Excerpt: ...r from either Plaintiff's motion or Michelle Lim's declaration, or from Defendant's opposition or Sat Sang Khalsa's declaration that there was ever an actual agreement to stay discovery. Lim did not submit any emails or letters between the attorneys, although she referred to them in her declaration. Khalsa submitted some emails. Neither party submitted any emails or letters relating to or responding to the February 15, 2022 email from Lim to Khal...

Excerpt: ...tentional, willful, or fraudulent are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “[T]he act of operating a motor vehicle while int...

Excerpt: ...rnia v. Superior Court (2018) 29 Cal.App.5th 890,903); Ford Motor Company v. Superior Court (1981) 120 Cal.App.3d 748, 751‐753. However, punitive damages can be recovered in a survivor action, filed by a successor in interest to the deceased person who if alive would have a proper basis for asserting a punitive damages claim. C.C.P. §377.34 authorizes a successor in interest action to recover “the loss or damage that the decedent sustained o...

Excerpt: ...t inducement of a sales contract for a car (the “Vehicle”) that contained a serious latent manufacturing defect (the “Engine Defect”). Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set ...

Excerpt: ...he Requests for Production shall be served and responsive documents produced within 30 days of service of this order. Defendant served its Form Interrogatories, Set One, Special Interrogatories and Requests for Production on Plaintiff on September 29, 2022. Responses were due on October 11, 2022. No responses were received, nor was a request for extension made by the due date. Unverified responses were served to the Form Interrogatories and Reque...

Excerpt: ...dical Treatment and Active Labor Act (the “EMTALA”), negligence per se, premises liability, wrongful death, as well as MITCHELL's cause of action against it for negligent infliction of emotional distress. Plaintiffs' complaint concerns SUTTER's alleged acts and omissions relating to the death of their son Daimon Ferguson (“Decedent”) on September 3, 2020. The court has not received opposition to the motion. Legal Standard. A defendant may...

Excerpt: ... party requesting relief stating 1) what application was made, 2) when and to what judge, 3) what order or decision was made, and 4) what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A violation of the requirements of the motion for reconsideration may be punished as a contempt and may incur monetary sanctions. (Code Civ. Proc. § 1008(d).) Page 3 of 4 A motion for reconsideration must be ba...

Excerpt: ... court “shall award to the plaintiff reasonable attorney's fees” when it has been “proven by a preponderance of the evidence that a defendant is liable for financial [elder] abuse”. (Welf. & Inst. Code § 15657.5(a).) Defendant does not claim that the parties agreed to a fee shifting term to enforce either the partnership or the settlement contracts (Civ. Code § 1717) and does not identify any statute or contractual agreement providing f...

Excerpt: ...nancial records. Ameri‐Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1289 [suggesting in dicta that tax returns are not discoverable]; Sav‐On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1 [interrogatories improperly sought information about specific deductions claimed on state sales tax returns]. The California Supreme Court explained that special protections were given by the California legislature (now at Revenu...

Excerpt: ...rden of establishing each element of the two breach of guaranty causes of action and the cause of action for fraudulent conveyance. (Code Civ. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) The essential elements for a breach of contract are: 1) a contract, 2) plaintiff's performance, 3) defendant's breach, and 4) damages. (Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 111...

Excerpt: ...beneficiary. In contending that the arbitration clause applies to defendant under the doctrine of equitable estoppel, defendant primarily relies on Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. However, in that case, the seller (dealer), who was a signatory to the sales contract, had been named as a defendant in the action at the time the court compelled arbitration. In the present case, the dealer has never been named as a defendant. Page 2...

Excerpt: ...perty”) from him under a false representation of GOMEZ's ability to later repurchase the Property from SHARMA and that after the deal was consummated GOMEZ falsely represented that he would maintain the Property for SHARMA. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficien...

Excerpt: ...n view of the fact that plaintiff's PAGA claim is to be arbitrated, plaintiff lacks statutory standing to maintain this representative PAGA action, and therefore, the action must be dismissed. (Id. at p.1925). The language in the Viking case to this effect is clear. The Court stated: The remaining question is what the lower courts should have done with Moriana's non‐individual claims. Under our holding in this case, those claims may not be dism...

Excerpt: ...esponse should be compelled. CRC 3.1345(c). CRC 3.1345(c) specifically states “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” Page 2 of 2 The separate statement filed in support of this motion did not recite any of the 37 document requests at iss...

Excerpt: ...ing a motion to dismiss as a method to challenge opposing pleadings. Under the Code, dismissal motions are expressly authorized only on specified grounds, including nonjoinder of necessary parties (CCP § 389(b), see ¶ 2:188) and delay in service of summons or prosecution of the action (see CCP §§ 581, 583.110 et seq., discussed in Ch. 11). But several cases hold a motion to dismiss may serve the same function as a general demurrer. Despite la...

Excerpt: ... this action only as to the open book account and account stated common counts. Furthermore, as no cause of action for breach of contract was pled in the complaint, no remedies based upon the loan contract itself are properly sought in this common counts action. Summary adjudication is denied as to the account stated common count. An account stated is an agreement between the parties that a certain sum will be paid and accepted in discharge of an...

Excerpt: ...ut instead by a daughter to whom he had long ago signed a power of attorney to under certain conditions act on his behalf, is binding, and authorized her to consent to arbitration of all claims brought arising out of the care he received from Defendants. The general rule that only parties who signed an arbitration agreement are bound by it is subject to a health care facility exception, such that the signature of the Page 2 of 4 patient or their ...

Excerpt: ...(4); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 857‐858; Ladas v. Cal. State Auto. Ass'n (1993) 19 Cal.App.4th 761, 776.) The court notes that defense counsel's office is located in Irvine and the court does not accept electronic filing. While the option for filing by mail was available, it was not unreasonable for counsel to employ a messenger service to ensure prompt and proper filing of the documents with the court. Page 2 o...

Excerpt: ...mplete verified responses to Request for Production, Set One, without objections, shall be properly served and responsive documents produced within 15 days after the date of this hearing. Plaintiff served Special Interrogatories, Set One, on defendants on June 21, 2022. Also served that date were Requests for Production of Documents. There is no agreement between the parties for electronic service. Responses were therefore due to each set of disc...

Excerpt: ...repeatedly regarding the deposition and the production of documents. The parties engaged in an informal discovery conference in July regarding these topics. Further meet-and-confer took place thereafter and a date was provided. However, plaintiffs' counsel desires an earlier date than the offered dates of November 2, 3 or 4, 2022, because trial is scheduled to commence February 13, 2023. Both attorneys' pleadings contain arguments that have merit...

Excerpt: ...nt is Allstate Northbrook Indemnity Company. Respondent properly noticed an Independent Medical Examination of Claimant Martha A. Block, which took place on January 25, 2022. Dr. Jones prepared a report of the IME and a copy was provided to counsel for Claimants. Thereafter, Claimants' counsel served a subpoena for the production of business records of Dr. Jones, specifically seeking “(a)ll records pertaining to the IME performed on January 25,...

Excerpt: ...o legal requirement for Plaintiff to have filed a cross‐complaint in the proceedings for Defendant's petition for writ of mandate. (See, Code Civ. Proc. § 426.60(a) [“This article applies only to civil actions and does not apply to special proceedings.”]; Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115 [“An application for a writ of administrative mandamus is a ‘special proceeding of a civil nature'”].) And, the action cannot...

Excerpt: ...ression is defined in the Merriam‐Webster Dictionary, language similar to the definition of oppression found in Civil Code §3294(c)(2). Malice generally requires outrageous conduct by a defendant with evil motive. Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 771‐772. While evil motive is often alleged, conscious disregard of the probable dangerous consequences of one's actions can also support a punitive damages claim. Hoch v. A...

Excerpt: ...Petitioners cannot demonstrate any prejudice from the untimely filing since the motion was timely served. (Jones v. Goodman (2020) 57 Cal.App.5th 521, 541.) Respondent is entitled to recover “all costs of investigating and prosecuting the action, including expert fees, reasonable attorney's fees, and costs” as the Page 2 of 2 prevailing party in a civil action to enforce relevant sections of the Water Code. (Code Civ. Proc. § 1021.8(a).) But...

Excerpt: ...2, and subject to certain statutory exceptions, worker's compensation is the exclusive remedy to an employee suffering an injury unintended by the employer, in the scope of employment. The rationale behind the workers' compensation exclusivity rule is that most workplace injuries fall within the expected risks of employment, and it is better policy to require an employer to cover those injuries without regard to fault to ensure that employees who...

Excerpt: ...t date, plaintiffs were not present and the court rescheduled the settlement conference to January 6, 2022. On January 6, the court was informed that Mr. Shamieh had passed away a few days earlier. A status conference was set for January 12, 2022, and on that date, the settlement conference was rescheduled to February 14, 2022, a date which was agreeable to both attorneys. On February 14, 2022, Mrs. Shamieh and her attorney participated in the se...

Excerpt: ...handful of cases of importance on when an arbitration provision contained in a handbook constitutes an enforceable arbitration agreement. They focus on matters such as whether the employee signed an acknowledgment of receipt of the handbook which expressly referred to the arbitration provision; whether the arbitration provision is specifically identified in the handbook's table of contents; whether the arbitration provision is highlighted in any ...

Excerpt: ...of a sales contract for a car (the “Vehicle”) that contained a serious latent manufacturing defect (the “Engine Defect”). Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the ess...

Excerpt: ... SHARMA's Motions to Access Property and Expunge Lis Pendens TENTATIVE RULING Page 2 of 3 Defendant and Cross‐Complainant RAJ KUMAR SHARMA (“SHARMA”) moves to expunge the lis pendens filed November 30, 2020 on the real property at 7403 Porter Road, Dixon, CA 95620 (the “Property”). SHARMA also moves to be permitted to access the Property for purposes of performing repairs and showing the Property for sale. The Property is at issue in a ...

Excerpt: ...pp.5th 453, 458.) Plaintiff has not made a showing of inability to meaningfully access the courts. This court previously denied a motion from Plaintiff for appointment of counsel in part because Plaintiff, by his successful maintenance of this case and another in another court department, showed that he enjoyed meaningful access to the courts. Plaintiff has not shown that the situation has changed. Evidence Code section 730 authorizes the court t...

Excerpt: ...nia, including a blood draw. Plaintiff resides in Reno, Nevada. Procedure for Discovery via Physical Examination. Code of Civil Procedure section 2032.220 provides that any defendant in a personal injury case may demand, without leave of court, that the plaintiff submit to one physical examination, so long as the examination is not “painful, protracted, or intrusive” and is not set to take place more than seventy‐five miles away from the pl...

Excerpt: ...er Code of Civil Procedure section 430.30, subdivision (a). The court declines to take judicial notice of JENNIFER's proffered items. The lease between the parties is not a fact or proposition beyond reasonable dispute. Plaintiff's complaint is already a part of the record. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 ...

Excerpt: ...pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Counsel for Defendant declares that the parties conferred over Plaintiff's original complaint and this process led to the filing of the 1AC. (Declaration of Gregory P. Wayland in Support of Demurrer at ¶¶ 3‐5.) Counsel declares his perception that the 1AC corrects no flaws of the original complaint. (Id. at ¶ 6.) Accordingly, counsel felt that a phone call on May 19, 2022 that was ...

Excerpt: ... efforts to meet and confer to work these issues out before resorting to a discovery motion. Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998) 67 Cal.App.4...

Excerpt: ... information and under a false representation of GOMEZ's ability to later repurchase the Property from SHARMA. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his...

Excerpt: ...ff and KYLE BAKA subsequently granted their interests in that Property to KAREN BAKA. KAREN BAKA filed a probate petition in case FPR051416 on March 30, 2022 implicating the same deeds. The dispute between the parties concerns, among other issues, whether or not the Property is properly an asset of a trust created by Mark Duvall prior to his death. Court's Probate Jurisdiction. “Jurisdiction” refers in the truest sense to a court's authority ...

Excerpt: ...course and scope of employment with COMCAST, caused an automobile collision with Plaintiff. Plaintiff alleges that ALCANTARA was driving in a dangerous condition due to being severely tired, and that he drove in such a condition with COMCAST's approval. Plaintiff requests punitive damages against COMCAST for its acts causing and/or approving ALCANTARA's alleged dangerous driving. Legal Standard. Code of Civil Procedure section 436, subdivision (a...

Excerpt: ...ased on the same alleged defects existing or developing within one year of purchase. The Song‐Beverly Consumer Warranty Act imposes specified duties on manufacturers of consumer goods sold in California for which an express warrant is given. (Civ. Code § 1793.2(a).) A consumer good is specially defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes”. (Civ. C...

Excerpt: ....040.) The meet and confer declaration submitted by Plaintiff simply concludes that counsel “met and conferred extensively” without any supporting facts describing what actions were taken in an effort to meet and confer or the scope of discussions between counsel. (Decl. of Ramsdell, ¶ 9.) At best, Plaintiff's counsel establishes that he sent one meet and confer letter, which has not been provided to the court, and received a response to tha...

Excerpt: ...Plaintiff to produce the audio recording of her physical examination before Defendant must produce the report of that examination. Plaintiff fails to present a valid reason for withholding the recording and preventing the examiner from preparing a potentially more accurate report. Defendant shall deliver a copy of the report of the examination to Plaintiff within 30 days of service of, or access to, Plaintiff's audio recording of the examination....

Excerpt: ... of action to which the demurrer was sustained”. (Cmty. Water Coalition v. Santa Cruz County Local Agency Formation Comm'n (2011) 200 Cal.App.4th 1317, 1329.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so”. (Ibid.; Harris v. Wachovia Mortgage (2010) 185 Cal.App.4th 1018, 1023.) Additionally, Plaintiff has not cured the defects previously identified in the court's ruling o...

Excerpt: ... to an unreasonable risk of injury. (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478; Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 481; Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 488.) Page 2 of 2 Plaintiff has been deemed to have admitted that the premises “was maintained safely at the time” of her alleged injury and that Defendant Parkview “is not liable to [Plaintiff...

Excerpt: ...rally operates prospectively to declare future rights, rather than to redress past wrongs.” (Jolley v. Chase Home Fin., LLC (2013) 213 Cal.App.4th 872, 909; Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) There is no basis for declaratory relief if only past wrongs are involved. (Osseous Tech. of Am., Inc. v. DicoveryOrtho Partners, LLC (2010) 191 Cal.App.4th 357, 366; County of San Diego v. State of Cal. (2008) 164 Cal.App.4th 580, 607‐608...

Excerpt: ...ons (the “Property”). (Evid. Code, § 452, subd. (d); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264‐265 [judicial notice of recorded documents], disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 at fn. 13.) Sufficiency of Pleading. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 1...

Excerpt: ...nd agreement requirements of the CITY OF BENICIA (“CITY”), by successfully obtaining an encroachment permit and entering into an encroachment agreement with CITY [UMFs 1‐18 and evidence cited in support thereof]. Defendant also failed under Benicia Municipal Code §1.10.040 to timely file an administrative challenge of either of the administrative citations issued against him [UMFs 58 and 64, and evidence cited in support thereof]. Summary ...

Excerpt: ...ity discrimination, (5) retaliation, (6) retaliation under the Family and Medical Leave Act (the “FMLA”) and California Family Rights Act (the “CFRA”), and (7) wrongful termination. Defendant alternatively and in addition moves for summary adjudication on the issue of its liability for punitive damages. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of act...

Excerpt: ...t reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616, 17 CR2d 708, 710 (citing text); A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 CA5th 677, 695, 251 CR3d 423, 439] Comment: Otherwise, judges usually make short shrift of demurrers for uncertainty. They expect counsel to clear up any ambiguities through disco...

Excerpt: ...ENTIC FAIRFIELD LLC TENTATIVE RULING A preliminary question posed by the filing of these demurrers is whether a party named as a “real party in interest”, but not a “respondent” or “defendant”, and against whom no causes of action are clearly identified, and no charging allegations of wrongdoing made specific to that party, is one who can challenge the causes of action in the pleading by way of demurrer. The term “real party in inte...

Excerpt: ...ing is so produced, the testimony of the witness concerning such matter shall be stricken.” Here, a colossal series of delays occurred. First, the deposition, which was being taken remotely via Zoom, did not start at the appointed time although defense counsel and court reporter were ready and waiting. Thirteen minutes after the deposition was to begin, Hawkins and his attorney appeared on Zoom. Hawkins was unprepared to review documents remote...

Excerpt: ...” if the filing of the petition then causes the agency to produce the responsive documents, before the petition is ruled upon by the court. Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 463‐464. In the present case, Respondent CITY OF FAIRFIELD (“CITY”) did produce some responsive documents, at various times, all after the filing of this writ petition in September 2018. The total number of pages of these later‐produced documen...