Excerpt: ...d, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) Facts appearing in exhibits attached to the pleading will also be accepted as true and, if contrary all...

Excerpt: ...ith a suspended driver's license the automobile owned by Yang Song, who knew, or with reasonable diligence would have known, James Raynor's license was suspended as a result of multiple count of Driving Under the Influence. (Complaint, ¶¶7‐9.) While driving Yang Song's automobile, James Raynor made an unsafe turn and caused Plaintiff's vehicle to collide with his. (Complaint, ¶12.) As a result of the collision, Plaintiffs sustained injuries ...

Excerpt: ... the rights or safety of others,” while oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code § 3294(c)(1)‐(2).) Despicable conduct is conduct that is base, vile or contemptible. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The mere allegation that an intentional tort was committed is not sufficient to warrant a...

Excerpt: ...lleges in the FAC that on the date of the accident, Plaintiff slipped and fell “due to build up over time of excessive algae growth, the buildup of oil, grease and other substances deposited by boats at the boat launch area” which Defendant allowed to remain on its premises, notwithstanding the fact that Defendant knew or should have known that the “subject excess algae growth in the boat launch area was inherently dangerous, and that failu...

Excerpt: ...and affirmatively on the face of the complaint, which includes matters alleged in exhibits attached to the complaint. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context (Moore v. Regents of University of California (1990) 51 Cal...

Excerpt: ...ufacturer may disclaim those implied warranties, and providing mechanisms to ensure that manufacturers live up to the terms of any express warranty.” (Ibid; see also Civ. Code §§ 1792‐1792.5, 1793, 1793.2.) Civil Code section 1793.2(a)(3) provides: “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: … (3) Make available to authorized service and repair facilities su...

Excerpt: ...ladys Guzman alleges she is a 58‐year old Asian woman who was employed as a District Manager by defendant Zales Delaware Inc. (“Zales”) for over 20 years when she was terminated from her employment on July 31, 2020. Plaintiff alleges that starting in 2017, defendants began promoting a new target demographic for its stores and sought to layoff older employees. Plaintiff alleges she was terminated because of her age, race, ethnicity, ancestry...

Excerpt: ...eased for use primarily for personal, family, or household purposes, except for clothing and consumables.” (Civil Code §1791(a).) Generally, for purposes of Civil Code §§1793.2(d) and 1793.22, a new motor vehicle is “a new motor vehicle which is used or bought for use primarily for personal, family, or household purposes.” (Civil Code §1793.22(e)(1).) It “does not include any portion designed, used, or maintained primarily for human h...

Excerpt: ...A special demurrer, other than subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or implied by conduct. (See Code Civ. Proc., § 430.10(f).) The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The “face of the...

Excerpt: ...or Terminating Sanctions (as well as Papp's declaration and request for judicial notice.) The notices request that the filings/contentions be stricken, that Defendant Tye and Papp be ordered to pay monetary sanctions to the Court and an order issue that Papp may not repeat any personal attacks on Plaintiff. In general, Plaintiff attacks specific statements in the filings claiming they are either irrelevant, false and/or brought for an improper pu...

Excerpt: ...leged straw buyer) on day after service of the UD Action; (2) possession of Plaintiff's mobile home was voluntarily surrendered by Bravo at the December 15, 2020 trial in the UD Action; and (3) Plaintiff was provided with Notice of Public Sale but failed to satisfy the lien, and the mobile home was sold at a public sale. Defendants further note that the complaint is not verified and that there is no evidence presented on the present motion that P...

Excerpt: ...(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) The elements of a negligent misrepresentation cause of action are (1) a representation as to past of existing material facts; (2) falsity of the representation; (3) defendant lacks reasonable grounds to believe the truth of the representation; (4) intent to induce reliance; (5) justifiable reliance by plaintiff; and (6) injury. (B.L.M v. Sabo & Deitsch ...

Excerpt: ...y “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings, supra, 16 Cal.4th at 825 [citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341].) Page 7 of 9 violation in their database as a felony charge and then reported that inaccurate charge to the CA Department o...

Excerpt: ... duties included driving the company truck and laying concrete. (Complaint, ¶¶ 9‐ 11.) In 2016, Plaintiff was promoted and transferred to work in Defendant's Corona asphalt plant, which gave Plaintiff an opportunity to work more days and earn more money. (Id., ¶ 12.) In November 2018, a co‐worker (John) saw Plaintiff's wife drop him off at work and began making highly offensive comment regarding her race and made similarly offensive remark...

Excerpt: ...titutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.) In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the examination.” (CCP ...

Excerpt: ...5 Cal. App.4th 92, 98.) The Discovery Act requires a meet and confer declaration under CCP § 2016.040 be submitted with the motion. The declaration must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (CCP § 2016.040.) Special Interrogatories 172‐187 and RFP 43 Special Interrogatories 172‐187 request the following: IDENTIFY" means to state all facts related to the t...

Excerpt: ...fendant has not made any showing of annoyance, embarrassment and or undue burden and expense. He further contends the motion is moot, and untimely and seeks to litigate objections which are not the proper subject of a protective order. He asserts the objections are frivolous, a work product objection was waived and the discovery sought is relevant. He seeks nominal sanctions of $1 for having to oppose this Motion. The Reply reasserts many of the ...

Excerpt: ... 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 Condee v. Longwoo...

Excerpt: ...who Plaintiffs allege was a shell entity that was controlled by Conor Commercial Real Estate, Inc. and LaSalle Investment Management, Inc. (and related entities), which are multi‐billion dollar companies that buy, develop and manage real estate throughout the U.S. (collectively “Seller Defendants”). (FAC, ¶¶ 2, 21‐ 25.) SeneMan purchased the Property with the intent to lease it to plaintiff GTOK LLC (“GTOK”) for the purpose of manuf...

Excerpt: ... that, on September 07, 2021, he spoke with Plaintiff's counsel telephonically, but the parties could not reach a resolution in regard to the issues raised in the demurrer. (Ramallo Decl., ¶2.) I. Chen's Joinder in Sterling Bank's Demurrer. Chen is permitted to join Sterling Bank in its Demurrer to the FAC as any conduct by Chen alleged in the pleading was in her capacity as an “agent” of Sterling Bank, and any conduct by Sterling Bank is al...

Excerpt: .... First, the moving party must show that the anti‐SLAPP statute applies. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056. If it makes this showing, the responding party bears the burden of proving the likelihood of success on the merits. Id. Where the SLAPP statute does not apply, the court does not consider the merits of the case. Garretson v. Post (2007) 156 Cal.App.4th 1508, 1515. Under the first prong of the anti‐SLAPP statute, the moving p...

Excerpt: ...time so the emergency room doctor put Plaintiff's forearm in a splint and referred Plaintiff to an orthopedic surgeon. Plaintiff alleges that on June 21, 2018, David Hill, PA, evaluated Scott at Desert Regional Medical Center. Plaintiff alleged that Hill, under the supervision of Defendant Douglas Roger, MD, negligently put Plaintiff's forearm in a long‐arm cast without first attempting to reduce (meaning straighten) the severely deformed fract...

Excerpt: ...ith the laws of this state, a court rule or an order of the court. (CCP § 436.) A motion to strike is also the proper vehicle to attack a punitive damages claim where facts alleged may not rise to the level of fraud, malice or oppression. (CCP §§ 435‐436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) As with a demurrer, on a motion to strike “the court treats as true the material facts alleged in the compl...

Excerpt: ...ere is no authority to support Plaintiff's claim that ER 9 tolls the statute of limitations to claims that arose before the tolling period began, and were filed after the tolling period ended.” (Reply, 7:2‐3, emphasis in original). This is how all tolling provisions work: days during the period after the cause of action accrued for which tolling applies are not counted against the applicable statute of limitations. Page 10 of 10 Defendant opp...

Excerpt: ...ages on termination, failure to provide accurate wage statements or maintain accurate payroll records, failure to reimburse employees for expenses, and so forth. The complaint was filed on June 24, 2021. In the complaint, plaintiff alleges that he was employed by defendant from September 2019 to November 2019 (Complaint, ¶20) and that he provided notice to the LWDA of his claims on April 19, 2021 (Complaint, ¶17). Defendant now appears and demu...

Excerpt: ...tiff's forearm in a splint and referred Plaintiff to an orthopedic surgeon. Plaintiff alleges that on June 21, 2018, David Hill, PA, evaluated Scott at Desert Regional Medical Center. Plaintiff alleged that Hill, under the supervision of Defendant Douglas Roger, MD, negligently put Plaintiff's forearm in a long‐arm cast without first attempting to reduce (meaning straighten) the severely deformed fracture before putting it in a cast. Plaintiff'...

Excerpt: ...) 4 Cal.5th 637, 645.) In other words, the defendant must file the anti‐SLAPP within 60 days of service of the earliest complaint that contains that cause of action. (Id. at 639‐640.) Here, the causes of action between the original complaint and the FAC remain the same (deprivation of civil rights and damages for violation of law). The only issue is whether the factual allegations are new. In this case, Plaintiffs alleged in the original comp...

Excerpt: ...ppleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. But because the responses haven't been provided to the court, there is no way for the court to determine whether the responses that defendants admit to having received are verified or not. Nor can the court pass on the sufficiency of the responses, obviously. C.R.C. 3.1348(a) provides: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel...

Excerpt: ...site but could not access the videos as there was no closed captioning. Defendant demurs to the 2nd cause of action for UCL on the grounds it fails to state facts sufficient. It argues that there are no facts demonstrating standing via economic loss. Plaintiff contends economic loss is broad since he had to find another dentist who charges more or has fewer amenities. Page 3 of 3 Analysis CCP §430.41 and §435.5 requires a meet and confer proces...

Excerpt: ...porations Code §1305(e) Statutory interpretation requires the court to first examine the actual language of the statute and give the words their ordinary meaning. (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1237.) If after doing this the statute is still ambiguous, the court is to examine the legislative history. (Id. at 1239.) If this yields no results, the court is to apply reason, common sense and practicality to ...

Excerpt: ...ted to their grandparents that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff alleges these representations were made to both him and the grandparents, but defendants had no intention of covering the losses, planning not to pay if the marke...

Excerpt: ...s business for significant periods of time. Plaintiff contends that the lease agreement contains a provision that if either party was prevented from performing any act required under the agreement due to a lockout, inability to procure labor, or restrictive laws, performance would be excused for the period of delay. Plaintiff argues that due to this provision of the lease, Plaintiff was not required to pay rent while its business was prevented fr...

Excerpt: ...rocal Easements (“CC&Rs”) to govern the development, subdivision, improvement, sale, lease, and conveyance of interests in the property. The CC&Rs provide for non‐exclusive perpetual easements appurtenant to each tract and parcel within the property for “ingress, egress, driveway use, parking, loading and unloading of commercial and other vehicles, and otherwise for the enjoyment, comfort and convenience of customers, invitees, licensees,...

Excerpt: ...�ROGs”), Requests for Production (“RFPs”) (Set One) and RFPs (Set Two). On April 22, 2021, Defendant served Plaintiff with RFPs (Set Three). Plaintiff failed to served timely responses, and on June 18, 2021, Defendant sent correspondence by email demanding that responses be served without objections. Notwithstanding, Plaintiff failed to serve any responses, the present motions ensued. * * * Defendant now moves by four separate motions to co...

Excerpt: ... be repaired within a reasonable number of repair attempts and defendant has failed to either replace the vehicle or make restitution under the Song‐Beverly Act. Plaintiff alleges defendant issued a written warranty, that an implied warranty of merchantability exists, and that the Song‐Beverly Act has been violated. (See Complaint, ¶ 32 [“accompanied by an implied warranty that the subject vehicle was merchantable pursuant to Civil Code se...

Excerpt: ...e homes for profit. Plaintiff alleges that Justin Tye represented to their grandparent, Myron and Mary Jane Matika, that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff alleges these representations were made to both him and the grandparents...

Excerpt: ...air. Plaintiff alleges that in April 2021, he planned to travel to Riverside and attempted to make a reservation at a hotel (“Hotel”) owned and operated by Defendant Value Hotels Corp. dba Riverside Inn & Suites, Mahendra Patel and Jayshree Patel (“Defendants”). Plaintiff alleges that the Hotel's official reservation website, which is operated by Defendants or a third‐party on Defendants' behalf, does not provide sufficient information ...

Excerpt: ...lling 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, or surprise. (Id.) Plaintiffs misunderstand the relief sought. Under the mandatory relief portion, “a party is relieved from the conse...

Excerpt: ...n (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action Wrongful Death – Negligence, Violations of Penal Code § 245.6, Civil Code §§ 43 and 52.1, Assault and Battery, Negligent Hiring, Supervision and Retention: “In California, all government tort liability must be based on statu...

Excerpt: ...ECC hired Johnson as a counselor. The state has subsequently arrested and charged Johnson for downloading and distributing child pornography. Defendant North American Division of Seventh Day Adventists (NAD) is the governing body for Seventh‐Day Adventists and had control over La Sierra Academy. Plaintiffs filed this action on 12/15/20 and filed the operative First Amended Complaint (FAC) on 4/29/21. The FAC asserts: (1) negligence (against all...

Excerpt: ...of all material facts which have been properly pleaded, of facts which may be inferred from those Page 4 of 5 expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) If the complaint fails to state a cause...

Excerpt: ...efendants informed him that the vehicle was not ready, but that he would have to pay $30 per day for parking and storage. As a result, Plaintiff hired a tow truck to move the vehicle, but Defendants demanded costs for parts and storage fees. Plaintiff was told that the vehicle was not reassembled because it was going to the junkyard. On November 11, 2020, Plaintiff filed his Complaint. He asserts four causes of action for: (1) Breach of Contract;...

Excerpt: ...3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) Facts ...

Excerpt: ...cy with HHS Construction, Inc. (“Insured”) and that embezzled funds from the Insured by using credit cards without permission. As a result of the embezzlement, plaintiff made payments under the insurance policy in the amount of $26,068.92, which it seeks to recover from defendants. The complaint states two causes of action. 1. Subrogation; 2. Indebtedness. Defendant Pope has been dismissed. The present motion is a motion to compel further res...

Excerpt: ...Plaintiff contends both documents were obtained through the bankruptcy court's website, making them court documents. The second document is a court order and is therefore a court document under Evid. Code §452(d). The first document appears to have been part of the court record, so the court can take judicial notice as to the existence of the document but not as to the truthfulness of its contents or the proper interpretation of the document. (F...

Excerpt: ...ether an action filed in California should be adjudicated elsewhere in the interest of substantial justice. (See CCP § 410.30(a); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group), § 3:407‐3:408.) Here, Defendants are not challenging the Superior Court as an inconvenient forum; rather, they are arguing that they will be prejudiced by allowing parallel proceedings in two separate tribunals. In any even...

Excerpt: ...e, the moving party must demonstrate relevance and specific facts justifying discovery. (Kirkland v. Superior Court (Guess? Inc.) (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause for production “is met simply by a fact‐specific showing of relevance.” (Tbg Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) Then, the burden shifts for the opposing party to justify its objections. (Kirkland, supra, 95 Cal.App.4th ...

Excerpt: ... I; (2) neuropsychological IME; and (3) orthopedic. (See Declaration of Staci A. Clark in Support (“Clark Decl.”), ¶ 7, Exhibit D.) Plaintiff responded that she would not agree to a neuropsychological examination without a court order. (Clark Decl., ¶ 8, Exhibit E.) On August 17, 2021, Defendant served a revised demand for a neurological IME (i.e., the day before the present motion was filed). (Clark Decl., ¶ 9, Exhibit F.) * * * Defendant...

Excerpt: ...e in extreme cases where the right to such action is clearly established. Id. In order to issue a preliminary injunction, the Court must balance the parties' interests. In balancing the parties' interests, the Court must exercise discretion “in favor of the party most likely to be injured . . . .” Robbins v. Superior Court (1985) 38 Cal.3d 199, 205. The Court is to consider two interrelated factors: 1) the injury to plaintiff in absence of th...

Excerpt: ...672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Both parties appear to agree the third amended complaint asserts a cause of action for breach of implied contract. A contract can be either expressed or implied. Civil Code § 1619. “A breach of contract cause of action requires: (1) a contract between the parties, (2) perfo...