Excerpt: ... does not object to the intervention by James River, but takes issue with the attorney fee request in the answer and the naming of the plaintiff in the cross-complaint for indemnity, contribution, apportionment of fault etc. The court agrees with James River that intervention should first be granted and any objection to the allegations within the answer and cross-complaint may be the subject of a demurrer and/or motion to strike after the propose...

Excerpt: ...dges that the affirmative defenses of waiver, estoppel or latches are not relevant to its motion. The reply withdraws the declarations addressing the 2/21/19 reservation of rights letter to a lawsuit amended to name Paramount and its medical practitioners in August of 2017. Had MPT's summary judgment been filed to solely address a duty to insure and defend Paramount for the acts and omissions of Dr Scanlon, the court would agree that an argument ...

Excerpt: ...urt finds that plaintiff has failed to establish that plaintiff is likely to prevail on the merits of its complaint for misappropriate of trade secrets, breach of contract, conversion and imposition of a constructive trust. Plaintiff has failed to establish that it will suffer irreparable injury unless a TRO issues and that monetary damages could not offer adequate relief. If the request for a TRO is brought under B&PC §17203, defendant has made...

Excerpt: ...) 252 Cal. App. 2d 256, 269; Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549; Ayer v. Robinson (1958) 163 Cal. App. 2d 424, 428–429. Demurrer The plaintiff has requested, and the court grants, plaintiff leave to amend to separate out the claims of the father from the claims of the son. The demurrer to the 4 th cause of action for NEID is sustained with leave as to the son. Given the physical injury suffered by the father, the claim for NEID ...

Excerpt: ...s the requirement of a public entity to notify the claimant if it deems the claim defective. (Gov. Code §910.8.) Unless notice of defect is given, the public entity waives a defense based on such defect. (Gov. Code §911; Phillips v Desert Hosp Dist (1989) 49 Cal.3d 699, 707.) The documents attached to the declaration of plaintiff counsel indicates that plaintiff was advised the claim had been rejected. The attorney does not attach a letter whic...

Excerpt: ...e would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) The objections asserted in opposition to the motion to amend appear to be ones that should be addressed in the context of a demurrer. (California Cas Gen Ins Co v Sup Ct (Gorgei) (1985) 173 Cal App.3d 274, 281, overruled on another point in Kransco v American Empire Surplus...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:459.) In addition, the affirmative defense alleged that plaintiff delivered multiple defective refrigeration units and failed to properly repair the defects and milk had to be dumped due to inadequate cooling over the course of a month. Failure to mitigate damages may occur after a wrong where some damages may still be averted. (United States v Sierra Pac Ind<004c0055005...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:459.) In addition, the affirmative defense alleged that plaintiff delivered multiple defective refrigeration units and failed to properly repair the defects and milk had to be dumped due to inadequate cooling over the course of a month. Failure to mitigate damages may occur after a wrong where some damages may still be averted. (United States v Sierra Pac Ind (2012) 879 ...