Excerpt: ...a need and good reason to extend the discovery cut‐off with respect to certain discovery in this case, and that doing so will not result in any delay of trial or prejudice to SEENO CONSTRUCTION or ASPEN INSURANCE. DGC has established a need to extend the discovery cut‐off so that DGC may file motions to compel with respect to the verified discovery responses that were recently provided by SEENO, to the extent such motions are permitted under ...

Excerpt: ...laint alleged compliance with C.C.P. §377.32, and attached a copy of Plaintiff's declaration pursuant to C.C.P. §377.32. CRESTWOOD initially argued that Plaintiff's complaint failed to allege recovery for her decedent mother's pain and suffering within her elder abuse cause of action, based upon Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256. In Quiroz, like in the present case, a dependent adult died in a skilled nursing facility. H...

Excerpt: ... by Defendants to Plaintiff that was breached by Defendants' conduct. But, Defendants have failed to meet their initial burden of establishing that the element of duty cannot be established. (Code Civ. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) Defendants' own evidence establishes that they meet the definition of an automobile dismantler as a buyer or seller of the component materials of a vehicle req...

Excerpt: ...NC. are granted. Plaintiff DOUGLAS STROBEL has been diagnosed with mesothelioma. JOANN STROBEL is DOUGLAS STROBEL's wife and sues Defendants for loss of consortium based upon the same underlying theories of liability relied upon by her husband. Plaintiffs' complaint alleges that Plaintiff developed mesothelioma as a result of his exposure to asbestos fibers found in cosmetic talc powder. Plaintiff frequently used Johnson's Baby Power (“JBP”) ...

Excerpt: ...S. REAL ESTATE CREDIT HOLDINGS III, LP (“USRECH”) are overruled, in their entireties. A cause of action based upon a breach of a contract accrues at the time the breach causes damage to the plaintiff. BAJI 10.85 [identifying damages caused by the breach as an element of a breach of contract action]; San Francisco Page 2 of 3 Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1335 [“In California, no cause of action accrues...

Excerpt: ...g Co. (2010) 182 Cal.App.4th 23, 32; Fireman's Fund Ins. Co. v. Md. Casualty Co. (1998) 65 Cal.App.4th 1279, 1292.) “[A]n insurer cannot acquire by subrogation anything to which the insured has no rights, and may claim no rights which the insured does not have.” (Fireman's Fund, 65 Cal.App.4th at 1292.) “Thus, when an insured has released a third party, neither the insured nor the subrogated insurer has any rights to recover from the third ...

Excerpt: ...oner here filed a request for hearing on September 12, within 90 days after filing the petition on June 18. Real party in interest SOLANO COUNTY WATER AGENCY (“SCWA”) did not contest the timeliness of the filing of this request, but argued that it was a hollow request if the administrative record was not ready, or soon to be ready. Public Resources Code §21167.6(a) requires the petitioner to request the respondent public agency prepare the r...

Excerpt: ...HE. The second amended complaint alleges sufficient facts to indicate that FORSYTHE was on duty as a security officer in the area in front of the Six Flags park at the time of the incident, and his alleged conduct was incident to his duties or could have been reasonably foreseen by defendants. (Martinez v. Hagopian (1986) 182 Cal.3d 1223, 1228). The demurrer to the third cause of action for conversion is sustained to the extent it is based on the...

Excerpt: ...he “lower” portion of St. John's Mine Road from Columbus Parkway which runs adjacent to parcels APN 182‐020‐070, 182‐020‐ 060 and 182‐020‐130 to the line of parcel 182‐010‐060 (i.e. from the first cattle guard to the second cattle guard) is a public roadway. (UMF No. 5.) The parties agree that the “lower” portion of St. John's Mine Road was made a public roadway by virtue of a 1938 express offer to dedicate a public roadwa...

Excerpt: ...le issue of material fact as to whether the medical treatment and advice provided to plaintiff ESTELLA PETERMAN by Defendant MOJADDIDI was below the standard of care for a health care provider and whether any such breach of the standard of care by MOJADDIDI was a substantial factor in causing ESTELLA PETERMAN injury. With regard to breach of the standard of care, Defendant submitted the declaration of his expert, Dr. Martin Bronk, in which Bronk ...

Excerpt: ...b Group v. Wertin (1997) 59 Cal.App.4th 1022, 1028 [a borrower is legally obligated to repay her loans].) Judgment shall be entered for Plaintiff and against Defendant for the principal balance of $3,109.65 and costs of $374.50 for a total of $3,484.15. ...

Excerpt: ...LFIN and MHHHS); and 3. Fraud (against SANTOS, TS GLOBAL, and MHHHS). Defendant DELFIN's demurrer to the first cause of action for breach of contract is sustained with leave to amend. Defendant DELFIN and MHHHS's demurrer to the second cause of action for common counts is denied. Defendant MHHHS's demurrer to the third cause of action for fraud is granted without leave to amend. Page 3 of 4 Breach of Contract The function of a demurrer is to eval...

Excerpt: ...matter. Ultimately, the parties recited a settlement agreement on the record through their respective attorneys with the assistance of the court. Although Plaintiff failed to provide the reporter's transcript of the settlement agreement, the court independently recalls directly asking Plaintiff whether this was her agreement and whether she understood the agreement and Plaintiff affirmatively acknowledging her understanding and stating her agreem...

Excerpt: ...tiffs here sought to compel arbitration, against both the car dealer RAHIM HASSANALLY dba Momentum Chrysler Dodge Jeep Ram of Fairfield (“HASSANALLY”), and lender/holder TRAVIS CREDIT UNION (“TCU”). On March 15, 2019, Plaintiffs dismissed their claims against HASSANALLY. In general, arbitration can be enforced only if there is an agreement to arbitrate which applies to all of the parties against whom arbitration is sought to be compelled....

Excerpt: ... under CCP Section 128.7(b)(1); they have not established that plaintiff's claims are not warranted by existing law under CCP Section 128.7(b)(2); and they have not established that plaintiff presented the complaint with knowledge that the claims in the complaint lack evidentiary support under CCP Section 128.7(b)(3). Defendants did not submit sufficient evidence in support of the motion. Although they submitted the transcript of the deposition o...

Excerpt: ...nment of judgment with the court in October 2016, signed by the president/chief operating officer of DUTRA CONSTRUCTION CO., INC. (“DUTRA”). The notarized assignment specifically identifies GARCIA by name (and her dba) as the assignee authorized to “recover, compromise, settle and enforce said judgment at its [sic] discretion”. Once the acknowledgment of assignment is filed with the court, the assignee has standing to proceed to enforce t...

Excerpt: ...ing the certification of defendant ZHU as a “massage practitioner” (Exhibit A), the request is denied under Evidence Code Sections 452 and 453. These internet search results are not subject to judicial notice, and for the purposes of demurrer, do not conclusively establish that defendant was licensed and was a “certified massage practitioner” at the time of the incident on June 4, 2017. Defendant ZHU is to file an answer to the complaint ...

Excerpt: ...no requirement for body‐to‐body contact, the unwanted touching must have been set in motion by the defendant's actions. (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 884.) In this matter, the unwanted touching was carried out by bedbugs. Unlike an instrument, such as a dog, there is no allegation that the touching by the bedbugs was set in motion by Defendants or the result of training or direction of the Defendants. Plaint...

Excerpt: ...ent, or compel a party to sign any document related to the settlement. The court notes that no transcript of the MSC proceeding of July 16, 2018, was submitted in support of the motion. Therefore, the court is left to rely only on the terms of the settlement reflected in the minute order for the MSC in determining what settlement terms should be included in the judgment to be entered under CCP Section 664.6. The minute order clearly reflects the ...

Excerpt: ...silenko v. Grace Valley Church (2017) 3 Cal.5th 1077, 1084 [liability applies to “those who own, possess, or control . . . premises . . ., regardless of their legal title over the property”]. A landowner usually faces no potential liability for injuries caused by a condition on a public street or sidewalk, unless the landowner created the danger. [I]n the absence of a statute a landowner is under no duty to maintain in a safe condition a publ...

Excerpt: ... they were reasonably necessary to the conduct of the litigation and reasonable in amount. (Goglin v. BMW of N. Am., LLC (2016) 4 Cal.App.5th 462, 470; Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 817.) Plaintiff has not met this burden with respect to any fees incurred following the settlement offer for $34,000 made on or about January 3, 2017. (Decl. of Mikhov, ¶ 14.) Plaintiff has not demonstrated that it w...

Excerpt: ... notice of the deposition of the PMK at SAGAR, INC., which are almost identical, are somewhat overbroad, and not all of the topics and requests are reasonably calculated to lead to the discovery of admissible evidence. According to the report of CMS dated March 24, 2017, CMS found several deficiencies at the La Mariposa Care and Rehabilitation Center at that time. (Declaration of Hooshie Broomand, Exhibit C). However, not all of these Page 2 of 3...

Excerpt: ...laim for equitable indemnity in the cross‐complaint. The motion for summary judgment is denied on this ground. The motion for summary judgment and the motion for summary adjudication, filed in the alternative, are also denied because there is an issue of material fact as to whether the Property Management Agreement, and specifically, the indemnity provision contained in paragraph 4B of the Agreement, apply in this case. The evidence submitted b...

Excerpt: ...excluded from the administrative record, or that could not have been produced in the exercise of reasonable diligence, by the party now attempting to rely upon it. With respect to the email from Mayor Patterson dated March 26, 2017, no explanation is provided as to why this item was not produced at the hearing on March 28, 2017 or “rehearing” on January 16, 2018, given it was in the possession of petitioner's counsel and petitioner had moved ...

Excerpt: ...was threatened with revocation of its conditional use permit (“CUP”) by a member of city staff, and that a revocation hearing was scheduled, but fails to allege that a revocation hearing was actually conducted or any action actually taken by the City to revoke Plaintiff's CUP. The scheduling of a revocation hearing without further action by the City does not constitute a taking by Defendant and does not support a cause of action for inverse c...

Excerpt: ...fficient claim and is supported by a sufficient prima facie showing of facts to sustain a favorable judgment if evidence submitted by Plaintiff is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Plaintiff has established that Defendant made false statements in a public forum indicating that Plaintiff was fired from his position as principal at Vaca Pena Middle School for sexual harassment. To prevail, Plaintiff must e...

Excerpt: ... Permanente The court grants, in part, the motion to compel plaintiff to sign an authorization for release of her medical records, or alternatively, compliance with the subpoena for medical records to Kaiser Permanente. Plaintiff is to sign the authorization form that was submitted as Exhibit D to the declaration of attorney Ryan McGuire filed by defendants on February 28, 2019. This authorization limits production of the documents to six years, ...

Excerpt: ...xhibits A and B of the pleading. (TAC, ¶ 8.) Nothing in the offer limited Defendant's ability to terminate Plaintiff nor purported to establish that Plaintiff could only be terminated for good cause. (TAC, Exh. A.) In fact, the employment application expressly indicated that the employment would be “at will”. (TAC, Exh. B, p. 4.) Consequently, Plaintiff has not and cannot establish that Defendant breached any term or promise articulated in t...

Excerpt: ...try, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status”. Civil Code §51(b). Page 3 of 6 Civil Code §51(e)(1) defines “disability” as “any mental or physical disability as defined in Sections 12926 and 12926.1 of the Government Code.” Civil Code §51(e)(3) defines “medical condition” as having “the same meaning as defined i...

Excerpt: ...d the act negligent.” (Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310, 316.) Plaintiff has adequately alleged that Defendant failed to exercise reasonable care in the processing and review of his loan modification application. (FAC, ¶ 30.) Plaintiff has sufficiently alleged that he qualified for a loan modification and that he would have been provided a loan modification had Defendant “properly processed / assessed his application.” ...

Excerpt: ...inds that the settlement agreement is enforceable under CCP Section 664.6 because: (1) the terms of the agreement indicate that it is enforceable; (2) the agreement contains all of the material terms to which the parties agreed; and (3) the agreement does not require performance by a third party (such as KTS Professional Services, Inc.), as defendants contend. The court finds, however, that the amount of the stipulated judgment, $240,000.00, bear...

Excerpt: ...) and recorded on August 25, 2014 as void because Defendant Chase had assigned its interest in the note and deed of trust to Defendant Federal National Mortgage Association (“Fannie Mae”) in 1999. But, there is nothing facially void about the substitution. Plaintiffs admit that Defendant Chase was the original lender, beneficiary, and holder of the note. (SAC, ¶ 2.) Plaintiffs further admit that the substitution of trustee was recorded on Au...

Excerpt: ...he demurrer to the first cause of action for breach of contract and the second cause of action for fraud, which plaintiff states in his opposition are not directed to defendant SLACK, is sustained WITHOUT leave to amend. The demurrer to the fourth cause of action for unjust enrichment is also sustained WITHOUT leave to amend. The first amended complaint does not allege any facts to suggest that defendant SLACK may be liable for unjust enrichment....

Excerpt: ... service by mail on Defendants' counsel on that same date. Plaintiff's motion, also bearing the name and address of this new counsel of record, was served by mail on Defendants' counsel, again on January 22. Defendants' opposition, filed one month later, attached a proof of service by mail, listing only Plaintiff, and not her new counsel, as being served. The court therefore could not consider the arguments raised in those improperly served oppos...

Excerpt: ...blic entity has in some way deterred the plaintiff from presenting a timely claim. “It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445 [256 Cal. Rptr. 766, 769 P.2d 948].) “Estoppel most commonly results fro...

Excerpt: ...previously filed with a court in order to provide those copies to his appointed attorney. However, Saldana fails to identify a statute, regulation or policy which mandates that CDCR make copies of documents in the personal possession of an indigent inmate at CDCR expense when that inmate is represented by counsel. Petitioner's opposition does not identify in what manner, if any, Petitioner can amend the petition to cure this defect. The demurrer ...

Excerpt: ....App.4th 481, 492 [nearby hotel had no duty to warn pedestrians of foreseeable harm from dangerous location of public road crosswalk installed by Cal Trans]; Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589‐ 1593 [owner or occupant of land abutting a public sidewalk owes no duty as to defects in the sidewalk not created by the owner or occupant, so abutting business owner not liable for slip and fall caused by dog poop on public...

Excerpt: ...cy interest, 2) a reasonable expectation of privacy by the plaintiff under the circumstances, and 3) a serious invasion of the privacy interest. (Hill v. Nat'l Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 39‐40; Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1098.) All that is alleged against Defendant is that it carried out the nonjudicial foreclosure of Plaintiffs' home. There was no serious invasion of any legally protect...

Excerpt: ...es, such as … unconscionability, may be applied to invalidate arbitration agreements without contravening” the FAA. (Doctor's Associates, supra, 517 U.S. at p. 687; accord, Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [99 Cal. Rptr. 2d 745, 6 P.3d 669] (Armendariz).)) Unconscionability consists of both procedural and substantive elements. The procedural element addresses the circumstances of contract ...

Excerpt: ...plaint. In addition, a number of the proposed amendments are contrary to the court's ruling on the defendants' demurrer to the original complaint (such as naming Gary Circle, LLC, as a defendant) or fail to allege sufficient facts to state a cause of action (such as the cause of action for fraud). The purpose of amending a pleading it to add essential facts to a claim already alleged or to add entirely new claims distinct from the claims already ...

Excerpt: ...tity liability is for an injury caused by the dangerous condition of public property. Government Code §835. Thus, absent a statute prescribing a particular immunity, a public entity can be held liable if it created the dangerous condition, or had actual notice of a dangerous condition that it could have fixed or warned about. Government Code §831.4 prescribes immunity to public entities from an injury caused by an unpaved road, trail, path or s...

Excerpt: ...s or businesses. California Practice Guide (Hogoboom & King), Family Law, §§20:20 through 20:27. Plaintiff's 1st amended complaint alleged agreements, “orally and/or implied by contract”, to (1) share equally all of the property accumulated by the parties, including the real property [1st cause of action]; and (2) upon separation, to provide adequate means of support sufficient to provide for the reasonable living expenses of a party unable...

Excerpt: ...nowledging he had not made any efforts since his attorney was relieved on September 28, 2018. During the hearing, Mr. Clemons indicated he was not opposed to the dismissal of Defendant Daniel Tuning. Based upon the counsel's representation of an oral settlement agreement to dismiss Mr. Tuning, all material terms of which have been performed by Mr. Tuning, circumstantial evidence which supports such agreement, and Mr. Clemons' verbal agreement to ...

Excerpt: ...efendants. To the extent that Meyer Corporation asserts that it is a third party and not subject to the order compelling discovery matters to be resolved by the discovery referee, Meyer Corporation must establish an Page 3 of 9 agreement by Defendants to accept electronic service. Accordingly, the motion is denied without prejudice. Motion for Reconsideration Defendants' motion for reconsideration of this Court's order denying Defendants' prior m...

Excerpt: ...ta County [Contra Costa County Case RSC16‐0264]. This action was also dismissed, in August 2016, as “Plaintiff already had a hearing on same issues in Solano County”. In November 2016, Plaintiff in propria persona (“pro per”) filed a new unlimited jurisdiction action against Defendant, as Case No. FCS048007, again based upon the same claim of legal malpractice. Back in 2017, the court sustained a demurrer to the operative complaint, in ...

Excerpt: ...service on the State Bar of California at its San Francisco office (CRC rule 9.40(c)(1)), and for failure to pay the $50.00 fee to the State Bar (CRC rule 9.40(e)). Further, it appears that the applicants are intending to make repeated appearances in two (2) other California actions. 2) C.C.P. §387 authorizes a non‐party to an action to file seek to intervene. However, any such request, by way of noticed motion or ex parte application, must in...

Excerpt: ...aintiffs conclude that Defendants breached the representation agreement by failing to “market and attempt to sell [the business] with the requisite skill, care, and diligence”, but fail to allege any facts supporting this conclusion. (Complaint, ¶ 34.) Conspicuously absent from the complaint are any factual allegations concerning what Defendants did or failed to do to market and attempt to sell the business and how Defendants' conduct fell b...

Excerpt: ...s to act pursuant to this section.” (Civ. Code § 2934a(d).) “‘Conclusive evidence' cannot be contradicted by any evidence to the contrary.” (Ram v. OneWest Bank (2015) 234 Cal.App.4th 1, 16.) Plaintiffs cannot state a cause of action for violation of Civil Code section 2923.5(a)(2). Plaintiffs admit that they had filed a prior action against Defendant Ocwen claiming that Ocwen had breached a Trial Payment Plan by failing to offer a perma...

Excerpt: ...C. to Provide Further Responses to Amended Requests for Admissions, Set One, and for Sanctions TENTATIVE RULING When a party upon whom written discovery is propounded serves responses raising objections which are too general or without merit, instead of providing substantive responses, the propounding party may, after informal attempts to resolve the disputes, move to compel further responses. C.C.P. §2030.300(a)(3) [interrogatories]; §2031.310...

Excerpt: ....) Plaintiff has consistently alleged that Defendant Newell took the position that Plaintiff caused the damage to the vehicle after the sale and that her allegations against Defendant are limited “[t]o the extent that this Court determines that Plaintiff did in fact cause the damage on the Vehicle after the purchase”. (Complaint, ¶¶ 30, 102.) Although Plaintiff reordered her allegations to make her claims against Defendant the first and sec...