.) If the bond is not posted, the action must be dismissed as to the defendant in whose favor the bond was ordered. (CCP S 391.4.) Page 3 ...

Excerpt: ...citations omitted.) C.C.P. S 1021 states: "Except as attorney's fees are specifically provided for by statute, the measure and mode of com#nsation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided." (Ibid.) A prevailing party in an action can recover costs, including attorney's fees, only if authorized by contr...

Excerpt: ... Deny Plaintiffs' request for judicial notice as to Exhibits A, D, and G. Grant the moton. The court denies the request to take judicial notice of Plaintiffs' RJN Exhibit A, the Health Canada Omniscan label from 2014. Accordingly, Plaintiffs have not provided any other evidence of "newly acquired information" that GEHC had, so the motion is properly granted. Evidence Code 5452(f) permits a court to take judicial notice of "[tlhe law of an organiz...

Excerpt: ...nt contains conclusory allegations that Defendants acted intentionally, deliberately, recklessly or simply failed to act (951-52), but these conclusory allegations are not sufficient as no facts of intentional conduct are pled. For this reason, the demurrer is sustained as to the First Cause of Acton. The Fifth Cause of Action makes the same allegations as the negligence claim, to which no demurrer is brought. The nuisance claim is based on the g...

Excerpt: ...nlike a privilege, the protection is qualified and disclosure may occur to serve a "compelling state interest." (Britt v. Superior Court (1978) 20 Cal. 3d 844, 855-855 [applying a balancing test to determine if the need for discovery outweighs the privacy rights of third partiesl.) under Britt, the court conducts a balancing of the competing interests. "On occasion [a party s] privacy interests may have to give way to [thel opponent's right to a ...

Excerpt: ...ired by statute. The hearing on the demurrer is continued to 11/21/2023 8:30AM. Defendants are ordered to meet and confer with Plaintiffs by phone or in person for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer. As part of the meet and confer process, Defendants shall identify all of the specific causes of action that they believe are subject to demurrer and identify with le...

Excerpt: ...its entirely with leave to amend. 1st Cause of Acton for Slander: Under Civil Code S 46, slander is "a false and unprivileged publication, orally uttered .. .." False statements charging the commission of a crime or tending to injure a plaintiff in respect to his profession by imputing dishonesty or questionable professional conduct are defamatory per se. (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382.) In this case, Plaintiff alleges that "Def...

Excerpt: ... meet and confer by telephone or in person, regardless of the prospects of an informal resolution. Nor is there any authority that would allow defense counsel to shift the onus of initiating a telephone conference by simply sending email correspondence. To support a demand for punt-ive damages under Civ. Code 53294, a plaintiff must plead and prove facts demonstrating malice, oppression or fraud as defined in (Civ. Code 53294(c).) As defined in t...

Excerpt: ...ubmitted in the Reply. The elements of a negligence claim are: (1) legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (21W6) 137 Cal.App.4th 292, 318.) Premises liability is a form of negligence. Accordingly, the elements of a claim for injuries suffered by an invitee due to a dangerous condition on the premises (whether natural or artific...

Excerpt: ...er replace, repurchase, or repair" Plaintiffs vehicle. (Ranke" Decl. Ex. D.) The letter was addressed to Miriam Arreola and was sent to her email. However, no evidence is offered that shows Plaintiff Jorge Francisco Arreola was ever sent a similar letter. Thus, Defendant has not met its initial burden with respect to Plaintiff Jorge Arreola. b. Did Kia's December 8, 2020 letter constitute an offer? Kia provides a copy of the letter sent to Plaint...

Excerpt: ...e irreconcilable with the results of a trial that took place in Balfour Beat-tvs absence. If trial is not stayed and proceeds before such a result comes down from the Court of Appeals, Plaintiff notes a second trial would have to be held and argues a "separate trial could result in contrary and conflicting rulings. Different evidence could be used, different jury members could result in irreconcilable outcomes regardless of the same evidence, and...

Excerpt: ...CCR, All SMILES, TAPO, SHERMAN OAKS HOSPITAL, DR. FARAHMANDIAN, ISREALA and DR. LADINES" as defendants. (See Complaint, 143, 144.) Defendant claims that this makes the pleading uncertain. There is only one Defendant named in the caption of the Complaint, which makes the inclusion of these entities very confusing. Further, Defendant contends that the Complaint alleges time frames from 2013 and 2014 as well as August 2021 and Defendant is left unab...

Excerpt: ...ine to rule on Plaintiff's "evidentiary objections" in the opposing separate statement, which are not properly before this Court. The opposing separate statement is not property formatted CRC, rule 3.1350(f)(1) provides that "[e]ach material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with...

Excerpt: ...t has also agreed to comply in part to RFP Nos. 1, 3—7, 9, 10, 15 and 16, and referred Plaintiff to several documents produced in response to his first set of RFPs.1 Thus, the only remaining categories and requests at issue are Category Nos. 11, 14, 16—17, 19—29, and RFP Nos. 2, 8, 11—14. Objections to a notice of the deposition are very limited and may only pertain to errors or irregularities in the deposition notice itself—i.e., issue...

Excerpt: ...be conducted either by a licensed physician or a licensed clinical psychologist with a doctoral degree and at least 5 years' experience diagnosing mental and emotional disorders. (CCP S There is no argument that proposed Dr. Long does not meet these requirements. Additionally, Plaintiff's argument that Dr. üJng is biased is unavailing — medical examiners are expected to represent the interest of the parties by whom they are retained. Such matt...

Excerpt: ...f action are being asserted in derogation of CRC 2.112. Accordingly, the special demurrer to the Complaint is sustained. II. General Demurrer A complaint must contain a statement of facts constituting the cause of action, in ordinary and concise language. (CCP S 425.10; see also C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [complaint need only allege facts sufficient to state a cause of actionl.) The failure to plead...

Excerpt: ...ffer if prejudgment possession is granted. I. The motion is properly denied a. The District provided proper notce of the motion Subdivision (b) of section 1255.410 provides for the timing and manner of service of the motion, requiring the plaintiff to serve a copy of the moton to the owner of record and any occupants within the property of which prejudgment possession is sought. (Code Civ. Proc., 51255.410(b).) Ifthe property is unoccupied, "[tlh...

Excerpt: ...pplemental document production, and that the parties failed to engage in a food faith attempt to resolve informally each issue set for the in the motion. The hearing was continued to allow the parties to further meet and confer to narrow the scope of their disputes, and to attempt to resolve them. (See Minute Order dated August 24, 2023.) Here, there has obviously been no resolution whatsoever on this moton. It appears to be futile to order any f...

Excerpt: ...se Plaintiffs causes of action against it are barred by the workers' compensation exclusivity rule. "Workers' compensation ordinarily provides the exclusive remedy for an injury sustained by an employee in the course of employment and compensable under the workers' compensation aw. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 365 [internal citations omitted].) "The workers' compensation exclusivity rule also encompasses any...

Excerpt: ...o the ongoing construction at the subject accident location... [orl any road controls... including but not limited to traffic signals." (Comp. , 18.) As Defendants argue, the Complaint is thin on facts showing a physical deficiency in the property ftself. These allegations are insufficient. In opposition, Plaintiff only insists his allegations are sufficient. However, the lack of traffic control devices is not by itself a "dangerous condition" fo...

Excerpt: ...s assertion, Defendant has demonstrated good cause. Plaintiff has asserted loss of earnings and earning capacity in his complaint. (Complaint 1117, 25, 33, 51, Prayer, 90.) Plaintiff has identified this in his responses to form interrogatory nos. 8.1-8.7. (Kadaba Decl. Ex. 8.) Plaintiff now has the burden to justify his objections. Personal financial information is protected by the privacy right. (International Federation of Professional & Techni...

Excerpt: ...t judicial notice of Plaintiff's DFEH complaint and right to sue letter. Judicial notice is granted under Cal. Evid. Code S452(c), which permits judicial notce of official acts. Furthermore, the court "My also consider material documents referred to in the allegations of the complaint." City of Port Hueneme v. Oxnard Harbor Dist. (2007) 146 Cal.App.4th 511.) The Complaint alleges that Plaintiff exhausted administrative remedies by filing her comp...

Excerpt: ...rustee has not yet abandoned the property, which means the trustee is the real party in interest, not Plaintiff.l "The widely accepted rule is that after a person files for bankruptcy protection, any causes of action previously by that #rson become the property of the bankrupt estate." (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, ICM.) Therefore, a Chapter 7 bankruptcy debtor lacks standing to bring suit on any pre-petbon claims. (...

Excerpt: ... fact. As to notice, City has met its burden but Plaintiff has established a triable issue regarding notice. a. Trivial Defect Gov. Code S 835 sets out the exclusive conditions under which a public entity may be held directly liable for injuries caused by a "dangerous condition" of public property. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) A public entity may be held liable only if all of the following elements are satisfied:...

Excerpt: ...o the fifth, seventh and ninth causes of action because Plaintiff failed to plead the alleged misrepresentations with sufficient specificity. The demurrer is overruled as to the sixth cause of action because fraud by concealment requires less specificity than fraud based on affirmative misrepresentations. The economic loss rule does not apply to claims based on fraud. Request for Judicial Notice: Defendant requests judicial notice of the Policies...

Excerpt: ... refusing to consider an appeal of the decision. The Court to issue a writ of mandate ordering the City to comply with its obligations under PMC S 5.54.180 and PMC 55.58.170. An application for a proposed medical marijuana dispensary must include certain information, including the location, a list of employees, compliance with state law requirements governing medical marijuana dispensaries, compliance with insurance requirements, site plan and fl...

Excerpt: ...le; (3) quiet title; (4) elder abuse; (5) cancellation of written instrument; (6) UCL—open ended document and good faith; (7) UCL—bill padding; and (8) legal malpractice. Plaintiffs, Lisa and Michael entered into a Legal Services Agreement with The Turoci Firm ("Firm"), and Plaintiff Sandra executed a note ($21,678.73) secured by a deed of trust to the Firm with Western Star Financial Inc. as the trustee, for legal services provided in the Ba...

Excerpt: ... fails to allege that she demanded for the allegedly converted properties to be returned to her, which is a prerequisite to claiming conversion. In Flennaugh v. Heinrich (1948) 89 Cal.App.2d 214, was held that a demand is not a necessary prerequisite to the maintenance of a suit for conversion when the property comes into the possession of the defendant tortuously or unlawfully, or when demand for possession thereof by the owner would be futile, ...

Excerpt: ...lment may consttute actionable fraud: "(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts." (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311 [citation...

Excerpt: ...signed copy of the protective order on May 9, 2023, but Defendant has not yet provided supplemental responses and/or documents. (Reply, 2:1-5.) Defendant is compelled to produce documents as agreed. Plaintiff also states that his counsel has several cases with defense counsel and typically they do not comply with C.C.P. S 2031.280(a) (requiring the documents produced must be sorted and labeled to correspond with the categories in the document dem...

Excerpt: ... the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affrmative defense that is the subject of the motion. Evidentiary Objections C.C.P. S437c(q) provides as follows: "In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its ...

Excerpt: ...o a communicaton relevant to an issue concerning the condition of the patient if such issue has been tendered by: (a) The patent;...." If Plaintiff placed her conditions at issue, there is no privilege. Plaintiff clearly placed her mental health at issue—she asserted an intentional infliction of emotional distress claim, and asserted severe emotional distress and psychological injuries. (FAC 919, 25.) For her medical history, while Plaintiff ge...

Excerpt: ...erial to the court's resolution of the present motion. Accordingly, the court declines to rule on the evidentiary objections. The FAA Is Applicable The FAA generally governs arbitration in written contracts involving interstate commerce and authorizes enforcement of arbitration clauses unless grounds exist in law or equity for the revocation of any contract, similar to the California Arbitration Act. (9 U.S.C. 52; Basura v. U.S. Home Corp. (2002)...

Excerpt: ...n Gonzalez. Counsel reached out to Defendant's counsel numerous times, via email and voicemail messages, to discuss the discovery responses. The attorneys exchanged letters. It appears, though, that the actual merits of the motion to compel were not discussed. Defendant's attorney focused exclusively on the various procedural issues and timing of the discovery and potential motion to compel itself. The statutory meet and confer requirement has te...

Excerpt: ...leading proposed to be filed therein. (CCP S 473(b) A motion for discretionary relief must be filed "within a reasonable time, in no case exceeding six months" from the entry of default. (CCP S 473(b).) Because this tme limitation is jurisdictional, a court has no power to grant relief under section 473 after six months, no matter how reasonable the excuse for the delay. (Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4th 918,...

Excerpt: ...2023.030(d), 2030.3W(e); 2031.310(i).)1 Terminating sanctions can take the form of (1) striking out the party's pleading or part thereof; (2) staying further proceedings by that party until he or she obeys the court order; (3) dismissing that party's action, or any part thereof; or (4) rendering default judgment against that party. (CCP S 2023.030(d).) Contrary to Defendant's argument, there is no requirement to meet and confer before filing a mo...

Excerpt: ...032 may be used. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777.) CCP S 1032 provides that a prevailing party is entitled to recover costs in any action or proceeding. A "prevailing party" under this section includes "the party with the net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obta-ns any relief... ." Here, Petitioner's CHRO Request was denied after a hearing, ...

Excerpt: ...s counsel and signed by this Court is void because the Court lacked jurisdiction to sign said order since a 4/6/22 minute order indicates the matter was dismissed. Plaintiff is correct that a court has limited jurisdiction when a matter is properly dismissed. "Upon the proper filing of a request to voluntarily dismiss a matter, the trial court loses jurisdiction to act in the case, 'except for the limited purpose of awarding costs and statutory a...

Excerpt: ...g rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC 3.1330; see also Conde...

Excerpt: ...ruitment services to Defendant. (UMF, No. 1.) Although in its memorandum Plaintiff vaguely asserts that it performed all obligations under the Agreement, it has not produced any evidence of performance and the Declaration of John York does not address this issue. Under the terms of the Agreement, Defendant was charged a flat fee of $15,000 for job searches for Territory Sales jobs for Texas, Northeast USA and North Central USA. (Plaint. Ex. A.) T...

Excerpt: ...e Decision for Fraud denied. The facts do not support a finding of fraud. Therefore, the motion is denied. Defendant requests that the court award it additional attorney's fees, such request requires a separate noticed motion.” Thereafter, on May 13, 2022, Plaintiff filed a motion for reconsideration. On June 7, 2022, this court posted a tentative ruling denying Plaintiff's motion for reconsideration. Once again, Plaintiff did not request oral ...

Excerpt: ...icle were estimated to be $11,564.70. (Complaint, ¶ 3.) However, Luong's insurance carrier obtained a Kelly Blue Book current valuation of Plaintiff's vehicle as within a range of $4,892 to $6,491. (Hunter Dec., Exs. B, C.) Luong contends that Plaintiff's allegation in the complaint that the subject tree sits on the border of both properties is supported by google map photos. (Hunter Dec., Ex. N.) Under California law, trees that stand partly on...

Excerpt: ...breach; and (4) damages. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) For the contract, Defendant contends that Plaintiff failed to provide a copy of the contract that contains Defendant's name. Defendant relies on Cisco v. Van Lew (1943) 60 Cal.App.2d 575, which involved a real estate contract. However, real estate contracts are governed by the statute of frauds. (Civil Code §1624.) “The existence of mutua...

Excerpt: ...is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, [the court shall] vacate any (1) resulting default entered by the clerk… or (2) resulting default judgment or dismissal entered against his or her client.” (CCP §473(b).) When an attorney affidavit of fault is filed, there is no requirement that th...

Excerpt: ...439.) A written contract may be pleaded verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) Alternatively, a written contract can be pleaded by attaching a copy of the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) In this case, Cross‐Complainants do not allege t...

Excerpt: ...vil Code section 52, the Unruh Act, authorized fee award to a person “denied the rights provided in Section 51, 51.5, or 51.6.” (Id. at 490.) Based on that language, the court rejected Doran's entitlement to attorney fees because the legislative history of the fee shifting statute demonstrated that the intent was to impose liability for attorney fees on “only violators of the Unruh Act”. (Id. at 491.) Because the accepted offer was silent...

Excerpt: ... Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984‐985 (citing holding of Levy v. Superior Court, supra, 10 Cal.4th at p.586.).) CCP §664.6 and the accompanying case law is clear – the court can only enter judgment from a written stipulation where the agreement is signed by the parties themselves. Here, the stipulation was not signed by the parties and thus was not, and could not have been, entered by the court. Accordingly, the previously signed...

Excerpt: ...95) 76 Cal.App.4th 176, 181. Since judgment has been entered as to County of Riverside, the Court lacks jurisdiction to hear the request for reconsideration as to County. Id. at 181‐ 182. To the extent that Plaintiff seeks to reconsider the 6/14/19 order dismissing Cois M. Byrd Detention Center, Sheriff Stan Sniff, and Riverside County Jail from this matter, the motion is denied as it is untimely. To the extent that Plaintiff seeks leave to ame...

Excerpt: ... only through counsel (Merco Const. Engineers, Inc. vs. Mun. Ct. (Sully‐Miller Contracting Co.) (1978) 21 Cal. 3d 724, 731). This prohibition stems from the notion a corporate representative who would likely appear on behalf of the corporation would be engaged in the unlicensed practice of law (Gamet vs. Blanchard (2001) 91 Cal. App. 4th 1276, 1284). While earlier cases suggest that papers filed by a corporation in pro per are “void” (e.g.,...

Excerpt: ...or discretionary. (CCP §473(b).) Relief is mandatory if the attorney is willing to take the blame and pay the costs; the court must set aside the entry of default, default judgment or dismissal. (Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Without an attorney affidavit of fault, relief is discretionary and must be based on a showing of mistake, inadvertence, surprise, or mistake. (Id.) There is a six ‐month limitatio...

Excerpt: .... 4th 612. In this case, however, the complaint is uncertain. At ¶10 of the FAC plaintiff describes theories of liability (motor vehicle negligence, general negligence, intentional tort) that are not described by the factual allegations in the attachment at all, which doesn't reference an accident, an automobile, or the negligent operation of an automobile causing an accident. Instead, the attachment sounds much more like a claim for breach of o...

Excerpt: ... 4th 612. In this case, however, the complaint is uncertain. At ¶10 of the FAC plaintiff describes theories of liability (motor vehicle negligence, general negligence, intentional tort) that are not described by the factual allegations in the attachment at all, which doesn't reference an accident, an automobile, or the negligent operation of an automobile causing an accident. Instead, the attachment sounds much more like a claim for breach of or...

Excerpt: ...the twoyear period is enlarged or that the statue is tolled under Ins. Code § 11580.2(g), which only applies to subrogation claims under the Uninsured Motorist Statue. As to the second cause of action for subrogation, Mercury fails to plead that the injury to its insured involved an “uninsured vehicle” that triggered Mercury's obligation to pay uninsured motorist benefits, thus entitling it to a subrogation claim under Ins. Code § 11580.2(g...

Excerpt: ...will exceed $25,000.00. (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 274.) Even though the requirement for reclassifying a matter from limited civil to unlimited civil is less stringent than the opposite, plaintiff fails to provide any details regarding the nature of his injury, the treatment received, or when he discovered the damages would possibly exceed $25,000. In the absence of such evidence, plaintiff has failed to demonstrate th...

Excerpt: ...ing on the party. (In re Horton (1991) 54 Cal.3d 82.) In this case, no stipulation was even needed before Commissioner Gregory heard the matter. Plaintiff filed this action as a limited civil case valued by Plaintiff as “OVER $10K/UNDER $25K.” (See Complaint Coversheet.) Thus, Commissioner Gregory had jurisdiction to consider the matter on the merits, even without a stipulation, and both the Bifurcation Order and Final Ruling are valid. (Gov....

Excerpt: ...dentify what costs these fees were used for and provides no authority that allows her to recoup these fees. As such, the request to tax $405.00 of the filing fees is granted. Petitioner seeks $150.00 in service of process fees. While service fees can be recouped, they must be reasonable. California Rules of Court, Rule 8.278(d)(1)(B). Petitioner does not dispute that she did not need to personally serve documents on Respondent. She contends that ...

Excerpt: ...3.030(d) both provide that a Court may make any such orders that are just, including a terminating sanctions. There is no justification as to why Defendant has disobeyed the Court's orders. Although there was no opposition, the Court recognizes that terminating sanctions are typically a “last resort,” but Defendant's unwillingness to cooperate in the litigation process warrants no other sanction. Indeed, it would be a futile act to impose on ...

Excerpt: ... in opposition. The second issue is deposition costs of $479.84, contending the deposition of Matthew Good was not necessary as he did not know anything about Plaintiff's vehicle. Defendant contends Good was the service advisor. As pointed out by Defendant, discovery is broad. The motion is denied. The third issue is the service of process of $136 for subpoenas as Plaintiff contends that he did not object to the authenticity of the documents. Def...

Excerpt: ...arsay, relevance and speculation. The court declines to rule on the evidentiary objections and will not consider the declaration. The demurrer is OVERRULED in its entirety. Collateral Estoppel does not apply because Plaintiffs were not parties to the family court action. Plaintiffs plead sufficient facts to state a cause of action for breach of contract and common counts, and the Complaint is not uncertain. The request for sanctions is DENIED. ...

Excerpt: ... insufficient. Since the terms of the written contract are sufficient, defendant's challenge to the fraud claim fails as well. As to the first and second causes of action The first and second causes of action rely on the alleged breach of a written contract described in the FAC as the written “Sales Deal Deposit Receipt” (Deposit Receipt) entered into between the parties. The elements for a breach of contract claim are: (1) contract; (2) plai...

Excerpt: ...otice and the deposition date of 12/31/18, are not the subject of the present motion. Defendant seeks to enforce the Amended Notice of Deposition and the deposition scheduled for 1/9/19. As to the amended notice, the Reply argues plaintiff only requested 10 days' notice and she was given such notice. However, plaintiff's email states the notice should be “re‐serve[d] with 10 days notice” and under the statute a deposition notice which is se...