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: ... 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: ...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: ...pon the service of a set of requests for production of documents, the party targeted by those requests has 30 days to serve responses, and to produce responsive documents. C.C.P. §2031.260. However, that deadline can be extended by the propounding party, as long as the agreement to extend is “confirmed in a writing that specifies the extended date . . . .” C.C.P. §2031.270(a),(b). USRECH here extended in a writing BMO's deadline for respons...

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: ...nce of billable records disclosing efforts supporting such a fee and the sum amount of the recovery. Further, the court is unable to approve a stipulation to seal court files absent a compelling reason which would permit the court to make findings that such sealing is necessary in light of the public's interest in access to court files. The parties have failed to make such a showing. The information that is sought to be redacted is not highly sen...

Excerpt: ... good faith settlement, accompanied by the declaration of plaintiff's attorney, would have been sufficient if the application had not been contested. A “barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient.” (The Rutters Group, California Procedure Before Trial, section 12:871, citing The City of Grand Terrace v. Superior Court (1987) 192 Cal.Ap...

Excerpt: ...waived and the requests for admissions are deemed admitted, is denied in its entirety. Defendant brought this motion under CCP Sections 2030.290(a), 2031.300(a), 2033.280(a), and 2033.300(a). However, defendant did not satisfy either of the two conditions for relief set out in these statutes. First, defendant did not provide discovery responses “in substantial compliance” with the statutes, as required. The responses that were finally provide...

Excerpt: ... Production, Set One. On July 31, 2019, HSBC BANK served verified supplemental responses to all of these discovery requests. Yet plaintiffs never filed a new motion based on these supplemental responses or amended the present motion to include the supplemental responses. Therefore, the court will not rule on the sufficiency of either the original responses or the supplemental responses. The court notes that plaintiffs did not file a separate stat...

Excerpt: ...18, 930 [the nature of a motion is determined by the relief sought, not the label used by the party]; Sole Energy Co. v. Petrominerals Coro. (2005) 128 Cal.App.4th 187, 193 [same].) Plaintiffs admit that Defendants served responses to their discovery requests and claim that the untimeliness resulted in a waiver of objections. (Decls. of McCann, ¶ 6.) The court notes that, notwithstanding any objections, Defendants provided substantive responses ...

Excerpt: ...18, 930 [the nature of a motion is determined by the relief sought, not the label used by the party]; Sole Energy Co. v. Petrominerals Coro. (2005) 128 Cal.App.4th 187, 193 [same].) Plaintiffs admit that Defendants served responses to their discovery requests and claim that the untimeliness resulted in a waiver of objections. (Decls. of McCann, ¶ 6.) The court notes that, notwithstanding any objections, Defendants provided substantive responses ...

Excerpt: ...and as required by the Court's order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfa...

Excerpt: ...v. Superior Court (2004) 32 Cal.4th 771, 790 [citing “the general rule that statutory causes of action must be pleaded with particularity”]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [the same]. Under Civil Code §2920.7(d), status of a devisee, heir or trust beneficiary does not automatically convey a right to assume and/or modify an existing loan. One must submit an application to the mortgage servicer, who “may...

Excerpt: ...ity itself [must be] the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884; Park v. Bd. of Trs. of Cal. State Univ. (2017) 2 Cal.5th 1057, 1061.) Cross‐complainants' allegation that they “were forced to retain the services of attorneys to defend them [due to a complaint filed with the Bureau of Real E...

Excerpt: ...efers to NEW DESSERTS and the agreement is not ambiguous given its execution in connection with Plaintiff's onboarding process for employment with Defendant. The arbitration agreement is not procedurally and substantively unconscionable, and is capable of being enforced. (See Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.App.4th 708, 723). Only the cost‐splitting provision is unenforceable; however, this term may be properly severed unde...

Excerpt: ...missed the seventh cause of action for negligence, ninth cause of action for fraudulent misrepresentation, 10th cause of action for negligent misrepresentation, and 17th cause of action for intentional infliction of emotional distress. Defendant's motion has been rendered moot with respect to all dismissed claims. The Court takes judicial notice of the grant deed presented as Exhibit 1 of Defendant's request for judicial notice showing that title...

Excerpt: ... for conversion is sustained without leave to amend. Plaintiff's allegations fail to establish that any alleged violation of Civil Code sections 2923.55 and 2923.7 were material. (Civ. Code § 2924.12, subds. (a)‐ (b).) Plaintiff does not allege any facts demonstrating that any failure to provide a single point of contact or the fact that Plaintiff initiated the contact with Defendant constituted material violations of the statutes. (See, Astur...

Excerpt: ...ons are uncertain. The complaint also does not state facts sufficient to constitute a cause for fraud based on intentional or negligent misrepresentation or concealment. Allegations of fraud must be specific. The allegations regarding the alleged misrepresentations of an “attrition of 33 employees” are not sufficiently specific. Also, the allegations are uncertain. The court notes that co‐defendant CALIFORNIA MENTOR FAMILY HOME AGENCY, LLC,...

Excerpt: ...e the administrative agency”]. C.C.P. §1094.5(e) provides an exception to this rule, authorizing the court to also consider relevant evidence which was either improperly 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. Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not ha...

Excerpt: ...or this reason, discovery in a CEQA case is unusual. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102 [limited discovery Page 2 of 3 available upon a showing that it is “reasonably calculated to lead to evidence admissible under section 1094.5”]. Limited areas of discovery can be proper in a CEQA case, as acknowledged by a statute which requires setting of a CEQA hearing briefing schedule that can be exten...

Excerpt: ...g that defendant Mericle actually received actual notice of the summons and complaint, and Mericle's declaration states and/or implies that he did not receive them. Mericle further states that he continued to use his former Union City address until June 2014, then moved to Burlingame from June 2014 until June 2017, then to Fresno for about two years. Plaintiff's application for an order for published summons includes declarations of diligence sho...

Excerpt: ...ESS to 1st Amended Complaint; and (4) Motion by Defendants PONTUS MAG FAIRFIELD, LLC; PONTUS MAG MANAGING MEMBER, LLC; PONTUS NET LEASE ADVISORS, LLC; PONTUS CAPITAL, LLC; and MICHAEL PRESS to Strike Portions of 1st Amended Complaint TENTATIVE RULING The demurrer by Defendant PONTUS MAG FAIRFIELD, LLC (“PONTUS MAG”) to the 3rd , 8th and 11th causes of action is denied. The demurrer by PONTUS MAG to the 5th, 6th, 7th, 9th and 12th causes of ac...

Excerpt: ...s order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the propo...

Excerpt: ... by Mr. Garcia's prior law firm (the Damrell Firm) to Petitioner David Duke's counsel herein. (The Court has already established that Petitioner, as decedent's personal representative, currently holds decedent's claims of privilege.) The parties submitted simultaneous briefing on the question presented to the Court and the Court has had an opportunity to review the parties' pleadings. Upon that review, the Court answers the question presented as ...

Excerpt: ...nt has presented sufficient evidence to meet her burden of establishing that there is a complete defense to Plaintiff's cause of action and that one or more elements of Plaintiff's negligence claim cannot be established. (Code Civ. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) Defendant presents evidence that Plaintiff neither paid the required $25 filing fee nor submitted a proper request for a fee waiv...

Excerpt: ...ories for recovery may require amendment. Counsel proposes to substitute Plaintiff's minor son through his guardian ad litem and to amend the Complaint to allege a cause of action for wrongful death as a basis for recovery. It also appears counsel's intent is to dismiss Plaintiff as a named party to the suit and not to substitute her estate. The motion to amend was unopposed. A suit could be separately filed on behalf of Plaintiff's minor son for...

Excerpt: ...ors and health plan providers. In its First Amended Complaint (FAC), CVMG alleges that ALLCARE's business practices have crossed the line from allowable marketplace competition into civilly actionable wrongdoing. The FAC alleges eleven (11) causes of action. ALLCARE has filed a demurrer and motion to strike as to CVMG's FAC. Demurrer: In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordina...

Excerpt: ...e was injured on August 20, 2016. (Complaint, ¶ 13.) Plaintiff did not commence this action until March 29, 2019. Consequently, Plaintiff must specifically plead facts that would establish some legal theory why the action is not barred by the statute of limitations. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) The court is mindful that Plaintiff has been on notice of the need to specifically plead facts to establish tolling of the st...

Excerpt: ...se to believe the property is there. Ahart, California Practice Guide, Enforcing Judgments and Debts, §§4:693 and 4:694, pp. 4‐143 and 4‐144. Although this secondary source did not explain why such credible and reliable information should be required, it is not hard to guess the rationale. Criminal law recognizes a constitutional right against unreasonable search and seizure. A writ of possession authorizes the police to enter property. It ...

Excerpt: ...ng that plaintiffs are entitled to the property based on adverse possession, as required under CCP Section 761.020(b). The elements of adverse possession include that the possession be “actual” and that it also be “hostile” or “adverse.” (12 Witkin, Summary of California Law, 11th ed., Real Property, §§226‐227, pp. 285‐288). Conclusory allegations, which is what plaintiffs have alleged, are not sufficient. Plaintiffs' complaint ...

Excerpt: ...s the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) The court should consider the following factors under the particular circumstances of the case presented: 1) an individual's ownership of all stock in a corporation, 2) the use of the same office or business location, 3) commingling of funds and other assets, 4) the holding out by one individual or entity that it is liable for the debts of the other, 5) identical directors and...

Excerpt: ...port Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 [anti‐SLAPP motion permitted against an amended complaint only if it could not have been brought earlier].) The motion was not filed until July 15, 2019. Defendant fails to provide the court with good cause to consider the untimely motion. Defendant claims that it held off on filing the motion in the hopes of settling the action at a mediation on April 23, 20...

Excerpt: ...nces such that it would no longer be just to enforce it. Los Angeles City School Dist. v. Landier Inv. Co. (1960) 177 Cal.App.2d 744, 750. A court has the discretionary power to modify even “permanent” injunctions. Salazar v. Eastin (1995) 9 Cal.4th 836, 850‐851. Even the Stipulated Judgment [Declaration of Vu Hai N. Phan in Support of CITY's motion, ¶3 and Exhibit “B”] recognized the authority of the court to change some of its terms,...

Excerpt: ...guilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850). SEENO did not meet either of these burdens on this motion. In contending that cross‐defendant DESILVA GATES CONSTRUCTION has a present duty to defend SEENO in this construction defect action, SEENO relies on the indemnity provisions in SEENO'S subcontracts with DESILVA, specifically, paragraph 2.13.1 of these subcontracts, which are virtually identical. However, these indemnity provi...

Excerpt: ...ited civil actions is limited to any combination of 35 of interrogatories, requests for admission, and requests for production of documents. (Code Civ. Proc. § 94(a).) No additional discovery is permitted unless the Court grants a noticed motion for leave to conduct additional discovery or the parties stipulate to additional discovery. (Code Civ. Proc. § 95.) Defendant's opposition reveals that he answered 35 form interrogatories propounded by ...

Excerpt: ... Petersen (1998) 68 Cal.App.4th 1062, 1066.) But, Defendants, alleged to be or owners or operators of a self‐ storage facility, would only wrongfully exercise dominion over personal property stored on its facility if they failed to comply with the statutory provisions for satisfying a lien on personal property stored on the premises pursuant to the California Self‐Service Storage Facility Act. (Bus. & Prof. Code §§ 21700 et seq.) Plaintiff ...

Excerpt: ...(1996) 42 Cal.App.4th 1746, 1750 [the court may take judicial notice of the records and files of a state entity].) Plaintiff's claim, received by the Government Claims Program on May 24, 2017, states only a claim against “California Department of Correction [sic] and Rehabilitation”. (Decl. of Rivera, Exh. A, ¶ 16.) Nothing in the claim purports to identify any claim against, wrongful conduct by, or liability of Defendant Valdez. (Id., Exh. ...

Excerpt: ...eding as a witness in litigation in a matter regarding an event or transaction that he or she perceived or investigated in the course of his or her duties, to which that local agency is not a party, shall receive the salary or other compensation to which he or she is normally entitled from that local agency during the time that he or she prepares for his or her response and appearance, during the time that he or she travels to and from the place ...

Excerpt: ... by the client, the declaration does not provide admissible evidence and is hearsay. If Defendant is alleging that Defendant was not served and therefore the default is void, the declaration is hearsay and does not provide admissible evidence. Finally, if Defendant contends that LOCICERO is or was subject to a stay due to bankruptcy while the case was pending, Defendant fails to provide any information to support the stay. It is noted that other ...

Excerpt: ...a Reg'l Med. Ctr. (2016) 246 Cal.App.4th 1260, 1266‐1267; Holcomb v. U.S. Bank (2005) 129 Cal.App.4th 1494, 1505.) Not only has Plaintiff previously unsuccessfully raised what appear to be same claims against Defendant Solano County in case number FCS052656, which were dismissed after the County successfully demurred to the complaint, Plaintiff has filed related actions seemingly based on the same facts or <01020176011a0003002600 03580003002f01...

Excerpt: ...ion for damages against a local public entity, the claims statutes require timely filing of a proper claim as a condition precedent to the maintenance of a judicial action and the failure to file a claim is fatal to the suit. (State of Cal. v. Superior Court (2004) 32 Cal.4th 1234, 1237; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454‐455; Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1246; Spencer v. Merced County Offi...

Excerpt: ...) 25 Cal.4th 826, 853.) Plaintiff establishes that Defendant applied for and was approved for a credit card, a credit card was issued and sent to Defendant at the address provided, Defendant made use of the account, and Defendant breached by failing to make the minimum payments required for the outstanding balance owed on the account after March 13, 2018. (Decl. of Becker, ¶¶ 6‐7, 9, 12.) Plaintiff generated and sent monthly statements showin...

Excerpt: ...une 24. C.C.P. §2025.450(a) authorizes a party to file a motion to compel deposition, when the party served with a notice of deposition fails to appear for deposition. Under C.C.P. §2023.030(a), monetary sanctions can be imposed against any party engaged in the misuse of the discovery process, or attorney advising that conduct, for the “reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct”. C.C.P. �...

Excerpt: ...orneys' fees; 3) Cross‐complainants Owen and Silvermark's motion (and amended motion) to strike and tax costs claimed by Cross‐defendant BME; 4) Plaintiff BME's motion to strike or tax costs of Defendants Owen and Silvermark; 5) Defendant Owen's motion for contractual attorneys' fees set August 30; 6) Defendant Owen's motion for attorneys' fees pursuant to the California Uniform Trade Secrets Act and Membership Agreement; and 7) Plaintiff BME...

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: ...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: ... 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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

Excerpt: ...5th 1131, 1150.) This also supports causes of action under the Consumer Legal Remedies Act and for declaratory relief. (Id. at 1152‐1153.) Motion to Strike Defendant's motion to strike Plaintiff's prayer for public injunctive relief is denied. Private plaintiffs are not precluded from seeking public injunctive relief in an action claiming a violation of the UCL or the CLRA. (McGill v. Citibank (2017) 2 Cal.5th 945, 961.) Motion to Compel Furthe...

Excerpt: ...riminatory conduct on the part of Superintendent‐President Esposito‐Noy, are sufficient to state a claim for gender discrimination. The demurrer to the eighth cause of action for intentional infliction of emotional distress is overruled to the extent it is based on the contention that the first amended complaint does not allege sufficient facts indicating extreme and outrageous conduct on the part of defendant. It is true that there may be no...

Excerpt: ... for trial in March, 2019, given the many overlapping legal and evidentiary issues. Further, the Court recognizes Defendants' significant efforts to seek transfer of the Sacramento case in early 2018 and willingness to adopt the Court's recommendations regarding alternatives to transfer. However, given the current trial date, transfer‐in date and the procedural status of both cases, Plaintiff in the Frank case will be prejudiced by consolidatio...

Excerpt: ...f attorney's fees under Government Code section 800 is allowed only if the actions of a public entity or official were wholly arbitrary or capricious. The phrase "arbitrary or capricious" encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute.' [Citations.] Attorney's fees may not be awarded simply because the administrative entit...

Excerpt: ...72, 381. The evaluation of impartiality is objective. There must be a specific identifiable reason for suspecting the arbitrator would not be impartial, but instead would favor one particular side. It does not matter if a litigant subjectively believes the arbitration might not be able to be impartial. Id. at 389. As the California Supreme Court noted: The arbitrator cannot reasonably be expected to identify and disclose all events in the arbitra...

Excerpt: ...wing reason: Page 2 of 2 The moving papers do not establish that Form Interrogatories (Set One) were addressed to Yen Wang as an “Answering Party.” Supporting Exhibit 3 contains two sets of Form Interrogatories naming Chang Wang as the “Answering Party.” (Compare Bates pages P.Phillips.Compel.0046 (“Bates 0046”) and Bates 0055.) The proofs of service (Bates 0054 and 0063) do not distinguish between the parties. The unopposed motion is...

Excerpt: ...e amendments contained in the proposed Second Amended Complaint are necessary, when he learned of the new facts he seeks to include in the Second Amended Complaint, and why he did not take steps to file the Second Amended Complaint earlier. The declaration he filed with the motion is not sufficient in this regard. ...

Excerpt: ... SYSTEMS, INC. (“MERS”) back to original lender PACIFIC UNION FINANCIAL, LLC (“PACIFIC UNION”) is somehow fraudulent or a forgery. California cases have consistently found that MERS as nominee beneficiary of the deed of trust has the authority to assign the beneficiary rights. Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, and Font...

Excerpt: ...d as opposition papers, Plaintiff has failed to file with the Court any opposition to Defendant's motion for summary judgment or any response to Defendant's separate statement of undisputed material facts. (Code Civ. Proc. § 437c, subds. (b)(2)‐(b)(3).) Likewise, Defendant has filed an opposition to an apparent motion for summary judgment sought by Plaintiff. The Court has not received a motion for summary judgment from Plaintiff. Because Plai...

Excerpt: ...ombs v. Pierce (1991) 1 Cal.App.4th 568, 575.) Accordingly, an order of suspension or revocation may only be rescinded if the Court finds that the Department acted in excess of its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence. (Veh. Code § 13559(a).) Upon independent review of the record, this Court f...

Excerpt: ...idence”, which alone may “constitute a sufficient ground for denying the motion.” (Code Civ. Proc. § 437c(b)(1).) Plaintiff does include a section in his “memorandum of points and authorities” entitled “material facts”, which makes no effort to indicate that the “material facts” are undisputed and which does not comport with the format and content requirements imposed by the California Rules of Court. (Cal. Rules of Court, rule...

Excerpt: ...eparing Resolution 17‐089” by generally identifying entire departments or divisions of the city. CITY cites no legal authority that the identity of the person who prepared Resolution 17‐089 is subject to privilege. Special Interrogatory Nos. 3, 4, 5 and 8 are vague and as stated are redundant and repetitive to Special Interrogatory Nos. 1 and 2. Given the contents of Plaintiff's reply which includes information Plaintiff apparently derived ...

Excerpt: ...nt alleges sufficient facts to indicate that the FOLETTAS have conducted a number of activities on their property that are open and hostile to cross‐defendants' easement rights on the property. These activities include growing crops, grazing cattle, installing two containers for storage, installing electric fencing, and establishing an equestrian cross‐country training course, a “horse pacing track,” and an irrigation ditch. (Second Amend...

Excerpt: ...ured, as required for liability under Labor Code Section 4558. (CONCO'S Separate Statement of Undisputed Material Facts, Nos. 34, 37‐43, 47 and evidence cited therein). In fact, according to the evidence submitted, there was a “cover guard” on the press, which plaintiff himself opened so that he could work on the inside of the press just prior to the accident. (CONCO'S Separate Statement of Undisputed Material Facts, Nos. 12‐ 18 and evide...

Excerpt: .... Rules of Court, rule 3.500(d).) The parties agree that the actions are not complex. The Sacramento action is based on the same facts as Plaintiff's fifth cause of action for misappropriation of trade secrets and therefore share predominating common questions of fact and law. Transfer and coordination will promote the convenience of all parties, witnesses and counsel, the efficient utilization of judicial resources, and the likelihood of settlem...

Excerpt: ... strike is untimely. However, no proof of service for the summons and complaint has been filed, and whether defendants Page 2 of 2 were ever properly served with the summons and complaint is unclear. Therefore, the court does not find the motion to strike to be untimely. The complaint alleges facts indicating that plaintiff HARRIS repeatedly advised defendants of the dangerous and defective condition of the heater and smoke detectors in her apart...

Excerpt: ... there does not appear to be a possibility of alleging such facts. Therefore, a judgment of dismissal as to the complaint of ERICKA JOHNSON only shall be entered. ...

Excerpt: ...Y PLASTERING, INC., to defend PULTE HOME CORPORATION in this construction defect action is granted in part. The court finds, as a matter of law, that MID VALLEY PLASTERING, INC., has an express contractual duty to defend PULTE HOMES in this action as to “the matters embraced by the indemnity.” (Civil Code, § 2778(4); Crawford v. Weather Shield Manufacturing, Inc. (2008) 44 Cal.4th 541). The “matters embraced by the indemnity” were intend...

Excerpt: ...luded no proposed pleading in intervention. While the motion claimed that CHANG WANG was an owner of the units at issue in this action, Plaintiff requested judicial notice of recorded documents showing that title to those two units was held only in the name of CHANG's wife (and defendant) YEN LING WANG. A spouse need not be named as a defendant, if the action concerns property or liability as to the other spouse. C.C.P. §370 [“A married person...

Excerpt: ...demurrer to the complaint against them, and ordered that they be dismissed in this case. At the request of plaintiff, the court continued the hearing on defendants' demurrer from May 3, 2018, to June 11, 2018. Plaintiff appeared at the hearing on June 11, 2018; the court indicated that it was sustaining the demurrer without leave to amend; and plaintiff asserted no objections. On June 14, 2018, the court issued an order sustaining the demurrer wi...

Excerpt: ...eration of the December 2017 order), but not the grounds for issuance. A memorandum of points and authorities “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases and textbooks cited in support of the position advanced.” CRC 3.1113(b). Plaintiff here combined her notice of motion with the points and authorities. However, she did not state in any coherent ...