Excerpt: ... Proc., § 1033, subd. (a)(4).) However, Code of Civil Procedure section 1021.5 refers to “successful” parties rather than “prevailing” parties. The plaintiffs argue that a party is “successful” if it obtains the relief sought in the lawsuit. There is no evidence that the plaintiffs obtained any relief as to Select Puppies, Inc, or Brian Mohrfeld. Although both defendants were served, neither appeared. No default was ever entered as t...

Excerpt: ...ruth of the contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs allege ...

Excerpt: ...cial properties and related businesses to Defendant Urwell Diversified Holdings, Inc. and later to Defendant Zenith Homes, LLC with the Plaintiffs carrying back the financing and holding first‐priority deeds of trust based upon the three Purchase and Sale Agreements and Business Purchase Agreements. However, according to Plaintiffs, the purchasers and their agents instead prepared a false set of loan documents to Cardenas by which Cardenas loan...

Excerpt: ...ent that is in the possession of another party. The demanding party must designate documents by specifically describing individual items or reasonably particularizing categories of documents. (CCP §2031.030(c)(1).) “The ‘reasonably' in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials.” (Calcor Space Facility v. Superior ...

Excerpt: ...ination. In the alternative, Wayfair moves for summary adjudication for each of the claims alleged against Defendant. Underlying Facts This is a wrongful termination action. Plaintiff's claims are centered on allegations that the termination of his employment for misconduct was a pretext for Wayfair to wrongfully terminate his employment for making complaints of health and safety concerns to senior management. On March 11, 2019, Plaintiff filed h...

Excerpt: ...he construction of a large glass Porsche automobile dealership (Project). Indigo Auto subcontracted with Defendant Northport Glass & Door, LLC, as a subcontractor, to perform extensive glazing work on the Project. Northport, in turn, contracted with Plaintiff Oldcastle at a fixed contract amount of $774,260 to "engineer and fabricate" "glazing systems" for the Project. After Northport walked off the job, Indigo Auto thereupon hired another subcon...

Excerpt: ... scope of all subject subpoenas to exclude medical information concerning substance abuse, gynecological, and, HIV/sexually transmitted diseases. This motion addresses fourteen subpoenas issued by Defendants for Plaintiff's medical records including psychological records from ten of Plaintiff's health care providers/insurers. Specifically, Defendants are seeking all medical/insurance records, which would potentially include sensitive medical info...

Excerpt: ... demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form pa...

Excerpt: ...sks the court to not take judicial notice of this document because the parties adamantly dispute the proper interpretation of the June 18, 2016, claim. Plaintiff argues since the proper interpretation is contested, it is not “reasonably beyond dispute” and not suitable for judicial notice. Importantly, Defendants do not ask the court to take judicial notice of a specific interpretation of the Claim. The court can take judicial notice of the e...

Excerpt: ...sustains both demurrers as to the first cause of action for quiet title without leave to amend. The Court overrules Lak Hemet's demurrer to the fourth cause of action for nuisance. The Court overrules both demurrers to the fifth cause of action for retaliation as a cause of action is stated under Civ. Code §1942.5(d). The Court sustains Urban Park's demurrer to the sixth cause of action for interference with contract with 30 days leave to amend....

Excerpt: ...ONTEXT This is an action for damages for injuries sustained through bed bug bites in a hotel room. On April 04, 2019, Plaintiff filed the complaint in this action alleging five causes of action for: (1) Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress (“IIED”), (4) Fraudulent Concealment, and (5) Public Nuisance. Defendant demurred as to the first and third causes of action, respectively for Battery and IIED, and move...

Excerpt: ...he contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs allege a direct ...

Excerpt: ...ame moot, Petitioner could be the prevailing party. (Midpeninsula Citizens for Fair Hous. v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1392, fn. 3; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham).) Petitioner sued because the City required her to get a WVAP for her dog, and the City denied her request for a hearing on the WVAP's necessity. Petitioner's claims had merit: the City challenged her pleadings and lost. Peti...

Excerpt: ...vant to the consolidation of construction defect claims because consolidation would not increase the number of homeowner claims, would not change the fundamental character of the individualized homeowner claims by expanding them to absent members of a plaintiff class and would not increase the number or identity of joined third‐party subcontractors or expert witnesses. While Plaintiffs make compelling arguments, they misconstrue the holdings of...

Excerpt: ...he employer, Defendant has unilaterally qualified every response that because it is not the employer of Plaintiff it cannot respond, has insufficient information and/or cannot produce responsive documents. These responses are improper and further are ordered. Plaintiff has alleged in her Complaint that Defendant is the employer of Plaintiff. (Complaint ¶ 3‐ Defendant was added as Doe 1.) While Defendant disputes this allegation, it is not a pr...

Excerpt: ...ns for $175,000 but then attempted to cancel the sale because he received a better offer. Stuart's living siblings, Rose McClain and Ken McClain, and the issue of their deceased brother Steve McClain, Aaron McClain, Charmaine Marie McClain, Meghan Trust and Rebekah Havard (McClain Beneficiaries) filed a Cross Complaint and First Amended Cross Complaint for (1, 3) financial elder abuse, (2) intentional interference with contract, and (4) breach of...

Excerpt: ...DURAL CONTEXT Plaintiffs Neila Toledo and Wilfrido Abundez (together, “Plaintiffs”) filed the complaint (the “Complaint”) in this action on December 14, 2020 against defendants Raymond Villanueva and Heidi Villanueva (erroneously named as Heida Villanueva) (together, “Defendants”). Plaintiffs allege that on July 11 2020 Toledo was walking her dog on the Grand Valley Trail in Riverside County when her dog was attached by Defendants' un...

Excerpt: ...s arising from the automobile accident on April 7, 2019. FACTUAL / PROCEDURAL CONTEXT This case arises from a car accident on April 7, 2019. Plaintiff Malania Studley‐Iman was driving on Route 74 when she was struck head‐on by an oncoming motorcyclist who had crossed into her lane. The motorcyclist was thrown from the vehicle and died from his injuries. Defendants were the EMTs responding to the accident. Plaintiff alleges Defendants took gra...

Excerpt: ...ils to support either objection with sufficient evidence. For example, GM attaches the declaration of a design engineer for GM (Huizhen Lu) who generally states that such designs and engineering are trade secrets. However, the declaration fails to specify the manner in which the particular discovery in this matter involves the genericallydescribed design and engineering trade secrets he identifies. The reply points out that the declaration is fro...

Excerpt: ...served with Plaintiff's Separate Statements. However, the proof of services for the motions indicate that the separate statements were served along with the motions via e‐ mail on 2‐26‐21. (Proof of Service attached to Elliott Decl.) Furthermore, Defendant was able to provide a substantive response to the motion which shows there was no prejudice. Relevance Issue: The parties make the same arguments with respect to all three motions and the...

Excerpt: ...een married to Shalom and Zipora's now deceased son, Asher, claims that after Abraham and Zipora created and omitted Sarahi and Leah from an estate plan, which included a trust, Abraham and Zipora nevertheless promised to provide for Sarahi and Leah and in the three‐month period between Shalom's death in July 2019 and Zipora's death in July 2019, their other son, Abraham moved in with Zipora and used undue influence to prevent her from changing...

Excerpt: ...ports the addition of punitive damages allegations. Plaintiff submits a notice of lodgment of evidence (including certain documents under seal) in support of her motion. Defendant asserts that Plaintiffs proposed Sixth Amended Complaint fails to include any additional facts that would support the addition of punitive damages. Defendant further asserts that when looking at the sufficiency of a proposed pleading, courts look to the allegations with...

Excerpt: ...he truth of the contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs all...

Excerpt: ...the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Here, CrossDefendants neglected their duty to meet and confer as required. It may well be, as CrossDefendants' counsel suggests, that a meet and confer will not resolve this demurrer. The likelihood of a resolution is, however, irrelevant. The California Legislature determin...

Excerpt: ...are generally overbroad, including their requests for records extending back 15 years before the collision at issue. However, the court—like defendant apparently—is confused to some degree at the nature of the injuries at issue. The court will therefore attempt to summarize the evidence contained in the motion, opposition, and reply. The collision in this case allegedly occurred on October 5, 2016, and presumably on the I10 freeway. “Presum...

Excerpt: ...ings in Exhibits 4 through 15, the court takes judicial notice of the filings but not the facts alleged in those filings. (Evid. Code, § 452, subd. (d); see Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) For the balance of the request for judicial notice, the court denies the request and sustains Petitioner's objections. The court sustains Petitioner's objections to AOE exhibits 23, 29, and 36. Addressing the mer...

Excerpt: ...rom any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state constitution in connection with an issue of public interest. (CCP §425.16(e); Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 67.) The act which forms the basis for the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 2...

Excerpt: ...s for production of documents, set one. Defendant was ordered to provide further responses within sixty days of the order. Defendant asked Plaintiff for an additional two‐week extension of the court's sixty‐day order, to which Plaintiffs agreed. (Pardo Decl. ¶¶9‐15.) To date, no supplemental documents have been provided. Instead, Defendant described various excuses of what it terms “unexpected” occurrences as to why it has not served ...

Excerpt: ... decedent Dietrich Thomas was employed by Defendant Barbarian Transport, Inc. at the time of the subject accident. Defendants also contend that the decedent was working “in the course and scope of his employment” with Barbarian Transportation, Inc. when the accident occurred. As evidence, Defendants submit a subpoenaed copy of the Application for Adjudication of Claim filed with the Workers' Compensation Appeals Board (“WCAB”), which was ...

Excerpt: ...Complaint”) in this action on April 5, 2019 against, defendants Robles Pipeline Laying, Inc. (“Robles”), Roberto Robles, Coachella Valley Conservation Commission (“CVCC”) and various other public entities. Plaintiff alleges that on June 1, 2018, while driving his motorcycle on a dirt road, he ran into a fence consisting of a single strand of metal cable strung between two metal posts and suffered serious injuries as a result. (Complaint...

Excerpt: ... action earlier because he did not know of the applicability of these causes of action as a pro per litigant. (Singh Dec., ¶4.) He indicates that he met with an attorney who informed him of the nexus between the claims and Aryal's alleged bad acts. (Id at ¶3.) Generally, the court should grant leave to amend the complaint where the party has a good cause of action which he has accidentally or mistakenly failed to raise in the complaint. (Higgin...

Excerpt: ...ss 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 condition of Defendants' property caused a collision. A...

Excerpt: ...r their granddaughters, Sarahi and Leah, as they allegedly promised to do. More specifically, Aliza (Lisa) Wolf who had been married to Shalom and Zipora's now deceased son, Asher, claims that after Abraham and Zipora created and omitted Sarahi and Leah from an estate plan, which included a trust, Abraham and Zipora nevertheless promised to provide for Sarahi and Leah and in the threemonth period between Shalom's death in July 2019 and Zipora's d...

Excerpt: ... account, leading plaintiff to believe it was necessary as part of processing her entrance into the College and the basketball program. Plaintiff contends that subsequently someone filed a fraudulent FAFSA application with the Department of Education with egregious misrepresentations of facts. Plaintiff asserts she did not file the fraudulent FAFSA Application. The fraudulent FAFSA generated money illegally and Mozga is alleged to have told Plain...

Excerpt: ...o the filing as an impermissible sur‐reply. Defendants are correct that court did not authorize the parties to file supplemental briefing for the continued hearing dates. The general demurrer to the 2nd, 5th, 6th, 8th and 9th causes of action is sustained without leave to amend; The demurrer is overruled as to the 7th cause of action. 10 days leave to answer. Demurrer for Uncertainty A special demurrer lies where a pleading is uncertain, ambigu...

Excerpt: ... an official act of the executive, judicial or legislative departments of the state of New York, and thus of document that could be judicially noticed (Evid. Code, § 452, subd. (c)), it is not relevant to this motion. The request is denied on that basis. To the extent that the plaintiff relies upon it to establish the defendant's “own internal policies” (Oppo., p. 3), those policies are not subject to judicial notice. The declaration of Le m...

Excerpt: ...ve to amend. Analysis: 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 analysis. In their answer, the defendants alleged that the action was barred by the statute of limitations set forth in Code of Civil Procedure section 340.5. (Answers, ¶ 10.) The defendants' motion seeks summary judgment on the basis of the same statute. Section 3...

Excerpt: ... an official act of the executive, judicial or legislative departments of the state of New York, and thus of document that could be judicially noticed (Evid. Code, § 452, subd. (c)), it is not relevant to this motion. The request is denied on that basis. To the extent that the plaintiff relies upon it to establish the defendant's “own internal policies” (Oppo., p. 3), those policies are not subject to judicial notice. The declaration of Le m...

Excerpt: ... Judgment, (3) December 2, 2020 Order in the present action, (4) Order granting Lieberg's Request to be Relieved as Counsel, (5) Substitution of Attorney, and (6) Order Granting Dismissal of bankruptcy case. 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 i...

Excerpt: ...analysis the court must ignore the unprotected acts and focus on the protected activity. However, the court must still determine whether the protected acts constitute the gravamen of the actions alleged in the Cross‐Complaint. The court agrees with Cross‐Defendant that she is being sued for her filing of the complaint and lis pendens, which caused, in part, the breach of the settlement agreement for which Cross‐Complainant is seeking damage...

Excerpt: ...ter); (3) intent to deceive and induce reliance; (4) justifiable and actual reliance on the misrepresentation; and (5) resulting damage. Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) The Second Amended Complaint alleges that St. Pierre, the President of the Community Water Agency misrepresented facts regarding the Water A...

Excerpt: ...this section of the Evidence Code cannot be taken of documents prepared by a private person, which are merely on file with state agencies. (See People v. Thacker (1985) 175 Cal.App.3d 594, 598.) Exh. 2 (Certificate of Status): The request is granted. The court may take judicial notice of “Official acts of the legislature, executive, and judicial departments of…any state of the United States.” (Evid. Code, §452(c); Fellom v. Adams (1969) 27...

Excerpt: ...unity to counter all the evidence offered in support of the motion, “[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) Moreover, to the extent that the new evidence concerns the efforts of the moving parties to resolve the dispute before filing their motion, it is irrelevant. Although counsel should always seek an informal resolutio...

Excerpt: ...ry and proper, when the facts giving rise to the amended allegations were discovered and the reasons why the request was not made earlier. There is no declaration of counsel, and, as a result, it is not clear what Plaintiff is seeking to amend. Is it merely to substitute the plaintiff? If so, it is unclear why K Hovnanian and First Residential oppose the motion—they were dismissed after the court sustained demurrers in March 2020. Generally, th...

Excerpt: ...rejudgment possession is denied. Analysis: Evidentiary Objection The portion of the Cosper declaration to which the defendant objects is inadmissible to prove the contents of the Cooperative Agreement. (Evid. Code, § 1523, subd. (a).) The City's Entitlement to Take the Property The Court may grant a motion for prejudgment possession over the objection of the property owner only if the Court finds, inter alia, that “[t]he plaintiff is entitled ...

Excerpt: ...m interrogatories without objection and within thirty days of this order. Granted as Plaintiff's request to compel Defendant Del Toro to appear for deposition and he is to appear for deposition within the next thirty days at date and time as noticed by Plaintiff. Granted as to the award of monetary sanctions payable by Defendant Del Toro to Plaintiff in the amount of $2,835, which amount the court finds reasonable. Granted as to the request to co...

Excerpt: ... of action for PAGA penalties. The plaintiff now intends to dismiss that action. The settlement agreement between the plaintiff and the defendant provides for the defendant to pay $11,000 to the plaintiff. The case management order requires that if any consideration other than a waiver of costs is given in exchange for a dismissal, it is a settlement that must be approved by the court. Section E.7.b of the CMO requires that, in that situation, pl...

Excerpt: ...ended claim and rejection notice. The court also takes judicial notice of Plaintiff's filing of her complaint with the U.S. District Court on 6/6/19. Plaintiff submitted a claim on 3/27/19, and an amended claim on 4/30/19. District's notice, dated 6/19/19, indicates that the District rejected the claim on 6/11/19. The dispute is essentially whether 6/11/19 or 6/19/19 is the controlling date. Government Code §912.4(a) merely requires the board to...

Excerpt: ... the records of any court of record, a lower court's unpublished decision made under New York law will not aid the court in resolving the present demurrer. (See Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Plaintiff's request that the court take judicial notice of various articles obtained from the Internet (Exhibits A‐E) is denied. The court accepts as true Plaintiff's allegation in the FAC that the insurance industry was a...

Excerpt: ...Civil Procedure sections 430.41 and 435.5 by meeting and conferring with plaintiffs' counsel, either in person or by telephone, concerning the sufficiency of the First Amended Complaint. If the plaintiffs do not agree to amend further, the defendant shall file either an answer or a new demurrer, motion to strike, or both, no later than April 15, 2020. If the defendant fails to file and serve a responsive pleading on or before that date, the plain...

Excerpt: ...s department. Analysis: The FAC, which asserts a PAGA claim for the first time, has not been filed. However, a copy of the proposed FAC is for some reason attached to the proposed order granting preliminary approval. The FAC could have been filed at any time without leave of court. (Lab Code § 2699.3, subd. (a)(2)(C) [“Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of...

Excerpt: ...'s Declaration – Overrule on 1‐10, Sustain on Objections11 and 12; Lotze Declaration – Objection 13 – Overrule as to the first sentence and sustain as to the second sentence. Overrule on 14‐21; Erdman Declaration—Overrule on 22, 24, 25 and 28. Sustain on 23, 26 and 27; Hamilton Declaration—Overrule on 29, 30, 32‐35. On 31, Sustain as to the last two sentences, otherwise overrule; Griffin Declaration – Overrule on 36, 39, and 40....

Excerpt: ...ract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1031.) A contact will be enforced if it is sufficiently definite for the court to ascertain the parties' obligations and to determine whether there has been a breach. (Bustamante v. Intuit Inc. (2006) 141 Cal. App. 4th 199, 209.) To plea...

Excerpt: ...dly worked on the subject toilet. Plaintiff alleges the following in support of her punitive damages claim: As of late January 2020, Defendants knew the toilet at the subject Circle K was unsafe and detaching from the floor at the base. Defendants knew the toilet was missing the metal bolt used to fasten the toilet to the ground. Defendants knew the left side of the toilet was completely disconnected from the floor. Defendants knew the caulking s...

Excerpt: ...for an order shortening time. Defendant then filed objections to remote jury trial and a renewed request to continue trial. First, the court points out that while the amended trial setting order informs the parties that the matter may need to proceed remotely, that decision is made on the basis of the circumstances in existence at the time of trial. In‐ Person Jury Trials Defendant's unopposed motion argued that a jury trial conducted remotely ...

Excerpt: ...on's utilization of the corporate form, the party harmed will not be adequately compensated for its damages.” (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 249.) The SAC incorporated each of the prior allegations, as if set forth in full, in the alter ego claim. Each of the first three causes of action, thereby, allege liability against Klein by way of the fourth cause of action for alter ego. Plaintiff's claim against Klein (and EPR CA) is id...

Excerpt: ...ossell filed a Supplemental Declaration on 3/2/21, and plaintiff filed his opposition on 3/10/21. This tentative ruling addresses only the request on behalf of Wayne Siggard. The motion of defendant Wayne Siggard for his post‐appeal attorney's fees is granted in the amount of $11,250.00. The court finds that the hourly charge of $250.00 per hour is reasonable and that a total of 45 hours of attorney time was reasonably incurred. The declaration...

Excerpt: ...er based on uncertainty should be overruled Defendants argue the complaint is uncertain because plaintiff uses the terms “advances” and “loans” interchangeably within the pleading without explaining the difference. As noted above, a demurrer based on uncertainty must be so uncertain as to make it impossible for defendant to respond. (See Khoury, supra, at p. 616.) The demurrer based on uncertainty is rejected because there is nothing unce...

Excerpt: ...privileged information “that is relevant to the subject matter involved…” (Code Civ. Proc., §2017.010.) It is discoverable if it either would be admissible evidence or “appears reasonably calculated to lead to the discovery of admissible evidence.” Page 3 of 6 Doubts as to relevance should generally be resolved in favor of permitting discovery. (Id.; see Williams v. Sup. Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 542.) Documents ...

Excerpt: ... are separate causes of action. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1016 [Willful misconduct “is a tort separate and distinct from negligence and involves different principles of liability and different defenses”].) Willful misconduct implies “the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intention...

Excerpt: ... days leave to amend as to the 6th cause of action. Plaintiff Glenn Melvin resides in Alberta, Canada. He brings the instant action against Defendants Glen Brayshaw, Michael Nyhuis, Sean Runnels, Vanguard Leisure Properties Real Estate Investment Trust, and VLP Management, Ltd. (collectively, “Defendants”). Vanguard Leisure Properties Real Estate Investment Trust is a Real Estate Investment Trust (“REIT”) created under Canadian law and op...

Excerpt: ... is a nuisance under Civil Code section 3479, which defines a nuisance as “[a]nything which is injurious to health…so as to interfere with the comfortable enjoyment of life or property….” (Complaint, ¶ 112.) A nuisance may be either private or public. A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflict...

Excerpt: ...tion, affirmative defense, claim for punitive damages or duty. (CCP §437c(f)(1).) A defendant can meet his initial burden by showing that on or more elements of the cause of action cannot be established, or that there is a complete defense. (CCP §437c(p)(2).) 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 evid...

Excerpt: ... exists. Declaratory Relief: The COA for Declaratory Relief fails because there is no actual or present controversy between Plaintiff and Defendant “with respect to their interests in the Subject Property and their rights and duties under the Oral Agreement.” First, in a prior unlawful detainer action filed by Defendant against Plaintiff in November 21, 2018, relating to the sublease of the subject property, a judgment was entered in favor of...

Excerpt: ..., concerning the strict products liability claims, the negligent products liability claims, and the breach of warranty claims, respectively. As to the first issue, concerning the negligent claims, the Court has no tentative ruling. The parties shall be prepared to discuss the following issues: 1. As Southstar notes, the issue is whether the Privette‐Toland doctrine shields Southstar from liability. That shield is provided to the landowner who h...

Excerpt: ...provides the requested documents. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. (CCP §2031.310.) “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) Informa...

Excerpt: ...ions regarding Hendrix and other employees at any of their properties. Any similar acts of sexual impropriety by any employee before or after Plaintiff's incident are discoverable under Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566 and similar cases. Defendants rely on boilerplate objections that fail to comply with the requirements set forth in Code of Civil Procedure section 2031.240. The motion is gra...

Excerpt: ... issue in this demurrer. In relation to demurring Defendant Aceves, the First Amended Complaint alleges that she was Plaintiff's employer, manager, corporate agent, and supervisor and, on information and believe, that Aceves dictated Plaintiff's compensation and participated in hiring and firing Plaintiff. It alleges that Aceves controlled Plaintiff's work and set corporate policies and that Plaintiff believed that Aceves was her employer. Plaint...

Excerpt: ...n matters embraced in" or "affected" by a pending appeal. The Banc argues that the claim made in the FAC that the court's setoff did not violate the Bank's rights as a secured creditor or under a Subordination Agreement signed by the Bank, E‐Commerce Trade, LLC and ECL encompasses the Bank's Third Cause of Action for Breach of Subordination Agreement at issue in the Bank's FAC and that adjudication of this cause of action in this proceeding cre...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: ...they are directed is not material to the Court's analysis. Actuant failed to meet its initial burden by failing to address all of products alleged to be defective in the operative complaints. A summary judgment motion must show that the “material facts” are undisputed. (CCP § 437c(b)(1).) The pleadings determine what issues are material in a summary judgment motion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto Blue ...

Excerpt: ...n matters embraced in" or "affected" by a pending appeal. The Banc argues that the claim made in the FAC that the court's setoff did not violate the Bank's rights as a secured creditor or under a Subordination Agreement signed by the Bank, E‐Commerce Trade, LLC and ECL encompasses the Bank's Third Cause of Action for Breach of Subordination Agreement at issue in the Bank's FAC and that adjudication of this cause of action in this proceeding cre...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: ...laintiff Sears generally alleges that Defendant Fort CRE fraudulently and wrongfully refused to complete the sale of certain assets, including a senior loan and deed in lieu of foreclosure, for the Colony Palms Hotel. Sears was interested in buying a senior lien on the hotel property being sold at auction through Fort CRE's broker, Debt Exchange. Sears did not enter a bid at the auction that took place July 23, 2020. But after the action, Sears l...

Excerpt: ...are to Sohal and Pham Dental Corporation dba Perris Modern Dentistry (“Dental Office”) on November 3, 2017, at which time defendant Sherly Sohal, DDS (“Dr. Sohal”) placed temporary dental crowns. Permanent crowns were placed several days later. He continued to experience dental pain. On February 12, 2018, he returned to the Dental Office, complaining of bleeding gums that were tender to the touch. He was diagnosed with chronic moderate to...

Excerpt: ... 310‐11 [judicial notice of release and reinsurance contract].) Plaintiff's Opposition Request for Judicial Notice Plaintiff requests that the court take judicial notice of orders issued in three lower state courts in North Carolina, Nevada and Ohio. (Exhibits A, C‐D), as well as a transcript of a proceeding in New Jersey state court (Exhibit B). The request is denied. While the court may certainly take notice of orders issues in any court of...

Excerpt: ... amend. The Court overrules Defendant Adriane Rodriguez's demurrer. The Court sustains Defendant Tsai's demurrer without leave to amend. The Court sustains Defendant Afifi's demurrer without leave to amend. The Court overrules Defendant Alomari's demurrer. Defendants Rodriguez to file answers within 30 days. FACTUAL / PROCEDURAL CONTEXT Plaintiff Troung Dinh Doung, M.D. alleges that he is a cardiologist with a certificate in Clinical Cardiac Elec...

Excerpt: ...ey contend they are entitled to fees pursuant to CCP § 2033.420 as Plaintiff failed to admit that the FEHA claims were time barred. In actions brought under FEHA, “the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code § 12965(b).) It has been the ...

Excerpt: ...al Motors, LLC (“Defendant”). Plaintiffs received an express written warranty, including, a 3‐ year/36,000‐mile express bumper to bumper warranty, a 5‐year/100,000‐mile powertrain warranty which, inter alia, covers the engine and transmission. Plaintiffs allege that the subject vehicle contains numerous defects, including a cooling system defect, which Defendant allegedly concealed. Plaintiffs delivered the subject vehicle to authoriz...

Excerpt: ... or proceedings has been taken. In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The proofs of service filed on 9‐25‐20, show the date for service of the summons and complaint as 9‐22‐20. The Request for Entry of Default was filed on 11‐2‐20. The declara...

Excerpt: ... or petition for redress of grievances.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 311‐312 (“Flatley”).) Because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by the anti‐SLAPP statute. (Id. at p. 313.) To prevail on an anti‐SLAPP motion, the moving party must first make a prima facie showing that the claims arise from the defendant's exercise of free speech or petit...

Excerpt: ...d on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Only TQL filed evidentiary objections, all of which are overruled. Motion A defendant moving for summary judgment bears the initial burden of proving 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. (C.C.P. § 437c(p)(2...

Excerpt: ...f the court finds the following two things: (1) the admission resulted from mistake, inadvertence or excusable neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (CCP §2033.300(b).) \ The court finds mistake, inadvertence and/or excusable neglect. The motion is accompanied by the declaration of Plaintiff's Attorney Shelly Ziese who states she made an inadvertent t...

Excerpt: ... specificity.” However, there is no breach of contract action alleged so, the requirement is inapplicable. Uncertainty The Second Amended Complaint in this case is a prime example of an uncertain complaint. Plaintiff has not clearly alleged the conduct engaged in by the specific Defendants to support the causes of action alleged in the SAC. There are very few factual allegations, and a lot of references to statutes, which are not connected; the...

Excerpt: ... he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cannot reasonably discover them, and where the defendant actively conceals discovery from plaintiff. (Warner Con...

Excerpt: ...ment v. Alegra (2009) 177 Cal.App.4th 1277, 1294). Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. (Id.) Defendant complains that Plaintiffs sent a meet and confer letter at the last minute, only 8 days before the deadline to file a motion to compel, showing bad faith. Plaintiffs accuse Defendant of dumping documents on ...

Excerpt: ...on. To assure uniform results as to arbitrability of disputes subject to the FAA, conflicting state law is preempted under the Supremacy Clause. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352.) The FAA has been held to preempt a variety of types of employment disputes subject to arbitration agreements, e.g., Cal. Labor Code, §229 which authorizes lawsuits for unpaid wages “without regard to the existence of any private agreement to ...

Excerpt: ...inkle and Margaret Stutz (together, “Individual Defendants”). (DRMC and Individual Defendants are collectively referred to as, “Defendants”). Plaintiff alleges that on October 22, 2019, DRMC terminated her employment as a nurse in the Labor and Delivery unit at the hospital. (Complaint, ¶¶ 13‐20.) Plaintiff further alleges that her employment was wrongfully terminated in retaliation for Plaintiff's communication of complaints/concerns...

Excerpt: ... record or file. Notice is not taken of truth of matters stated. (Evidence Code, §452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Granted as to No. 2: judicial notice may be taken of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evidence Code, §452(b).) Plain...

Excerpt: ... him by Plaintiff and transfer of title to real property to revocable trust of which Defendant Susan Frydrych, Adelman's daughter is the beneficiary. Plaintiff alleges the following as to the agreement for legal services and transfer of assets: Jerome Adelman entered into an agreement with Plaintiff for legal services in the matters of Ronald Adelman v. Jerome Adelman, Los Angeles Superior Court Case No. LC097376 on August 12, 2012; and Jerome Ad...

Excerpt: ...arty establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of Civ. Proc., § 437c(c). A defendant moving for summary judgment bears the initial burden of proving 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...

Excerpt: ...(4) prohibited from public nudity; (5) prohibited from altering and/or removing Common Area property without permission of the Associations Architectural Committee or the Association's Board; (6) prohibited from spraying noxious chemicals on the Property and/or Common Areas and (6) For Damages, including but not limited to costs to repair/restore damage Defendants caused to the Common Areas, according to proof at trial. The 2nd cause of action fo...

Excerpt: ...the case back to active status. FACTUAL / PROCEDURAL CONTEXT Plaintiffs are the surviving sons of the decedent James Arlin Curl who have filed this action, against a Residential Care Facility for the Elderly (“RCFE”). James Alan Curl, in his representative capacity, alleges a claim for elder abuse under the Welfare and Institution Code and negligence. James Alan Curl is joined by David Cline Curl, in their personal capacities, and have brough...

Excerpt: ...the district's high school which tenure lasted for approximately ten years. For the 2018‐2019 school year, petitioner was transferred to Felix J. Appleby Elementary (“Appleby”) to teach special education in the “Bridge Program.” Plaintiff contends that he was inadequately trained for the position and was not provided with proper resources, and he further alleges that the move was a punitive one. Petitioner's termination from the distric...

Excerpt: ...discovery is not limited to documents admissible at trial. Discovery may concern information that is itself admissible or that is reasonably calculated to lead to admissible evidence. Documents related to the technical service bulletins for the subject vehicle may be admissible in evidence, but, even if they are not, the bulletins may lead plaintiff to other evidence and witnesses that are admissible. As to No. 26: This is similar to No. 25. Just...

Excerpt: ...estbound Route 60 when Defendant Jesus Bautista Loya, who was driving eastbound, lost control when he came into contact with a flooded area and crashed into Plaintiffs. Plaintiff Brian Pucio is Plaintiff Donna's spouse and asserting loss of consortium. On 11/15/19, Plaintiffs filed a complaint for: (1) dangerous condition of public property; and (2) negligence. Plaintiffs move for trial preference based on Plaintiff Sieglinde Lashkin's age (92 ye...

Excerpt: ...er, McBride and Opitz purchased and sold, or attempted to sell, a number of residential properties. McBride and Opitz dispute their rights and responsibilities as to title to the properties, rights to profits from the sales, and whether and in what amount each has made contributions to the partnership. (SACC ¶¶18‐33.) Plaintiff Ali Galam, as assignee of James McBride, filed his Complaint on July 5, 2018 and named Opitz as defendant. On August...

Excerpt: ...a)(1), 576; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19.) But proposed amendments seeking to add new or different claims or causes of action should not be permitted if they seek to add causes of action that are not sufficiently pleaded. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652.) The Court finds moving party has demonstrated a valid basis to add TFS as Doe 1 and to amend the complaint to include causes o...

Excerpt: ...or $175,000 but then attempted to cancel the sale because he received a better offer. Stuart's living siblings, Rose McClain and Ken McClain, and the issue of their deceased brother Steve McClain, Aaron McClain, Charmine Marie McClain, Meghan Trust and Rebekah Havard (McClain Beneficiaries) filed this First Amended Cross Complaint for (1, 3) financial elder abuse, (2) intentional interference with contract, and (4) breach of fiduciary duty based ...

Excerpt: ...nded Complaint are sustained as to all causes of action. The sustention is without leave to amend unless Plaintiff articulates at the hearing what facts she can truthfully allege that would create a reasonable possibility that the defects identified by Court and counsel would be cured. (Code Civ. Proc., § 430.41, subd. (e)(1).) Analysis: The Court does not consider the plaintiff's declaration in support of her opposition. It consists solely of f...