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...