Excerpt: ...ent (Pinnacle System in December of 2008) and a partial knee replacement (MAKOPlasty in November of 2009). Relevant to this motion, Plaintiff alleges in the operative Second Amended Complaint that the surgeries were performed negligently by various doctors, including by Dr. Murphy, who was working for Desert Orthopedic Center. The Second Amended Complaint alleges as against these Defendants causes of action for fraud and intentional misrepresenta...

Excerpt: ...ly to Defe ndants' new evidence in the Reply by 5/22/24. The Court will accept no further briefing. Factual / Procedural Context This is a breach of contract case. Plaintiffs Adam Camacho and Martial Science Media, LLC (“Plaintiffs”) assert fifteen causes of action for: (1) Breach of Contract; (2) Common Count: Reasonable Value of Work, Labor, and Services (Quantum Meruit); (3) Common Count: Work, Labor, Services and Materials; (4) Unjust E...

Excerpt: ...t see, and fell off a yellow curb sustaining serious injuries including a sprained left ankle and fractured right wrist. Plaintiff filed her Complaint on 10/25/23 alleging two causes of action for general negligence and premises liability. Defendant, Perris ESD, bri ngs this demurrer to both causes of action in Plaintiff's Complaint for failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) Perris ESD argues that ...

Excerpt: ...el Hernandez and Sandra Madrigal De Hernandez breached the CC&Rs by installing a shed and covered barbecue / patio cover in their backyard without first obtaining approval from the Association. On 9/12/23, Mrs. Hernandez was served with the summons and complaint by p ersonal service and Mr. Hernandez was served by substituted service. On 10/27/23, Defendants' default was taken by Plaintiff. On 2/21/24, Defendants filed this motion to vacate and...

Excerpt: ...rth (declaratory relief) causes of action; overrule as to the second (quiet title) and third (prescriptive easement) causes of action. This is a boundary dispute between Plaintiffs and their neighbor, the Colorado Riviera Community Association. Plaintiffs allege four causes of action for: (1) nuisance; (2) quiet title; (3) prescriptive easement; and (4) declaratory relief. Plaintiffs have also named numerous individual defendants, who are alleged...

Excerpt: ... 697.) Fur thermore, while Defendant cites to CRC rule 8.54 regarding motions, Title 8 of the California Rules of Court governs motions in the appellate court, not the trial court, and is thus, inapplicable. This is not a Motion for Summary Judgment. It does not app ear Plaintiff seeks summary judgment. By this motion, Plaintiff seeks preliminary injunctive relief prohibiting Defendant from implementing the Decision pending the hearing on the mer...

Excerpt: ...ase stemming from Plaintiffs Jose and Stacy Espinoza's (“Plaintiffs”) purchase of a 2020 GMC Sierra (the “Vehicle”). The Vehicle was manufactured and warranted by Defendant General Motors, LLC (“GM”). Along with the purchase of the Vehicle, GM's warranty contract contained various warranties including bumper -to -bumper warranty, powertrain warranty, emission warranty, etc. (FAC ¶ 8.) Shortly after purchase, Plaintiffs began to exper...

Excerpt: ...led, Defendant to file their answer within 20 days of this order becoming final. Moving party to provide notice pursuant to CCP 1019.5. This action arises out of Plaintiffs Rosa Chai and Tony Chai's (“Plaintiffs”) sustaining injuries from bedbugs at the Westin Miss ion Hills Resort Villas hotel (the “hotel”) in Rancho Mirage. On July 31, 2020, Plaintiffs checked into the hotel and were assigned Room 3913. On August 3, 2020, Mr. Chai beg...

Excerpt: ....5th 862, 872.) The elements of a wrongful death claim are: (1) a tort (negligence or other wrongful act); (2) resulting death of another person; and (3) damages, consisting of the pecuniary loss suffered by the heirs. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) In the present case, Plaintiffs assert a wrongful death cause of action against Defendants, including Providenc...

Excerpt: ... Resort. C ity of Palm Springs police officers (“City”) came to the residence and eventually arrested Plaintiff using excessive force and caused Plaintiff to suffer serious injuries. Plaintiff alleges that the police officers had a duty to keep him safe, even while a rresting him, and that the City is liable for the officers' conduct. Plaintiff filed his operative First Amended Complaint (FAC) on 3/1/24 alleging three causes of action: 1) ne...

Excerpt: ...neral demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (C.C.P. § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their co ntext. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which ma...

Excerpt: ...85) causes of action. Sustain the demurrer to the 2nd through 8th causes of action, and grant Plaintiff 20 days leave to amend (one final attempt to amend to adequately allege facts supporting these causes of action). Second COA: While Plaintiff states, in a conclusory manner, that Defendants discriminated against him because of his condition [FAC at ¶¶ 51 -52], the only conduct that Plaintiff identifies is (1) a single write up for failing t...

Excerpt: ...tements pri or to that date. Factual/Procedural Context On September 17, 2020, Plaintiffs Paula Lee and Dylan Lee (“Plaintiffs”) entered into a warranty contract with Defendant Ford Motor Company (“Defendant” or “FMC”) regarding a 2020 Ford F150. (First Amended Complaint [“FAC”] ¶ 8, Ex. A.) Plaintiffs allege that the subject vehicle came with known defects, including transmission defects, electrical defects, suspension defects, ...

Excerpt: ... all eleven requests. As to sanctions, Plaintiff's request is granted in reasonable reduced amount of $800. Evidentiary Objections Plaintiff objects to statements made in the declaration of Cameron Major based on improper legal argument, lack of foundation, and conc lusory; as to nos. 1-4, it is overruled; and nos. 5 -7, it is sustained. Service of a proper deposition notice obligates a party or party -affiliated witness to attend and testify, an...

Excerpt: ... regarding a 2015 GMC Sierra 2500. Plaintiffs allege defects and nonconformities to warranty manifested during the warranty period including the battery; the engine; among other defects and non- conformities. On 1/26/22, Plaintiffs filed a Song -Beverly complaint asserting: (1) breach of express warranty – Civil Code § 1793.2(d); (2) Civil Code § 1793.2(b); (3) Civil Code § 1793.2(a)(3); and (4) breach of implied warranty; of merchantabilit...

Excerpt: ...pt in cases whe re Health & Safety Code § 1799.110 applies, “(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.” (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1166; Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968; Avivi v. Centro...

Excerpt: ...failure t o engage in the good faith interactive process, 3) wrongful discharge, 4) retaliation for opposing unlawful practices, 5) retaliation for requesting accommodation, and 6) failure to prevent discrimination. In the instant motion, Defendant Coachella Valley Water District moves the court to compel Plaintiff to submit to an independent mental examination, pursuant to CCP §2032.310. In support of the motion, Defendant's counsel Jorge Luna ...

Excerpt: ...s settled his individual claims, the Court should dismiss the Class and PAGA claims, without prejudice, as plaintiff is not a valid class representative or aggrieved employee. Plaintiff argues that this is a class action and that the purported settlement is void, un enforceable, and cannot support a dismissal because: 1) it was obtained by fraud – defendants lied to plaintiff telling him that plaintiff's counsel had agreed with the proposed set...

Excerpt: ...le neglect” (in which event, relief is discretionary), or an attorney affidavit of fault (in which event, relief is mandatory). Under CCP §473(b), the court is required to vacate any default or dismissal “whenever an application for relief is made no more than six month s after entry of judgment (or dismissal), is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or n...

Excerpt: ...employment action ; and (4) the adverse employment action occurred due to the plaintiff's protected class. Reeves v. MV Transportation, Inc. (2010) 136 Cal.App.4th 666, 673. Based on the ruling on the Motion to Deem Matters Admitted, Plaintiff has admitted that he was not d iscriminated against. (Requests for Admission Nos. 4 -6, 8.) As such, this claim fails. The second cause of action is for retaliation. The necessary elements of a retaliation ...

Excerpt: ...“on the same terms” as their previous extensions. Plaintiffs fourth supplemental brief filed on 2/27/24 provides a concise recitation of the allegations and evidence to support each of the claims now asserted in the FAC. In the supplemental brief filed on 4/5/24, P laintiffs argue the discovery disputes manufactured by Defendants are a distraction and only seek to obtain evidence to support their counterclaims, which are not relevant to Pla...

Excerpt: ...e that as to Rob ert Reyes the Cross-Complaint fails to plead his capacity to sue or involves a misjoinder. A motion for judgment on the pleadings addresses defects in a pleading that are disclosed on the face of the pleading or that are subject to judicial notice. (Code Civ. Proc., § 438(d); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in the complaint are deemed admitted and the complaint is given a reason...

Excerpt: ...t particular gro und, the matter is properly before the court and the defect in the notice of motion should be disregarded. [Citation].” (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Here the notice states the Motion is being made upon the accompanying papers. Thus, the defect in the notice is disregarded. Attorneys' Fees “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reason...

Excerpt: ...bestos Cases (2018) 28 Cal.App.5th 862, 872.) The elements of a wrongful death claim are: (1) a tort (negligence or other wrongful act); (2) resulting death of another person; and (3) damages, consisting of the pecuniary loss suffered by the heirs. (Lattimore v. Dick ey (2015) 239 Cal.App.4th 959, 968; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) In the present case, Plaintiffs assert a wrongful death cause of action against ...

Excerpt: ...tiffs the Kamins kis contracted with dismissed Defendant Moving Solutions to act as a shipping broker. Moving Solutions was to arrange to have Plaintiff's belongings and household goods shipped from California to Texas. (FAC ¶ 7.) At some point Hermes Moving was engaged to move the property. (FAC ¶ 9.) The gravamen of this lawsuit is Plaintiffs' contention that Hermes did not deliver all of their property, and damaged some of the property that ...

Excerpt: ...oof of servic e pursuant to Cal. R. Ct. 3.110 and failure to timely file and serve an updated and complete case management statement. The OSC was continued several times, until 2/9/22, the court dismissed the action without prejudice for failing to submit a declaration in response to the OSC. The court entered the dismissal order on 2/22/22. On 8/19/22, Plaintiffs filed a motion to set aside the dismissal under CCP §473(b) based on counsel's e...

Excerpt: ...s allege tha t during the warranty period, the vehicle suffered defects relating to the engine, transmission, and loss of power, that Honda's authorized repair facility was unable to repair despite a reasonable number of attempts. Plaintiffs brought suit alleging the f ollowing causes of action: (1) Violation of Civil Code §1793.2(d); (2) Violation of Civil Code §1793.2(b); (3) Violation of Civil Code §1793.2(a)(3); (4) Breach of Express Writt...

Excerpt: ...it lost over $82,000 t hat it expended in pre-development expenses and lost profits in excess of $4.82 million. On January 10, 2022, Plaintiff filed the original complaint alleging contract and fraud related claims against Balcor. In February 2022, Balcor sold the subject prope rty to another buyer, Cook Capital Fund, who assigned the sales contract to Reed Street LLC, which later changed its name to Pacific Homes at Magnolia, LLC (collectivel...

Excerpt: ...ff, individually and deriv atively on behalf of Fleetwood, asserts 9 causes of action against Fleetwood and Defendants, Janice McCoy, Mica Gumbleton, Mara McCoy Cartier, and Michele Davis (the “Employment Action”). On January 4, 2024, the Court in that action granted Fleetwood's mot ion to compel arbitration as to Plaintiff's individual claims only. On February 2, 2024, Defendant filed a motion to compel arbitration. On February 28, 2024, th...

Excerpt: ...ys of this order , only for the limited purpose of seeking discovery which relate to the following subject matters: (1) As against Plaintiffs, the new information which was purportedly brought to light only recently in January 2024 that Plaintiffs were using the vehicle for commercial purposes, which is information relevant to Lentegrity's defense against Plaintiffs' claims in the anticipated re -filing of the motion for summary adjudication and...

Excerpt: ...o allege f acts sufficient to properly allege that either Mr. Aguirre or Mr. Guzman were managing agents who could be held personally liable. 7th Cause of Action for Sexual Harassment (against all moving Defendants and 9th Cause of Action for Gender Based Harassment (against all moving Defendants): To establish a prima facie case of harassment under the FEHA, Plaintiff must demonstrate that (1) she suffered unwelcome harassment based on a protect...

Excerpt: ...this to her atten tion she told him to continue wearing the dentures to encourage his gums to recede so that the dentures would fit better. That did not work, according to Huerta, and he was left without teeth, essentially, and Defendant refused to fix the problem with thes e new dentures. (Complaint ¶¶ 10 -12, 22- 26.) These allegations are insufficient to support a negligent infliction cause of action. To withstand a demurrer the complaint...

Excerpt: ...e escalator malfunctioned, causing Plaintiff to fall backwards down the escalator. The escalator was maintained by defendant Schindler Elevator Corp. On October 3, 2021, Plaintiff filed the form complaint alleging negligence and premises liability. Trial is scheduled for Ma y 31, 2024. Plaintiff now moves for leave to amend the complaint to allege punitive damages. Plaintiff argues that he was unaware of facts giving rise to punitive damages unt...

Excerpt: ...ays leave to amend. Page 8 of 13 The Court declines to consider the demurrer on the 3rd cause of action, which is not alleged against moving cross - defendant. Factual / Procedural Context On November 20, 2023, Plaintiff Assef Sarage (“Assef”) initiated this actio n by filing the Complaint against defendants Evolution Mechanical, Inc. (“Evolution Mechanical”), Evolution Limo Service LLC (“Evolution Limo”) and Dennis M. Murray, Jr. (�...

Excerpt: ...ng: The Co urt grants the motion for motion for a protective order, and denies the motion to compel inspection. The Court grants the motion for special interrogatory no. 68 – said responses due in 10 days. The Court finds the remaining interrogatories are moot. The Court denies the remaining requests for production, requests for admission and form interrogatory. The Court denies the request for sanctions. Factual / Procedural Context Plaintiff...

Excerpt: ...imposing lia bility for financial elder abuse. Per the language of the statute, the “property taken” must be taken as a result of fraud and/or undue influence. Plaintiff submits no evidence establishing fraud and/or undue influence, and the law does not impose a stri ct liability standard on businesses or people when they transact with seniors covered by the statute. Watermark and Orange Coast: Sustain evidentiary objections Nos. 1 -5. Gra...

Excerpt: ...of equipment, materials, and supplies used in the construction industry. Defendant Orange Coast Concrete Inc. contracted with Plaintiff for the delivery of materials to 1695 Foothill Parkway, Corona, California 92881 (the “Property”), owned by Defendants Roberto Morales, Alondra R amirez (“Ramirez”), and Ralph Hernandez (“Hernandez”). Defendant failed to pay for the materials. On December 3, 2021, Plaintiff filed its complaint allegi...

Excerpt: ...intiff seeks punitive damages against Schlinkert and Stoner. In the Complaint, Plaintiff alleges that on May 11, 2021, she was a passenger in a vehicle that came to a stop on Perris Boulevard, in Moreno Valley, California, due to traffic ahead. (Complaint at ¶ GN- 1.) Schlinkert, who was driving under the influence of alcohol and at an excessive rate of speed, collided with a vehicle driven by Stoner, who was also driving under the influence o...

Excerpt: ...eeding, or any other official proceeding authorized by law” are protected by the anti - SLAPP statute. “The anti -SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedur e for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (emphasis in the original).) Thus, cour...

Excerpt: ...erning fraudu lent concealment, for reason Plaintiffs have failed to allege a fraud claim. The motion is granted in part to strike that portion of the FAC concerning Plaintiffs' prayer for punitive as referenced in Kia's motion to strike as to Items # 4 on pg. 3, ln. 27. Defendant Kia is ordered to file an answer to the FAC within 20 days of the order. 2. CVRI2304319 LOY VS KIA AMERICA INC DEMURRER BY KIA AMERICA INC Tentative Ruling: The demurr...

Excerpt: ...covery an d to have facts deemed admitted. This is an action for motor vehicle negligence. Plaintiff alleges that, on April 14, 2021, Defendant Maria De Jesus Rios negligently operated a motor vehicle which caused injuries to Plaintiff's employee Troy Scutella. On April 03, 2023, Plaintiff filed the Complaint in this action, naming Defendants Maria De Jesus Rios and Marcelo A. Rios. Plaintiff alleges it is seeking damages against Defendants as a...

Excerpt: ...o, with a completion date of 7/31/20. Plaintiffs allege they were targeted by Wanhoo as first -time buyers, and were promised a newly built home, which was not delivered. Plaintiffs allege that Wanhoo intended to defraud Plaintiffs of their initial deposit and had n o intention to perform under the Agreement. On 6/27/22, Wanhoo unilaterally terminated the Agreement erroneously claiming that Plaintiffs “failed to deposit into escrow written ver...

Excerpt: ... Claudio fil ed his moving papers arguing the primary issue in this matter is ownership of BPI. Claudio seeks a PI restraining Pablo from: (1) conducting or attempting to conduct any “Special Meeting of the Board of Directors” for BPI, originally noticed/scheduled for March 7, 2024 at 12:00 P.M.; (2) noticing, attempting to conduct or conducting any meeting of the Board of Directors of BPI, where one or more persons participating as “Direc...

Excerpt: ... (1999) 21 Cal.4th 543, 552; Las Palmas Assoc. v. Las Palmas Center Assoc. (1991) 235 Cal.App.3d 1220, 1238.) As the Las Palmas court put it, “no public policy is served by permitting a party who never intended to fulfill his obligations to fraudulently induce anothe r to enter into an agreement.” (Las Palmas Assoc., supra, 235 Cal.App.3d at 1238.) In Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843 (review granted), the C...

Excerpt: ...expended, determine d by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Ibid.) 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 ...

Excerpt: ...intiff could have pursued a lawsuit at any point he felt his complaints went unanswered and nothing is pled that Defendants thwarted plaintiff from proceeding forward. In addition, Plaintiff's claim continues to be based on a non -specific narrative that, at best, Defe ndants purportedly did not report a claim to an insurance company. Alleged negligence (not reporting a claim to an insurance agency) is not tantamount to intentional misconduct. T...

Excerpt: ...l. If 1s t Amended Complaint is not filed, Defendant is granted 20 days to file their answer from date of this order becoming final. Moving party to provide notice pursuant to CCP 1019.5. This is a bed bug case in which Plaintiff Linda Martini alleges 9 causes of action for 1) breach of warranty of habitability (violation of Civ. Code §1941.1), 2) breach of habitability (violation of H & S Code §17920.3), 3) negligence/premises liability, 4)...

Excerpt: ...esert San ds Unified School District (employee), Desert Storm Basketball (owner/operator), and Storm Basketball League (employee). Plaintiff tried out for the Desert Storm club team at Cathedral City High School, when Towner began grooming her at age 16. District administrators saw the close relationship between Plaintiff and Towner, and did nothing. District was aware that Towner had engaged in prior grooming type behavior, but did nothing. Pla...

Excerpt: ...of action. (Cal. Code Civ. Pro. §430.10(c) and (e).) For the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, a demurrer does not admit conten tions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) A plaintiff must plead only ultimate rather than evidentiary facts. (Doe v. Ci...

Excerpt: ...d a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff...