Excerpt: ...or Code section 923, has been in existence since 1933 and prohibits an employer from terminating an employee because of union activities; there is no regulation related to the formation of a union or governing the relationship of the union to the employer. The law simply states a general proposition regarding an employee's right to be free from the employer's restraints. (Nutter v. City of Santa Monica (1946) 74 Cal.App.2d 292, 298 [“the princi...

Excerpt: ...de Civ. Pro. §437c(b)(2). The purpose of the separate statement and opposing separate statement is to permit the court to determine quickly whether the motion is supported by sufficient undisputed facts. St. Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co. (2003) 111 Cal.App.4th 1243, 1248. Pursuant to CRC Rule 3.1350(b), if summary adjudication is sought, the specific causes of action, affirmative defense, claims for damages, or issues of duty m...

Excerpt: ...aw to warn of the risks about which it knew or reasonably should have known.” T.H. v. Novartis Pharmaceuticals Corporation (2017) 4 Cal.5th 145, 165. Generally, federal preemption is an affirmative defense to which the defendant has the burden of proof. Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 251. In Wyeth v. Levine (2009) 555 U.S. 555, 568 the Supreme Court rejected a drug manufacturer's claim that it...

Excerpt: ...cket 409, order granting motion or disallowance of claim filed the same date, docket no. 413, and order denying as moot Coachella Valley Luxury RV's motion for relief of stay on September 1, 2021, docket no. 419 in bankruptcy court case No. 1:20‐bk‐11006‐VK. “California gives full faith and credit to a final order or judgment of a federal court [Citation] by ‘follow[ing] the rule that the preclusive effect of a prior judgment of a feder...

Excerpt: ...iable under California Corporations Code section 25501.5. Second cause of action fails to sufficiently plead the alleged misrepresentations by Griffithe or how Rossouw was acting as an agent of Griffithe. The third cause of action is not barred by the statute of limitations based on the allegations of the complaint, but this cause of action suffers from the same defects as the second. Plaintiffs fail to allege a fiduciary relationship between the...

Excerpt: ...his line item. Attachment Service (Item 6): Although these are not costs for attaching property and thus appear to be under the wrong line item, these costs are presumptively proper for gathering evidence and Plaintiff failed to meet their burden to properly challenge these costs. Accordingly, the court denies the motion as to this line item. Expert Witness Cost (Item 8b): On September 24, 2019, Defendant served two statutory offers to compromise...

Excerpt: ...d how it breached that duty (FAC, ¶¶ 61‐63), Plaintiffs fail to allege any misrepresentation of fact by Integrity upon which Plaintiffs relied to their detriment (FAC, ¶¶ 64‐66), and the only facts establishing elder abuse are alleged against defendant Dimitra Priskos (FAC, ¶ 71‐73). To the extent plaintiffs allege Integrity was involved in scheme with the other defendants to commit elder abuse, fraud, conversion, or identity theft, pl...

Excerpt: ..., but those claims are based on a Notice of Default recorded by another entity on the second deed of trust and not the first deed of trust that Shellpoint services. (See Complaint, Exhibit A, Deed of Trust recorded 9/12/06, Instrument No. 2006‐0673334 (loan for $467,900.00) and Deed of Trust recorded 9/12/06, Instrument No. 2006‐0673335 (loan for $87,700.000; cf. Complaint, Exhibit G, Notice of Default recorded as Instrument No. 2020‐010447...

Excerpt: ...that defendants breached the contract by failing to pay the $350,000.00 required to be paid under the agreement. Plaintiff alleges that it has suffered $350,000.00 in damages. Elektric is correct that it is unclear from the hard to read contract what Plaintiff was exactly supposed to provide Elektric for the $350,000.00. However, it does appear from this document that plaintiff was supposed to either provide Elektric an automobile or some automot...

Excerpt: ...ew York Mellon et. al., Case No. RIC 1604524 (“Underlying Action”), yet plaintiff waited two and one half years to file this action. Defendant argues that plaintiff's eviction put plaintiff on inquiry notice of her claim. Page 3 of 3 Plaintiff opposes arguing that the statute of limitations was tolled while defendant continued to represent throughout the appeal of the judgment, was tolled while plaintiff was physically ill and defendant preve...

Excerpt: ...pel under the most recent arbitration agreement. This agreement is between plaintiff and DR Horton, Inc. It pertains to claims relating to plaintiff's employment with DR Horton, Inc. or any separation therefrom and claims against DR Horton, Inc.'s parents, subsidiaries, affiliates, directors, employees, or agents. Under the agreement, the arbitrator, not any state or local court, shall have the exclusive authority to resolve any dispute relating ...

Excerpt: ... JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236–1237. A nonsignatory may enforce an arbitration clause on grounds of equitable estoppel only when the claims against the nonsignatory are “dependent upon, or founded in and inextricably intertwined with, the underlying contractual obligations of the agreement containing the arbitration clause.” Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217‐18. Thus, the doctrine a...

Excerpt: ...ndebtedness or was excessed from tendering. (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 408.) The FAC fails to state a cause of action for wrongful foreclosure. Although it appears unlikely that plaintiff may be able to amend to sufficiently allege this cause of action, the demurrer is sustained with 20 days' leave to amend. 4 th Cause of Action for Slander of Title: “Slander of title is effected by one who withou...

Excerpt: ... party to an arbitration agreement is not bound by it.” Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587. Here, it is undisputed that plaintiff did not sign the arbitration agreement himself. The agreement was signed on May 22, 2018 by Joanne Greenthal, plaintiff's wife. A person who is authorized to act as an agent for a patient can bind the patient to an arbitration agreement. Flores, 148 Cal. App. 4th at 587. An agency c...

Excerpt: ... party to an arbitration agreement is not bound by it.” Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587. Here, it is undisputed that plaintiff did not sign the arbitration agreement himself. The agreement was signed on May 22, 2018 by Joanne Greenthal, plaintiff's wife. A person who is authorized to act as an agent for a patient can bind the patient to an arbitration agreement. Flores, 148 Cal. App. 4th at 587. An agency c...

Excerpt: ...he existence of a fiduciary duty or a duty of loyalty; (2) breach of that duty; and (3) damages proximately caused by the breach. Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300 [elements for breach of fiduciary duty claim]; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 410 [same elements, for breach of the duty of loyalty]. Here, although plaintiff styles the third cause of action as “breach of fiduciary duty,” the FAC sets forth s...

Excerpt: ...ctional prerequisite to resort to the court.” Campbell v. Regents of Univ. of Calif. (2005) 35 Cal.4th 311, 321. To bring an action under FEHA, a plaintiff must file a complaint within three years of the last alleged unlawful action with the DFEH, with an additional 90‐day extension for delayed discovery. Cal. Gov. Code § 12960(e). Before January 1, 2020, the limitations period for exhaustion was one year. (See prior version of Gov. Code § ...

Excerpt: ...ornia, Inc. (1993) 6 Cal.4th 124, 129.) There is no separate tort of negligent infliction of emotional distress, but instead it is a form of negligence. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796, fn.4.) NIED is divided into two claims ‐ direct victim claims or bystander claims. (Smith v. Pust (1993) 19 Cal.App.4th 263, 273.) Here, plaintiff Downey does not allege she is a direct victim, so liability as to her must b...

Excerpt: ...n; defendants are private parties, not government entities, and do not have the authority to condemn property and thus cannot be liable for inverse condemnation. 2. CVRI2101477 RIOS VS POPELINO MOTION TO STRIKE PORTIONS OF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MARCO GARCIA CASTILLO; [PROPOSED] ORDER Tentative Ruling: Grant the motion to strike the request for attorney fees under CCP §1021.5 and the re...

Excerpt: ...ous statutory obligations arising out of the repair of the 2020 Dodge Charger she allegedly purchased from a non‐party dealership. In support of its motion Moss Bros. argues that in a case involving identical arbitration language to that in this case, the court of appeal affirmed an order compelling arbitration between a manufacturer and purchaser of a vehicle. Felishilda v. FCA US (2020) 53 Cal. App. 5th 486. However, there are significant dif...

Excerpt: ...ated. “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Id. at §10:96.5 citing Cal. Rules of Court, Rule 3.1350(b) and Truong v. Glasser (2010) 181 Cal.App.4th 102, 118 [separately identified issues not required on a motion for summary judgment.]) When multiple caus...

Excerpt: ...� 13557(b)(3)(A)(B)(C)(i).) Evidence Code § 664 creates a rebuttable presumption that blood‐alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17 (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64‐65.) The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232.) ...

Excerpt: ... Wood, owned the dog, so there is no strict liability under the statutory cause of action (third cause of action). As to the common law strict liability cause of action (the fourth cause of action), ownership is not a requirement, but knowledge of the animal's vicious propensities is. Wood has met her burden of showing that she had no knowledge of prior complaints or problems with the dog and there are no facts showing that she did. As to the six...

Excerpt: ...ndiscriminatory reasons for plaintiff's termination—that plaintiff failed to comply with a request to return a medical form from his physician concerning a need for accommodation if he returned to work and discovery of plaintiff's prior misconduct (back‐dating records relating to a customer's cylinders, trying to falsify results of a drug‐screening test by attempting to switch a sample of urine for his own, and smoking in an area where it w...

Excerpt: ...ndiscriminatory reasons for plaintiff's termination—that plaintiff failed to comply with a request to return a medical form from his physician concerning a need for accommodation if he returned to work and discovery of plaintiff's prior misconduct (back‐dating records relating to a customer's cylinders, trying to falsify results of a drug‐screening test by attempting to switch a sample of urine for his own, and smoking in an area where it w...

Excerpt: ...unsel for Ross made clear that his motion does not seek supplemental responses to his form interrogatories, but amended responses. To be sure, Code of Civil Procedure section 2030.310 permits an amended response to interrogatories at the discretion of the responding party containing information “subsequently discovered, inadvertently omitted or mistakenly stated in the original interrogatory.” (sic) This is distinguished from a further respon...

Excerpt: ...rst day of deliberations, the jury had not reached a verdict. The court released the juror and instructed an alternate to appear the following morning to begin deliberations. On April 29, a deputy sheriff took the 11 remaining jurors and the alternate to the jury deliberation room. The deputy who took the jury that morning was a substitute, so he was unaware that one of the jurors was an alternate. Consequently, the 11 original jurors and the alt...