Excerpt: ...s that it is not a party to the CC&Rs it is alleged to have breached. For the following reasons the motion is granted without leave to amend. US Bank is not a party to the CC&Rs. The First Amended Complaint (“FAC”) is based upon the following allegations: “After obtaining the Subject Property through an assessment lien foreclosure sale, Plaintiff made substantial repairs and improvements so as to be able to rent out the Subject Property or ...

Excerpt: ...nt's position that Mr. Garcia's deposition should not go forward until he is properly served with an appropriate subpoena is reasonable. In the absence of a subpoena, Mr. Garcia has no obligation to respond to Defendant's document demands, and in the absence of a voluntary production, Defendant would be forced to serve a subpoena and potentially move to compel a response to its demands (and possibly a further deposition). Moreover, the proposed d...

Excerpt: ...able claim to ownership of stock in the corporation. She provides no corporate governing documents, no stock certificates, no corporate minutes. As defendant notes, the plaintiff in a shareholder derivative action must own stock throughout all relevant time periods. Corp. Code §800(b); Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1119. Furthermore it is unclear that this is appropriately brought as a shareholder derivative action. To the extent tha...

Excerpt: ...ses, there has been no change in the law. The request of Defendants Grewall to continue hearing on this matter 60 to 90 days to after the Planning Commission and Board of Supervisors meet is denied. It is speculative to say that definitive action will take place and the next meeting of those entities. The authority of local jurisdictions to regulate or completely ban commercial cannabis activity is well established. Local zoning laws such as the ...

Excerpt: ... to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. On 04/03/2105, Plaintiff filed her original complaint for: (1) assault, (2) battery, (3)intentional infliction of emotional distress (“iied”) and (4) breach of lease based upon allegations that from April 10, 2014, through February 2015, Plaintiff, who leased residential property from Defendant, was by threat of use of a gun, assaulted by Defendant, that on a numbe...

Excerpt: ...alleged personal loans were part of the prior litigation and regardless of whether some portion of Vega's claims may be barred, a general demurrer does not lie to only a part of a cause of action. See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167. Further, the doctrine of judicial estoppel is inapplicable, as Vega was not successful in asserting his allegedly inconsistent position in the prior action. See Aguilar v...

Excerpt: ... rights have been vested under the statute, a repeal of the statute without a saving's clause will terminate all pending actions based on the statute. Rakin v. Long Drug Stores California, Inc. (2009) 169 Cal.App.4th 1246, 1256. However, this cause of action may survive if the facts comply with CC2924.11(a). 2COA: Sufficient facts are alleged to contend that the single point of contact was not provided. 3COA: The facts here appear quite similar t...

Excerpt: ...een the same parties on the same cause of action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) Defendant claims without reference to the causes of action asserted herein, much less, any analysis of those causes of action and the matters pending in the Family law court that this matter is still pending in the Family Law court. Without more, the Court cannot determine whether this action is barred by the Family Law ...

Excerpt: ...urther, neither Code of Civil Procedure section 428.60 nor California Rules of Court, rule 3.110(c) provide a basis for a motion to quash resulting from a delay in serving the cross‐complaint. (See Rules of Court, rule 3.110(f) [order to show cause for sanctions as only remedy for a violation of rule 3.110(c)].) ...

Excerpt: ...r class member). He implies, but does not expressly state, that any settlement larger than $750,000 would not survive constitutional scrutiny. Page 2 of 3 a. Does the plaintiff contend that this is the largest award that could pass constitutional scrutiny? b. If so, why do you believe that this is the maximum? c. If not, what is the maximum, and why? 2. The plaintiff asserts: “Defendant does not possess sufficient assets to pay an award of stat...

Excerpt: ...s Reinsurance Company of America v. Borton Petrini LLP (2013) 221 Cal. App. 7th 890, 897. The only exception to the broad rule in where the legal malpractice claim is acquired as an incidental part of the purchase of one insurance company by another. In its opposition, Plaintiff does not opposed the demurrer on this ground in light of the court's prior ruling. Instead, Plaintiff argues that it has other claims to allege against Defendants, specif...

Excerpt: ...ng that Kollins could not assert personal ownership of funds that were alleged to have been taken from Carpet Depot, LLC that the cause of action belonged to Carpet Depot. The court then sustained Joseph's demurrer to the 1st cause of action in the First Amended CrossComplaint (“FACC”) on the same grounds, with leave to amend to add a potential derivative claim on behalf of Carpet Depot, LLC for conversion. Joseph again demurred to the Second...

Excerpt: ...dditionally, plaintiff offered to provide a written answer to the question. (2) ELIZABETH – “did you make the decision to sue Tom and Mizuki?” – GRANT The Opposition fails to establish that ELIZABETH's decision to sue was made in the course of attorney‐client privileged communications with her attorney. (3) ELIZABETH – what bank the Derby house sales proceeds went into – GRANT Given the dispute and the cross‐claims for fraud and f...

Excerpt: .... Finally, the claim for Dangerous Condition of Public Property fails as neither party disputes that CTAI was not a public entity or public employee. Request for Judicial Notice by CTAI: Granted as pursuant to Evidence Code Sections 451, 452, and 453. Objections stated by CTAI: Granted as to Nos. 14, 16, and 17 to the Declaration of Glenn Asakawa as the statements lack foundation and/or are speculative. Overruled as to objection 22. Court decline...

Excerpt: .... Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556, to determine the effect of res judicata, defendant must show three things, as follows: 1) the present action and the prior actions raise the same, identical claim; 2) the prior action resulted in a final judgment on the merits; and 3) the party against whom res judicata is asserted was a party, or in privity to a party, to the prior action. Defendant claims Plaintiff was a party to ...

Excerpt: ...ian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386‐387.) The reasoning of the Court of Appeal is the same: “[A] defendant cannot rely on a predispute waiver by a private employee to compel arbitration in a PAGA case, which is brought on behalf of the state.” (Betancourt v. Prudential Overall Supply (4th Dist., div. 2, 2017) 9 Cal.App.5th 439, 445, emphasis added.) The MAP was not signed by the State and is therefore irrel...

Excerpt: ... irrelevant to the Court's analysis. The plaintiff alleges that the defendant violated Labor Code section 2802 by failing to reimburse travel expenses incurred for “pre‐employment drug testing and physical examination . . . .” Subdivision (a) of that section requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, o...

Excerpt: ...disregarded. Lifschutz cites Code of Civil Procedure section 437c(b)(3) which sets forth that opposition paper requirements. While section 437c(b)(3) does not reference other facts that the opposing party believes are undisputed and material to the court's ruling, CRC, rule 3.1350(f)(3) provides that the content of the separate statement in opposition may include additional material facts pertinent to the disposition of the motion, which Page 2 o...

Excerpt: ...(CCP. §§2030.210, 2030.220, 2030.230 and 2030.240 for interrogatories and C.C.P. §§2031.210, 2031.220, 2031.230, 2031.240 and 2031.280 for request for production of documents); and (2) the party's failure to serve timely responses was due to mistake, inadvertence or excusable neglect. The discovery at issue in the motions to compel further responses contains objections, responses or a hybrid response with objection. An objection to an interro...

Excerpt: ...continue the case management in this case, currently scheduled for 5‐9‐18, to 5‐10‐ 18, to coincide with the trial setting conference in the Garcia case. Any party wishing to oppose that order should appear on 3‐29‐18. Analysis: The demurrer is overruled because it does not dispose of the entire cause of action alleged. “No action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing re...

Excerpt: ...nt to Code of Civil Procedure section 1019.5, forthwith. On 10/24/17, Plaintiff James Foxx filed his complaint against Defendants Daniel Foxx, Jeff Curci, Bennion Deville Homes, Roseanne Foxx, D&R Foxx, Inc. and Sterling Ridge Lot 1, LLC alleging 15 causes of action. On 1/12/18, Plaintiff dismissed the 2nd and 9th causes of action, leaving the following 13 causes of action: 1) breach of contract, 3) declaratory relief, 4) breach of fiduciary duty...

Excerpt: ...demarks on the part of defendant John Suhr. As to the 2nd and 3rd causes of action, the court rejects the argument that abuse of control and corporate waste cannot be asserted as separate breaches of fiduciary duty. As to the 5th cause of action, the FAC adequately states the basis for irreparable harm to support an injunction claim. Plaintiff alleges that defendant John Suhr has claimed ownership of the trademarks, has sought to license the trad...

Excerpt: ...forcement Officer Marcella Villanueva: Overrule Objections to Paragraphs 5, 11, 12, 13, 20, 25, 27, 30, 32 and Exhibits F and K; Sustain Objections to Paragraphs 8, 15, 18, 19, 23, 28, 29, 31 and Exhibits C, G, I, L. As to the Declaration of attorney Nazik Hasan: Overrule Objections to Paragraphs 4, 11, 12, 13, 14, 18, and Exhibit A; Sustain Objections to Paragraph 9; and the Objection to Paragraph 17 is moot. Page 3 of 3 As to the Merits: The au...

Excerpt: ...is pervasive and seventh cause of action – whether there is extreme and outrageous conduct); denied as to the second, eighth and ninth causes of action on the grounds that Defendant has failed to meet its initial burden. First Cause of Action for Sexual Harassment: Plaintiff has provided sufficient evidence to establish a triable issue of material fact regarding this cause of action. She has provided evidence that over a two‐month period of t...

Excerpt: ...r. Thereafter, the demurring party must file a declaration demonstrating compliance with those provisions by describing “the means by which” the parties met and conferred. (§ 430.41, subd. (a)(3)(A).) The declaration of Wasser – which is identical for all three demurrers – does not describe the means by which she met and conferred with opposing counsel, or otherwise demonstrate compliance with the “in person or by telephone” requirem...

Excerpt: ...his court granted UPS summary judgment as to the Cross‐Complaints filed by Mission Linen, Adam Hudson and JFK Memorial as those cross complaint only sought indemnity, apportionment, contribution and declaratory Page 2 of 11 relief, none of which had merit in light of the court's ruling that UPS was entitled to summary judgment as to all causes of action in Navarro's Complaint. UPS filed identical memorandum of costs for $13,724.87 against Plain...

Excerpt: ... re: Alter ego, Indemnification, Emotional distress, Attorneys' Fees, Punitive Damages, UCL damages, Injunctive relief. For the following reasons, the motion is denied as to Alter ego, Indemnification, Emotional distress, Punitive Damages, Injunctive relief and granted without leave to amend as to Attorneys' fees and UCL damages. Alter ego‐As discussed in reference to the demurrer, Plaintiffs have alleged alter ego. Indemnification‐The Settle...

Excerpt: ...equest to only claimants in California and that are within the Defendant's database is most reasonable. Sanctions are not awarded because the initial RFP was not so narrowly tailored as that which resulted from the meet and confer process. ...

Excerpt: ... distributed by [Defendant].” The issue is “evidence, describe, refer, or relate” which is broad to encompass virtually any document—which Plaintiff never addressed in her separate statement or meet and confer In opposition, Defendant appears to have no issue with producing its Lemon Law policies, and Plaintiff failed to address why that is not sufficient. Nos. 23 (technical service bulletins) and 24 (recalls) for the type of car at issue...

Excerpt: ...al argument, this court granted moving party leave to respond to Robledo's late filed declaration. In addition, the court allowed leave to file supplemental briefing on whether or not the contents of the declaration raised a triable issue of fact as to any of the causes of action. In addition, the court was going to further consider arguments of counsel concerning the Intentional Infliction of Emotional Distress (“IIED”) claim. In response, D...

Excerpt: ...pent on these particular motions and this case seems beyond reasonable when one returns to the subject matter of the litigation which, as far as the moving party, is a surrender of money with no claim. Also the number of attorneys working on the case seems high. However, to recognize the efforts of each attorney seems reasonable. Finally, the hourly rate seem reasonable. Therefore, the court reduces the fees to one‐half of the hours prayed for ...

Excerpt: ...of Civil Procedure section 1019.5, forthwith. The First Amended Complaint (“FAC”) for: (1) fraud, (2) negligent misrepresentation, (3) breach of contract, (4) slander of title, (5) quiet title, (6) tortious interference with prospective business advantage, (7) unfair competition, (8) declaratory relief, (9) injunctive relief, (10) financial elder abuse, (11) tortious breach of the implied covenant of good faith and fair dealing and (12) contr...

Excerpt: ... section 2966, 4) negligence, 5) accounting, and 6) unfair business practices. Thereafter, on 1/9/18 Plaintiffs filed a First Amended Complaint (“FAC”) alleging 8 causes of action, including the original 6 causes of action plus 7) intentional representation, and 8) negligent misrepresentation. Page 8 of 11 Defendant demurs asserting that the facts set forth in the original verified Complaint are distinctly different than those in the FAC and ...

Excerpt: ...ary approval on May 21, 2018, at 8:30 A.M. in this department. If a second motion is filed at least three court days before that date, the Court is likely to vacate that status conference. Page 3 of 7 Analysis: New Evidence With Reply New evidence is generally not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) Plaintiff submits his declaration and deposition transcripts, as well as the supplemental declar...

Excerpt: ...aring for 3/26/18. Opposition was to be filed on or before 3/13/18, and reply Page 2 of 3 on or before 3/19/18). The court's order also provided that all members were to be provided notice at least 20 days before the hearing either via e‐mail or first‐class mail, pursuant to Civil Code section 4040, based on each member's preferred method of communication. Although the court order provide 20 days' notice the code provides 15 days' notice whic...

Excerpt: ...tired faculty member. There are no material facts are in dispute and the parties agree the petition raises a question of law. There is no administrative record. Request for Judicial Notice: The Request for Judicial Notice is granted pursuant to Evidence Code 452(b) and (c). “It is settled principle that administrative agencies have only such powers as have been conferred upon them, expressly or by implication, by constitution or statute.” (Fe...

Excerpt: ...nc., dba Paragon Schmid Building Products. Analysis: The arbitration provision in the contract between K. Hovnanian and BSG provides that the only disputes that must be arbitrated are disputes that arise “out of this Master Subcontract . . . , including disputes involving claims made by homebuyers, . . . which involve[] a matter with economic value in excess of the jurisdictional limit of a small claims court….” (See Exh. S to decl. of Josh...

Excerpt: ...sagree with one another. Their opinions are supported by Plaintiff's medical records. Hence, there are disputed material facts as to whether defendant Dr. Ha's actions fell below the applicable standard of care and whether that alleged failure to meet the applicable standard of care caused or contributed to Plaintiff's injuries. Plaintiff presented evidence (response to Form Interrogatory 2.6) that defendant Dr. Ha was an employee of defendant Ri...

Excerpt: ... declaration was actually filed with the motion. The only evidence in support of the motion is the declaration of Field filed with the reply. The Court will not consider that evidence, because the opposing parties have not had a chance to respond to or rebut it. Because this denial is not on the merits of the motion, it is without prejudice to the filing of a second motion that is supported by evidence. Alternatively, if the Field declaration was...

Excerpt: ... through illusory modification proposals in order to charge exorbitant processing and late fees. (FAC, ¶73.) This allegation arguably constitutes an unfair business practice. Although many of the other allegations are unclear or improper, Plaintiff has stated a cause of action based on this allegation. Although, Nationstar argues that Plaintiff does not have standing to bring a UCL cause of action because he was granted a loan modification and n...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐12‐18. �...

Excerpt: ...ndant Priamos' and defendant Thorson's requests to apportion the remaining costs are DENIED. Item 1e, 1f and 1h‐ Fees Related to Pro Hac Vice Applications: Plaintiff failed to demonstrate, discuss, or explain why the skill and expertise of an out of state attorney were reasonably necessary to the litigation. Item 16a,16c and 16g‐ Mileage to Appear for Hearings and Courtcall: Plaintiff claimed $177 in fees as mileage for its attorney to appear...

Excerpt: ...Maher then took Wolcott's default on 09/28/2017. Default Judgment was entered on 1/15/2017. The motion is based upon the grounds that the default and default judgment were entered as result of Wolcott's excusable neglect. For the following reasons, the motion is denied: Wolcott has not shown that the default and default judgment were entered as result of his excusable neglect. Wolcott states that he did not file an answer because he thought that ...

Excerpt: ... had moved out of his house after his mortgage lender threatened to foreclose, moved back into his house in September 2014 and expended funds to repair damages to his house that were made while the house was vacant based upon Ocwen's representation in April 2014 that Ocwen would consider his application for a loan modification. (TAC ¶¶ 56‐59.) The demurrer is based upon the grounds that the 2nd cause of action fails to state facts sufficient ...

Excerpt: ...reponderance of the evidence that a defendant is liable for financial abuse of an elder, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to plaintiff reasonable attorney's fees and costs. (Emphasis added.) This is a unilateral fee‐shifting provision under which fees may be awarded to a prevailing plaintiff but not a prevailing defendant in order to encourage the effective enforcement o...

Excerpt: ...ned on a Motion for Judgment on the Pleadings. (The Court did note correspondence between Plaintiff and defendant Priamos concerning attorney's fees and that defendant Priamos filed the Motion to Dismiss after the correspondence.) A party who qualifies for a fee award should recover for all hours reasonably spent, including those spent on fee related matters unless special circumstances would render an award unjust. (Serrano v. Unruh (1982) 32 Ca...

Excerpt: ...ns on the ground of lack of jurisdiction of the court over him or her. When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal. App. 4th 403, 413.) In this case, the Summons and Complaint were served on August 1, 2017. The Page ...

Excerpt: ...rogatories 2 ‐ 15, 18 ‐ 20, 22 ‐ 25, 27 ‐ 28, and 31 ‐ 42. Sanctions in the amount of $100.00 are imposed against Plaintiff and shall be payable to Defendant within 30 days. Plaintiff's objections to the Special Interrogatories are largely without merit. With respect to each Special Interrogatory to which Plaintiff actually provided an answer in whole or part, the answer was preceded by the phrase, “to the extent it can be answered,�...

Excerpt: ... that the Opposition is untimely. The Court also notes that Defendant failed to comply with the meet and confer requirements under CCP § 435.5 prior to filing the motion. The hearing on the motion to strike was continued to 8:30 a.m. on April 20, 2018 in Department 7. Defendant is ordered to meet and confer with Plaintiff by phone or in person for the purpose of determining whether an agreement can be reached that would resolve the objections ra...

Excerpt: ...ontract. Civil Code §1559 specifically allows a third party beneficiary to enforce the contract. 2COA (Elder Financial Abuse): The complaint only contains conclusory allegations. This COA requires factual allegations to support the assertions. Rice v. Clark (2002) 120 Cal.Rptr.2d 522, 527, as cited by the Plaintiff does not address pleading issues. 3COA (Fiduciary Duty): Plaintiffs fail to cite to any authority to support this assertion. 4COA (C...

Excerpt: ...g, LLC agreed “to provide Premier Passover with temporary Event and Banquet staff…” for a 7‐day Passover celebration at the Westin Mission Hills Resort in Rancho Mirage in April, 2014. (SAC, Exh. A; SAC ¶ 24.) Spherion alleges that Spherion is a partnership, that Defendants Barry and Simon Werner are the owners of D KMR Tours, D Baruch Erblich is the owner of Defendant Afikoman Tours, that all are partners in Premier Passover a partnersh...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ...itle to Plaintiff's real and personal property through an alleged fraudulent investment scam. Demurring Defendant, 5AIF Sycamore 1, LLC (“5AIF”) loaned money that was used to purchase one of subject pieces of real Page 3 of 4 property, the Shadow Mountain property, and is named on and demurs to the 10th cause of action for false promise, 14th cause of action for declaratory relief, 15th cause of action to quiet title and 16th cause of action ...

Excerpt: ...iled this motion timely. This argument fails. The mandatory relief provisions of section 473(b) are in pertinent part as follows: “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his ...

Excerpt: ...limit waives the right to compel a further response to the interrogatories. (CCP §§ 2030.300(c); see Vidal Sassoon, Inc. v. Sup.Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685.) The 45‐day time limit is mandatory and “jurisdictional” (court has no authority to grant a late motion). (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) The 45‐day deadline runs from the date the verified response is served, not from the ...

Excerpt: ... this litigation is something that would never have been in FCA's control – an aftermarket alteration. Finally, DCH and Wells Fargo correctly assert that a good faith settlement does not preclude their statutory indemnity cause of action under Civil Code §1792. ...

Excerpt: ...g fee. C.C.P. §425.16 provides a summary procedure by which a defendant can dispose of a lawsuit brought primarily to chill the valid exercise of the constitutional rights of free speech and right to petition, at the pleading stage to avoid the cost and delay of lengthy litigation. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278. Anti‐SLAPP motions to strike have two prongs. First, the moving party must show that the anti‐S...

Excerpt: ...�11.) In 2012, Bryant started to talk to Moody (KPM's treasurer) about KPM obtaining a policy through Bryant. (Compl. ¶12.) Bryant, on behalf of Mid‐Century, was actively soliciting Plaintiffs' business. (Compl. ¶12.) The Complaint also alleges Bryant was “a highly experienced” agent. (Compl. ¶12.) Moody told Bryant that “KPM would need insurance that covered the kinds of risk that KPM faced.” (Compl. ¶13.) The Complaint alleges tha...

Excerpt: ...See Undisputed Material Facts Nos. 10 and supporting evidence consisting of Exhibit 6 to plaintiffs' complaint, the declaration of Ron Nielson, ¶¶ 6‐9, and declaration of Kathleen Nielson, ¶ 6.) Even though the Moving Party claims that they were not managing the property, evidence to the contrary exists. For example, they submitted an invoice regarding charges pertaining to attorney services related to the conviction as well as management fe...

Excerpt: ...169; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 747.) The failure to label the second cause of action as one for “professional negligence” does not render the Complaint uncertain. Demurring Defendants can reasonably determine what issues must be admitted or denied and what claims are directed against them. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) ...

Excerpt: ...); Pickwick Stages System v. Superior Court in and for Los Angeles County (1934) 138 Cal.App. 448, 449; 2 Witkin, California Procedure: Jurisdiction §914 (5th Ed. 2008) (“The timely filing of a motion for change in proper form on the ground of wrong court suspends the court's jurisdiction to act. While the motion is pending, the court's power is limited to hearing and determining the motion, and it cannot take other judicial action in ...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ...x. Q and R), and the amended bankruptcy schedule (Ex. U). All the remaining documents are irrelevant. Plea in Abatement: For plea in abatement, it may be made when there is another action pending between the same parties on the same cause of action. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) Plea of abatement requires “absolute identity of the parties.” (Id. at 788.) In addition, the causes of action must be th...

Excerpt: ...ore, the problem is that these Defendants were not part of the first suit. “Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.' [Citation.] A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.'” (People ex rel. Garamendi v. A...

Excerpt: ...and give notice pursuant to Code of Civil Procedure sesction 1019.5, forthwith. The legal theory supporting the complaint is that by electing to pursue a money judgment against the Kauras and Valley & Mountain in the underlying action, Stabilis (including through its purported alter ego Indio Funding) has waived its security interest in the property and that as a result no title could be conveyed at any foreclosure held by either Stabilis or Indi...

Excerpt: ...rd Amended Complaint (“TAC”) for (1) negligence, (2) elder abuse (Hanson), (3) negligence/willful misconduct and (4) elder abuse (Senior Care) is based upon allegations that Defendants (“Ds”), a company providing home care services to Plaintiff (“P”) and its employee Kaylen Hansen, failed to provide P safe home care and allowed P, who need assistance to walk because he was a “fall risk”, to go to the bathroom by himself, and that ...

Excerpt: ...ntract. The Court sustained the demurrer to each cause of action in the First Amended Complaint (“FAC”) with leave to amend. The demurrer is based upon the grounds that each c/a fails to state a cause of action. For the following reasons, the demurrer is overruled with thirty (30) days leave to answer. 1 st c/a‐Plaintiff has alleged that Defendant discharged him because of his age. The elements of a cause of action for age discrimination ar...

Excerpt: ...Inc. are allegedly Walker's agents. They are his property managers. He can be liable for their conduct. Madden v. Kaiser Foundation Hospital (1976) 17 Cal.3d 699, 705‐706. Additionally, Walker's conduct as alleged is sufficient to establish extreme and outrageous conduct. Walker was aware of the rat infestation. He was aware of Plaintiff's medical condition. When a horrible mess was found behind Plaintiff's stove due to the rats, Plaintiff sent...

Excerpt: ...ult, the motion to compel BARAJAS' further responses to the Form Interrogatories cannot be granted, since he is dead and unable to provide any further information. However, there is the issue regarding his having served copies of the responses & verifications instead of the originals. CCP §2030.260(a) requires the responding party to serve the original Page 2 of 8 responses on the propounding party. Attorney Habibi/counsel for opposing party pre...

Excerpt: ...purposes of probability of prevailing). The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Wilcox v. Superior Court (1994) 17 Cal.App.4th 809, 819.) A defendant is required to make a prima facie showing that plaintiff's suit arises from any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state const...

Excerpt: .... The complaint is for malicious prosecution arising out a lawsuit filed against Plaintiff in the case of Sun Salt Sand Inc. v. Tony Cueves, PSC1503692. The prior lawsuit was terminated in Plaintiff's favor on the granting of his motion for summary judgment as to all six causes of action brought by Defendant Sun Salt Sand, Inc. against him. The owners of Sun Salt Sand, Inc. are Defendants Faruk and Salima Nurani. Kalab Honey and the Law Offices o...

Excerpt: ...hat Mr. Perry has requested that the invoice be kept confidential. However, no evidence has been provided by Mr. Perry or the settlement administrator. There is no evidence supporting the assertion that this is proprietary information. Additionally, this information has already been made public. In connection with the motion for preliminary approval, a summary of costs was provided (this document was attached to Alan Vasquez's declaration). It in...

Excerpt: ...te he signed the May 2017 arbitration agreement or that an arbitration agreement exists between the parties. Plaintiff argues that the agreement is unenforceable. Both parties agree that the FAA applies to this case. The Federal Arbitration Act (FAA) (9 U.S.C. §§1 et seq.) generally governs arbitration in written contracts involving interstate commerce and authorizes enforcement of arbitration clauses unless grounds exist in law or equity for t...

Excerpt: ... of the “recovery by the average class member” if the settlement is approved, as required by Section E.1.c, or the estimated high and low range, in the event that recovery varies, which it does. Similarly, the notice to class members provides no such information. (E.19) There is no statement from plaintiffs' attorney in compliance with section E.1.d. There is a declaration from defense counsel but it fails to state that counsel made a “reas...

Excerpt: ...the owners and property managers of the mobile home park where plaintiff resides, from enforcing liens based upon fines levied against Plaintiff for alleged construction on his space in violation of park rules and city ordinances. Essentially, Plaintiff claimed that he had a medical need to enclose his car port and that the park's actions constituted illegal disability discrimination/harassment. On 02/14/2013, Plaintiff filed his First Amended Co...

Excerpt: ...er Responses are GRANTED. Defendant Alfa Business filed timely Motions to Compel Further Responses. Hence, the burden was on Plaintiffs to justify the objections they asserted to the subject Form Interrogatories, Special Interrogatories, Requests for Admission, and Requests for Production and/or to justify their failure fully to respond to the discovery. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220 ‐ 221.) Plaintiffs did not satisfy that...

Excerpt: ......

Excerpt: ... 26, 2018. Defendants are ordered to meet and confer with Plaintiffs for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the motion. As part of the meet and confer process, Defendants shall identify the specific cause of action that they believe is subject to the motion and identify with legal support the basis of the deficiencies. Plaintiffs shall provide legal support for their position...

Excerpt: .... The motion appears to be plaintiff's opposition to the motion for judgment on the pleadings. Even if consideration could be made of the motion, it does not contain a request for reconsideration of the ruling of December 8, 2017 under CCP 1008 nor does it seek a set a set aside of the ruling under CCP 473. ...

Excerpt: ...pts to obtain preliminary approval. It appears the time spent preparing client for deposition may be excessive. The Court cannot determine how much time was spent for that activity because it is lumped in with time in connection with the mediation process. The Court requires further information on this activity. Additionally, counsel has not adequately explained why a 1.9 multiplier is reasonable. The Court needs further, more detailed informatio...

Excerpt: ...s to orders, findings of action and judgments. (Ramsden v. Western Union (1977) 71 CA3d 873, 879. 2 nd Cause of Action for Breach of Lease: To state a cause of action for breach of contract, a party must establish: (1) the existence of a contract; (2) the party's performance or excuse of nonperformance; (3) the opposing party's breach; and (4) resulting damages. (Oasis West Realty v. Goldman (2011) 51 Cal. 4th 811, 822.) A contract will be enforc...

Excerpt: ...ivil Procedure section 1019.5, forthwith. Defendant Duke Partners, LLC filed an Answer to the Second Amended Complaint (“SAC”) setting forth 12 affirmative defenses (“a/ds”). The demurrer is based upon the grounds each a/d fails to state a defense and is uncertain. For the following reasons, the demurrer is overruled as to the 1 st and 5th affirmative defenses; sustained with leave thirty (30) days to amend as to the 2nd through 4th affir...

Excerpt: ....” (Vournas v. Fidelity National Title Insurance (1999) 73 Cal. App. 4th 668, 677.) “The scope and nature of the trustee's duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist.” (Kachlon v. Markowitz (2008) 168 Cal. App. 4th 316, 335.) The trustee acts at the direction of the original beneficiary or its assignee or that entity's agent. (Yvanova v. New Century Mortgage Corp....

Excerpt: ....) Fourth Cause of Action (Declaratory Relief): A claim for declaratory relief requires a present controversy between the parties. None of the allegations in the First Amended Complaint challenge the validity of the Deed of Trust in favor of CommerceWest or state a basis for avoiding the Deed of Trust. Additionally, plaintiff Janaco cites no agreement or basis for the Court to substitute Janaco in place of defendant ZXCR as the obligor on the loa...

Excerpt: ...nd in Flatley v. Mauro (2006) 39 Cal.4th 299 and its progeny. These cases have not required the exchange of money for the COA of Extortion. IIED: The extortion facts presented are sufficient to support this cause of action as well. Litigation Privilege: This is not applicable when the communication is not made in good faith. Here, Defendants threatened to report Plaintiff to the IRS and seek administrative and/or criminal penalties unless he succ...

Excerpt: ...fendants are named on each cause of action. Each cause of action (or affirmative defense) should be separately stated, must be separately numbered, and must identify the parties asserting the claim and against whom it is asserted. CRC, rule 2.112. Thus, each separately stated cause of action should state: — its number (e.g., “FIRST CAUSE OF ACTION”); — the party asserting it if the complaint is filed on behalf of more than one plaintiff (...

Excerpt: ...473, subdivision (b) [6 months], subdivision (d) (2 years), or section 473.5 [2 years]. ...

Excerpt: ...tion 425.16(e)(1)(2)(4) because the Complaint concerns an underlying action between the parties, Hudack v. Siggard, et al., Riverside Superior Court Case No. RIC 450529. Plaintiff fails to meet his burden on the second prong of the analysis. Plaintiff presents no admissible evidence or argument that he has a reasonable probability of prevailing on his contention that the Judgment in Hudack v. Siggard, et al., is void despite the finality of the j...

Excerpt: ...guments relied on, and a discussion of the statutes, cases and textbooks cited in support of the position advanced.” ([CRC 3.1113(b); see Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934—trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”) ...

Excerpt: ...oration. If true, how can that entity have a current address, as represented in the motion? And why should the Court believe that a dissolved corporation has an account manager, as claimed in the proof of service? The declaration and the proposed order both state that the case is stayed. That is true as to the prosecution of the case against Skypatrol, LLC, in light of the bankruptcy petition filed by Skypatrol in December of 2017. What is the ba...

Excerpt: ... Declaration. There is no indication that District Attorney Hestrin possesses personal knowledge related to any events or issues raised in the Complaint. Any information regarding the criminal investigation which is the subject of the Motion to Quash, including the interview by Detective David Smith of Defendant Rosie Quintana on or about December 11, 2016, is protected and beyond the scope of discovery. (Cal. Code Civ. Pro. § 1987.1(a); 2017.01...

Excerpt: ..., Salima Nurani, Kalab Honey and the Law Offices of Kalab Honey, PC. The complaint is for malicious prosecution arising out a lawsuit filed against Plaintiff in the case of Sun Salt Sand Inc. v. Tony Cueves, PSC1503692. The prior lawsuit was terminated in Plaintiff's favor on the granting of his motion for summary judgment as to all six causes of action brought by Defendant Sun Salt Sand, Inc. against him. The owners of Sun Salt Sand, Inc. are De...

Excerpt: ...ee's deed upon sale, (3) wrongful foreclosure, (4) quiet title, (5) slander of title, and (6) unfair competition is that Defendants' (“Ds' ”) foreclosure was based upon the alleged breach of a loan agreement that Plaintiff did not enter into. The demurrer is based upon the grounds that each cause of action (“c/a”) fails to state facts sufficient to constitute a cause of action. For the following reasons, the demurrer is sustained with lea...

Excerpt: ...g his death in April 2017, his daughter, Patricia Yvonne Playan Leonel de Cervantes, filed a declaration stating that she was the proper person to maintain this action and substituted in as plaintiff because she was both the successor trustee to Marion's trust and the executor of his will. The Court sustained with leave to amend a demurrer to the Third Amended Complaint because there were no facts alleged that showed that Cervantes, who was named...

Excerpt: ...e entered shortly. Analysis: On 1‐4‐18, the Court continued the hearing on the motion to allow the parties the opportunity to address a variety of questions and concerns posed by the Court in its tentative ruling. The supplemental documents submitted address some but not all of those concerns. To pick just some of the examples of concerns that are not resolved by the supplemental documents: 1. The Court informed the parties that it would not ...

Excerpt: ...l facilitate the presentation of all claims and defenses in the present action between the parties and will re‐open discovery in the event it is appropriate to do so. ...

Excerpt: ...d be awarded anything on their claims. Defendants now move to have the Award confirmed and for the entry of final judgment in this matter. Page 2 of 9 Plaintiff asserts that the award should not be confirmed as it relates to one of the four findings made by the Arbitrator for the following reasons:  Arbitrator failed to fully review Plaintiff's brief and failed to understand some of the relevant issues, and that he failed to address any of the...

Excerpt: ...the potential environmental impacts. In light of the new petitions that have been filed challenging the new FEIR, there is no reason for this Court is continue to retain jurisdiction. To the extent respondent and real party wish to assert that certain challenges made in the new petitions are barred by res judicata, they will have the right to make those claims in those cases. ...

Excerpt: ...Cross‐Defendant Stanton Place 2014, LLC is to prepare a proposed order and give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. Plaintiffs Goodell and Self Reliance, Inc. dismissed all causes of action. The CrossComplaint of Frederick Brillman against Goodell and Self Reliance, Inc. was also dismissed. Remaining are the Cross‐Complaint of Stanton Place 2014, LLC, First Amended Cross‐ Complaint of Luis Martin, Jr. and t...

Excerpt: ...n were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” [Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) This test functions on a sliding scale, such that a greater showing on one factor will mean less is required on the other. (Butt v. State of Calif. (1992) 4 Cal.4th 668, 678.) The evidence supports that there is a likelihood of Plaintiff prevailing on t...