Excerpt: ...ond to the Complaint because they believed that Plaintiff intended to resolve the issue informally. (Decl. of Marvin, ¶20.) However, Plaintiff's counsel sent a letter to Defendants on May 30, 2020 indicating that if Defendants did not confirm in writing that they would comply with the CC&Rs and approval process before any further construction, Plaintiff would pursue legal action. (Plaint. Ex. E.) Counsel also advised Defendants of the ex parte h...

Excerpt: ... filed by Defendant/Cross‐Complainant, Broan‐Nutone. (“Broan”). The Cross‐Complaint relates to the original action filed in this case for Negligence and Product Liability filed by Plaintiff Security National Insurance Company against both Broan and Lab Corp. On April 26, 2019, Plaintiff brought the instant action exercising its subrogation rights to stand in the shoes of its insured, Joseph Rajabi DDS, whose property was damaged by the ...

Excerpt: ...leave to amend. The proposed order and proposed judgment are signed. Analysis: The defendants Rice‐Hall and Baker moved for summary judgment. The Court deemed the motion one for judgment on the pleadings, and continued the hearing to permit the plaintiff to oppose the motion as a MJOP. The Court does not rule upon the defendants' evidentiary objections, filed 3‐23‐21, because the evidence to which they relate is not material to the Court's ...

Excerpt: ...ment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East 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...

Excerpt: ...crets Act (Civ. Code, §3426 et seq.). Plaintiff is a distributor of sanitary and related supplies and equipment to commercial, industrial and institutional markets throughout California. The moving Defendants are its competitors. Plaintiff, among other causes of action, alleges that individual defendants, who are its former employees and agents misappropriated Plaintiff's trade secrets, including “customer pricing system‐based products, vend...

Excerpt: ...cts 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 need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549‐550.) A demurrer on the ground of unc...

Excerpt: ...ment by making $150,000 worth of capital improvement on the Clark Property for Tiger Eye to farm hemp plants on the land. Plaintiff alleges that Defendant breached his duties under the Agreement by failing to reimburse Plaintiff for the capital improvement and to distribute his share of the profit from the secret sale of 10,000 pounds of hemp. Plaintiff also alleges that Defendant breached his duties under the Agreement by interfering with Tiger ...

Excerpt: ...plaint. To withstand 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.) Gen...

Excerpt: ...ny property acquired as a result of those skills efforts, labor, and earning with plaintiff.” (Second Amended Complaint, ¶ 3.) On 11/16/19, Defendant ended the relationship with Plaintiff and moved out. Plaintiff contends that he has asked for an accounting of all assets that were accumulated while they lived together and that said assets be split. Defendant has refused to do so. The second amended complaint is titled “complaint for damages ...

Excerpt: ...ile proof of service is discharged. Analysis: Factual assertions on the basis of information and belief are not admissible evidence. It is undisputed that the plaintiff signed the agreement, and that the agreement is subject to the FAA. The agreement to arbitrate may delegate to the arbitrator the determination of “threshold issue of arbitrability,” including whether the agreement covers a particular controversy. (Henry Schein, Inc. v. Archer...

Excerpt: ...se of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff does not make such a showing, summary judgm...

Excerpt: ... occurred on 9‐12‐19, when the plaintiff filed his first amended complaint that named solely Desert Regional Medical Center, and omitted any doe defendants. The motion was not filed until 5‐7‐21, over 19 months later. Moreover, even if the six‐month deadline did not apply, the motion was not brought within a reasonable time. Although the plaintiff was self‐represented when both the original complaint and the FAC were filed, he retaine...

Excerpt: ..., by signing a California Motor Vehicle Lease Agreement (“Lease Agreement”). Plaintiff is the lessee and the dealership, Walters Auto Sales & Service, Inc., the lessor. MBUSA did not sign the lease agreement. Plaintiff alleges that after leasing, he delivered the vehicle for repairs on at least three occasions for certain defects and nonconformities in the vehicle, but MBUSA or its authorized repair facility failed to conform the vehicle to t...

Excerpt: ...rn signal. Plaintiff alleges defendant FCA US, LLC's (“FCA”) authorized dealerships were unable to properly repair the vehicle, thereafter denying plaintiff's request for repurchase of the vehicle. The complaint states the following causes of action: 1. Breach of Implied Warranty; 2. Breach of Express Warranty. The present motion is a motion for summary judgment/adjudication brought by FCA on plaintiff's complaint. FCA argues that plaintiff c...

Excerpt: ...Page 3 of 3 As to relevancy, Essentially Defendant claims that it has agreed to produce documents which it has determined are relevant to Plaintiffs' claims, those being, documents relevant to specifically Plaintiffs' vehicle: GM's Global Warranty History Reports for Plaintiffs' Cruze, including that vehicle's Transaction History documenting all the warranty repairs for which GM—not Plaintiff— paid; incidentally obtained repair orders for Pla...

Excerpt: ...judgment may be void as a matter of law for many reasons, including lack of or improper service. Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal.App.3d 549, 553‐554. A two‐year outer time limit is set for motions seeking to set aside default under C.C.P. § 473(d), based on improper service. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. C.C.P. § 473.5 applies when “service of summons has not resulted in actual notice to a party in time...

Excerpt: ...e Summit Drive property is granted. The court may take judicial notice of the existence of recorded documents and their legal effect. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐18; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐55.) II. The Motion is Denied A party may file a motion to quash service of summons on the grounds of lack of jurisdiction under CCP § 418.10(a). Fu...

Excerpt: ... managed by defendants Lowe's Home Centers, LLC (“Lowe's”) and Pacific Castle Management, Inc. (“Pacific Castle”). Plaintiff alleges the wet floor created a slipping hazard, and defendants allowed the dangerous condition to be created by failing to inspect, maintain or warn of the condition. Plaintiff alleges that defendants Tyler Anderson (“Anderson”) and Mathew O'Neal (“O'Neal”), employees of Lowe's, negligently moved Plaintiff ...

Excerpt: ...rect and were necessarily incurred in the case.” (CRC 3.1700(a)(1).) Further, the motion is not identified as a memorandum of costs and did not provide Defendants with sufficient notice in order to file a proper motion to tax costs. (See CRC 3.1700(b)(1) [notice of motion to tax costs must be served and filed 15 days after service of the cost memo].) Because of the absence of the memorandum of costs, the court may not award litigation costs, an...

Excerpt: ...as an experienced drug user. He had a history of convictions for use, possession and manufacture of methamphetamine. Prior to the collision, Miller consumed some quantity of methamphetamine intentionally. As a result of prior drug education programs to which he was sentenced, Miller knew that the methamphetamine would cause him drive dangerously and to be unable to maintain concentration and focus, and to be unable to safely operate a vehicle. He...

Excerpt: ...ainst demurring defendants GGMP Veterans and Montoya are premised on alter ego liability, as no theory of direct liability has been alleged. Under the alter ego doctrine, the complainant must establish (1) that there is such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow....

Excerpt: ...property; and, inspect, copy, test, or sample electronically stored information. (CCP § 2031.010(b)‐(e).) Tangible things that are subject to inspection include “other property”, or “object[s] or operation[s]” under CCP § 2031.010(c), (d), but these terms are not defined. As with other discovery methods, only matters within the scope of CCP § 2017.010, and subject to the restrictions in CCP § 2019.030(a), may be inspected, copied, t...

Excerpt: ...d causes of action for breach of express and implied warranty under the SongBeverly Act is four years. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215.) “A cause of action normally accrues when under the substantive law the wrongful act is done and the liability or obligation arises, that is, when action may be brought.” (Mosesian v. County of Fresno (1972) 28 Cal. App. 3d 493, 500.) However, under the “discovery rul...

Excerpt: ...ng argument regarding barebones confidentiality fails: Defendant Planned Parenthood is a health care provider specializing in gynecological and reproductive health care, including abortions and family planning care, which has subjected it to political and physical attacks. Throughout the course of this litigation, Planned Parenthood has produced confidential documents. These documents can be used by all parties within the bounds of this case, inc...

Excerpt: ...party required to serve and file a request for dismissal within 45 days after the dismissal date specified in the notice does not do so, the court must dismiss the entire case unless good cause is shown why the case should not be dismissed.” (Cal. R. Ct. 3.1385(c)(2).) This is the basis of the dismissal. “The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list.” (Irvi...

Excerpt: ...Request for Judicial Notice of Exhibits 10 and 18 is granted pursuant to Evidence Code Section 452(c). Defendant's Evidentiary Objections to Declaration of Pat Norris: Sustained as to Nos. 1, 5 – 16 and overruled as to Nos. 3 and 4. Defendant's Evidentiary Objections to Declaration of Dickie Wrightsil: Sustained as to Nos. 1, 2, 4 – 7 and overruled as to Nos. 3. Facts and procedural background: Plaintiff Dickie Wrightsil is a member of Defend...

Excerpt: ...z and Brenda Denholtz, own property located at 8669 Limonite Avenue, Jurupa Valley, CA (8669 Limonite) that they leased to Plaintiff, Jorge Orozco on 6‐5‐20 (a second lease was entered on 6‐30‐20.) Plaintiffs' have directed subpoenas to the City of Jurupa Valley and to the County of Riverside. The deposition subpoena directed to the County seeks “all” documents “of any and all property in Riverside County held and/or owned by” Def...

Excerpt: ...hourly wage of $11‐$11.25, and $12 in 2020. He contends he was required to work more than 40 hours, and without the proper meal and rest breaks. On 3/16/20, Plaintiff filed this action. The operative pleading is the First Amended Complaint (FAC) filed on 12/17/20 for: (1) failure to pay wages; (2) failure to provide meal and rest periods; (3) failure to pay minimum wages; (4) failure to pay overtime wages; (5) failure to pay wages due upon term...

Excerpt: ...pplicable standard of care; (2) there was no neglect or abuse on the part of Moving Defendant; (3) no conduct by Moving Defendant caused Plaintiff's injuries; and (4) there is no basis for the enhanced remedies sought by Plaintiffs. These are four of the six issues set forth in the separate statement. With respect to the issues of standard of care and causation, Moving Defendant offers the expert opinion of Daniel Bessler, M.D., who affirms that ...

Excerpt: ...n alleges she purchased the mobile home from Defendants Park Place ("the Park") and Westwind Enterprises in February 2018 for $ 25,000 ($10,000 cash and $15,000 cashier's check) and later sold it to Defendants Alejandro Solis and Elda Bravo for $65,000. Plaintiff contends she restored the home but Defendants the Park and Westwind refused to transfer title despite their agreement. Plaintiff alleges that subsequent to selling the mobile home to Sol...

Excerpt: ...ant PHH Mortgage Corporation is the current servicer. On 6/27/18, a notice of default was recorded and on 12/28/18, a notice of trustee's sale was recorded with a sale date of 7/31/19. On 7/3/19, Plaintiff submitted a complete loan modification application, but continued with their foreclosure efforts. She alleges that on 1/30/20, her application was denied and she appealed on 1/30/20. Plaintiff filed this action on 7/23/19. After the court susta...

Excerpt: ...e risk to invitees, have a duty to make the condition reasonably safe for the use of customers or to provide warnings adequate to enable them to avoid the harm. CAR fails to show that it did not have actual notice of the obstruction of the doorway, or would not have known about it through a reasonable inspection. The short duration of the obstruction, without more, is not dispositive proof to negate constructive notice. Whether a dangerous condit...

Excerpt: ...n July 16, 2018, Plaintiff went to Defendant for cataract extraction with intraocular lens implant in her right eye. Defendant opened Plaintiff's right eye to remove the cataract, but there were complications during surgery and she could not remove all of it. Plaintiff was instructed to return in three months. (FAC, ¶¶ 10‐13.) On November 12, 2018, Plaintiff returned to have Defendant implant a posterior chamber intraocular lens in her right ...

Excerpt: ...to be the “sole and proximate cause” of the accident. (SAC p. 5.) This defect is not curable since the car accident did not occur on Harney's property. The SAC alleges that Harney owns real property located on Calle Cabernet in Temecula. (SAC p. 6 ¶1.) It is alleged that from 2016 to 8/20/18, Plaintiff regularly visited and spent time at Harney's property with Holt, which Harney was aware of. (SAC p. 6 ¶2.) Plaintiff alleges that Harney kne...

Excerpt: ...tiff experiences a contemporary sensory awareness of the causal connection between the defendant's infliction of harm and a close relative's injury. (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836; see also Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1159 (Ko).) As to these Defendants, Plaintiff Downey alleges that she was on the phone with her daughter, Plaintiff Vance, when the dangerous conditio...

Excerpt: ...iced motion for relief from waiver is required. (i.e., such relief cannot be granted ex parte, or where the only motion pending is a motion to compel.) (CCP § 2030.290(a).) The party seeking belatedly to assert some objection must show that he or she has belatedly served responses “in substantial compliance” with that party's duty to respond under CCP § 2030.210(a). (CCP § 2030.290(a)(1).) The declarations must establish that the party's f...

Excerpt: ... is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing t...

Excerpt: ...privilege, a privilege log is to be provided with sufficient specificity to allow the court and parties to determine if the claim is appropriate, including but not limited to the name of the document, the author, the date, all receiving parties and general substance of the document. However, Defendant claims that documents produced by Plaintiff not only do not support its claims but suggest that Plaintiff's claims are inflated and that the only w...

Excerpt: ...ted by inadmissible hearsay evidence. Respondent maintains that Petitioner failed to exhaust his administrative remedies prior to filing the Petition, thereby barring his claim. On the merits, Respondent contends it provided the statutorily required notice of the accusation and the hearing, and that the DRE Decision is supported by substantial admissible evidence, which showed Petitioner violated numerous provisions of the Real Estate Law and reg...

Excerpt: ...dant's time to reply was extended by two court days based upon electronic service, but Plaintiff presents no authority under which Defendant could not rely on the mail service deadline. Moreover, Plaintiff's substantive opposition waived any defect or irregularity in the filing and service of the motion. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Defendant has the burden to establish Plaintiff's claimed deposition costs are unreasonab...

Excerpt: ...of the evidence that all necessary jurisdictional criteria are met. (Jewish Defense Org. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054‐55.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1055.) Once a plaintiff meets his burden, the defendant has the burden to demonstrate that the exercise of jurisdiction is unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.) The ...

Excerpt: ...d the examination. The exam may be audio‐recorded, but not video‐ recorded. (Code Civ. Proc., § 2032.530, subd. (a); see also Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 492.) Plaintiff is correct that the court lacks jurisdiction to compel participation by the parents. However, if the parents refuse to facilitate the IME, the court has jurisdiction to impose discovery sanctions, including monetary, evidentiary, issue, and terminati...

Excerpt: ...iff Corina Young (“Plaintiff”), derivatively on behalf of Southern California Organic Treatment (“SCOT”), filed the complaint (the “Complaint”) in this action on July 16, 2020 against defendants David Gash (“Gash”) Matthew Yamashita (“Yamashita”), James Hammermeister (“Hammermeister”), Quorum Green Industries, LLC (“Quorum”); Grizzly Peak Farms, LLC (“GPF”); Grizzly Peak Farms II (“GPF II”), LLC; Grizzly Peak F...

Excerpt: ...ration 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.) 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...

Excerpt: ...” whether the offer for reinstatement was for a job substantially equivalent to her prior position, and whether the rejection of the offer was reasonable. Defendant's motion is also procedural defective because Defendant failed to show summary adjudication would dispose of all of Plaintiff's claim for economic damages, as opposed to lost income only. A motion for summary adjudication can be granted only if it completely disposes of the cause of...

Excerpt: ...submitted with the original declaration without explanation, and is therefore untimely, is stricken, and has not been considered by the Court. A motion for preliminary injunction must show (1) a probability of prevailing on the merits, and (2) that the balance of hardships favors issuance of the injunction. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a real threat of immediate and ...

Excerpt: ...nd suffered severe injuries. She alleges that the fluid came from pipes and other equipment in around the kiosk. She alleges that Defendant, Joshua Mitchell, was doing business as Nitro Puff Magic, and that Defendant, the Millard Group, was responsible for maintenance and inspection along with the remaining Defendants. Plaintiff filed her Complaint on 6/10/20 alleging a single cause of action for negligence. On 1/25/21 Defendant, Tyler Mall Limit...

Excerpt: ...e hearing on this Motion was continued from April 13, 2021, to May 13, 2021, for the moving party to comply with the Case Management Order (“CMO”), particularly CMO Section H (3)(a)(iii)(D), 3(a)(vi), 3(i), 3(l). Accordingly, Plaintiffs have filed supplemental documents in further support of their Motion and have now fully complied with the CMO. This is a wage and hour class action. Plaintiffs bring the instant Motion for Preliminary Approval...

Excerpt: ...and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petitio...

Excerpt: ...lternative meaning of the terms and provisions within the parties' Shopping Center Lease agreement that is contrary to the Lease's unambiguous terms.” Even if this motion were granted, what meaning would that order have at trial but to prompt further motions in limine regarding specific testimony and documents? While the lease agreement here includes an integration clause that may result at trial in the exclusion of some extrinsic evidence for ...

Excerpt: ... complaint's prayer. Plaintiff will be granted 30 days with which to file a third amended complaint assuming it opts to do so. Defendant has moved to strike the second amended complaint's allegations in support of an award of punitive damages as well as the portion of the prayer requesting same. (Code Civ. Proc., §§ 436, subd. (a), 431.10.) Punitive damages are authorized where the tortious event in question involves an additional component of ...

Excerpt: ...nd sustains the remaining objections for lack of foundation. The court sustains all of Defendants' objections to the declaration of Elias Teshome for lack of foundation. Plaintiffs have shown a reasonable probability of prevailing on the merits. The declaration of Chris L. Boulter, the Custodian of Records for Val‐Chris Investments, Inc., includes an escrow closing statement from June 2011. The closing statement shows that Plaintiffs paid $289,...

Excerpt: ...nder this agreement, Petitioner agreed to pay the commodity rate for reclaimed water at the same rate adopted by the Respondent for other reclaimed water customers. In 2015, Respondent substantially increased its rate for reclaimed water. Petitioner objects to this increase. It asserts Respondent's facilities consist of a North City Plant and South Bay Plant. It contends it is improperly being forced to pay for fees associated with the North City...

Excerpt: ...g that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of...

Excerpt: ...ow Plaintiffs to comply with the noncompliant matters under CMO Section H (3)(a)(iii)(D), 3(a)(vi), 3(i), and 3(l). Plaintiffs should also address the suggested revisions discussed below. The introductory paragraph of the Proposed Order, when defining “Settlement” should reference that the Settlement agreement is attached as “Exhibit A” to the Declaration of John A. young filed on March 18, 2021. Paragraph 1 of the Proposed Order should a...

Excerpt: ...losing, including notifying the borrower of alternative debt relief procedures. (See Civ. Code, § 2923.55(b)(2) [requiring mortgage servicer to “assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.”] The requirements of section 2923.55(b)(2) apply only to first lien mortgages or deeds of trust on owner occupied residential property. (Civ. Code §§ 2924.15, 2923.55.) Plaintiff alleges in her co...

Excerpt: ...that the defendant's conduct was deceptive and the deception caused plaintiff harm. (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292.) Plaintiff alleges that TOD violated the CLRA by: (1) misrepresenting the Vehicle's condition; (2) concealing the Vehicle' s condition; (3) telling Plaintiff the Vehicle was in excellent condition when it was not; (4) telling Plaintiff the Vehicle was a certified vehicle, when ...

Excerpt: ... of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Ibid.) The scope of review of supporting evidence for abuse of discretion depends on whether the decision substantially affects a fundamental vested right. (CCP § 1094.5(c); JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 14...

Excerpt: ...d under accepted accounting methods should not have been comingled in the one account held by defendant. (See Undisputed Material Fact (UMF) Nos. 2, 4, and Declaration of Jim Vitelli, CPA at ¶¶ 8‐10.) Vitelli, a certified public accountant, explains in his declaration filed in support of the opposition that deposits are a debit to the cash account and a credit to the liability account and held as a liability until the service is rendered, at ...

Excerpt: ....) The motion by the defaulting party based on equitable grounds may be made at any time, provided the party acts with diligence upon learning of the relevant facts. (Trackman v. Kenney, 187 Cal.App.4th at 181; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226‐1230.) Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been “deliberately kept in ignorance of the action or proceeding, or i...

Excerpt: ...s on the same cause of action.” Diaz is not another action pending between the same parties. The Diaz action is a class action, in which the plaintiff is suing on behalf of himself and similarly situated employees. By contrast, the instant action is solely a PAGA action, in which the plaintiff is suing on behalf of the State of California. Therefore, to the extent that the defendants are relying upon Diaz, the statutory grounds are not present....

Excerpt: ...otion: All American appears to have been properly served with the Motion. All American contends that it was not properly served with the Motion for reason Plaintiff filed a Notice of Taking Motion to Compel Hearing Off Calendar on 4‐8‐21. That notice applied to motion filed 3‐12‐21, which Plaintiff took off calendar. Plaintiff refiled her motion and All American was served with this motion and filed its Opposition. As to the motion to com...

Excerpt: ...s David Gash (“Gash”) Matthew Yamashita (“Yamashita”), James Hammermeister (“Hammermeister”), Quorum Green Industries, LLC (“Quorum”); Grizzly Peak Farms, LLC (“GPF Page 4 of 5 I”); Grizzly Peak Farms II (“GPF II”), LLC; Grizzly Peak Farms 3 (“GPF III”), LLC; Touch of Green Holdings, LLC (“TGH”); and Gold Coast Design, Inc. (“GCD”) (Gash, Yamashita and Hammermeister are collectively referred to as the “Direct...

Excerpt: ...f alleges that the District discriminated against him by siding with Sanchez and terminated him without a proper investigation because she is a woman. (Compl., ¶13, 14, 17.) The District argues that Plaintiff was terminated based on the allegations and subsequent investigation and findings of theft. However, other than vague statements made by Plaintiff, the District produced no evidence of the investigation. Plaintiff does not dispute that the ...

Excerpt: ...g that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of...

Excerpt: ...ing of sever or extreme emotional distress; and (3) actual and proximate cause resulting from the conduct. (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050‐51). “A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.'” (Id. at 1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001]). In order to avoid a demurrer, the plaintiff must all...

Excerpt: ...permissibly duplicative and serve no useful purpose, and (4) PNMAC Capital does not allege any facts evidencing that it is entitled to the requested relief. CitiMortgage asserts that PNMAC Capital Management, LLC's ("PNMAC Capital") crosscomplaint asserts four declaratory relief claims in an attempt to rewrite an agreement it entered into more than ten years ago. PNMAC Capital concedes that it entered into a written agreement— the Master Mortga...

Excerpt: ...lement (p. 5), but did not attach a copy of the settlement agreement. Defendants Ewing and Burns responded by filing a motion to contest the good faith of the settlement. Nowhere in their motion do the moving parties express uncertainty regarding the terms of the settlement, express any disagreement regarding the terms of the settlement, complain of the settling defendants' failure to attach a copy of the settlement agreement to their application...

Excerpt: ...es: that she is a dependent adult (¶¶ 7 & 21; § 15610.23, subd. (a)); that she was under the care, and received home health care services from, the defendants (¶¶ 8 & 23); that the defendants were “care custodians” within the meaning of section 15610.17 (¶¶ 10 & 21); that as a result of the defendants' negligence, the plaintiff suffered a broken femur (¶¶ 15 & 26); and that the negligence constitutes “neglect” under the Act (¶ 2...

Excerpt: ...s and unintelligible. (CCP § 430.10(f).) Demurrers for uncertainty are sustained where the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) No such uncertainty exists here. The special demurrers are overruled. 3rd Cause of Action for breach of implied warranty of habitability The elements of a breach of imp...

Excerpt: ...ite Medical); Neuropathy Solutions dba Superior Health Centers (Superior Health); and Alexa Benson (Benson). Plaintiff alleges that he is paralyzed from the waist down by injections he received based on the recommendation of Superior Health, which recommended stem cell injections for knee pain and to increase mobility. Plaintiff alleges the injections were not live stem cells and cost over $13,000.00, many times more than the usual rate. Plaintif...

Excerpt: ...endants arising out of a bicycle with motor vehicle accident. Plaintiffs allege 5 causes of action for: 1) dangerous condition of public property, 2) public entity liability for failure to perform mandatory duties, 3) premises liability, 4) negligence, vehicle, and 5) negligent entrustment. City of Cathedral City demurs to the 1st and 2nd causes of action in Plaintiffs' First Amended Complaint on the following grounds: 1) Plaintiff, SONIA HERNAND...

Excerpt: ...where Plaintiff fell did not constitute an unreasonabley dangerous condition and that the disabled parking space where Plaintiff's mother was parked met all ADA requirements. (Snyder Decl., ¶¶ 9‐10 14‐16.) Based upon Snyder's testimony – which is accepted as admissible without argument – SGMH meets its initial burden to demonstrate that it did not breach a duty of care and that Plaintiff, therefore, cannot establish all of the necessary...

Excerpt: ...duct by subjecting him to unnecessary and unwarranted police investigations. (Compl., ¶31.) He asserts that Sanchez published a false accusation of grand larceny. (Ibid.) Sanchez argues that this conduct was not outrageous because the accusations were true based on Plaintiff's guilty plea in the criminal proceedings. Plaintiff testified that he pled guilty to misdemeanor embezzlement in the criminal matter concerning the alleged stolen property....

Excerpt: ...e complete defense of primary assumption of the risk does not apply to a victim (not in the veterinarian profession) who voluntarily exposes himself to a dog bite. Rather, secondary assumption of the risk applies in which the plaintiff's own fault is assessed under a comparative negligence analysis. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399‐1400 (owners who failed to control their dog could not assert assumption of the risk as a compl...

Excerpt: ...eceived her Declaration in support of a motion for reconsideration. Both Sherron and Williams separately and specially move to strike based on the litigation privilege and either CCP Section 425.16(e)(1)‐(2). Sherron and Williams have met their initial burden to show that their actions are protected speech under the first prong analysis of the Anti‐Slapp statute. The opposition now has the burden of proof to establish that she will prevail on...

Excerpt: ...to CCP §473(b). Defendant moves the court to set aside the default on the grounds the parties agreed that Defendant would purchase Plaintiffs' share of the property. December 17, 2020, defendant's default was taken by plaintiff's attorney without any warning, after the defendant obtained a loan in reliance on the representations of the plaintiffs and eventually, their attorney. Defendant submitted his declaration in support of his motion, which ...

Excerpt: ...he special motion to strike with respect to all other respondents in the case. Finally, the court's tentative is to DENY both sides' requests for costs and attorney's fees, as neither side has submitted declarations or other evidence supporting the requests. The primary question before the court is the propriety of respondents' special motion to strike under Code of Civil Procedure section 425.16,1 the so‐ called anti‐SLAPP (Strategic Lawsuit...

Excerpt: ...�, 140 lbs. The declaration of due diligence reflects that the registered process server made three prior attempts at service on Mr. Callo at the same address where substituted service was made. It also states that after substituted service was accomplished, a copy of the summons and complaint was mailed to Defendant at the same address. A default judgment was entered in February 2016. This is Defendant's third motion to set aside the judgment. T...

Excerpt: ...ion of Christopher Ross (Ross Decl.) ¶¶ 8‐12). In addition, Plaintiff claims that according to former District Attorney Rod Pacheco, Hestrin told Pacheco that the County's lawyers asked Hestrin not to testify in this case that District Attorney Zellerbach was unethical. Defendant County moves to quash. The Court grants the motion to quash as Plaintiff has not shown a compelling need to take Hestrin's deposition. Hestrin is a high‐ranking go...

Excerpt: ... Claimants Trust (1996) 48 Cal.App.4th 976, 978‐979.) The moving party needs to show that the issues in each case are basically the same and that economy and convenience would be served by consolidation. (Id.) Consolidation is proper where there is no risk of undue confusion and prejudice. (Id. at 980.) The unlawful detainer procedures “provide an adequate, expeditious and summary procedure for regaining possession of real property wrongfully...

Excerpt: ... the date of the document and subject matter. Additionally, plaintiff to produce all previously produced email messages in native format. Plaintiff to serve the above within 15 days. The parties are to meet and confer in person or on the telephone within 7 days to determine whether and what search terms should be employed to conduct further search for responsive email messages. Motion denied at this time as FATC seeks disclosure of the alleged �...

Excerpt: ... and pesticide sprayers. Plaintiffs' operative Second Amended Complaint alleged the following causes of action: (1) Failure to Pay Wages; (2) Failure to Provide Lawful Rest Periods; (3) Unfair Competition; (4) Failure to Furnish Accurate Itemized Wage Statements; and (5) Remedies Under the PAGA. The parties participated in multiple mediation sessions, which resulted in a settlement in February 2021. Plaintiffs bring the instant motion for prelimi...

Excerpt: ...Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action Wrongful Death – Negligence, Violations of Penal Code § 245.6, Civil Code §§ 43 and 52.1, Assault and Battery, Negligent Hiring, Supervision and Retention: “In California, all government tort liability must be based on statute.” Bece...

Excerpt: ...oral agreement with defendant Jesus Hernandez (“defendant” or “Hernandez”) for a life estate in property at 194 Pennsylvania Street in Lake Elsinore (“subject property”). (Complaint, ¶ 3.) Plaintiff alleges she “agreed to pay defendant …$139,000.00” for the life estate and did pay him. (Complaint, ¶¶ 3, 10 [“Plaintiff paid the…$139,000.00…for the subject property pursuant to the agreement.”].) Under the agreement, pla...

Excerpt: ...y on Sterling Place in Rancho Mirage. (Complaint, ¶¶ 9, 11, Exhibit A.) Defendant owns property on Verlaine Drive in Rancho Mirage. (Id., ¶¶ 10, 12, Exhibit B.) The Defendant's property is located directly behind the Plaintiffs' property, and the two properties are separated by a brick wall. (Id., ¶ 13, Exhibit C.) The Plaintiffs maintained a row of 25 ficus trees and one fruit tree (standing 25 to 35 feet high) along the back wall bordering...

Excerpt: ...l, is the estimate of 1004 class members still accurate? 2. The Treger Declaration notes there is a San Diego Superior Court case which alleges a claim on behalf of all non‐ exempt employees of Sheraton Operating Corporation arising from alleged meal and rest break violations from May 2019 through the present. There are nine members of the Security Guard class in the present action who potentially fall within the definition of the represented g...

Excerpt: ...vid Wood. Sustain with 30 days leave to amend as to the third (negligence), fourth (UCL), sixth (unjust enrichment), seventh (money had and received), and eighth (equitable indemnity) causes of action as against David Wood. To withstand 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 suff...

Excerpt: ... Organization LLC was defaulted because it was suspended and unable to participate in litigation. The Court is not aware that Zitro has been reinstated and so presumes the opposition is filed on behalf of CAL only. All parties appear to agree that attorneys' fees awarded here should be calculated using lodestar methodology, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PCLM Group, Inc. v. Drexler (2000) ...

Excerpt: ...h cause of action. FACTUAL / PROCEDURAL CONTEXT Petitioners Katherine Robertson (“Katherine”), Dale Robertson, Jr. (“Dale”), Antonio Varela, Jr. (“Antonio”) and Roberto Varela (“Roberto”) (together, “Petitioners”) filed the present petition/motion for relief form the claims filing requirement under Gov. Code § 945.4 on March 10, 2021 against the County of Riverside (erroneously named as Riverside University Health System – ...

Excerpt: ...e court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” There are two forms of relief: mandatory or discretionary. (CCP §473(b).) Relief is mandatory if based on attorney fault and the court must set aside the entry of default, default judgment or dismi...

Excerpt: ...onsistent. It refers to the claims justifying the payment as being both “individual claims” (¶¶ 7 & 8) and as “Plaintiff's PAGA claim” (¶ 12). If the payment is in consideration of a PAGA claim, then the bulk of the settlement must go to the LWDA. Even in the absence of that inconsistency, the Court has its doubts. Kassel justifies the individual settlement on two bases. Neither is convincing. First, he says that the plaintiff is entit...

Excerpt: ...f material fact regarding causation. (Ian Jenkins, M.D.'s Declaration, ¶ 9; Samuel Pleasure, M.D.'s Declaration, ¶¶ 8 and 11.) Plaintiff has provided declarations from medical experts to show the triable issues. The declarations indicate that Altriki failed to meet his required standard of care and that his conduct caused Plaintiff's injuries. Ian Jenkins, M.D. opines that Altriki, as the supervising physician, fell below his standard of care ...

Excerpt: ...ingle cause of action for negligence and the addition of exemplary and punitive damages. Plaintiff asserts that the First Amended Complaint pled causes of action for negligence and assault and battery. The causes of action for assault and battery have since been stricken, via stipulation between the parties. Through the litigation process, however, Plaintiff's counsel has uncovered further evidence and facts indicative that Defendant breached his...

Excerpt: ... (Salisbury) and Ivan U. Cisneros. In an underlying suit entitled Barnum v. Aware Self‐Storage Inc. (BAC 1300908) alleging ADA violations, Plaintiff told its property manager, TNT Self‐Storage Management, Inc. (TNT), to handle the matter. TNT hired SGI who allegedly failed to respond to the complaint, resulting in a default judgment or a stipulated judgment, which Plaintiff was unaware of. On 7/28/20, Plaintiff filed its Second Amended Compla...

Excerpt: ...y concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff 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. (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) There are four circumstances that give rise ...

Excerpt: ...nney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) A special demurrer, other that subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or implied by conduct. The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d...

Excerpt: ...showing that the challenged cause of action arises from protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Code Civ. Proc., § 425.16, subd. (b)(1).) If Defendants meet this burden, the court determines whether Plaintiffs can demonstrate a reasonable probability of prevailing in the action. (Id., at pp. 88–89.) Plaintiffs' first cause of action alleges a violation of 42 U.S.C. § 1983 against individual Defendants Fine and Amer...

Excerpt: ...aint arises from Defendant's exercise of free speech or petition rights as defined in CCP Section 425.16(e). Courts have adopted an expansive view of protected speech to include any statements or writings made before any judicial proceeding, including pleadings, statements, and writings “ in connection with” litigation. A statement or writing is ‘in connection with litigation' if it relates to the substantive issues in the litigation and is...

Excerpt: ...ttorney's fees claims, and (4) punitive damages claims for the Third Amended Complaint (TAC). Page 5 of 14 Plaintiff's contract allegations in the TAC that a privacy policy on a website formed a contract with Plaintiff and that First American breached that contract are inconsistent with and violative of this Court's prior orders and as such are irrelevant and improper. CCP § 436(a) provides that a court may “[s]trike out any irrelevant, false,...