Excerpt: ...ally operative language, assuming there is no genuine dispute regarding the document's authenticity"; and "the legal effect of the recorded document, when that effect is clear from its face." (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 255, 255, disapproved on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919; see Poseidon Development, Inc. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1118 [jud...

Excerpt: ..., CPG: Civ. Proc. Before Trial (TRG 2023) S 11:6 citing, O'Dell v. Freightliner corp. (1992) 10 cal.App.4th 645, 659.) (emphasis added.) A "dismissal is effective on tender, and all subsequent proceedings are void (other than issues relating to an award of attorney fees and costs or attacking the validity of the dismissal.)" (ld. S 11:6.1.) (emphasis added.) A voluntary dismissal of an entire action deprives the court of both subject matter and p...

Excerpt: ...) strict liability failure to warn; 4) negligent products liability; and 5) negligence. Plaintiff alleges that on or before December of 2017, Defendants, including TRS, engaged in business with Plaintiff's former employer, Alpha Materials, Inc. (Alpha), "to sell/purchase design, manufacture, distribute, install, service, maintain, repair, and preventatively inspect tires for [Alpha's] commercial vehicles, trucks and trailers, which included the S...

Excerpt: ...emises are a skilled nursing care facility and a residential care facility (collectively "Leased Premises"). On November 30, 2016, the Lease was assigned to Defendant Corona Post Acute ("CPA" or "Defendant") and Corona RCFE, LLC (RCFE) ("Assignment"). On October 30, 2020, Versacare and CCV entered into a Purchase and Sale Agreement through which Versacare sold the leased premises to CCV. CCV also alleges that the lessees failed to obtain the requ...

Excerpt: ... create conflicting rulings on common issues. (CCP S 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 petiton/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...

Excerpt: ...3.290(b)(1). Based on County's counsel's declaration, it appears that the parties exchanged written communications in an attempt to resolve this matter. (Declaration of Christopher D. Lockwood, "1 2-7.) The attempts by County appear minimal but sufficient to meet their meet and confer requirement. Supplemental responses have been provided by Aron Garcia and Robert Madden. As such, this moton appears to be moot as to everything but sanctions as to...

Excerpt: ...r an order of the court. (CCP S 436.) As with a demurrer, on a motion to strike "the court treats as true the material facts alleged in the complaint, as well as any facts Page 3 of 9 which may be implied or inferred from those expressly alleged." (Washington Internat. Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 984 (footnote 2).) To support a demand for punitive damages under Civ. Code 53294, a plaintiff must plead and prove facts de...

Excerpt: ...ildren's Services, Inc. ("Lifeplan") is an filiate of the MSFH, which is and was, at all relevant times, owned and operated by Morris. (ld. at 9.) Defendant Edward Lawrence Kerin ("Kerin") is Morris' husband. (ld. at 7.) Plaintiffs Angel Ramirez and Alberto Ramirez ("Plaintiffs") are the parents of Diane Ramirez ("Diane"), the decedent in this case. (ld. at 2.) On August 3, 2021, a Grand Jury issued an Indictment against both Morris and Kerin for...

Excerpt: ...r Services Call Center Department. (Complaint, '18.) As a Team Manager, Plaintiff's job duties involved the day-to-day operations of customer service, managing a team of CSRs, and overseeing tens of thousands of calls per year that came into the call center during her shift. (ld„ '19.) Plaintiff held the position of Team Manager during the last three years of her employment. (ld., '18.) On November 29, 2021, Plaintiff alleges she took part in a...

Excerpt: ...isorder. Defendant admitted Nicolas Kanukov, a heroin user. Decedent and Kanukov began an intimate relationship, of which Defendant was aware. In July 2020, Decedent tested positive for morphine, despite the fact that she was allergic to it. She also sustained a broken nose and concussion when she fell due to being heavily intoxicated. Decedent was found dead on the floor of Kanukov's room where Kanukov admitted that Decedent had smoked heroin, w...

Excerpt: .... Plaintiff also request the imposition of monetary sanctions in the amount of $2,500 against Defendant on the grounds that Defendant served improper objections, evasive representations of inability to comply, and incomplete and inadequate responses.l At issue are RFPs 1, 2, 4, 5, 6 and 14. Plaintiff contends that it must obtain responsive documents to its RFPs, so that it can account of the present whereabouts of fts stolen corporate funds. Plai...

Excerpt: ...5) Ralph Act Violation (Cal. Civ. Code S 51.7.) Defendants are several public entites and individual County and City employees. The present demurrer was been filed by Defendant City of Riverside ("Defendant," or "City of Riverside"). The Complaint alleges that on January 18, 2022, Decedent was shot at Travelodge, 2625 W. Florida Ave., Hemet, California. (Complaint, page 5 paragraph 21, lines 22-25.) Detective Kerr was a City of Riverside employee...

Excerpt: ... former tenants of a multi-unit property, has brought this achon against Defendant Starlit Mgmt VI, LP ("Starlit"), for its alleged failure and willful refusal to make repairs and proper maintenance of the leased units. Plaintiffs are tenants who occupy Units 2, 3, and 4 of the subject multi-unit property. Plaintiffs complain of a long list of substandard, Page 8 of 10 uninhabitable conditions existing at their respective units, which pose a heal...

Excerpt: ...throw plates at her, and grabbed her by the arm, resulting on her to slip down four stairs. Another supervisor, Eric Theiss also made disparaging remarks, and when Plaintiff complained, he made her job more difficult. On 12/20/21, Plaintiff filed her complaint for: (1) sexual retaliation; (2) racial/national origin retaliation; (3) wrongful discharge in violation of public policy; (4) Labor Code 51102.5; (5) battery; (6) discrimination; hostile w...

Excerpt: ... rulings on common issues. (CCP S 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 attached and incorporated by reference. (CRC 3.1330; see also Condee v....

Excerpt: ...parents 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 market turned. Based on...

Excerpt: ...ses and mailing it to the Defendant at the premises. For commercial tenancies, if a person of "suitable age or discretion" cannot be found at the residence, service may be completed by affixing a copy of the notice in a conspicuous place on the property rented to the tenant and mailing a copy to the tenant at the address where the property is located. (CCP S 1162(b)(3)).) Accordingly, the FAC does not fail to state a cause of acton for unlawful d...

Excerpt: ...ire Ins. Exchange (2010) 182 Cal.App.4th 990, 999.) "The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made." (Guz v. Bechtel Nat. Inc. (20W) 24 Cal.4th 317, 349, citing Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.) A breach of the implied covenant of faith ...

Excerpt: ...of action: (1) violation of Song-Beverly Act — breach of express warranty, (2) violation of Song-Beverly Act — breach of implied warranty, and (3) violation of Song-Beverly Act section 1793.2. Defendant has filed a motion for relief from waiver. It provided late responses to requests for admissions. It contends that the handling attorney either did not see the email serving the discovery requests or did not realize that his secretary was not ...

Excerpt: ...ue is the same single sentence regarding the California Department of Health Care Services investigation. But, Plaintiff provided a full response as to each interrogatory. Defendant fails to take the context of the response, and contrary to its assertion, it is not vague or non-responsive. The motion is denied. The court sanctions Defendant and its counsel $450.cn 2. CVR12104084 ANDREEVA vs MALIBU BEHAVIORAL HEALTH SERVICES, INC. Motion to compel...

Excerpt: ...erto sell the property at a higher price. On 1/10/22, Plaintiff filed his complaint. On 3/8/22, the court sustained Defendants' unopposed demurrer without leave to amend. However, after granting reconsideration based on the fact that the court clerk improperly rejected Plaintiff's amended complaint, the court vacated the demurrer ruling and allowed Plaintiff to file the First Amended Complaint (FAC) on 6/15/22. The court then sustained in part De...

Excerpt: ... of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP SS 2030.300(c), 2031.310(c).) Defendant served responses on 8/19/22-8/22/22. However, Defendant provided an extension to 2/15/2. (Motion, Ex. 13.) The parties are required to meet and confer. (CCP "2030.300(b...

Excerpt: ... to replace or repurchase the vehicle in accordance with the Song-Beverly Consumer Warranty Act (the "Song-Beverly Act"). On June 22, 2022, Plaintiff filed a Complaint for: (1) Violation of the Song-Beverly Act — Express Warranty; (2) Violation of the Song-Beverly Act — Implied Warranty; (3) Fraudulent Inducement Intentional Misrepresentation; and (4) Fraudulent Inducement — Concealment. The present motion is a motion to compel arbitration ...

Excerpt: ...aintiffs filed their Complaint on 11/8/21 alleging two causes of achon for motor vehicle and general negligence. On 1/5/22, CRST filed a Cross-complaint against Cross-Defendant, Tianyu Liu Consdante, alleging three causes of action: 1) equitable indemnity; 2) comparative partial indemnity; and, 3) declaratory relief. On 6/8/22, Hight filed a Cross-complaint similar to CRST's alleging the same three causes of action against Consdante. *** Defendan...

Excerpt: ...waived by the petitioner; (b) Grounds exist for the revocation of the agreement; or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. A proceeding to compel arbitration is in essence a suit in equity to compel specific pe...

Excerpt: ... and requiring a $5 million bond. The Association argues that, after the December 16, 2022 hearing, it diligently tried to obtain a bond, but was unable to do so since “no bond underwriter would issue such a large bond to the Association because it lacks sufficient assets to collateralize such a bond, due to its ‘non-profit' status and current financial condition.” (Pl.'s Mot. 1:9–14.) But the Association's status as a nonprofit organizat...

Excerpt: ...e 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 at 98.) Meet & Confer Importantly, be...

Excerpt: ...e County Superior Court Case No. RIC1902326, which had been resolved by entry of a judgment in FCM's favor in an amount in excess of $9,000,000. Kazarian alleges that he obtained this 95% interest in FCM as compensation for a debt of $3,500,000 owed to him by the Babloyans. As alleged in the cross-complaint, Lusine Babloyan and her father, cross-defendant Vahe Babloyan, then proposed “various non-sensical ways to go about satisfying the debt th...

Excerpt: ...ct products liability – manufacturing defect; 3) strict liability – failure to warn; 4) negligent products liability; and 5) negligence. Plaintiff alleges that on or before December of 2017, Defendants, including TRS, engaged in business with Plaintiff's former employer, Alpha Materials, Inc. (Alpha), “to sell/purchase design, manufacture, distribute, install, service, maintain, repair, and preventatively inspect tires for [Alpha's] commerc...

Excerpt: ...efense; or (3) showing that plaintiff does not possess and cannot reasonably obtain needed evidence. (C.C.P., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff's cause of action or show that the plaintiff lacks evidence. (Chavez v. Glock (2012) 207 Cal.App.4th 1283, 1301.) To demonstrate that t...

Excerpt: ...d hour laws. When he complained, Defendants allegedly reduced his compensation. On November 2, 2020, Plaintiff filed the Complaint alleging 1) retaliation; 2) misclassification; 3) failure to pay wages; 4) failure to pay minimum wages; 5) failure to pay overtime; 6) failure to indemnify business expenses; 7) failure to provide meal and rest periods; 8) failure to provide one day rest for every workweek; 9) failure to provide itemized wage stateme...

Excerpt: ...ite and also its physical locations. Plaintiff alleges that he genuinely wants to use Defendant's goods and services, and that he is a tester who visits places of public accommodation to determine their compliance with Title III of the ADA. He alleges that Defendant's website fails to provide alternative text for graphic images that can be read by screen readers. Plaintiff filed the original Complaint on July 26, 2022 and the operative First Amen...

Excerpt: ...hidden in a restroom at Defendant La Sierra Academy (“LSA”)1 when Johnson was employed by Defendant Southeastern California Conference of Seventh-day Adventists (“SECC”) as a school counselor. The operative pleadings challenged by the moving Defendant North American Division of Seventh-day Adventists' (“NAD”) Motion for Summary Judgment/Adjudication are as follows: Second Amended Complaint of John CMA Doe, John CMI Doe, and John MMA D...

Excerpt: ...he examinee's bodily and mental privacy and other constitutional rights. (Reuter v. Sup. Ct. (1979) 93 Cal.App.3d 332, 343.) The notice of motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope, and nature of the examination.” (C.C.P., § 2032.310(b).) “Good cause” requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matte...

Excerpt: ...tually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) On demurrer the court must assume the truth of all facts properly pled, facts that may be implied or reasonably i...

Excerpt: ...ntiff alleges that Defendants knew or should have known that their premises was in a dangerous, defective, and unsafe condition, which was a menace to Plaintiff and others on the premises. Plaintiff filed her Complaint on April 14, 2021 alleging two causes of action: 1) negligence and 2) premises liability. On October 26, 2022, this Court granted summary judgment in favor of Defendant The Vons Companies, Inc. and against Plaintiff. On November 17...

Excerpt: ...ding Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 CA4th 1440, 1446. Considering the remainder of Juror 11's declaration and the declarations submitted by three other jurors, it is apparent that the jury selected a foreperson, read the jury instruction on negligence and then took a straw vote with each juror stating their vote. The vote was 10-2 in favor of the finding that the Defendant was not negligent. There has been no showing of misco...

Excerpt: ...bligation to meet and confer in accordance with CCP § 430.41(a) and filed an appropriate declaration in accordance with CCP § 430.41(a)(3). Analysis: A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank vs. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a complaint under these standards, if there is any valid cause of ...

Excerpt: ...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 (CVRI 2000648) on 12/15/20. Their operative pleading is the Second Amended Complaint (SAC), filed 10/6/21, for: (1) negligence (against all); (2) negligent superv...

Excerpt: ...ive defense, a claim for damages or an issue of duty. (CCP § 437c(f)). Summary adjudication must “completely dispose” of the cause of action, defense, damages claim or duty issue to which it is directed. (CCP § 437c(f)(1).) Where a plaintiff seeks summary judgment, the plaintiff must produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical C...

Excerpt: ...205, 1208; Corp. Code § 14502; Penal Code § 597.1.) Level 1 humane officers also have the authority to carry firearms. (Corp. Code § 14502(h)(1).) Humane societies engage in quasi‐public function and are state actors for the purposes of 42 U.S.C. § 1983. (Brunette v. Humane Society of Ventura County, supra, 294 F.3d at 1208.) Human societies are required to petition the court for appointment of humane officers and provide notice to various ...

Excerpt: ...damages must be pleaded with particularity as to the facts constituting the alleged egregious conduct. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) However, the court may read the complaint as a whole so that conclusory allegations may be sufficient when read in context with the facts alleged as to the defendant's wrongful conduct. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6‐7.) Plaintiff is relying on malice, wh...

Excerpt: ...App.3d 131, 138.) Injunctions are rarely granted where a lawsuit for damages provides an adequate remedy. (see Thayer Plymouth Ctr, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 307; Pacific Decision Sciences Corp. v. Sup. Ct. (Maudlin) (2004) 121 Cal.App.4th 1100, 1110.) Kazarian and FCM characterize the need for a TRO as an emergency, which is necessary because Plaintiff, Luisine Babloyan and her attorney, Mike Gatto, are willfully v...

Excerpt: .... (Moore v. Regents of University of California (1990) 51 Cal. 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 (Daa...

Excerpt: ...ition or free speech” … includes … any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or … any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP § 425.16(e)(3)‐(4).) Importantly, however, “[t]he...

Excerpt: ..., which renews as a matter of law. Plaintiffs allege that Defendants failed to maintain/repair the property making it uninhabitable under California law. They allege that their units were infested with insects; and generally dilapidated or improperly maintained. Plaintiffs allege they constantly complained, but nothing was done to correct the uninhabitable conditions, which have caused injuries and damages including severe emotional distress. Pla...

Excerpt: ... Plaintiff. Plaintiff contends the “alleged agreement is missing the necessary markings that would be included if it were electronically signed.” (Opp. P.5.) Plaintiff's declaration contends the agreement presented by Defendant is missing Defendant's information (name, real estate office information at the bottom of the form) and envelope numbers which are needed in a digital signature. (Honeyfield Decl. p.2.) Plaintiff contends if the agreem...

Excerpt: ...giving rise to the amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). Since judicial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of th...

Excerpt: ...ith that party's statement of compliance, the demanding party may move for an order compelling compliance.” There is no requirement to meet and confer before bringing such a motion and no time period to bring such a motion. CCP § 2031.320. Plaintiff asserts that while Defendant responded to some of its requests indicating that it would produce documents, the production was not code compliant. CCP § 2031.280(a) requires that “[a]ny documents...

Excerpt: ...) retaliation; 3) failure to prevent discrimination and retaliation; 4) wrongful termination; and 5) intentional interference with contract. By these Motions, Defendant seeks to compel arbitration of Plaintiff's claims and to stay the action. It claims that Plaintiff signed an arbitration agreement both upon hiring and another agreement related to the B‐Unit shares at issue in the interference with contract cause of action. It asserts that ther...

Excerpt: ...orked as an administrative services assistant. While employed by the District, Plaintiff developed bilateral carpal tunnel syndrome and suffered from a lower back injury, which limited her life functions, including the ability to work. In May 2020, Plaintiff's physician placed her on continuous medical leave. On August 19, 2020, Plaintiff underwent carpal tunnel release surgery, but remained off‐work until June 24, 2021. In April 2021, while Pl...

Excerpt: ...ired Defendant Commodity Trucking Acquisition, LLC d/b/a Dispatch Transportation (“Dispatch”) (collectively, “Defendants”), to excavate and remove dirt from Facilities Corp.'s property. (FAC ¶ 11.) He alleges that, during the course of this excavation project, airborne particles and dust migrated from Facilities Corp.'s property, located at North/East of 215 and South of Ellis Avenue, Romoland, California, and were carried to the relativ...

Excerpt: ...pt employee working as part of the Field Crew. (Maciel Decl. ¶ 3.) In connection with his employment with Defendant, Gonzalez executed an Arbitration Agreement on November 18, 2020, agreeing to arbitrate any and all employment‐related disputes with Defendant on an individual basis and waiving, among other things, his right to bring any representative action. (Maciel Decl., ¶ 4, Ex. A.) Specifically, the Arbitration Agreement states, in releva...

Excerpt: ... the present petition/motion to compel arbitration before any arbitral body other than the AAA. * * * In his motion, Plaintiff argues that under the Retail Installment Sales Contract (“RISC”), he is entitled to select the arbitration forum. Plaintiff argues that AAA is an insufficient forum and is not favorable to consumers. Plaintiff further argues that although other manufacturers agree to arbitrate in forums other than AAA, NNA has unreaso...

Excerpt: ... yard. On December 20, 2021, Kimberly, by and through her Guardian ad Litem, Antonia Salazar Rocha, and Antonia Salazar Rocha, individually (“Ms. Rocha”) (collectively, “Plaintiffs”) filed a Complaint against Defendant County of Riverside (the “County”), alleging (1) negligence, (2) negligence per se, (3) negligent hiring, supervision, or retention, and (4) strict liability. On March 10, 2022, the County filed its Answer to the Compla...

Excerpt: .... and I.S., with their mother, Plaintiff Kandis Spann (“Kandis”). (Id. at ¶ 5.) In April 2021, Decedent was charged with misdemeanor for allegedly violating a protective order against Kandis. (Id.) On April 22, 2021, Decedent attended family court proceedings relating to the custody of his two minor children. (Id. at ¶ 7.) Kandis believed Decedent was acting erratically and sought help from two people who worked at Justice Bail Bonds. (Id. ...

Excerpt: ... In evaluating a complaint under the general demurrer standards, if there is any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records d...

Excerpt: ...sbra (“Asbra”), all of the defendants engaged in various fraudulent transfers to frustrate efforts to enforce the judgment against Asbra. Among other things, Plaintiff alleged that Asbra fraudulently transferred real property on Gavilan Road in Perris, CA (the “Property”) to Novorr and Pezzuto. On April 25, 2019, Plaintiff recorded a lis pendens against the Property. On August 5, 2022, the court entered judgment on a jury verdict in favor...

Excerpt: ...ersity of California (1990) 51 Cal.3d 120, 125.) The court assumes the Page 3 of 5 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 C...

Excerpt: ...urrer without a declaration in compliance with CCP § 430.41(a)(3). Thus, the hearing is continued. *** Accordingly, the hearing on the demurrer is continued to February 9. 2023 at 8:30 a.m. in Dept. 2. Moving Defendant is ordered to meet and confer with Plaintiffs by telephone (or in person while observing applicable social‐distancing protocols) for the purpose of determining whether an agreement can be reached that would resolve the objection...

Excerpt: ... filed this action on 6/1/20. On 3/23/21, Plaintiff filed his First Amended Complaint for: (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) fraudulent concealment; (5) breach of contract; (6) public nuisance. Defendant brings this motion. It contends that the motion should be granted because it had no notice that there was a bed bug problem at the time Plaintiff stayed at the hotel. It asserts that it had a proce...

Excerpt: ... for damages or an issue of duty. (CCP § 437c(f)). The third, seventh and eighth affirmative defenses‐ Plaintiff's only evidence/argument regarding these affirmative defenses is that they are “traverse/denial, not an affirmative defense.” (UMF 5, 20 and 21.) CCP § 437c(f)(1) provides: “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for d...

Excerpt: ...complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the c...

Excerpt: ...ding in different courts “which share common questions of fact or law when such coordination will promote the ends of justice taking into account the…factors specified in section 404.1” (Pesses v. Superior Court (Pacific Southwest Airlines) 107 Cal.App.3d 117, 123.) The instant case does not involve a petition for judicial coordination, and hence, section 404.1 is not a proper ground on which to seek an order staying all proceedings in this...

Excerpt: ...tions. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113‐1114.) In order for the burden to shift to back to the party seeking the costs, the mere filing of a motion to tax is not enough; the party challenging the costs needs to provide evidence that the costs were unnecessary or unreasonable. Items appearing to be proper charges in the memorandum of costs places the burden on the party challenging the costs to show they were not reasonab...

Excerpt: ...Form Interrogatories 12.2 and 12.3 Special Interrogatories 27, 30 and 69 request the identification of certain documents. Matika responded to special interrogatories 27 and 30 with “Responding party is unaware of any documents at this time as the conversations were oral.” Similarly, Matika responded to this interrogatory 69 with “none.” These responses are substantive and respond to the interrogatories at issue. Matika responded to Form I...

Excerpt: ...ding deposition costs related to the deposition of defendant Christene Asbra, who was an officer, director, and shareholder of defendant CSJ. The court declines to tax the amount sought based on the percentage of inquiry at the deposition specifically related to CSJ; the court finds the deposition was reasonably necessary to the litigation, regardless of the percentage of questions regarding particular defendants, and that the charges are reasona...

Excerpt: ...SWIT CANYON, INC. Tentative Ruling: Overrule the demurrer. The interpretive questions the parties raise cannot be resolved on a pleadings motion. (Aragon‐ Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 [“Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is...

Excerpt: ...ion unnecessary or create conflicting 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 re...

Excerpt: ...c. (W‐W) allegedly designed, manufactured, and supplied livestock equipment including the Bucking Chutes where the accident occurred, which the City purchased on 1/16/02. Plaintiffs allege that on 5/22/22, Dennis Eller was injured during a team roping event involving the Bucking Chutes. He alleges that he was swinging a rope in pursuit of a steer when the loop caught an unprotected/unguarded vertical pole in the Bucking Chutes. This caused the ...

Excerpt: ... not possess and cannot reasonably obtain needed evidence. (CCP §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff's cause of action or show that the plaintiff lacks evidence. (Chavez v. Glock (2012) 207 Cal.App.4th 1283, 1301.) To demonstrate that the plaintiff lacks evidence, the defendant must...

Excerpt: ...y her brother. a. Notice of Sexual Harassment At Plaintiff's deposition, RUSD's counsel asked the following line of questioning: “Besides reporting the bullying at any time, did you ever report feeling sexually harassed by anyone when you were attending either Arlington or North [High School]?” (Bauermeister Decl. ¶ 3, Ex. A at 55:3–10.) Plaintiff's counsel objected under CCP § 2017.220, arguing that Defendants are not entitled to ask abo...

Excerpt: ... complaint barred by laches and finds that the Complaint is barred by laches. (See, e.g., Straley v. Gamble (2013) 217 Cal.App.4th 533, 538.) Even if the action is not barred by laches, it is barred by the fact that plaintiff has failed to allege any liability. Plaintiff's two main premises underlying this lawsuit are just wrong as a matter of law. First, decedent was not obligated to remove plaintiff's name from the home loan, but only to hold h...

Excerpt: ...nce 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 at 98.) Meet & Confer Page 3 of 6 Important...

Excerpt: ... rather than a post office box). Unless Plaintiff was personally there, then this was actually mail service, which required 80 days, and notice is not proper. Second, there are three causes of action in Plaintiff's complaint. While Defendants' memorandum discusses all three, Defendants' separate statement does not address the 2nd and 3rd cause of action, nor do Defendants provide any evidence. From commencement to conclusion, the party moving for...

Excerpt: ...60, 67‐71) or sexual misconduct perpetrated against the District's students (SI 53.) District contends that the information sought by these interrogatories related to other students is protected by Education Code § 49076. It is true that access to a pupil's records is restricted by statute, except in certain circumstances, such as where written parental consent is given, or pursuant to court order. (Educ. Code § 49076.) Educ. Code § 49073 re...

Excerpt: ...owever, it is clear that Angela signed the agreement as Ruth's agent, not on her own behalf, as the court found in Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 687, wherein the court found that Daniel's wrongful death claim was not arbitrable because she did not sign the residency agreement in her personal capacity and was therefore a third party to the agreement. Therefore, none of the Plaintiffs' individual wrongful death ...

Excerpt: ...ving party is entitled to a judgment as a matter of law.'” S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 387‐388. A plaintiff moving for summary judgment or adjudication has the burden to produce evidence on each element of a cause of action entitling her to judgment. Id. at 388. “If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists...

Excerpt: ...e was recorded on 6/10/22 and the sale date was continued to 9/13/22, subsequent to her dismissal of the bankruptcy. (Complaint ¶ 13.) Plaintiff contends that she submitted a loan modification packet to Defendant EWL on 8/24/22 and that it failed to comply with several sections of the Homeowners Bill of Rights (HBOR.) Plaintiff filed her verified complaint on 10/3/22 alleging causes of action for: 1. Violation of Civil Code § 2923.5, 2. Violati...

Excerpt: ...ide Hosing Development Corporation (“RHDC”). Plaintiff alleges that she tripped on a negligently maintained sidewalk and fell down stairs, sustaining serious bodily injuries. On May 2, 2021, Plaintiff filed her Complaint. She asserts three causes of action for: (1) Dangerous Condition on Public Property; (2) Negligence; and (3) Negligence. The City and RHDC (collectively “Defendants”) now move for summary judgment, or in the alternative, ...

Excerpt: ...to deem the entire complaint barred by laches and finds that the Complaint is barred by laches. (See, e.g., Straley v. Gamble (2013) 217 Cal.App.4th 533, 538.) Even if the action is not barred by laches, it is barred by the fact that plaintiff has failed to allege any liability. Plaintiff's two main premises underlying this lawsuit are just wrong as a matter of law. First, decedent was not obligated to remove plaintiff's name from the home loan, ...

Excerpt: ...same time (in which case, service was actually at the post office address, rather than a post office box). Unless Plaintiff was personally there, then this was actually mail service, which required 80 days, and notice is not proper. Second, there are three causes of action in Plaintiff's complaint. While Defendants' memorandum discusses all three, Defendants' separate statement does not address the 2nd and 3rd cause of action, nor do Defendants p...

Excerpt: ... be as complete and straightforward as the information reasonably available to the responding party. Each answer must admit as much of the matter as true, deny as much of the matter that is untrue, and specify to as much of the matter that the responding party lacks sufficient information to admit or deny. (Id.) All three responses indicate that they cannot admit or deny the request, but then go on to deny some facts (Defendant did not direct or ...

Excerpt: ...hose information. He also seeks sanctions in the amount of $1,050.00. In opposition, Defendant argues that the purported discovery issues have already been addressed by the Court during the Informal Discovery Conference (“IDC”) on September 16, 2022. He argues that, during the IDC, the Court overruled the objections and ordered him to provide his driving records and violations for the past 10 years. In reply, Plaintiff concedes that the parti...

Excerpt: ...hat a counteroffer does not terminate an option contract, which remains open until the end of the option period. Lansing argues that summary adjudication is proper because the Masterson Option was a separate or distinct agreement from the other duties and obligations under the Compensation Agreement. Masterson argues that its option vested because IDIL did not exercise its option to purchase on the terms set out in the IDIL Option. Masterson argu...

Excerpt: ...in evidence that he was acting inconsistent with his requested accommodation. Plaintiff alleges that the sub rosa investigation was initiated only because he requested an accommodation. He contends that he was improperly terminated under the pretext that he had taken non‐approved leave, was untruthful, conducted non‐employment related activities during work hours, falsified official reports, and was insubordinate. He contends he was actually ...

Excerpt: ...e by failing to pay their monetary obligations under the Lease. (Second Amended Complaint, ¶¶8‐21.) With respect to the present demurrers (see below), in the second cause of action for fraud and misrepresentation, it is alleged that, pursuant to the terms of the Lease, MSR agreed to reimburse Party City for amounts, if any, expended for improvement to the premises, up to a total amount of $400,000. (SAC, ¶32.) On September 19, 2017, Defendan...

Excerpt: ...31.310(b)(2).) The declaration must state facts showing a reasonable and good faith attempt at informal resolution of each issue presented by the motion. (Cal. Code Civ. Pro. §2016.040.) Whether a “reasonable and good faith attempt” was made requires an “evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appears likely to bear fruit.” (Clement v. Alegra (2009) 17...

Excerpt: ...t fair market value. Pursuant to the Agreement, Plaintiff allegedly made $250,000 in payments. Plaintiff alleges that in May 2022, he notified Defendants of his intent to exercise his purchase option, but Defendants denied his right to purchase and initiated an 4 Given that arbitration has already commenced, this motion is really one asking that the court stay this action pending arbitration, not that the court order the matter into arbitration. ...

Excerpt: ...uirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter. (Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016–17.) Here, Plaintiffs' counsel sent meet‐and‐confer letters, highlighting various deficiencies with each of the discovery items at issue in this motion. The letter explained in detail why GM's ob...

Excerpt: ...ues. (Code of Civil Procedure, section 1281.2.)1 A proceeding to compel arbitration is in 1 Code of Civil Procedure, section 1281.2(a)‐(c) provides: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of ...

Excerpt: ...of the meet and confer requirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter. (Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016–17.) Here, Plaintiffs' counsel sent meet‐and‐confer letters, highlighting various deficiencies with each of the discovery items at issue in this motion. The letter expla...

Excerpt: ...tract. On 12/7/21, Plaintiffs Myron and Mary Jane Matika filed their Complaint in Intervention. By these 2 Motions, Justin Tye moves to compel Myron Matika to provide further responses to form interrogatories, special interrogatories 1‐91 (excluding 25, 34, 68 and 71) and requests for production 1‐34. He claims that the objections are without merit and Tye requests sanctions for having to bring these motions. In the Oppositions, Matika claims...

Excerpt: ...ment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) While courts will occasionally deny leave to amend when the motion is brought on the eve of trial, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048; Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471; Nelson ...

Excerpt: ...on‐party dealer, Jeep Chrysler Dodge of Ontario. (Complaint, ¶ 10; Declaration of Ali Azemoon in Support (“Azemoon Decl.”), ¶ 2, Exhibit A.)1 The Vehicle was backed by various warranties. (Complaint, ¶ 11.) Plaintiff alleges that defects and nonconformities to warranty manifested themselves within the warranty period and that FCA and its representative were unable to repair the Vehicle after a reasonable number of attempts. (Complaint, �...

Excerpt: ...th in Civil Code § 3294. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1147‐1148.) A motion to strike is the proper vehicle to attack a punitive damage 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.) Plaintiffs may recover exemplary or punitive damages where it is proven that “the defendant has bee...

Excerpt: ...e)(2); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1998) §§ 7:275 & 7:322].) A motion for judgment on the pleadings “attacks only defects disclosed on the face of the pleading or by matters that can be judicially noticed” and “[p]resentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”...

Excerpt: ...lth Center (erroneously sued as Fleur Women's Heath) (“Fleur”) (together, “Defendants”). Plaintiffs allege that on September 28, 2020, Dylan began treating at Fleur for prenatal care. (SAC, ¶ 9.) A fetal non‐stress test was administered on April 12, 2021 and on April 19, 2021 (one day after Dylan's estimated date of delivery). (SAC, ¶ 9.) Although the test was not reassuring and Dylan was a high‐risk patient, the test was not repeat...

Excerpt: ...ge Electronic Registration Systems, Inc. (MERS) unlawfully assigned the Note and DOT to HSBC Bank USA, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass‐Through Certificates, series 2007‐14 (HSBC). Plaintiffs allege that the assignment is void, and that MERS did not have standing to make the assignment. Plaintiffs allege that on 12/8/16, Defendant, Wells Fargo Bank, N.A. (Wells Fargo) unlawfully substituted Defendant, Cle...

Excerpt: ...r requesting that a discovery referee be appointed for depositions at Plaintiff's expense. Defendant alleges that Plaintiff's counsel, Bruce Schecter, during the depositions of Plaintiff, Deputy Dave Tortez and witness Cynthia Taylor would coach Plaintiff what to say, would make improper objections, instructed clients to not answer, and be combative with defense counsel. In opposition to the ex parte, Plaintiff discusses the procedural history re...