Excerpt: ...rvene in an action if the trustee, legal owner, refuses to defend his title or claims adverse to the beneficiary. (Kobernick v. Shaw (1977) 70 Cal.App.3d 914, 919) According to Plaintiff's opposition, Jeanne Reveal has been evading service of process and to date has not been defending the claims. Therefore, her interest relating to the property or transaction is not being adequately represented by one or more of the existing parties. (CA CCP § 3...

Excerpt: ... any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (p)(2) A defendant has met his or her burden of showing that a cau...

Excerpt: ...ved on 1/21/21 are in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (see L. Kane Declaration filed 1/29/21 Ex. A) In addition, based on the declaration of Joseph De Hope, the Court finds that Keenan's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. “[T]he trial court may relieve a party from the consequences of its failure to serve a timely response i...

Excerpt: ... constitute a cause of action. The failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend. (Cal. Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280) The employer‐employee relationship, such as that between Plaintiff and Defendant Lay here, is not covered by the Act, which is confined to discriminations against recipients of the "bus...

Excerpt: ...derivatives for the purpose of injecting or infusing is a rendition of a service, not a sale. H & S §1606. Consequently, companies cannot be held strictly liable in tort for personal injuries which result from these activities. Plaintiffs have pled that “the stem cells that were manufactured from the amniotic fluid is not a “blood component” or “blood derivative” because it was not a product produced from whole blood”. TAC ¶20. Defe...

Excerpt: ...tential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer”. Buckner v Milwaukee Electric Tool Co.(2013)222 Cal. App 4th 522, 536. The “learned intermediary” defense does not appear on the face of the TAC, which alleges that “Dr. Lester reasonably believed that the intravenous administration of the stem cells to Mr. Reis was appropriate and pursuant to the FDA guid...

Excerpt: ...putation). (CA Practice Guide Civil Procedure Before Trial (TRG 2020) 6:158) The Second cause of action is also sustained without leave to amend. In order to justify an award of punitive damages on this basis, [conscious disregard of the safety of others] the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. (Taylo...

Excerpt: ...a Dec. Ex.'s 7‐ 12) Although Plaintiffs may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is fund...

Excerpt: ...ecause auditors are statutorily and strictly liable under §11 for any misstatements in the financial statements which they audited and certified, unless they can demonstrate due diligence at the summary judgment stage. Under post‐Omnicare authority PWC is not strictly liable for the misstatements in Granite's financial statements.. In Johnson v. CBD Energy, Ltd., 2016 U.S. Dist. LEXIS 87174, the court expressly rejected the same “strict liab...

Excerpt: ...t to four large joint venture projects. The Court previously sustained the demurrer to the original complaint and granted Plaintiff leave to amend to allege facts demonstrating that circumstances known to Defendants at the time they made the representation of “reasonably possible additional costs” made this a misrepresentation of an of existing fact at the time it was made; to allege what LAW AND MOTION TENTATIVE RULINGS DATE: APRIL 6, 2021 T...

Excerpt: ...na Theater, (1981) 118 Cal. App. 3d 863, 870.) It appears that were the Court to grant either Party's request for an injunction/ modified injunction, that both parties would suffer great injury. In order to preserve the status quo until there has been a final determination of the merits of the action, the Court requests counsel to address at the hearing whether it would be appropriate to appoint a receiver to sell the car and take possession of t...

Excerpt: ...tion, have given rise to a cause of action against that employee or his personal representative. Here, Plaintiff alleges that Newman was acting outside the course and scope of his employment which exempts him from the requirement of complying with the Government Claims Act. As to the argument that the allegation Newman was acting outside the course and scope of his employment was a conclusion of law unsupported by factual allegations, the demurre...

Excerpt: ...1.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, and i...

Excerpt: ...e attorney. (Id at pp 178‐179) Therefore the work product privilege does not apply. The motion to compel is also granted as to form interrogatory 13.2. Interrogatory 13.2 merely asks for information re: whether a report was made and if so by whom, therefore disclosure is not protected by the attorney client or work product privileges. (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68‐ 69.) Plaintiff is awarded sanctions against Defendan...

Excerpt: ... by the court, no demurrer having been sustained or being then pending. (CCP 586(a)(3). (6 Witkin CA Procedure (5th Ed.2008) PWT §§143,147) However, CCP § 587 requires that an application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his o...

Excerpt: ...between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not "so much to protect the rights of parties as to protect the rights of Courts of coordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice." (Plant Insulation Co. v. Fibreboard Corp. (1...

Excerpt: ...3, *31.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, ...

Excerpt: ...An award of attorney's fees is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. CCP §916. In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140. Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. Attorney fees are perm...

Excerpt: ...e based on CCP § 394(a) is inapplicable. In addition, AMH has failed to show actual prejudice to the moving party or that a change of venue would promote justice or convenience of witnesses, therefore the motion is denied based on CCP § 397. Lastly, AMH has failed to show circumstances of the likelihood, or the appearance of bias and the motion is denied on this ground. Sanctions Sanctions are not awarded. Each side will reserve the right to cl...

Excerpt: ...pecified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Article 28 of the Lease provides that if either party undertakes litigation against the other in connection with the lease, the prevailing party as determined by Civil C. § 1717(b)(1) is entitled to reasonable attorney's fees and costs. In view of the Court's ruling that Plaintiff shall take nothing by its complaint and judgment shall iss...

Excerpt: ... in which he said he moved out of 211 Blackburn no later than 3/15/20 (Tim Kephart Dec. filed 2/24/21 ¶2) and his Cross‐complaint in which he said that he moved out of 211 Blackburn Street on or about June 2020, (Cross‐complaint filed 10/19/20 attached as Ex. 1 to Hamerslough Dec. filed 3/5/21 at ¶ 22), Tim Kephart will be ordered to pay Petitioner $3,000.00 rent for March ‐June 2020 or 4 x $3,000.00 = $12,000.00 within 30 days of the dat...

Excerpt: ...s filed that Margot Schwartz claimed that she and her brother were Directors of the Foundation. (See Ex. D to Margot Schwartz Declaration, the Corporation Statement of Information filed with the CA Secretary of State on 9/11/20 designating Margot and Noah Schwartz as officers and Erik Dryburgh as agent for service of process; email from Donald dated 10/22/20 asking Margot, “Do you have an attorney on the Schwartz Foundation”, Ex. H to Margot ...

Excerpt: ...rit and interim‐harm factors is tipped in favor of Defendants, who will suffer prejudice if an improper injunction is issued. Authority for issuance of the requested injunction CCP §526(a)(2) and (4) authorizes the issuance of an injunction where the moving party has an inadequate remedy at law or will suffer irreparable harm These two criteria are often related and may be present, despite the availability of monetary damages, where a defendan...

Excerpt: ...alistic prospect that the party enjoined intends to engage in the prohibited activity.” (Epstein v Sup. Ct. (2011)193 CA4th 1405, 1411) Based on the affidavits and the allegations in Plaintiffs' Complaint that “Through further communications between counsel, Defendants have modified their statement that they intend to block the Gravel Road as of 1/31/21, now claiming they will refrain from blocking the path temporarily, while Plaintiffs consi...

Excerpt: ...on‐Liability of Landlord: Tenant agrees to and shall defend and indemnify Landlord against all claims. liability loss and expense by reason of injury to person or property, or both. including without limitation. injury to the person or property of Tenant, its agents. officers, employees,. licensees or Invitees arising out of the condition of the Premises or any portion thereof over which Tenant has control and a duty to repair and maintain unde...