Excerpt: ...bilitation (“CDCR”) staff that allegedly mistreated Plaintiff. Government Code section 820.8 reads: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” Plaintiff's allegations against DIAZ are that DIAZ had �...

Excerpt: ...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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Doheny Park Ter...

Excerpt: ...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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Doheny Park Ter...

Excerpt: ...iano v. Lyle Doughty, FCS050116, dated November 6, 2018, and a quitclaim deed recorded in Solano County as document 1997‐00031840, showing Plaintiff's ownership of her property since 1997. Minute orders may be judicially noticed as records of a court of this state. (Ev. Code § 452, subd. (d).) The existence and legal significance of a recorded document may be judicially noticed as facts that cannot be reasonably controverted. (Ev. Code § 452,...

Excerpt: ...e note, deed of trust, assignment of deed of trust, substitution of trustee, notice of default, notice of trustee's sale, and trustee's deed pertaining to the foreclosure at the heart of this case. The court takes judicial notice of the existence and legal significance of these recorded documents, and the adjustable rate note, as facts that cannot be reasonably controverted. (Ev. Code § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodlan...

Excerpt: ... 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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ... 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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ...tion must be alleged with specificity to allow the court to determine whether there is a prima facie foundation for the charge. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 216‐217.) In an action for fraud against a corporation, the plaintiff must allege “the names of the persons who made the allegedly fraudulent representations, their authority to s...

Excerpt: ...the landlord. Plaintiffs allege that the owner of the real property was Defendant Menemsha Equity, LLC, a limited liability company. (FAC, ¶¶ 5, 8.) Plaintiffs allege that Defendant Weisberg is the sole member of Menemsha who, at all relevant times, acted within the scope of his agency or representation for Menemsha. (FAC, ¶¶ 2, 6.) But, a limited liability company is distinct from its members. (Corp. Code § 17701.04(a).) The liabilities of ...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ...6 Cal.4th 446, 460.) Because Defendant has not met this burden, Plaintiff has no burden to produce any evidence or disprove anything and the court must deny the motion without looking at any opposing evidence. (Y.K.A. Indus., Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353‐354; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940; United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 338.) An insurance agent...

Excerpt: ...bilitation (“CDCR”) staff that allegedly mistreated Plaintiff. Government Code section 820.8 reads: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” Plaintiff's allegations against DIAZ are that DIAZ had �...

Excerpt: ...as a matter of law. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.App.4th 826, 850) Despite this court's prior ruling that “Defendant Forsythe owed [Plaintiffs] a duty not to create an unreasonable risk of injury to them and breached that duty by informing Defendant Snyder he would look the other way if Snyder drove over Plaintiffs' signs” (Minute Order (2/26/20)), a duty that is not based on the duties of an owner of real property owed to inv...

Excerpt: ...entire Declaration of Rob Reiter generally and to his various assertions of JPMC's negligence particularly. The court declines to rule on these objections to evidence as it deems them not material to disposition of the motion for summary judgment, as discussed below. (Code Civ. Proc. § 437c, subd. (q).) Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (C...

Excerpt: ... 2, Unlabeled “Exhibit 2”; Decl. of Jones, Exh. B.) Page 2 of 3 These causes of action are all based on duties arising out of Defendant's attorney‐client relationship with Decedent. (Complaint, ¶¶ 23‐63, 76‐80.) Plaintiff does not have standing to commence these causes of action, which survive the death of Decedent. (Code Civ. Proc. § 377.20(a).) A cause of action that survives the death of the person entitled to commence an action �...

Excerpt: ...ed causes of action. Judicial Notice. The court may properly accept facts it may judicially notice or that cannot reasonably be controverted when ruling on a motion for judgment on the pleadings. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) Defendants request judicial notice of the first amended complaint (“FAC”) and the lease agreement between them, Rickie Welch, and Bobby Welch, II. The court decline...

Excerpt: ...rtaining to the foreclosure sale at issue in this case and Plaintiff's Chapter 7 bankruptcy. Page 5 of 6 The court takes judicial notice of the existence and legal significance of the recorded documents as facts that cannot be reasonably controverted. (Ev. Code § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) The court takes judicial notice of the bankruptcy court documents as r...

Excerpt: ...Saverio E. Demitri.) The factors to be taken into account in the determination of whether a settlement is in "good faith" include a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among the plaintiffs, and a recognition that a settlor should pay less in settlement than if found liable after a trial. (Tech‐Bilt, Inc. v. Woodward�...

Excerpt: ...issue of material fact on that element or defense. C.C.P. §437c(p)(2). The elements of a cause of action for negligence are duty, breach, causation and damages. Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662. In general, an action or inaction by a defendant must be a proximate or legal cause of the plaintiff's injury, in order for the defendant to be held liable. Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 509. Courts apply a �...

Excerpt: ...(Code Civ. Proc. § 338(d).) Causes of action for breach of an oral agreement must be commenced within two years. (Code Civ. Proc. § 339(1).) The applicable statute of limitations for a cause of action for declaratory relief depends on the right or obligation sought to be enforced and is the same as would apply to actions for damages or injunction. (Howard Jarvis Taxpayers Ass'n v. City of La Habra (2001) 25 Cal.4th 809, 821; Ginsberg v. Gamson ...

Excerpt: ...vil Procedure section 430.30, subdivision (a). Defendants request judicial notice of Deed of Trust 200500094746, recorded in Solano County on June 27, 2005, Substitution of Trustee 201800020648, recorded in Solano County on March 26, 2018, and Notice of Default 201800022079, recorded in Solano County on March 18, 2018. The court takes judicial notice of the existence and legal significance of these recorded documents as facts that cannot be reaso...

Excerpt: ... due by July 18, 2018. No responses were served and no extension was requested. On August 30, 2018, Defendant's counsel sent a meet‐and‐confer letter to Plaintiff's counsel requesting responses within 5 days. Again, no responses were served and no extension was requested. On March 12, 2019, Defendant's counsel sent correspondence to Plaintiff's counsel, again seeking responses to discovery requests. On March 20, 2019, Defendant's counsel forw...

Excerpt: ... 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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff's claim. (Doheny Park Te...

Excerpt: ... for the conduct of Defendant Heinemeyer. (See, Complaint, ¶¶ 4, 17‐20.) Consequently, Plaintiff was required to comply with the claims presentation requirements of the Tort Claims Act by pursuing written claims with the respective employing public entities for these public employees. (Gov. Code §§ 950.2, 950.6(a); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374; People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 939; Julia...

Excerpt: ...fer Receipt for this case, and the fact that HORNE is a marriage and family therapist licensed by the California Board of Behavioral Sciences with license number 46660. The court does not need to take judicial notice of the two documents because they are already part of the record of this action. The court takes judicial notice of the fact of HORNE's license from a state licensing board as an official act of the executive department of the state ...

Excerpt: ...rder or for the renewal of a previous motion may be considered by any judge or court unless it is made according to this section”]. To renew a motion such as the earlier motion filed here by Defendant seeking relief from Judge Daniels' May order deeming admissions admitted, a party must file a motion per C.C.P. §1008(b), which sets forth new or different facts, circumstances or law that would justify a different result, and which identifies th...

Excerpt: ...use of action); failure to accommodate disability (5th cause of action); failure to engage in the interactive process (6th cause of action); retaliation (7th cause of action); and failure to prevent discrimination and retaliation in the workplace (8th cause of action). Because California's FEHA law is modeled on federal law (Title VII), California courts consider federal Title VII cases when applying FEHA, in discrimination and retaliation claims...

Excerpt: ...37c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) The undisputed material facts presented by Defendant fail to establish that the speed bump was not a dangerous condition on the property. That Plaintiff Michael Midkiff did not personally observe any liquid or other substance on the speed bump at the time of the accident does not establish that there were no substances or that the speed bump did not otherwise present a...

Excerpt: ...nce, fourth cause of action for violation of the Ralph Act, and fifth cause of action for violation of the Bane Act are overruled. Plaintiffs have adequately alleged facts establishing that Defendant Forsythe owed them a duty not to create an unreasonable risk of injury to them and breached that duty by informing Defendant Snyder he would look the other way if Snyder drove over Plaintiffs' signs. (See, Lugtu v. Cal. Highway Patrol (2001) 26 Cal.4...

Excerpt: ... covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. (Farmland Irrigation Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party and avoiding unseemly conflicts with courts of other jurisdictions...

Excerpt: ...n made in response to a request for admission if it obtains leave of court, which is only to be granted if the court determines that the admission was the result of mistake, inadvertence, or excusable neglect and the party that obtained the admission will not be substantially prejudiced. This provision applies to allow withdrawal of admissions that were deemed admitted as a penalty for failure to respond to propounded discovery. (Wilcox v. Birtwh...

Excerpt: ...eatedly restated policy encourages liberality in allowing amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) It is an abuse of discretion to deny amendment where amendment does not prejudice the opposing party. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) DARREN asks to replace his form answer denying each of Plain...

Excerpt: ...tive damages requires both a showing that the defendant acted with a willful and conscious disregard of the rights or safety of others and that the conduct was despicable. (Civ. Code § 3294, subds. (a), (c)(1); Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332; Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1161; Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) Conscious disregard is a “highly culpable state of mind” tha...

Excerpt: ...rer: whether a party is entitled to judgment as a matter of law. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205.) In considering such a motion the court may properly accept facts it may judicially notice or that cannot reasonably be controverted. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) “The motion normally lies only for defects fully disclosed on the face of the pleading under attac...

Excerpt: ...me Sav. Of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) Defendant Horne is awarded a monetary sanction against Plaintiff in the amount of $525 for reasonable attorneys' fees incurred in opposing this motion. A motion for reconsideration of a discovery order is subject to sanction for misuse of the discovery process. (Mattco Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1440‐1441.) Defe...

Excerpt: ...EW's (“JOE”) demurrers to Plaintiff's earlier action on these facts. The court takes judicial notice of this document as a record of a court of this state. (Ev. Code § 452, subd. (d).) Fifth Cause of Action: Interference with Contractual Relations. The elements of a cause of action for intentional interference with contractual relations are: (1) a contractual relationship between a plaintiff and a third party, (2) defendant's knowledge of th...

Excerpt: ...t (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.) The court had previously considered Plaintiffs' allegation that Defendant had made vague and unspecified verbal threats of ...

Excerpt: ...ough 13 of the declarations of Marlon and Febes Taasan and the transcript of the deposition of Hodges are overruled. Defendant Veriprise Processing Solutions, LLC's motion for summary judgment, based on the privilege pursuant to Civil Code section 2924(d), is denied. While it is true that Plaintiffs' allegation against Defendant consists solely of the issuance of statutory notices required by the nonjudicial foreclosure statutes (FAC, ¶ 24), Def...

Excerpt: ...ough 13 of the declarations of Marlon and Febes Taasan and the transcript of the deposition of Hodges are overruled. Defendant Veriprise Processing Solutions, LLC's motion for summary judgment, based on the privilege pursuant to Civil Code section 2924(d), is denied. While it is true that Plaintiffs' allegation against Defendant consists solely of the issuance of statutory notices required by the nonjudicial foreclosure statutes (FAC, ¶ 24), Def...

Excerpt: ... responding party to assert objections, including those based on privilege or work product. C.C.P. §2030.290(a) [interrogatories]; §2031.300(a) [requests for production]; §2033.280(a) [requests for admissions]. To the extent that objections are raised in “promptly” filed protective order motion, those raised objections may be preserved. However, if the protective order motion is denied, with those objections found invalid, in the absence o...

Excerpt: ...ns interstate commerce between Nevada limited liability company VEROS and California individual person LOPEZ. However, the court rules on this petition using the procedures of Code of Civil Procedure sections 1280 et seq. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 410 (Rosenthal).) California's procedural rules for petitions to compel arbitration are neutral between federal and state claims for arbitration enfor...

Excerpt: ...iation and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) Plaintiffs did not attempt to discuss the merits of any of Defendant's specific objections to any of Plaintiffs discovery requests, but simply took exception to the service of responses...

Excerpt: ...ns interstate commerce between Nevada limited liability company VEROS and California individual person LOPEZ. However, the court rules on this petition using the procedures of Code of Civil Procedure sections 1280 et seq. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 410 (Rosenthal).) California's procedural rules for petitions to compel arbitration are neutral between federal and state claims for arbitration enfor...

Excerpt: ...iation and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) Plaintiffs did not attempt to discuss the merits of any of Defendant's specific objections to any of Plaintiffs discovery requests, but simply took exception to the service of responses...