Excerpt: ...ay, Decedent was struck by a delivery truck driven by Defendant Andrew Thomas Gomez ("Gomez"), who was driving in the scope of his employment with Defendants Jat Trucking ("Jat") 50 60 Heaven ("Heaven") and/or Fedex Ground Package Systems, Inc. ("Fedex"). Plaintiffs allege that Gomez was driving negligently at the time of the incident. Plaintiffs further allege that Defendant County of Riverside failed to maintain the roadway and access alley in ...

Excerpt: ... 826, 850.) Defendant, as the moving party, has the burden to show either that one or more elements of the cause of achon cannot be established or that there is a complete defense to that cause of action. (CCP Defendant can meet their burden by showng either: (1) affirmative evidence that shows an element of the claim cannot be established; or (2) showing an absence of evidence on a critical element of Plaintiff's claim. Once the moving party has...

Excerpt: ...that he sustained injuries due to the City of Perris' ("Defendant") conduct. Plaintiff's complaint asserts a cause of action for premises liability and two causes of action for negligence (one asserted against Defendant and the other against Doe defendants.) Defendant demurs to the second cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action. It argues that this cause of action fails because it doe...

Excerpt: ...n January 6, 2022, Defendant served a 998 offer on Plaintiffs which proposed that 1) Defendant would pay $650,000 to Plaintiffs, 2) Defendant would refrain from using the long drive-thru path, 3) Defendant's easements include the right to queue on the Central Avenue Protected Drive, and 4) Defendant's employee parking and customer parking rights shall remain as indicated in the Lease and the Easement Agreement. A jury trial was conducted and the ...

Excerpt: ...le warranty period, developed other serious defects and nonconformities to warranty, which Defendants were unable to repair. (Complaint 10.) The Complaint sets forth four causes of acton: (1) Violation of Song-Beverly- Breach of Express Warranty; (2) Violation of Song-Beverly- Breach of Implied Warranty; and (3) Violation of Song Beverly section 1793.2. * * * Defendant now moves to compel Plaintiff to arbitrate hi claims under the Retail Installm...

Excerpt: ...nts have been dumping trash and green waste over the boundary fences, encroaching new fences over his property and vandalizing sprinkler systems. Plaintiff alleges he has been an "absent homeowner or occupant" as he has been providing care to his paraplegic wife. Plaintiff alleges he and Edward R. Cardoosl and Denis R. Cardoos2 entered into a stipulated settlement judgment in case numbers RIC 1818179 and RIC 1824892 in January 2022, but Defendant...

Excerpt: ...unds 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 performance of a contract. (Freeman...

Excerpt: ...howing that plaintiff does not possess and cannot reasonably obtain needed evidence. (CCP S437c(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 evi...

Excerpt: ...nnett 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. After the court sustained in part Defendant Local Union 47's demurrer, Plaintiff filed the Second Amended Complaint (SAC) on 9/20/22. The SAC asserts: (1) defamation/libel per se; (2) harassment; (3) online impersonation in violation of Penal Code 5528.5; (4) fraud; (5) tortious...

Excerpt: ... in the City of Moreno Valley (the "City"). Plaintiff alleges the City, Southern California Edison Company ("Edison") and Hillcrest Contracting, Inc. ("Hillcrest" or "Defendant") negligently owned and maintained the sidewalk where she was injured. Edison owns the property where the manhole cover exists. On September 16, 2021, Plaintiff filed the Complaint alleging 1) general negligence; and 2) premises liability. The defendants filed cross-compla...

Excerpt: ... Sheriffs' Association: (a) Dishonesty (c) Inefficiency or negligence in performance of duties (f) Willful violation of an employee regulation prescribed by the Board of Supervisors or the head of the department in which the employee is employed (m) Conduct either during or outside of duty hours which adversely affects the employee's job performance or operation of the department in which they are employed (Administrative Record ["AR" | 601.) The...

Excerpt: ...he air conditioning evaporator, causing water damage and mold inside the cabin. (ld., 8.) Plaintiff would not have purchased the vehicle had he known about the air conditioning defect or that mold had been accumulating in the vehicle. (ld„ '1 9.) On February 22, 2023, Plaintiff filed the Complaint alleging 1) violation of the Consumer Legal Remedies Act, Civil Code S 1750 et. seq. ("CLRA"); 2) intentional misrepresentation; 3) negligent misrepr...

Excerpt: ...CCP 51985.3 lists the personal records which are maintained by various entities. There is no indication that GoDaddy is an entity listed within the definitions for personal records. Nor does Plaintiff indicate that GoDaddy is his employer. (CCP 51985.6.) As such, there is no indication that a notice was required to be sent to him. Instead, the subpoena must be attached to a notice of deposition which must be served upon him. (CCP SS 1987.5, 2025....

Excerpt: ... its own determination of the value of the services contrary to, or without the necessity for, expert testimony (PLCM Group, supra, 22 Cal.4th at 1095). The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Lodestar is the objective starting point to determine if attorney's fees are reasonable, which involves multiplying th...

Excerpt: ...mplicated. (Pacers, Inc. v. Sup. Ct. (1984) 162 Cal.App.3d 686, 589.) Courts have broad discretion to control discovery and discovery proceedings. (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431.) Hence, in a discovery dispute, the court, "in fts sound discretion, must assess and balance the nature and substantiality of the injustices claimed on other side." (Avant! Corp. v. Sup. Ct. (2000) 79 Cal.App.4th 876, 882.) Courts faced with a civil ...

Excerpt: ...the there is no evidence that he served any formal response. Furthermore, because there are only two Subpoenas at issue that requested any and all insurance records, the issues can be readily addressed without a separate statement. Motion to Quash: A depsiton subpoena for production of business records may be used to obtain discovery within the state from a person who is not a party to the action in which discovery is sought. (Cal Code Civ Proc S...

Excerpt: ...Martin, pursuant to Evid. Code S 783. Defendants argue that such evidence is crucial to demonstrate alternate cause for Plaintiff's emotional distress and mental suffering and to establish that Defendants' alleged liability cannot exceed its proportionate share of fault, and to attack Plaintiff's credibility with regard to the extent to which her injuries were caused by Defendants' alleged tortious conduct. Defendants further seek to admit the te...

Excerpt: ...by admitting the truth of all matters contained therein." (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) However, a responding party's service, prior to the hearing on the "deemed admitted" motion, of substantially compliant responses, will defeat a propounding party's attempt under S 2033.280 to have RFAs deemed admitted. (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827, disapproved on other grounds, Wilcox, supra, 21 Cal.4th 973, 983, fn. 12.)...

Excerpt: ...s responses to interrogatories. But no information is provided regarding the interrogatories served. In opposition, Defendants contend that they are requests for production, to which Plaintiff responded to Defendant Brenda Samec, but not Defendant Joseph Samec's requests. Either way, a motion for protective order must be made promptly. (CCP SS 2030.090 (interrogatories); 2031.060 (requests for production).) As it is unclear what discovery is at i...

Excerpt: ...sel requesting a telephonic conference. (See Declaration of Kiki Manti Engel, 3-4.) There is no indication they actually spoke, just that defense counsel "invited Plaintiff to contact my office via telephone to discuss the contents of the meet and confer letter." (ld. at 3.) C.C.P., SS 430.41 and 435.5 very clearly requires that parties meet and confer by telephone or in person, regardless of the prospects of an informal resolution. 1 Defendants ...

Excerpt: ...he patient/physic:ian Arbitration Agreement is attached as an exhibit. The agreement, among other things, under Page 7 of 8 Article l, contains the following language as required by Code of Civil Procedure secton 1295 (enacted as part of the Medical Injury Compensation Reform Act of 1975 [MICRA]): It is understood that any dispute as to medical malpractice, that is, asto whether any medical services rendered under this contract were unnecessary o...

Excerpt: ... pleaded, cannot be established, or that there is a complete defense to that cause of action. (CCP S437c(p)(2).) Opposing Party's Burden Once the defendant has met that burden, it shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. (CCP S437c(p)(2).) The moving party has its initial burden regardless of whether the opposing party files counterdeclarations. (Aguilar v...

Excerpt: ...h his emergency flashers on. Solis was working at the time and made a workers' compensation claim with his employer, Plaintiff, City of Beaumont. Plaintiff filed its Complaint on 7/8/22 alleging a single cause of action for motor vehicle negligence. *** Plaintiff, Jose Solis, brings this motion to enforce a settlement pursuant to CCP S 664.6 on the ground that Defendant and Solis agreed to settle the case for Defendant's insurance policy limits o...

Excerpt: ...ects and nonconformities to warranty that GVVs authorized repair facility was unable to repair after a reasonable number of attempts, and GM refused to repurchase the vehicle. Plaintiff filed the Complaint on September 22, 2022 alleging causes of action under the Song-Beverly Act including 1) breach of express warranty; 2) breach of implied warranty and 3) negligent repair. On February 15, 2023, Plaintiff propounded on Defendant the first set of ...

Excerpt: ...al Services, secured by her property by a second position deed of trust, recorded on 11/16/05. Plaintiff alleges she made payments on the loan until 21%8 when she experienced a financial hardship and, as a result, fell behind on her payments and the loan became underwater and unsecured. On 11/14/19, Defendant Affinia Default Services, LLC ("Affnia") recorded a Notice of Default on behalf of defendant Specialized Loan Servicing, LLC ("Special-zed"...

Excerpt: ...ants") own and jointly operate a wastewater treatment facility in Perris near his property. (ld. at "1 11, 19.) Defendants expanded their water treatment facility and sold the excavated soil from the expansion project. (ld. at 14—15.) Plaintiff contends that this soil contained harmful chemicals and other hazardous materials. (ld. at 20.) Plaintiff alleges that the excavation and storage of this soil caused fine, inhalable particles and dust to...

Excerpt: ...greement nor did any of her heirs. Instead, Mark Brashear, Decedent's "roommate", signed the arbitration agreement purportedly on behalf of Decedent in the presence of Nancy Anguiano, an employee of Temecula Healthcare. (Dec.Anguiano 1, 3-6.) Ms. Anguiano declares that Mr. Brashear is Decedent's legal representative, and that Decedent's son, Jimmy Hood, who has healthcare power of attorney (POA), instructed her over the phone to have Mr. Brashear...

Excerpt: ...20, 2023, Plaintiff appeared for her deposition with her counsel. Approximately a h hour into the deposition, Plaintiff's counsel and defense counsel got into a heated argument about whether an exhibit should be entered on the record. The deposition was terminated prematurely at that time. Defendant now moves to compel Plaintiff's deposition and for sanctions in the amount of $3,681.50, arguing that it was not given a reasonable opportunity to de...

Excerpt: ...on issues. (CCP Page 4 of 10 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 be attached and incorporated by reference. (CRC 3.1330; see also Condee v. ...

Excerpt: ...ILAN, COUNTY OF RIVERSIDE Tentative Ruling: A party may bring a demurrer where the pleading does not state facts sufficient to constitute a cause of action. C.C.P. S 430.10(e). The court assumes the truth of all material facts which have been properly alleged, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 665, 672. However, it does not ass...

Excerpt: .... Plaintiff alleges that Defendants are the owners of real property located at 11329 Meridian Way, Riverside, California 92505 (the "Property"). (Compl., '1 2.) In September 2005, Defendants, as husband and wife, and third- party Geneva Mumford ("Mumford") purchased the Property as joint tenants via grant deed recorded on September 23, 2W5, document # 2005-0787503, in Riverside county. (9 6; Exh. 1.) on August 19, 2014, Defendants recorded anothe...

Excerpt: ...ses of action, as well as a cause of achon for unfair business practices. On January 23, 2023, Plaintiff served Super M3K (hereinafter, "Defendant") with Special Interrogatories "SROGs"), Form Interrogatories ("FROGS"), Requests for Production ("RFPs") and Requests for Admission ("RFAs"). Defendant failed to provide timely responses, and the present motions ensued. * * * Plaintiff now moves by four separate motions to compel initial responses to ...

Excerpt: ...act ("RISC") for the purchase price of 120,977.04, with a down payment of $7,500. (First Amended Complaint ["FAC"], '1 9.) Plaintiffs also allege that Defendants reserved the right to cancel the RISC if it was "unable to assign the contract to a financial institution" and they exercised that right to cancel on October 25, 2021, when the dealership could not assign the contract. (FAC, 10-12.) The dealership mailed Plaintiffs a NOTICE OF CANCELLAT ...

Excerpt: ...sponse that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect." CCP S 2030.290(a). To determine whether conduct constitutes a mistake, inadvertence, or excusable neglect under CCP S 2030.290, the court employs the same standard of relief used under CCP S 473 for defaults. See City of Fresno v. Super...

Excerpt: ...the default against Defendant on the grounds of attorney error. In support of the motion, Defendant submitted the declaration of Attorney Larry Helfman who declares that the parties engaged in prelitigation settlement discussions, Plaintiff's counsel was aware of his representation, but did not advise when substituted service was made on Defendant's agent for service of process. Then on or about January 17, 2023, by email, Defendant notified coun...

Excerpt: ...ed a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect." CCP S 2031.300(a). To determine whether conduct constitutes a mistake, inadvertence, or excusable neglect under CCP S 2031.300, the court employs the same standard of relief used under CCP S 473 for Page 5 of 8 defaults...

Excerpt: ...tion." Defendants do not argue that Plaintiff is not entitled to recoup attorneys' fees, only that the amount sought is not reasonable. 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 fees. These include "the nature of th...

Excerpt: ...iff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612- 613.) 1. Statute of Limitations A demurrer based on a statute of limitations defense must clearly and affirmatively show that the cl...

Excerpt: ...l law of this state and the United States].) II. The Motion Should Be Denied The arbitration provision of the RISC prov-des in relevant part: Any claim or dispute, whether in contract, tort or statute or otherwise... between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (includi...

Excerpt: ... to contnue the trial, which the court set for 8/11/23. Defendant moves to reopen discovery to allow a neuropsychological examinaton of Plaintiff. In response to interrogatories, Plaintiff disclosed generic claims of PTSD and headaches, and was receiving psychiatric treatment. At deposition, Plaintiff disclosed traumatic brain injury, memory problems, headaches, nausea, dizziness, severe anxiety, severe depression, panic attacks, reduced judgment...

Excerpt: ...eges that the Bank (Plaintiff) and Tilly's (Defendant) entered into a Master Agreement as of 7/28/16. (FAC 5.) The Master Agreement allegedly governs the sale and assignment of boat purchase and sale contracts originated by Tilly's and provided to the Bank [for financing.] (Ibid.) The FAC alleges that on 8/7/17, Tilly's sold and assigned a boat sales contract in the name of Anthony Mai. (ld. '18.) The Bank now alleges that on 4/25/22, it first su...

Excerpt: ...ce Guide: Civil Procedure Before Trial I Law and Motion, S 9:102.5 citing Schoendorfv. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 240, fn. 2.) In any case, the statement falls within an exception to the hearsay rule for party admissions. (Evid. Code SS 1220-1227.) The Court should overrule the objection. B. DSlC's Standing Preliminarily, the Court should consider this motion before considering the motion to intervene because judgment has alre...

Excerpt: .... Petitioner asserts that the HOA violated several provisions of the Governing Documents by failing to hold annual elections for its Board of Directors ("Board") from 2018 to 2022. Petitioner alleges that the Bylaws require that the Board consist of five directors with staggered terms, with three directors elected on odd-numbered years and two elected on even-numbered years. Petitioner alleges that the Board currently has only three Directors. Pe...

Excerpt: ...he fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) 1. Statute of Limitations A demurrer based on a statute of limitations defense must clearly and affirmatively show that the claim is barred. (Lockley v. Law O...

Excerpt: ...; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Cal. Code Civ. Pro. S 1281.2.) Arbitration of disputes is favored and "when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes." (Bono v. David (2007) 147 Cal. App. 4th 1055, 1062.) The moving party bears the burden of prov...

Excerpt: ...ber 11, 2022; November 21 and 22, 2022; February 1 and 2, 2023; and March 22 and 23, 2023. on February 10, 2022, RHOC noticed Plaintiff's deposition for April 27, 2022. (Grant Decl. '1 2, Ex. A.) On September 21, 2022, RHOC served fts second notice of deposition on Plaintiff for October 11, 2022. (ld. at 9, Ex. C.) On October 19, 2022, RHOC served its third notice of deposition on Plaintiff for November 21 and 22, 2022. (ld. at 20, Ex. E.) On Jan...

Excerpt: ... a result Defendants committed various wage and hour violations. She also alleges in 2021 she began suffering severe pain in her knee and on August 16, 2021 she was placed on medical leave. Plaintiff returned to work in February 2022 and was retaliated against by refusing to allow her to return to her prior position of Training Coordinator, demoting her and requiring her to sit in her offce for an extra half hour without reason. On June 15, 2022,...

Excerpt: ...lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. "[Tlhere has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others." (Dunzweiler v. Sup. Ct. (1968) 257 Cal.App.2d 559, 576.) Courts will not ordinarily consider the validit...

Excerpt: ...Cal.4th 826, 850.) A defendant has met his or her burden under CCP of showing a cause of action has no merit if that party has shown that one or more of the elements of the cause of achon cannot be established, or that there is a complete defense to that cause of acton. Once that burden has been met, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of material fact exists. (C.C.P. Arcienaga v. Bank of...

Excerpt: ... 123 Cal.App.3d 593, 604.) "In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true." (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) "To survive a demurrer, the complaint need only allege facts suffcient to state a cause of action; eac...