Excerpt: ...Mandri v. Judkins (1997) 52 Cal.App.4th 326, 336 [nondisclosure or concealment may constitute actionable fraud “when the defendant had exclusive knowledge of material facts not known to the plaintiff”].) A general demurrer may not be sustained if the facts alleged state a cause of action on any theory. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870‐871.) Parties to appear to discuss the a...

Excerpt: ...ce as the court did in Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752‐1753. The court thus takes judicial notice of the certification of Alexandra Gottlieb indicating that no government claim filed by plaintiff regarding the alleged incident is contained in the records of the Government Claims Program. The court also takes judicial notice of the complaints plaintiff filed in his property action, which include the government claim plaintiff f...

Excerpt: ...ny, Plaintiff did not admit that the baling string did not break nor did he admit that he had no evidence regarding Defendants' actual or constructive notice regarding the alleged defect in the string. Plaintiff explicitly testified that his hay hook was “definitely on the string” because he had “tension” while he pulled for “[p]robably half a minute” and the only way he could have fallen the way he did is if the string broke. (Depo. ...

Excerpt: ... motion had already been filed. (Decl. of Rivero, Exh. 15.) In addition, the discovery sought will not be relevant to any outstanding disputed issue between the parties in light of Defendant's offer to file the proposed amended answer fully admitting liability for civil penalties awardable under the Page 3 of 3 Song‐Beverly Consumer Warranty Act. (Civ. Code § 1794.) Defendant sought a stipulation to permit Defendant to file a proposed amended ...

Excerpt: ... 29 Cal.App.5th 1241 and other cases cited by U.S. Fire, which involved the actual insurer of the defaulting defendant. The motion is denied without prejudice to a subsequent motion to set aside should U.S. Fire determine that it did, in fact, issue an insurance policy to Associated Insulation during the period of plaintiff's alleged asbestos exposure. The court notes that while U.S. Fire may not bring this motion to set aside without evidence th...

Excerpt: ...for summary adjudication of the second cause of action for medical professional negligence and sixth cause of action for wrongful death based on the same alleged negligent treatment is denied. Plaintiffs have established that there exists a triable issue of fact concerning whether Defendant's treatment of Decedent fell below the applicable standard of care by presenting the declaration of an expert contradicting Defendant's expert. (See, Decl. of...

Excerpt: ...action. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) An enactment does not create a mandatory duty if it merely recites legislative goals or policies that must be implemented through a public agency's exercise of discretion. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639; Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 980.) Plaintiff alleges three enactments impose a mandatory duty breached by the...

Excerpt: ... the Solano County Sheriff's Office and the subpoena to Humane Animal Services. The court grants the motion to quash these two subpoenas. FIELDING did not provide an affidavit for the subpoenas, as required by CCP Section 1985(b). Nor did she provide the information that would have been contained in such an affidavit in her opposition. She did not show good cause for production of the records, specify the exact matters or things to be produced, s...

Excerpt: ...§ 437c(p)(2).) Defendants improperly relied on their own responses to Plaintiff's form interrogatories and requests for admissions in attempting to show that they did not have any actual knowledge of the existence of dogs on the leased property. (Code Civ. Proc. §§ 2030.410, 2033.410; Great Am. Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450; Victaulic Co. v. Am. Home Assurance Co. (2018) 20 Cal.App.5th 948, 973; Gonsalves v...

Excerpt: ...and the filing of her cause of action, Defendant has established as a matter of law that the action as to Defendant ZHU is time‐barred. Under CCP §437c(p), the burden of proof shifts to plaintiff to establish there remains a triable issue of material fact. Plaintiff has not met this burden. Plaintiff contends that under the doctrine of equitable estoppel, defendant may not assert the one‐year statute of limitations defense of CCP §340.5 bec...

Excerpt: ...mmon counts.” (Farmers Ins. Exch. v. Zerin (1997) 53 Cal.App.4th 445, 460.) The essential elements to properly plead a common count are: 1) the statement of indebtedness in a certain sum, 2) consideration such as “goods sold” or “work done,” and 3) nonpayment. (Ibid.) Plaintiffs have adequately alleged an indebtedness in a sum certain, consideration based on “money lent”, and nonpayment. (Complaint, ¶¶ 4‐8.) No basis to find som...

Excerpt: ...v. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) Defendants present the uncontested testimony of Defendant Wagner establishing that Plaintiff ran into the crosswalk and in front of Defendant's vehicle against a red light and that Defendant did not have time to stop but was forced to swerve in an unsuccessful effort to avoid a collision with Plaintiff. (Amended Decl. of Wagner, ¶¶ 4, 6‐9.) Plaintiff i...

Excerpt: ...ve the joint venture, the court could not summarily adjudicate the second cause of action for money owed or the third cause of action for dissolution. Therefore, the court cannot grant summary judgment. As to the first cause of action for specific performance, the undisputed facts are that this oral agreement was not a joint venture agreement to share profits in a real estate transaction that may avoid the statute of frauds. Rather, it was an agr...

Excerpt: ...e any facts or legal theories on which Defendant's liability might be based. Plaintiff has not met his or her burden of showing that it is reasonably possible to cure the complaint by amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040‐1041.) Plaintiff has not demonstrated in what manner he or she can amend the complaint or how those amendments will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 3...

Excerpt: ...clude a separate or separately identified notice of motion or memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112, subds. (a), (c).) Nothing in the “motion” contains “a concise statement of the law” or a “discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) The absence of a proper memorandum of points and authorities can be construed by ...

Excerpt: ...oreclosure to be wrongful. The nonjudicial foreclosure statutes do not require a foreclosing party to be a have a beneficial interest in the note, to have possession of the note, to provide the power of attorney to the borrower, or to have certain allonges and endorsements for the note. The allegations that the MERS representative did not have authority to sign the Assignment of the Deed of Trust are also not sufficient. In failing to state a cau...

Excerpt: ...solidated complaint is granted in part and denied in part. Defendants' motion is granted as to Plaintiffs' allegations of sick leave notice requirements. PAGA specifically prohibits an action “for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting.” (Lab. Code § 2699(g)(2); Titus v. McLane Foodservi...

Excerpt: ...tained from Defendant Acceptance was adequate to cover Plaintiff's losses. Plaintiff's cause of action for negligence is based on the theory that Defendant Sharma “failed to procure insurance coverage with sufficient limits to cover the value of Plaintiff's investment” as requested by Plaintiff. Neither theory of liability supports a determination that a need to sue or defend against Defendant Acceptance resulted from Defendant Sharma's torti...

Excerpt: .... (Complaint, ¶ BC‐2.) But, a public employee “is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional” (Gov. Code § 822.2) and a public entity “is not liable for an injury resulting from an act or omission of an employee … where the employee is immune from liability” (Gov. Code § 815.2(b)). Plaintiff has not met his burden of showing that it is reasonably possi...

Excerpt: ...sed it in their home in California on a regular basis, and that this resulted in DOUGLAS STROBEL being exposed to the ingredients of the powder, allegedly to his detriment. Thus, plaintiffs have established that there is a sufficient connection between plaintiffs' claims and California for this court to find specific jurisdiction over COLGATE‐PALMOLIVE in this case. Evidence that the talcum powder contained asbestos is not necessary for determi...

Excerpt: ...records and radiology records are to be limited in scope to only those records relating to plaintiff's claimed injuries and conditions arising from the incident. According to plaintiff's interrogatory responses, these are injuries to plaintiff's cervical spine, which have resulted in neck pain and nerve pain, and which affects plaintiff's neck and spine, right arm, triceps, right hand and fingers, right shoulder blade, upper back, and right eye; ...

Excerpt: ...records and radiology records are to be limited in scope to only those records relating to plaintiff's claimed injuries and conditions arising from the incident. According to plaintiff's interrogatory responses, these are injuries to plaintiff's cervical spine, which have resulted in neck pain and nerve pain, and which affects plaintiff's neck and spine, right arm, triceps, right hand and fingers, right shoulder blade, upper back, and right eye; ...

Excerpt: ...d. The information set forth in the application for preliminary injunction is stale given these representations in open court. At that same hearing, the court expressed that Plaintiff's submissions were sufficient for a TRO but inadequate for a preliminary injunction due to the lack of supporting and corroborating evidence related to Plaintiff's claims. A restraining order to prohibit a non‐judicial foreclosure from proceeding is highly disfavo...

Excerpt: ...urt time and resources). As to Request No. 1, counsel are to meet and confer regarding production of additional agendas and meeting minutes that refer to those topics set out on p. 4‐ 5 of plaintiffs' memorandum of points and authorities from October, 2014, to the present. As to Request Nos. 3, 4, 5, 6, 11, and 12, defendant may respond using the term “removal from the competitive team” in place of the term “termination” used in each of...

Excerpt: ...y explaining why the objections are not meritorious or how the discovery request could be modified such that it is acceptable. The court reserves jurisdiction over sanctions to both parties due to the failure to meet and confer. Further, Plaintiff fails to separately state the motions which should be filed and scheduled separately rather than as an omnibus motion. In the future, the court may strike a combined discovery motion. Plaintiff's motion...