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...

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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...