Excerpt: ... bringing an action under section 709, and allow the court to consider the merits of the action without first determining whether the petitioning party did in fact have a legal right to vote.” (Haah v. Kim (2009) 175 Cal.App.4th 45, 53‐55) On demurrer, the complaint is to be given a reasonable interpretation, admitting the truth of all material facts properly pleaded. (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967) Plaintiffs h...

Excerpt: ...ewing his request pursuant to CA Penal Code § 18420 ...

Excerpt: ... action, CAIC must establish the absence of any potential for coverage in order to prevail on its motion. Voyager, who is standing in for the insured, need only show that the underlying claim may fall within policy coverage. “Facts merely tending to show that the claim is not covered, or may not be covered, but are insufficient to eliminate the possibility that resultant damages (or the nature of the action) will fall within the scope of covera...

Excerpt: ... Berkeley (1987) 195 Cal.App.3d 578, 583, Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497) The motion to strike the prayer for punitive damages is granted. First, the County is immune from punitive damages: A public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant. (Gov. Code, § 818.) More important here, the 6D...

Excerpt: ...ince the date of Mr. Dutra's death on March 29, 2016 to March 29, 2021, in the amount of $1,469,857.06 The Court finds that Well‐Pict has met its burden of proof in establishing that James R. Dutra is the debtor on the account. The Court directs the parties to appear at the hearing prepared to discuss whether the Declarations of George Schaff and Joan Taylor, which authenticate the book accounts, are sufficient to meet Well‐Pict's burden of p...

Excerpt: ...one or more material facts exists as to the cause of action or a defense thereto. The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. CRC 3.1350 provides that the Separate Statement of Material Facts should include “onl...

Excerpt: ...ese alleged changed circumstances (no evidence of any proposals or offers he has made, or when they occurred). Instead he provides only the vague statement that “Plaintiffs tried to exercise the option after the lease expired last year. We have continued to negotiate a price for my interest without any success. Not only have we used “best efforts' but we have used more than “best efforts”.”. (J. McEnery decl., ¶7.) Due to Defendant's f...

Excerpt: ... Question No. 7 is also a contention question, therefore the objection is sustained. If the deposing party “wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. "[t]aking th...

Excerpt: ...ir burden of making a threshold prima facie showing that Mr. Lindow's cross‐complaint arises from protected activity. The allegations of the crosscomplaint demonstrate that the gravamen of the cross‐complaint is Mr. Maleksalehi's filing of his complaint against other parties (the Tabatabais), which Lindow claims caused Tabatabai to file a cross‐complaint against Lindow. The first c/a for abuse of process alleges that “pursuant to the goal...

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...