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...