Excerpt: ...treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximat...

Excerpt: ... GTOK for the purpose of manufacturing cosmetic products. Conor understood GTOK's intended use and informed it that the buildings were suitable to cosmetic manufacturing and there were no environmental impediments. The property was formerly operated as a landfill and Plaintiffs learned that it was contaminated by the City of Corona's use. City approved permits, but avoided involving the County's Department of Environmental Health. When GTOK's ass...

Excerpt: ...gree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximately causes damages to plaint...

Excerpt: ...ace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court. Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a supe...

Excerpt: ...21, the Summons and Complaint were served on Defendants via substituted service. On February 9, 2022, the Clerk entered Default against all Defendants. On July 25, 2022, Plaintiffs filed a Request for Default Judgment, which is pending before the Court. *** Defendants now move to set aside the Default entered against them on the grounds that it was entered through mistake and gross misconduct and negligence of their prior legal counsel in violati...

Excerpt: ... the challenged causes of action, and make unnecessary disparaging comments concerning Plaintiffs' counsel. As discussed below, the FAC sufficiently alleges the challenged causes of action. 2nd Cause of Action for Nuisance A nuisance is broadly defined as a nontrespassory interference with the use and enjoyment of land. (San Diego Gas & Elec. Co. v. Sup. Ct. (Covalt) (1996) 13 Cal.4th 893, 937.) A nuisance may be public, private, or both. (Adams ...

Excerpt: ...oner is an unincorporated association made up of current residents of the City. (Petition, ¶ 7.) Bogert, who passed away in 2009, first served as an appointed mayor from April 1958 to January 1966 and became the City's first directly‐elected mayor in 1982, serving until 1988. (Id., ¶¶ 11‐12.) In March 1990, the City placed a bronze statue of Bogert sitting astride a horse at City Hall (the “Statue”). (Id., ¶ 15.) The Statue, which was...

Excerpt: ...atement of Undisputed Material Fact [“PSSUMF”] ¶ 13.) As Plaintiff allegedly laid face down bleeding, Defendant rode past her and said “How does that feel, Teresa?” (Id. at ¶ 7.) Plaintiff allegedly begged Defendant for help but Defendant ignored Plaintiff and continued riding. (Id.) On November 19, 2018, Plaintiff filed a request for civil harassment restraining order against Defendant based on the above incident. (Id. at ¶ 1.) The co...

Excerpt: ... The leased premises are a skilled nursing care facility and a residential care facility (RCFE). On November 30, 2016, the Lease was assigned to Defendant Corona Post Acute (CPA) and Corona RCFE, LLC (RCFE) (Assignment). Also on this date, Versacare and CPA entered into the Third Amendment to the Amended and Restate Facility Lease Agreement. The Assignment provided that in the event CPA and Corona RCFE did not receive adequate facility licensure ...

Excerpt: ... Code Civ. Pro. § 2031.310(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.” (Clemen...

Excerpt: ...tween the same parties or parties in privity with them.' Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” Id. If claim preclusion applies, it bars litigation of said causes of action. Id. “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different cau...

Excerpt: ...ept as true their contents. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865.) I'm not sure how relevant the information is, but Defendant does not oppose the request. GRANT. III. Evidentiary Objections Plaintiff objects to facts outside the four corners of the pleading. The objection is valid because such extrinsic facts cannot be considered on a demurrer. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App....

Excerpt: ...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 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. Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. Corp. (200...

Excerpt: ...ill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximately causes damages to plaintiff.” (J...

Excerpt: ...ff alleges that beginning in 2013, Employer's Senior Vice President, Defendant Robert T. Perez (“Perez”) began harassing Plaintiff. Plaintiff alleges that Perez made inappropriate sexual comments to Plaintiff, asked her for dates and touched and caressed her on multiple occasions. Furthermore, Perez allegedly sent emails containing naked pictures of his genitals. Plaintiff asserts that she felt she would be terminated if she complained. Plain...

Excerpt: ...2018, at an advanced stage of construction, Eze expressed concern to building inspector, Michael Almandinger (“Building Inspector”) that electric power lines were dangerously close to the open second‐story terrace, exposing his family to radiation. Eze suggested putting a cover, i.e., patio deck, to minimize radiation exposure. (Petition, ¶ 11.) The Building Inspector advised Eze that he will have to provide an approved plan or get a varia...

Excerpt: ... of Christopher Bowen. Defendant further asserts almost the entirety of the requests are Page 8 of 9 procedurally improper, vague/confusing/unintelligible and/or ask for explanations of prior discovery responses or pleadings. Defendant contends Plaintiff's separate statement is procedurally improper and requests sanctions in the amount of $4,680 for having to oppose this Motion. The Reply reasserts many of the same arguments made in the moving pa...

Excerpt: ...sham pleading doctrine, a plaintiff cannot avoid allegations that are determinative to a cause of action simply by filing an amended complaint which omits the problematic facts or pleads facts inconsistent with those alleged in the original complaint. The doctrine precludes a plaintiff from amending a complaint to omit harmful allegations without explanation, from previous complaints to avoid attacks raised in demurrers.” (Tindell v. Murphy (20...

Excerpt: ...irements. These documents may be judicially noticed pursuant to Cal. Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4t...

Excerpt: ...) 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 negate an element, the defendant must establish that plaintiff's claims fails as a matter of law. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 849 (applying rule to issues of duty).) To demonstr...

Excerpt: ...cient personal knowledge for the statements and the statements either come within a hearsay objection or are not hearsay. the Court OVERRULE the objections. Defendants object to statements made in the 7/27/22 declaration of counsel Martin S. Rudoy based on lack of personal knowledge, lack of foundation, secondary evidence rule and uncertainty. The written objections are not properly formatted because they are not numbered consecutively. (See e.g....

Excerpt: ...n with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.) Generally, claims for punitive 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...

Excerpt: ... interrogatory no. 17.1, subpart (b) contains objections only with no facts to support the denials. Defendant has since provided amended responses which provides substantive facts supporting each of these denials. (Declaration of Sean Speciale, Ex. 11.) Plaintiff mistakenly argues the response as to RFA nos. 29‐31 remain deficient. Though Plaintiff may not agree or like the answer, Defendant provided substantive code‐compliant responses. DENY...

Excerpt: ...mmencement and prosecution of such action.” The parties agree Plaintiff is the prevailing party. At issue in this motion is the reasonableness of Plaintiff's request. The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Courts generally consider several factors in determining the reasonableness of a party's attorney's fe...

Excerpt: ...2030.220(a), (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (CCP §2030.220(c).) Responding party is not under a duty to make inquiry from indepen...

Excerpt: ... the court's personal jurisdiction on the ground of improper service of process, the plaintiff has the burden to prove the existence of jurisdiction by proving the facts requisite to an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The filing of a proof of service creates a rebuttable presumption that service was proper only if the proof of service complies with the applicable statutory requirements. (Evidence Code �...

Excerpt: ...atements made by the Chief of Police and contains statements and images that are, at least arguably, unfairly prejudicial. While the video – or at least portions of it – may be admissible on a motion for summary judgment, the court will not permit the hearing on present demurrer to be turned into a contested evidentiary hearing. (See Del E. Webb, supra, 123 Cal.App.3d at 605; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374‐37...

Excerpt: ... 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.) Kimberly Tso Special Interrogatories (140,141 and 162) Defendant has provided substantive responses that he does not have the contact information for Kimberly Tso (140), he has had no contact with Kimber...

Excerpt: ...power to set aside a judgment or order that is void as a matter of law under CCP § 473(d). A judgment or order may be void as a matter of law for lack of or improper service of the summons. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) There is no time limit on a collateral attack on a void judgment or order. (Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1239.) When a defendant challenges the court's personal jurisdiction on t...

Excerpt: ...031.310(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) 1...

Excerpt: ...e v. Hosney (1962) 204 Cal.App.2d 584, 587 [judicial notice taken that “there is, in the County of Los Angeles, California, in the metropolitan area of the City of Los Angeles, a street address known as ‘1448 North Crescent Heights Boulevard.'”].) Defendant County requests that the court take judicial notice of a printed map taken from Google Maps and the proposition that the map demonstrates that the location of the subject premises on whi...

Excerpt: ...t “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” The costs which a prevailing party is allowed to recover under section Page 8 of 11 1032 includes attorney's fees authorized by (1) contract, (2) statute, or (3) law. (Code Civ. Proc., §1033.5(a)(10)(A),(B)&(C).) California Civil Code section 1717 provides for basis for seeking fee award in ...

Excerpt: ...he campaign. Bennett is a business representative and lawyer for Defendant Local Union 47. Plaintiff filed this action on 3/25/22 and filed the First Amended Complaint (FAC) on 4/20/22. The FAC asserts: (1) defamation/libel per se; (2) online impersonation in violation of Penal Code §528.5; (3) tortious interference; (4) economic interference; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) negligence; (8) civil conspirac...

Excerpt: ...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 Interrogatory 88 as drafted is compound and overbroad. Myron provides no explanation why the number of employees at Empire is relevant to this case, and specifically, the number of employees after 2018. ...

Excerpt: ...es. Page 3 of 5 (CCP § 2031.310.) The motion must be served within 45 days after service of a verified response, and must be accompanied by a declaration showing a “reasonable and good faith attempt” to resolve the issues informally. (CCP § 2031.310(b),(c).) The motion “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1); Kirkland v. Superior Court (Guess? Inc.) (2002)...

Excerpt: ...ng 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 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. (Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218–...

Excerpt: ...nt as a matter of law.” (Kahn v. Eas bt Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable is...

Excerpt: ...y exacted by a defendant.” (Young v. Hoagland (1931) 212 Cal. 426, 430.) “It has been stated that the general rule with regard to duress of this character is that where, by reason of the peculiar facts a reasonably prudent man finds that in order to preserve his property or protect his business interests it is necessary to make a payment of money which he does not owe and which in equity and good conscience the receiver should not retain, he ...

Excerpt: ...nd 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 and Requests for Admissions Here, the parties do not dispute that supplemental responses have been served. Accordingly, the motion is moot as to these requests. If Defendant contends there...

Excerpt: ...e an essential element of cause of action for breach of contract].) Some of the values plaintiff offers as components of its damages are approximates (a generator cost “nearly $40,000” and plaintiff incurred “more than $130,000” in attorney fees), and plaintiff has not shown that all of the amounts spent on the property were both necessary and caused by defendant's alleged breaches. “As damages are an element of a breach of contract cau...

Excerpt: ... is pending that may render the arbitration 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.) If there is a dispute as to the enforceability of an agreement to arbitrate, an evidentiary hearing is required. The facts are to be proven b...

Excerpt: ...ositions of the same witnesses, which would prove costly and violates the “one‐deposition” rule. Plaintiff also argues that Defendant was provided with production of all of Plaintiff's medical records, and Defendant has sufficient other means to have Plaintiff proceed with the noticed video‐taped depositions. Reply Defendant argues that Plaintiff's contention based on the “one‐deposition” rule is misleading as the statutory language...

Excerpt: ... App. 5th 757, 792.) “If [an] action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) The plaintiff may also plead the legal effect of the contract. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4...

Excerpt: ...to those matters to the extent of any information known or reasonably available to the deponent.” Id. A request for documents can be made in connection with the PMQ deposition and when such a request for documents is made, “the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v. Superior Court (2002) 94 Ca...

Excerpt: ... toll lane, or toll highway that employs an electronic toll collection system.” (emphasis added.) “Transportation agency” includes “any entity operating a . . . toll lane, or toll highway within the state . . . or any entity under contract with any of the above entities . . . .” (Sts. & Hy. Code § 31490(l).) “Personally identifiable information” or (“PII”) is defined as “any information that identifies or describes a person i...

Excerpt: ...nd Confer Before Filing the Importantly, before filing a motion to compel a further response to ROGs or RFPs, the moving party must engage in a reasonable and good faith attempt to resolve informally each issue set forth in the motion and must file an appropriate declaration with the motion. (CCP §§ 2016.040, 2030.300(b)(1), 2031.310(b)(2).) The purpose of the meet and confer requirement is to force lawyers to reexamine their positions, and to ...

Excerpt: ...the Court grant the request as to the existence of the documents only (Plaintiffs' Exhibit Nos. 1‐5, 8‐16, 19‐22). Defendants argue that the request for judicial notice is not timely because it was not filed with the Opposition papers, but instead for the first time with the Supplemental Opposition. It appears the request was made, in part, in response to Defendants' evidentiary objections based on lack of authentication of certain document...

Excerpt: ...imony, and his testimony is based upon personal knowledge and 2R Staffing's business records. (See Guerra Decl., ¶¶ 1‐2.) Further, Guerra does not offer any out‐ of‐court statements in his declaration to prove the truth of the matter asserted. Accordingly, all of Plaintiff's evidentiary objections are overruled. II. The Material Facts Are Undisputed Notwithstanding Plaintiff's purported disputes to several of the factual statements proffe...

Excerpt: ...wing three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) In this case, there is no dispute that neither Defendant nor Plaintiff hold the funds at issue as Plaintiff pleads the...

Excerpt: ...other respect . . . . The court may likewise, its discretion, after notice to the adverse party, allow upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” (CCP § 473(a), § 576.) 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 thi...

Excerpt: ...medical practitioner's standard of care within the community. The plaintiff must than submit his own expert declaration in order to controvert defendant's expert relative to whether defendant breached the requisite duty and standard of care. Willard v. Hagemeister (1981) 121 Cal.App.3d 406. A party may be his or her own expert. Pfingsten v. Westenhaver (1952) 39 Cal.2d 12; see 1 Witkin, Cal. Evidence (4th ed., 2000) Opinion Evidence, § 38, p.569...

Excerpt: ...ip exists when confidence is reposed by persons in the integrity of others, who voluntarily accept the confidence and therefore cannot act so as to take advantage of the others' interests without their knowledge or consent. (Tri‐Growth Centre City Ltd. v. Silldorf, Burdman, Duingnan & Eisenberg (1989) 216 Cal. App. 3d 139) “The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the pers...

Excerpt: ...to determine whether FCA has any diagnostic or other test results that would substantiate FCA's contention that the K&N filter installed performs differently from the Original Equipment Manufacturer (OEM) filter designed for the specific type of vehicle, and whether the turbocharger that FCA installed into this truck has internal seals that could be damaged by dirt allegedly ingested through the K&N air filter. Plaintiff asserts that FCA's object...

Excerpt: ...HUMACHER vs COUNTY OF RIVERSIDE Motion to Compel Tentative Ruling: A defendant's motion for judgment on the pleadings may be made on the grounds that the court lacks jurisdiction, or that the complaint does not state facts sufficient to state a cause of action. (CCP §438(c).) A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. (Richardson‐Tunnell v. School Ins. Program for Employees (20...

Excerpt: ...y while it was still dark. She contends that Decedent was unable to appreciate the risk of his conduct due to his psychological condition. This argument is well‐ taken. It is undisputed that Decedent suffered from severe mental illness, including schizophrenia and bipolar disorder. These conditions may have impacted his ability to weigh risks and act reasonably at the time of the collision. As such, medical records containing information about ...

Excerpt: ...: The proposed order attached to the supplemental declaration of Yeremian: • Still refers (at p. 2) to a hearing date of February 28. • Incorrectly represents (at p. 2) that the Court has “reviewed the entire record in this action.” • States (on p. 2) that the parties have agreed to a dismissal of the claims. Any such dismissal would violate California Rules of Court, rule 3.769(h). If the Stipulation provides for such a dismissal, the ...

Excerpt: ...th particularity. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795. When a statutory cause of action is alleged, “the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.” Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5. Regent contends this cau...

Excerpt: ...rbitration 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 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. Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218–219. “[U]nder t...

Excerpt: ...rate statement is procedurally and substantively defective. Defendants further assert that there are triable issues of fact as to each affirmative defense. In Reply, Plaintiff asserts that Defendants' evidence creates no material factual disputes for trial. Plaintiff further asserts that Defendants various procedural arguments are meritless. ANALYSIS A motion for summary judgment shall be granted when no triable issue of material fact exists or t...

Excerpt: ... application, state courts required litigants to exhaust their administrative remedies. [Citations.] The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 664–665.) Plaintiff's request for judicial notice purports to show that she has exhausted remedies by complaining to the prison about what she alleges in the co...

Excerpt: ... application, state courts required litigants to exhaust their administrative remedies. [Citations.] The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 664–665.) Plaintiff's request for judicial notice purports to show that she has exhausted remedies by complaining to the prison about what she alleges in the co...

Excerpt: ...ty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury….' [Citation.]” (Phillips v. TLC Plumbing, Inc., supra, 172 Cal.App.4th at 1139.) “Absent a legal duty, any injury is an injury without actionable wrong.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078 (Romero).) “ ‘Duty, being a question of law, is particularly amendable to resolution by...

Excerpt: ...ken remedial action, (3) “a proximate causal connection between the condition and the injury sustained,” and (4) “a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condition.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1126; People ex rel. Department of Transp. v. Superior Court (1992) 5 Cal.App.4th 1480, 1485.) Here, Plaintiffs have not sufficiently alleged a claim for dang...

Excerpt: ...etter on 3/29/22 followed by a telephone call on 4/8/22. Here, this is not a situation where counsel instructed the PMQ to not answer, but rather, the PMQ did not know the information. The issue instead is relevance and financial privacy. Defendant once again relies on Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, 798: [W]e conclude evidence of a medical bill is relevant to prove or disprove the “paid or incurred” prong of past medical damage...

Excerpt: ...afting party materially breaches the arbitration agreement and is in default, the consumer or employee may either withdraw the claim from arbitration and proceed in a court or compel arbitration where the drafting party shall pay reasonable attorney's fees and costs related to arbitration. (CCP §1281.97(b).) If the consumer or employee proceeds with an action in court, the court shall impose sanctions in accordance with CCP §1281.99. (CCP §128...

Excerpt: ... of the manufacturer of the vehicle for repair; and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts. (Oregel v. Am. Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) Here, the Complaint fails to sufficiently allege any breach of express warranty under the SongBeverly Act by CarMax. As CarMax argues, there are no allegations in the Complaint that CarMax ever provided Plai...

Excerpt: ...Government Code section 815.2, subdivision (a) if defendant Davis breached Civil Code section 1714 by doing things like moving the traffic markings plaintiff's contractor had established. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183‐1184 [Civil Code section 1714 can support a claim for vicarious but not direct negligence against a public entity].) Although Davis denies moving parking markings, plaintiff's exhibit...

Excerpt: ...ationship that is not yet contractual, i.e., it protects the expectation of an advantageous business relationship even in the absence of a legally binding agreement. (Buckaloo v. Johnson (1975) 14 Cal.3d 745, 749, disapproved on other grounds in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376.) Plaintiff must plead and prove 1) an existing economic relationship between plaintiff and a third party, with the probability of fut...

Excerpt: ...o work from home. Both requests were accommodated. However, after the second request, Defendant initiated sub rosa surveillance of Plaintiff to try and obtain 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 ...

Excerpt: ... cosmetic products. Conor understood GTOK's intended use and informed it that the buildings were suitable to cosmetic manufacturing and there were no environmental impediments. The property was formally operated as a landfill and Plaintiffs learned that it was contaminated by the City of Corona's use. When GTOK's assignor, SeneGence, submitted an application for tenant improvements, City placed a hold on the building permit due to environmental c...

Excerpt: ...y, Defendants should be preliminarily enjoined from reducing Davis's interest in Stellar or preventing him from participating in management. Undertaking: An undertaking is required when an injunction is granted in an amount not exceeding an amount of damages the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” (Cal. Code Civ. Pro. §529(a).) A bond is an indispen...

Excerpt: ... by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (Veh. Code § 13559(a).) Review is strictly limited to the record of the Page 3 of 6 administrative hearing; the trial court may not consider any other evidence. (Veh. Code § 13559(a).) In reviewing the DMV's suspension of a driver's license, the trial court exercises independ...

Excerpt: ...arty affected by the order may, within 10 days after service upon the party of written notice of entry 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.” Here, Plaintiffs were impacted by the order, but have provided no new or different facts, circumstances or law to support changing th...

Excerpt: ...AC now adds allegations in order to avoid the 90‐day limit for commencing an action under the Probate Code. Those allegations are confusing, especially as to the claim against defendant personally. As to defendant's personal obligations under the fee agreement with plaintiff Plaintiff now alleges that plaintiff was personally bound under the fee agreement entered into with decedent to comply with a request for arbitration and on 1/7/22, made a ...

Excerpt: ... employees to do so and this disparate treatment was due to plaintiff's race. (¶19.) Plaintiff alleges that he could have utilized the same tools the other employees were using (Microsoft teams and Google meetings) to effectively work from home, but he was not allowed to do so because he was African American. (¶19.) The FAC also alleges that Defendant reneged on its agreement with Plaintiff to allow him to take time off to care for his newborn ...

Excerpt: ...� as to its legal and factual merit, and is subject to sanctions for violation of this certification. (CCP §128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) Thus, the attorney presenting the paper certifies that: 1) the pleading/motion was not brought for an improper purpose to harass or cause delay and increase costs of litigation; 2) the claims are warranted under existing law or a nonfrivolous argument for t...

Excerpt: ... proper interpretation are disputable. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal. App. 3d 369, 374.) A court may take judicial notice of plaintiff's unequivocal discovery responses based on plaintiff's personal knowledge. (Bockrath v. Aldrich Chemical Co. Inc. (1999) 21 Cal.4th 71, 83.) However, while the court can take judicial notice of discovery responses, it is not authorized to draw inferences from the responses or determine the pleadi...

Excerpt: ...created a reasonably foreseeable risk of the kind of injury incurred; and (4) a negligent, wrongful or omission of a public entity employee created the dangerous condition or (5) the public entity had actual or constructive notice to have taken measures to protect against the dangerous condition. (Gov. C. §835.) Under Government Code §835, a plaintiff must prove that the dangerous condition was created by a public entity employee, or had notice...

Excerpt: ...o strike, as with a demurrer, “the court treats as true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged.” (Washington Int'l Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 984, fn. 2.) Defendants argue the court should strike the claims for attorney's fees. Plaintiffs argue in opposition that the claims are proper and should not be stricken because the Loa...

Excerpt: ... sufficient particularity. Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392. Generally, claims for punitive 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...

Excerpt: ...& Babbitt, LLP (“RBB”) – billed 294.3 hours utilizing six attorneys and paralegals at hourly rates of $150, $490 and $545. (Babbitt Decl., ¶ 5.) However, the billing records reveal hourly rates of $150, $260, $490, $545 and $565 (it appears that Babbitt increased his hourly in 2022 and that the hourly rate of Le Pere was inadvertently omitted from the declaration). While there is no question that counsel has significant lemon law experienc...

Excerpt: ...ot be granted. Although the court may take judicial notice of recorded documents under Evidence Code section 452, and the legal effect of those documents, defendant fails to state any basis for the court's consideration of the recorded documents. That is, except for mentioning the notice of default and its rescission, there is no argument regarding the significance of either document, as it relates to plaintiff's claim. The demurrer to the first ...

Excerpt: ...ably true. (Evid. Code, §452(d) [judicial notice may be taken of records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Exs. 6‐7: are granted. The court may take judicial notice of “Official acts of the legislature, executive, and judicial departments of…any state of the United States.” (Evid. Code, §452(c); See Shap...

Excerpt: ...with, or relating in any way to the Admission Agreement or any service or goods provided by the Facility, will be determined but submission to individual arbitration, and not by a class arbitration or any other lawsuit or court process.” The first was contemplated with services provided under the first admission, which events are not the basis of this lawsuit. Accordingly, if any arbitration agreement applies, it would be the second agreement. ...

Excerpt: ...ges that when he was called to tow the vehicle, the officers negligently failed to conduct a sufficient inventory of the vehicle to find the weapon that was present on the seat when he entered the vehicle, and failed to restrain the Luther, which gave him access to the gun. Luther then shot three CHP officers and, according to the SAC, plaintiff was “physically injured” and suffered emotional injury. (SAC, ¶¶ 10‐15 [alleging the officers ...

Excerpt: ...dural rule.” (Pac. Nat'l Bank v. Bradley (1992) 4 Cal.App.4th 89, 98; see also Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1215‐ 1216.) “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Discovery...

Excerpt: ...authorized by contract, statute or law, reasonable attorney fees are “allowable costs.” (CCP § 1033.5(a)(10)(A),(B) & (C).) Defendants concede reasonable attorney fees are recoverable by the prevailing party in an action under Civil Code § 1942.5 and/or Civil Code § 789.3, but argue that Plaintiffs' request for attorney fees should be stricken because they fail to properly alleged a claim under § 1942.5 or § 789.3. As discussed below, Pl...

Excerpt: ...l.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 v. Specialty Records, Inc. (1970) 11 Cal. App. 3d 126; see als...

Excerpt: ...hin the trial court's discretion. For instance, in Huff v. Wilkins (2006) 138 Cal.App.4th 732, in an action for negligent driving and negligent entrustment of an off‐roading sports vehicle, defendants asserted the defense of primary assumption or risk and moved for summary judgment, arguing that as a legal matter they had no duty of care to plaintiff, which resulted in the trial court's granting of summary judgment in defendant's favor. (Id. at...

Excerpt: ...ed articles is consonant with and furthers the objectives of punitive damages.” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 810 [disapproved on other grounds in Kim v. Toyota Motor 1 On 12/2/21, the Court stated in part “…the Court is issuing an Order that requires Court approval prior to Defendant or any other party raising the issue of Plaintiff's State Bar status/history and/or alleged unauthorized practice of law in any furth...

Excerpt: ...53(a)(1). Plaintiff attaches a copy of the Rejection to the complaint, so defendant may challenge the timely filing of the complaint based on the information in the copy filed with the complaint; there is no need for defendant to request judicial notice of a document attached to plaintiff's complaint. (See Barnett, supra, at p. 505 “[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as...

Excerpt: ...es to rule on POE Nos. 3, 4, 6, 11, 12, 14. (CCP § 437c(q)); 2. SUSTAIN moving Defendants' Objections to Evidence [DOE] Nos.6‐9, 12, 15‐ 19, 21‐25, 27 on the grounds of lack of foundation, unsupported expert opinion, and speculation. The Court declines to rule on Dr. Rosenblum's Objection Nos. 1‐5, 10, 11, 13, 14, 20, 26, 28, 29; 3. GRANT moving Defendants' Motion for Summary Adjudication as to the 1st, 2nd, and 3rd causes of action for ...

Excerpt: ...g Defendant to provide further responses to the discovery above. Plaintiff claims the responses are evasive and an open invitation for sanctions. He contends that Papp is playing a game where Defendant does not to answer discovery requests directed to Empire within Justin's knowledge. Plaintiff asserts terminating sanctions are required given the long history of discovery abuses. Defendant opposes the Motion claiming the Motion is brought in bad ...

Excerpt: ... omission by Golden Fields caused or contributed to Plaintiffs' alleged Page 5 of 6 damages; and (4) Plaintiffs' complaint is barred by Res Judicata due to a prior Settlement Agreement. Golden Fields argues for summary judgment/adjudication of the third, fourth, and eighth causes of action brought against it. Golden Fields asserts the only obligation it had under the 2016 Settlement Agreement was to pay $20,000 to Plaintiffs, which Golden Fields ...

Excerpt: ...d must call the security guard kiosk if any loading dock/delivery bays are available. On the day of the accident, Bernarda Gluszyk working for JKC Trucking was scheduled to deliver between 2:00‐ 4:00 a.m. on 5/4/20, but arrived on 5/3/20 at 6:20 and parked on the southbound lane of Sharp Street. Plaintiff, who was also driving for JKC arrived and stopped in the northbound lane of Sharp Street. Plaintiff got out of the vehicle and walked across ...

Excerpt: ...ant has met that burden, it shifts to plaintiff to show that a triable issue of material fact exists as to that cause of action or defense thereto. (CCP §437c(p)(2).) The moving party must meet its initial burden regardless of whether the opposing party files counterdeclarations. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Where a defendant fails to meet its bu...

Excerpt: ...aintiff, and only after plaintiff has met the burden is it shifted back to the moving party. (Ibid.) Request for Judicial Notice Defendant requests judicial notice of the Department of Licensing and Regulatory Affairs, Corporations, Securities & Commercial Licensing Bureau Nonprofit Corporation Annual Report for NAPA, filed July 20, 2017. (Exhibits A.) The request is denied as defendant fails to identify the state in which the document was filed,...

Excerpt: ...9/21 order requiring Defendant to provide further responses to the discovery above. Plaintiff claims the responses are evasive and an open invitation for sanctions. He contends that Papp is playing a game where Defendant does not to answer discovery requests directed to Empire within Justin's knowledge. Plaintiff asserts terminating sanctions are required given the long history of discovery abuses. Defendant opposes the Motion claiming the Motion...

Excerpt: ...mpel a further response to a request for production must be accompanied by a meet and confer declaration. (CCP §2031.310(b).) The declaration must state facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (CCP § 2016.040.) Here, BRP served further responses to Plaintiffs' RPD on 9/3/21, which were verified on 9/8/21. (Dec.Pascal ¶ 5, Exs. “2”, “3”.) ...

Excerpt: ... A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 23.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (Id.) The award may only be issued against the losing party—not counsel. (Doyle v. Superior Court (1991) 226 Cal.App.3d 1355, 1359.) Here, Defendants were the prevailing party as they realized their litigation objectives in removing the lis pendens. Plaintiffs conte...