Excerpt: ...r” theory does not support the claim, as it does not apply where several joint defendants jointly commit a tort. Electrical Electronics Controls Inc v Los Angeles unified School District (2005) 126 Cal. App. 4th 601, 617. As to the claim for punitive damage: The SACC does not allege the malicious, oppressive or fraudulent conduct necessary for a punitive damage claim. The conclusory allegation that “in suppressing and concealing the true fact...

Excerpt: ...n Castro v. Superior Court, (2004) 116 Cal. App. 4th 1010, 1022‐1023. Although the complaint here contains a cause of action for declaratory relief which would, if meritorious, affect the use of an easement identified in the pleading and therefore constitutes a “real property claim”, Plaintiff did not establish by a preponderance of the evidence the probable validity of her claim. Therefore, had the lis pendens not been withdrawn, the Court...

Excerpt: ...g based on its interpretation of the Purchase Agreement under English law. The court assumes that the U.K. court will determine the financial obligations at issue between Carl and Fisken arising under the Purchase Agreement. Thereafter, this Court will determine Canepa's obligations concerning time, manner and place of LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 28, 2019 TIME: 8:30 A.M. delivery of the gear box and any other issues not resolved ...

Excerpt: ...r and/or file its own cross‐complaint. The Cross‐Complaint filed by Alfredo Trinidad and the Landis Law Firm is therefore not yet at issue. Additionally, Cross‐Complainants have not provided authority for determining the competing claims of the parties on a regular motion as opposed to a motion for summary judgment ...

Excerpt: ... (2016) 63 Cal. 4th 148, 155 as “where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able bodied and fully competent adult would ordinarily be capable of managing without assistance”. A landlord‐tenant relationship is not a caretaking or custodial relationship under this definition. Plaintiff has also failed to allege an Elder Abuse cause of action b...

Excerpt: ...a consideration as is the policy of trying cases upon their merits.” (3 Witkin CA Procedure (5th Ed. 2008) Actions § 433.) Although Plaintiff argues that the Court previously determined that Defendant waived or forfeited the limitations defense in its ruling on the summary judgment motion. (Opposition p. 3:10), as Defendant correctly points out, the Court's Order denying the MSJ states, “IT IS ORDERED that the motion for summary judgment is ...

Excerpt: ...clude facts or expert opinion and therefore did not raise a significant environmental effect; that the EIR was not legally required to analyze the Project's consistency with the SSCCP; that with augmentation of the Administrative Record and the lodging of a certified addendum to the Administrative Record, the Administrative Record is sufficiently LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 8, 2019 TIME: 8:30 A.M. complete; and that Petitioner's ...

Excerpt: ...ts to litigate its bad faith claims against NASIC. Plaintiff does not dispute that the 10/9/13 General Indemnity Agreement between Plaintiff and NASIC controls their rights and obligations. Nor does it appear that Plaintiff disputes that it was in breach of its obligations owing to NASIC when it failed to pay subcontractors and failed to respond to NASIC's collateral demand of 3/11/16. Accordingly, pursuant to the Assignment clause of the Indemni...

Excerpt: ...its”. Lantzy v Centex Homes (2003) 31 Cal. 4th 363, 369. Plaintiff is therefore unable to rely on the “discovery rule” to extend the 10‐year limitations period., which expired, at the latest, by January 2014. While equitable estoppel may extend the 10‐year limitations period under Lantzy, Plaintiff has pled no facts indicating that defendants' conduct directly prevented her from filing suit. Plaintiff's allegations fall short of those a...

Excerpt: ...ormed and believes that in or around November or December 2016, the servicing of his mortgage loan transferred to Defendant Bayview. However, Plaintiff was not notified of the servicing transfer by either SPS or Bayview prior to the date that the servicing of his loan transferred to Bayview.” (Complaint ¶ 08) However SPS provides a copy of a letter dated 11/14/16 indicating servicing of the Loan was being transferred to Bayview. (Defendant's C...

Excerpt: ...ts have met their burden of overcoming the presumption of reasonableness of enforcing the 1954 CC&R's today. (Nahrstedt v. Lakeside Village Condominium Assn., (1994) 8 Cal. 4th 361, 380‐381): 1. Increasing housing for low to moderate residents is a public policy: (see Alfaro v. Community Housing Improvement System & Planning Assn., Inc., (2009) 171 Cal. LAW AND MOTION TENTATIVE RULINGS DATE: FEBRUARY 27 , 2019 TIME: 8:30 A.M. App. 4th 1356,...

Excerpt: ...nt ¶¶ 37,60,63) “Nonintentional torts may also form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others. ( Taylor v. Superior Court, supra, 24 Cal.3d 890; G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22 [122 Cal. Rptr. 218].) Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionall...

Excerpt: ...bts (TRG 2018) §6:1564.) Here the judgment is against Defendant Marcia McClosky, an individual. (see Ex. A to Motion.) In addition, out of due process concerns, a default judgment, such as the one obtained here, is not subject to such an amendment (based on an alter ego theory). (Motores de Mexicali, S. A. v. Superior Court of Los Angeles County, (1958) 51 Cal. 2d 172,178) The motion to amend the judgment is denied without prejudice. ...

Excerpt: ....A to Konzen Reply, Dervishian's First Amended Answer to FAC in case no. 16CV00307 p. 2:6‐13.) This allegation is inconsistent with the allegation in the FAC that “Plaintiffs are informed and believe, and thereon allege, that the City has no easement for public utilities situated with[in] the boundaries of Doane Street or Stable Street” (FAC ¶ 9), “The general rule, is that material factual allegations in a verified pleading that are omi...

Excerpt: ...owledge and Evid. Code Sec. 1150: Sustained. Declaration of Roxanne Thompson 6. Paragraph 5 on the grounds speculative and no personal knowledge: Sustained. 7. Paragraph 6 on the grounds of hearsay, irrelevant, lack of foundation and Evid code Sect. 1150: Sustained. 8. Paragraph 7 on the grounds Evidence Code § 1150, and irrelevant: Sustained. 9. Paragraph 8 on the grounds of hearsay, Evidence Code § 1150, and irrelevant: Sustained. LAW AND MOT...

Excerpt: ... alleged the necessary element of a lack of consent to Defendants' release of hazardous substances in the course of Defendants' operation of their dry‐cleaning businesses. While the judicially noticeable documents demonstrate that Plaintiff's parents consented to Defendants' use of the leased premises for the purpose of operating a dry‐cleaning business, the issue of whether this necessarily constitutes consent to the release of hazardous sub...

Excerpt: ...back to plaintiff to establish the employer's articulated reason was a “pretext” or cover‐up for unlawful discrimination. (CA Practice Guide (TRG 2018) Employment Litigation § 7:390) To establish a prima facie case of unlawful discrimination Plaintiff must show: ‐Plaintiff was a member of a protected class; ‐Plaintiff was qualified for the position sought or was competently performing in the position held, satisfying the employer's exp...

Excerpt: ...xcusable neglect.” (CA CCP§ 473.5 (c)) Here, during the time period in which Defendant failed to comply with his mandatory statutory duty to inform the the California State Bar of his address, Defendant either through intentional avoidance or inexcusable neglect, evaded Plaintiff's reasonable, diligent attempts at service on him of the summons and complaint. This occurred after Defendant had been expressly warned that Plaintiff intended to sue...

Excerpt: ...n Plaintiff's cross‐complaint and summary adjudication of Defendants' affirmative defenses is granted. The motion for summary judgment on Defendants' cross‐complaint is denied, without prejudice, as the motion was filed prior to the filing of the First Amended Cross‐Complaint and the currently operative Second Amended Cross‐Complaint, which supersedes the prior Cross‐ Complaints. Plaintiff has met its threshold burden of proof by establ...

Excerpt: ...is not a bar to bringing a new action within the period of the statute of limitations. (Lewis v. Johnson, (1939) 12 Cal. 2d 558,563) “The 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…where the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgm...

Excerpt: ...stablished, or that there is a complete defense to the cause of action. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…If there is a single such issue, the motion must be denied…On a motion for summary adjudication , the test is whether there is any “triable...

Excerpt: ...bstantive law. (Lawrence v. Bank of Am.(1985), 163 Cal. App. 3d 431, 436) MOTION TO STRIKE PORTIONS OF FAC Plaintiff has not alleged conduct which is despicable, i.e. so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal. App. 4th 1269, 1286‐1287) Nor has she provided support for the notion that the probable (as o...

Excerpt: ...do not demonstrate that the corporate contract is unenforceable based on the statute of frauds, because (1) the contract was not impossible to be performed within one year, as a sale of Enabledware and the repayment of the loan from the sale proceeds could have happened at any time: (2) the FAC alleges that the contract was documented in writing; and (3) the FAC does not demonstrate that Plaintiff was in the business of lending, and instead only ...

Excerpt: ...ocedure Before Trial, Weil & Brown, 2018, 10:270‐271. Pg. 10‐130‐ 131.) The evidence here would allow a reasonable trier of fact to find that SARL IROC, through its agent Lecourt, entered the contract and therefore has standing. (see Exhibits B and Exh. C to Plaintiff's separate statement, Sale and Purchase Agreement dated 1/19/16 and emails dated Jan. 12 & 13, 2016 between Jordan and Lecourt.) As to whether Plaintiff has standing to bring ...

Excerpt: ...vironmental review pursuant to CEQA. Petitioner challenges RTC's decision to enter into an ACL rather than apply to the Surface Transportation Board for approval of the abandonment of the line, RTC's choice of St. Paul as an operator, and two particular elements of the ACL: (1) St. Paul's freight operations on the Branch Line; and (2) RTC's commitment to make FEMA funded repairs to the storm damaged Line necessary for St. Paul to operate the perm...