Excerpt: ... its joint agent TRI Commercial Real Estate Services lnc and other persons and entities with whom DMP has communicated with during the course of the transaction which is the subject of this action." This response does not consist of a statement that Defendant will comply with the document request, a representation that Defendant lacks the ability to comply with the document request, or an objection to the document request. (Code Civ. Proc. S 2031...

Excerpt: ...omplaint alleges that GOMEZ refused to expunge a lis pendens on SHARMA's real property (the "Property") despite a July 14, 2022 court order and that GOMEZ has converted SHARMA's property. The court has received opposition to the ant-SLAPP motion but has not received opposition to the demurrer. GOMEZ's Standing. The court disregards GOMEZ's arguments as to SHARMA's first cause of action, alleging professional negligence against Defendants ALI ARI ...

Excerpt: ...eath due to Defendant's understaffing of its care facility. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. 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. Plaintiffs' cou...

Excerpt: ...ployment and Housing Act (the "FEHA"). Legal Standard. "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 or her case "with reasonable precision and with particularity sufficient to acquaint [t...

Excerpt: ...ear and convincing evidence that the adverse employment action would have occurred even absent the whistleblowing. Labor Code 51102.6. These same standards apply for both trial and summary judgment. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 717. Thus, to defeat a defense summary judgment or adjudication motion, a plaintiff need only present evidence sufficient to show that whistleblowing was a contributing factor to the ad...

Excerpt: ....P. 5685.040. The underlying judgment here includes an award of attorneys fees authorized by contract, so this condition is met. The attorneys fees incurred by MEOW Y. LOH and LEE H. TAY LOH ("Landlords") in defending the ex parte application and then motion to set aside the default judgment filed by defendant/judgment debtor AMARILLO COLLEGE OF HAIRDRESSING, INC., dba Milan Institute of Cosmetology ("Tenant") also appear to have been incurred in...

Excerpt: ... complaint alleges that Decedent, Plaintiff's seventeen-year-old son, was a student with disabilities and special needs at Defendant's school. Plaintiff alleges that Defendant failed to supervise Decedent, who while unsupervised suffered an episode of seizures leading to hospitalization and then death on September 25, 2021. Scope of Subpoenas. Defendant's subpoenas to UCSF seek (1) "Any and all medical documents, paper and digital records pertain...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...dant filed no responsive pleading in this action identifying an address of record. Despite the statement of the 3420 Holsclaw Road address Plaintiff used for notice of this motion in the presented settlement agreement between the parties, it is not sufficiently clear to the court that Defendant has received notice of this proceeding. Furthermore, Plaintiff's motion does not clearly explain the credits to which Defendant is entitled against the ju...

Excerpt: ...intiffs' father ("Decedent") was an elder in Defendant's care and suffered injury and death due to Defendant's understaffing of its care facility. Defendant allegedly misrepresented its CMS star rating to Plaintiffs to entice them to place Decedent in its care. 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,...

Excerpt: ...r malicious, including leaving Decedent "to regularly sit in his fecal matter unattended such that he endured a bi-lateral pressure ulcer on his coccyx for years", "fail[ingl to provide Mr. Bellalda with adequate nutriton and hydration, such that he became anemic and critically dehydrated", failing to clean or bathe Decedent properly such that he developed "multiple pressure ulcers, which became gangrenous and septic", and failing to "maintain ge...

Excerpt: ...on for wrongful termination in violation of public policy is denied. "When a plaintiff alleges retaliatory [or discriminatory] employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable i...

Excerpt: ... importance of discouraging multiple litigation designed solely to harass an adverse party", "avoiding unseemly conflicts with the courts of other jurisdictions", and "whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced." (Thomson v. Cont'l Ins. Co. (...

Excerpt: ...hoice along with the test materials and raw test data. Plaintiffs have conceded that there is good cause for the mental examinaton. (Code Civ. Proc. S 2032.320(a).) The only dispute between the parties is whether disclosure of copies of the tests administered and raw test data should be limited to an expert neuropsychologist of Plaintiffs' choice or whether disclosure may be made directly to Plaintiffs' counsel in light of Dr. Roberts' professed ...

Excerpt: ...th 417, 425- 427 [replacement judge should consider the merits of a motion for reconsideration of the disqualification motion]) and a motion asking a court to decide the same matter previously ruled on should be treated as a motion for reconsideration regardless of the label used by the party (J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 cal.App.5th 1142, 1171; Powell v. county of orange (2011) 197 Cal.App.4th 1573, 1577). T...

Excerpt: ...cheduled to be tried on July 31, 2023 does not raise such a risk of inconsistent rulings to warrant a need to withdraw the reference, particularly when it appears that the parties would be collaterally estopped from relitigating issues resolved by trial in one litigation in the prosecution ofthe other. (See, Code Civ. Proc. S 644(a) [decision of the referee stands as the decision of the court]; Pac. Lumber Co. v. State Water Res. Control Bd. (200...

Excerpt: ... on Void Judgment TENTATIVE RULING Preliminarily, the court rejects the arguments raised in the opposition filed by MEOW Y. LOH and LEE H. TAY LOH ("Plaintiffs") that its ruling on the earlier ex parte application collaterally estops AMARILLO COLLEGE OF HAIRDRESSING INC. dba Milan Institute of Cosmetology ("Defendant") from raising the issues raised in this motion, or renders this motion as one for reconsideration. As to collateral estoppel, neit...

Excerpt: ...vance of meet and confer requirements may conserve his own resources as well as those of the court. However, "[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Code Civ. Proc„ S 430.41, subd. 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) ...

Excerpt: ...of action for fraudulent conveyance that was not based on the lease agreement. YESENIA ANGEL is not a signatory to the lease agreement containing the attorney's fees provision upon which she seeks attorney's fees in this action. Although courts have recognized that a non-signatory may recover attorney's fees under a contract in some circumstances, such circumstances do not exist in this case. A non-signatory may recover attorney's fees if she "st...

Excerpt: ...e ("IDC") will be conducted to better assess what documents within the 19 categories of requests are reasonably likely to produce evidence that is relevant to Plaintiff's whistleblower retaliatory discharge claim. Ultimately, only those documents will considered for The IDC is also most importantly an opportunity for the parties to meet and confer, and have meaningful input into this process, before the court conducts its in camera review of the ...

Excerpt: ...oritize broader requests so that the agency could focus its efforts on more immediate production of specific parts of the request, the parts of most interest to the requester. For example, in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 (reversed on other grounds by National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488), the appellate court noted that at the invitation of the city, the requestor agreed to a tempora...

Excerpt: ...oritize broader requests so that the agency could focus its efforts on more immediate production of specific parts of the request, the parts of most interest to the requester. For example, in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 (reversed on other grounds by National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488), the appellate court noted that at the invitation of the city, the requestor agreed to a tempora...

Excerpt: ...inst WAL-MART; and products liability is alleged against WAL-MART and CLOROX only. WAL-MART and DOE have together filed one demurrer to the 1AC. CLOROX has filed its own demurrer. Both demurrers are addressed in this ruling as they make similar arguments. Notice of Tentative Ruling. Defendants' notices of demurrer do not advise the recipient that the Solano County Superior Court uses a tentative ruling system, as is required under Local Rule 3.9,...

Excerpt: ...osition was filed late, and contend that this caused prejudice to them because they had only three days to file their reply. Plaintiff's counsel, however, filed an ex parte application that indicates his late filing was due to mistake, and that when he realized his mistake, he served a draft of his opposition, including the declaration of Nora Moore, on defense counsel on February 17, 2023, when the opposition was due. Therefore, the court consid...

Excerpt: ...efore, “the correct course” is to dismiss the action. (Viking River Cruises v. Moriana, supra, at p.1925). In the present case, the individual PAGA claims of the representative plaintiffs, HORMIGAS and CASTRO, have been referred to arbitration pursuant to an arbitration agreement that they each signed. Therefore, HORMIGAS and CASTRO no longer have standing to maintain this representative action. In their opposition, plaintiffs make several co...

Excerpt: ...the same as that imposed on manufacturers. (Civ. Code § 1795.5.) If the sale of the used good is accompanied by an express warranty, the implied warranties of merchantability and fitness are coextensive in duration with the express warranty, but in no cases less than 30 days or more than three months. (Civ. Code § 1795.5(c).) While an express warranty cannot be breached by a latent defect discovered after the express warranty period has expired...

Excerpt: ...olicy. He does not provide any information as to how that policy applies to any of the defendants in this case. More importantly, defense counsel's attempt to discontinue his representation of defendant JOSE GOMEZ by omitting him in an amended answer is unethical. After assuming a duty to represent JOSE GOMEZ, defense counsel must act responsibly in discontinuing such representation. If defense counsel does not want to represent JOSE GOMEZ in thi...

Excerpt: ...pending. (Reese v. Select Portfolio Servicing (2010) 2020 Cal.App.Unpub.LEXIS 5906, pp. 11-12.) However, Plaintiff now alleges that Defendant denied the application in a letter dated November 11, 2016, that Plaintiff promptly appealed this decision, and that Defendant denied the appeal on December 3, 2016. (SAC, ¶¶ 27-28.) Defendant thereafter recorded a subsequent notice of trustee's sale on May 31, 2018. (Id. at ¶ 31.) The trustee's deed aft...

Excerpt: ....P. §425.16(e) defines “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” to include the following: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under ...

Excerpt: ...e essential elements of a cause of action for breach of contract are: 1) a contract, 2) plaintiff's performance, 3) defendant's breach, and 4) damages. (Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1112.) Plaintiff has adequately alleged that the parties entered into an agreement for Plaintiff to obtain a 25% ownership interest in Defendant Nanay, includ...

Excerpt: ... his interest in a mobile home (the “Home”) to AXTELL. Legal Standard. “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 must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) A complaint is sufficient if it al...

Excerpt: ...idence that she is 75 years old, and has or has had a number of medical conditions. However, she has not established that any of them are life threatening at this time or are so debilitating that she will not be able to participate in this litigation if trial is not held in the next six months. The court notes that plaintiff has failed to treat this matter with urgency by waiting until almost two years after the alleged incident occurred to file ...

Excerpt: ...ffered injury and death due to Defendant's understaffing of its care facility. 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 or her case “with reasonable ...

Excerpt: ...the “FEHA”). Timeliness of Opposition; Spacing of Filing Text. Plaintiff's counsel admits that opposition papers were not served on Defendants until January 3, 2023. (Declaration of Shanna McDaniel in Support of Reply to Opposition at ¶ 1, Exhibits A‐B.) The court cautions Plaintiff's counsel to be careful of service deadlines and of the spacing requirements of California Rules of Court Rule 2.108 but uses its discretion to accept Plaintif...

Excerpt: ...and Production of Documents is DENIED in its entirety. California's Civil Discovery Act of 1986, Code Civ. Proc., § 2016 et seq., requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. This,...

Excerpt: ... Civil Code §3496, the statute at issue in that case, for red‐light abatement action]. Recovery of CITY's attorneys fees is governed by a different statute. Health & Safety Code §17980.7(c)(11) and (d)(1). However, neither of those subsections identify a particular method for computation of attorneys fees of the public agency. Thus, under Santa Rosa, the court will award fees not based upon what CITY pays its deputy city attorneys for the tim...

Excerpt: ...and Production of Documents is DENIED in its entirety. California's Civil Discovery Act of 1986, Code Civ. Proc., § 2016 et seq., requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. This,...

Excerpt: ... the sixth cause of action is for constructive wrongful termination. All concern events during Plaintiff's employment with the POTEET Defendants' company Defendant HEALTHY BODIES, INC. and the acts of her supervisor Defendant TOM NAKANISHI. 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 complai...

Excerpt: ...t and confer declaration]; 2030.300(b)(1) [meet and confer requirement to compel further responses to interrogatories]. 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.4th 424 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certain extent, the ju...

Excerpt: ...at ¶ 82, Exhibit 5.) Validity of Code of Civil Procedure Section 998 Offer. Code of Civil Procedure section 998, subdivision (c)(1) provides, among other things, that a plaintiff who rejects a defendant's properly presented and reasonable settlement offer and then fails to obtain a more favorable result cannot claim attorneys' fees and costs incurred after the date of the offer even in a case under the Act. (Covert v. FCA USA, LLC (2022) 73 Cal....

Excerpt: ...ed Loan Servicing LLC (2020) 52 Cal.App.5th 795, 803. The “fraud by omission” cause of action elements include concealment or suppression of a material fact by one who actually knows that fact and has a duty to reveal it. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. Plaintiff's complaint contains no specific allegations that would establish actual knowledge by Defendants and demurring parties BUNDESEN ENTERPRISES dba Cen...

Excerpt: ...nd implied warranty obligations on manufacturers for the sale of new consumer goods. (Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 219.) The Act also applies to a retail seller of a used consumer good on a limited basis only if the retail seller makes an express warranty with respect to that used consumer good. (Civ. Code § 1795.5; Gutierrez v. Carmax Auto Superstores Ca. (2018) 19 Cal.App.5th 1234, 1246; Leber v. DKD of Davis, Inc. (2015...

Excerpt: ...t Cornerstone to prepare, and obtain from Plaintiff approval of, subdivision documents necessary to apply for and obtain a legal parcel in compliance with the Subdivision Map Act, including a proposed map and a proposed Declaration of Covenants, Conditions and Restrictions. (FAC, ¶ 13(a), Exh. B, ¶ 32.) The agreement also required Defendant Cornerstone to refrain from agreeing to expansion or amendment of a tenant's lease without Plaintiff's pr...

Excerpt: ... Sav. Of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) The need to show a satisfactory explanation is a strict requirement of diligence. (Garcia, 58 Cal.App.4th at 690.) Plaintiff's counsel presumably had personal knowledge of the material terms of the settlement agreement he negotiated and, to the extent that counsel may claim that he could not recall the precise terms of the settlement agreement ...

Excerpt: ...is similar to the lack of a fence around a swimming pool, which courts have found to be a dangerous condition. Therefore, the court finds that the complaint alleges sufficient facts to state a cause of action for premises liability. Defendants' demurrer to the fourth cause of action for elder abuse is sustained with leave to amend. Although the complaint may allege facts indicating negligence on the part of defendants, it does not allege facts in...

Excerpt: ... mobile home (the “Home”) to AXTELL. Legal Standard. Code of Civil Procedure section 438, subdivision (b)(1) allows a party to move for judgment on the pleadings. A defendant may move for judgment on the pleadings if the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd....

Excerpt: ...cated for a settlement administrator fee, and the $15,000.00 to be allocated for a PAGA payment. The court allocates $150,750.00, which is 25% of the gross settlement amount, for attorneys' fees. Based on the records submitted, the court finds this amount to be appropriate under the common fund doctrine and the lodestar multiplier method. The court notes that although there was some risk involved, the litigation was not extensive or complex. The ...

Excerpt: ...e, the other side will not engage in good faith settlement and will not offer any viable settlement alternatives. Furthermore, plaintiff indicates personal attendance at a mandatory settlement conference represents a significant burden and expense to plaintiff. In fact, it appears to be plaintiff who is not proceeding in good faith. Pursuant to CRC §3.1380(b): [All] “Trial counsel, parties, and persons with full authority to settle the case mu...

Excerpt: ...ate (3d ed. 1989) § 6:1, pp. 2‐3 (rev. 9/00); see Fin. Code, § 17003, subd. (a).) An escrow holder is an agent and fiduciary of the parties to the escrow. (Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 534 [25 Cal.Rptr. 65, 375 P.2d 33] (Amen); Rianda v. San Benito Title Guar. Co. (1950) 35 Cal.2d 170, 173 [217 P.2d 25].) The agency created by the escrow is limited ‐limited to the obligation of the escrow holder to carry out the ins...