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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

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 ...