Excerpt: ...hat the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.” A provisional remedy includes an injunction. (Id. at §1281.8(a)(3).) In order to obtain an injunction, the court must consider the likelihood of success and whether the moving party will suffer irreparable harm if the injunction is not issued. (Jay Baharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443.) The applicant must...

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...