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: ...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: ...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: ...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: ...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: ...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: ...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: ..., ¶ 19; see, Decl. of Mikhov, ¶¶ 17, 25 [admitting that the case settled for the sum of $41,000, the same amount offered on May 23, 2017].) Section 998 applies to Song‐Beverly Act claims. (Duale v. Mercedes‐Benz USA, LLC (2007) 148 Page 2 of 2 Cal.App.4th 718, 728.) Consequently, Plaintiff is limited to recovery of only preoffer fees and costs. In addition, even without considering the validity of Defendant's 998 offer, Plaintiff has faile...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...

Excerpt: ... of the PMK at PAKSN, INC., and the 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). Ho...

Excerpt: ... 274.) Because Defendant has not met its burden, Plaintiff need not produce any evidence nor disprove anything. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 356; Y.K.A. Indus., Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353; United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 338.) Defendant seeks summary judgment on essentially three grounds: 1) there is a complete defense to Plaintiff's complaint...

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: ... 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: ... 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: ...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: ...) 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: ...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: ....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: ...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: ...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...