Excerpt: ...o the challenged elements of his causes of action. Plaintiff has failed to meet that shifted burden. The legal malpractice c/a is time barred. This cause of action is barred by the one year statute of limitations. It is undisputed that this action was filed on February 6, 2018, more than three years after Plaintiff received (i) notice of a potential claim, by 3/9/15 email from a TCK attorney rejecting Plaintiff's request that TCK sue Boston Bank ...

Excerpt: ...ndition of the judgment or the making of the order being appealed”. The oral pronouncement of the order in open court generally marks the beginning of the time to appeal, unless a statute requires a certain form of order, in which case the order is only effective when made in the statutory form. However, if the matter is taken under submission and the court issues a written order, which is both filed and served on the parties, the time for fili...

Excerpt: ...h the terms of the account; 3. That Defendant made purchases and payments on the account; 4. That Defendant failed to make required payments on the account as they became due; 5. The last payment was made on 9/23/19. 6. That Defendant owes Plaintiff the sum of $19,129.24; 7. That Plaintiff provided Defendant with billing statements for the sums owed on the account; 8. That at the time Defendant received the billing statements, Defendant did not o...

Excerpt: ... that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. (CA Rules of Court, Appendix I Emergency Rules Related to COVID‐19, Emergency Rule 9 (Subd (a) amended effective May 29, 2020.) “To “toll” has been defined most pertinently as “to stop the running of; to abate .” (Black's Law Dict. (8th ed. 2004) p. 1525.) When it comes to the tolling of a statute of limitations, we have stated: �...

Excerpt: ...2 P.2d 985].) The Court of Appeal ordered that Paetkau be awarded his fees. (See Remittitur p. 24.) The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate atto...

Excerpt: ... a demurrer. "[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 960 P.2d 513].) As to the demurrer to the Third cause of action based on uncertainty, ...

Excerpt: ...nsider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination. Defendant's first disclosed toxicologist Dr. Edwin Smith charged $300.00/hour. (Amended P's & A's in support of motion to set expert fees pg.4:3, Ex. 1 to Walker declaration pg.4:6) The Expert Institute charges $415/hour for a toxicologist. (E...

Excerpt: ...of eminent domain to acquire for that use property appropriated to public use if the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated. Where property is sought to be acquired pursuant to this section, the complaint, and the resolution of necessity if one is required, shall refer specifically to this section. The Court in People ex rel. Public Utilities Com. v. Fresn...

Excerpt: ...t Defendant failed to return his security deposit, that claim is barred by res judicata, as that issue was decided by the judgment in Small Claims Court Case no. 19CV00072. The remaining allegation that Defendant “was very unprofessional” does not support a claim for negligence. As these defects cannot be cured by amendment, leave to amend is denied. Plaintiff's second cause of action, for “Intentional Tort”, alleges that Defendant took a...

Excerpt: ...ained without leave to amend. The demurrer to the third cause of action for intimidation‐physical tort is sustained without leave to amend. Plaintiff's allegations are vague, uncertain, and unintelligible. Plaintiff's allegations do not state sufficient facts to constitute a cause of action for retaliation (Civ. Code §1942.5). Therefore the demurrer to the fourth cause of action for retaliation is sustained without leave to amend. The allegati...

Excerpt: ...use 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) For purposes of motions for summary judgment and summary adjudication...

Excerpt: ... Court finds that the motion is timely based on the delay in Plaintiff's discovery of the information which potentially implicates Mr. Katchadourian in the scheme which forms the basis of Plaintiff's fraud claim. The Court further finds that Defendants will not be prejudiced by the amendment to add Mr. Katchadourian as a defendant, since his alleged liability is based on the same facts and scheme alleged in the original complaint. MOTION FOR RELI...

Excerpt: ... Shahibi Dec, filed 1/28/22) On 7/2/21 an order was filed appointing Jerilynn Chestnut as guardian ad litem for Bill Sr. In late October, Plaintiffs' counsel proposed having neuropsychologist Dr. Gerard Chambers examine Bill Sr., following which Dr. Chambers was jointly retained. (Shahibi Dec, filed 1/28/22 ¶ 6) On 1/14/22 Dr. Chambers examined Bill Sr. agreeing to address three questions: (1) can William Sr. understand questions, (2) can Willia...

Excerpt: ...his court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally co...

Excerpt: ...pter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division. Timely claim presentation is not merely a procedural requirement but is ... ‘“‘a condition precedent to plai...

Excerpt: ... Cal.Rptr. 754, 652 P.2d 985].) The Court of Appeal ordered that the Saiches be awarded their fees. (See Remittitur p. 24.) The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determinatio...

Excerpt: ...ated the different treatment. The demurrer to the third cause of action for “retaliatory harassment” is sustained with leave to amend. Plaintiff does not state sufficient facts to constitute a cause of action for retaliation nor does she state sufficient facts to constitute a cause of action for harassment. The demurrer to the fourth cause of action for “intimidation physical tort” is sustained with leave to amend. Plaintiff's allegations...

Excerpt: ...leads facts showing the privity necessary for these claims. By further alleging that Gold Coast Gardens assigned its contractual rights to Florival, the Second Amended Complaint pleads facts showing that Florival also has standing to bring these claims. Contract Claim: Defendant asserts that the contract claim is defective and uncertain, as the Second Amended Complaint makes conflicting allegations of a written, oral and an implied contract; and ...

Excerpt: ...2004) 117 Cal.App.4th 318, 328 “an employer is liable for sexual harassment of an employee by a nonemployee under certain circumstances”.) In addition, there has not been unreasonable prejudicial delay, nor has the Court been deprived of jurisdiction based on Plaintiff's voluntary withdrawal of her claims to the Labor Commissioner. The demurrers to the Fifth‐Ninth causes of action are overruled. Moreover, the allegations of unpaid employee ...

Excerpt: ... moves for relief from waiver of those objections on the basis of mistake, inadvertence or excusable neglect. The support for Keenan's motion is provided by defense counsel Frances O'Meara, who declares: The deadline for Keenan's responses was not calendared due to an oversight of my office. The primary handling partner and the primary associate served with the subject discovery are no longer employed with FMG for reasons unrelated to this motion...

Excerpt: ...40. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. Here, Plaintiffs argue, “Indeed, it is because of testimony elicited from Mr. Hays at his June 2, 2021 deposition that allegations were added to sue him not only in his individual capacity but also ...

Excerpt: ...ry adjudication as to one or more issues of duty, if the party contends 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 an issue of duty. (p) For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff has met his or her burden of showing that there is no defense to a cause of action if that...

Excerpt: ...f Defendant wishes to prevent Plaintiff from taking possession, Defendant must file an undertaking in the amount of $20,312.53, the amount of Plaintiff's claim. (CCP § 515.020(b)) A writ of possession shall issue as to the following claimed property: 2019 HARLEY‐ DAVIDSON FLSL SOFTAIL SLIM, VIN 1HD1YDJ64KB060585. Defendant is ordered to allow Plaintiff to take possession of the property. ...

Excerpt: ...rationale is that “A malpractice claim focusing on an attorney's incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti‐SLAPP statute. In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client's interests while doing ...

Excerpt: ...e integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent. ..."[a] fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act. ... [T]he liability ...