Excerpt: ...d. An affidavi t that fails to meet both of these criteria must be disregarded in summary -judgment proceedings.” (49 C.J.S. Judgments § 333.) “In the context of summary judgment proceedings, the required personal knowledge of an affiant is that based on facts as would be admissible in evidence, not mere conclusions, meaning personal knowledge based on what the affiant actually saw or heard, as opposed to what the affiant learned second hand...

Excerpt: ...sues must be admitted or denied, and any remaining questions could easily be answered or given more explanation under the discovery process. Thus, this pleading is not subject to a special demurrer. First (Negligence – Premises Liability/Failure to Warn – Negligen ce Per Se) and Second Causes of Action (Nuisance) In attacking the nuisance cause of action, Defendant argues (1) it is duplicative of the negligence cause of action and (2) nuisanc...

Excerpt: ...objection #1 but SUSTAIN objection #2 (Lab. Code, §6304.5). Plaintiffs Navarro object to (1) Way's Declaration, entirely, because states in support of Opposition to RND's MSJ, (2) Dunn's Deposition at 13:7 -28, 14:2 -7, 15:13- 24, 16:26- 17:4, & 23:3- 5 Page | 5 becaus e not cited in the Separate Statement, and (3) Dunn's Deposition at 13:7 -28 because irrelevant: OVERRULE. Analysis Initially, Plaintiff Muro argues the Separate Statement is defe...

Excerpt: ...der Code of Ci vil Procedure section 473 for an order permitting the filing of the proposed SAC attached as Exhibit 1 to the Motion. The Motion lists amendments to the FAC including additional general allegations, the addition of a primary residence allegation under the HBOR Page | 2 claim, removal of the one action rule allegations, identification of the “rights of Mrs. Reece” for the wrongful foreclosure claim, amendments to the slander o...

Excerpt: ...18 Ford Fusion ( “Subject Vehicle”) from Citrus in Ontario, California. Defendants' Separate Statement of Undisputed Facts (UF) #1. Only Ojeda is named on the sales contract. UF #2. The Song -Beverly Act allows only the buyer of consumer goods to seek redress for breac hes of the implied or express warranties. (Civ. Code, §1794, subd. (a); Atkinson v. Elk Corporation of Texas (2006) 152 Cal.App.4th 212, 222.) A buyer is “any individual who...

Excerpt: ...e the objections to the pleading. The parties Page | 2 must meet and confer at least five days before the responsive pleading is due, but if they are unable to do so, an automatic 30 -day extension of time within which to file the responsive pleading will be granted by filing and serving a declaration on or before the date the response would be due, stating a good faith attempt was made to meet and confer. The moving party then must file and ...

Excerpt: ... o f Electronic Protected Health Page | 2 Information and (b) 45 C.F.R. section 165.524 (right to access), and breach of the notification rule. He asks the stay be pending the investigation and any subsequent criminal proceedings. Now, civil litigations may be appropriately stayed when a party (generally the defendant) is subject to a criminal prosecution that may result in the party invoking his 5th Amendment privilege. (Pacers, Inc. v. Superio...

Excerpt: ...tion of Emotional Distress. Kassing provides a noticed motion, declaration of counsel, Declaration of Cesar Olvares (“Olvares”) (Exhibit A), points and authorities, and a copy of the proposed cross -complaint. These causes of action must be raised by cross -com plaint as failure to plead them will bar defendants from asserting it in any later lawsuit (The Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6 -D, § 6:511 [citing CCP §4...

Excerpt: ...gence o n conclusions versus the ultimate fact. To plead negligence, the plaintiff must allege (1) legal duty, (2) breach of the legal duty, (3) causation, and (4) damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.) An NIED claim is a general neglig ence claim. (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796, fn. 4.) It is analyzed under either a byst...

Excerpt: ...retention and supervision. Alternatively, Sta
¯mark motions under section 437c(f) of the Code of Civil Procedure for summary adjudication, alleging the two causes of action are without merit. The Complaint's General Negligence Cause of Action “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo New...

Excerpt: ...nt since Foldcraft was the designer and manufacturer of the booth Plainti
¯ was seated on before the incident occurred. Foldcraft does not dispute that it designed and manufactured the wall mount booth, but contends the table at issue was not a Foldcraft product. At the time of this Þling, no parties have been able to identify the designer or manufacturer of the table (as opposed to the booth). Foldcraft's general commercial liability insurance...

Excerpt: ...y-one days after receipt of his right-to-sue letter from the EEOC and thus, the instant action under federal law would be barred under the applicable statute of limitations. The Complaint's Þrst, second, third and fourth Causes of Action Under Title VII The running of the statute must appear “clearly and a
¯irmatively” on the face of the complaint. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. S...

Excerpt: ...Plainti
¯ renders this part of the Demurrer moot. Page | 2 1) Whistleblower Argument – 4th cause of action (Retaliation) The second theory asserted in the 4th cause of action for Retaliation, is that Plainti
¯ was retaliated against for her whistleblowing activities, citing Labor Code, section 1102.5 in ¶81 of the Complaint. In ¶79, Plainti
¯ alleges: Defendants Liberty and Independence, acting through Lashley, whom they had given de facto...

Excerpt: ...y of their burden. It is still the moving party's burden to prove he or she is entitled to judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-745; FSR Brokerage, Inc. v. Superior Court (Blanco) (1995) 35 Cal.App.4th 69, 73-74, fn. 4.) Page | 2 Request for Judicial Notice Best asks to the Court to take judicial notice of the following pursuant to Evidence Code, sections 452 and 453 (without further clariÞcation). “Judicial notice is th...

Excerpt: ...omponent repair codes (No. 39). Plainti
¯s also seek, without any limitation, documents su
¯icient to show all customer complaint codes from 2018 to present (No. 40), and operation codes provided to authorized dealerships from 2018 to present (No. 41). GM responded with objections, including the requests seek conÞdential, proprietary, and trade secret information, and stated that no documents will be produced. The Court denies the motion to RF...

Excerpt: ...te demur on the grounds of Code of Civil Procedure section 430.10, subdivision (c). This provision provides a demurrer lies when another action is pending between the same parties on the same cause of action. (Code Civ. Proc., §430.10, subd. (c); Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787 [“Plant Insulation”].) If the Court sustains a demurrer under this subsection, the proper order is not dismissal, but abatemen...

Excerpt: ...ainty. First Cause o Action – Inverse IndemniÞcation Page | 2 An inverse condemnation claim arises when “there [is] an invasion or an appropriation o some valuable property right which the landowners possesses and the invasion or appropriation must be directly and specially a
¯ect the landowner to his injury.” (Border Business Park, Inc. v. City o San Diego (2006) 142 Cal.App.4th 1538, 1548.) A claim or inverse condemnation requires t...

Excerpt: ...ponse to Supplemental Special Interrogatories as to Kelsea Moscatel Movant: Defendant Best Buy Stores, L.P. Respondents: Plainti
¯s Cole and Kelsea Moscatel Page | 2 The Motions to Compel Further SRog Responses An overview of the law A motion to compel further responses is available when the party to whom the interrogatories were directed gave responses deemed improper by the propounding party; e.g., objections, or evasive or incomplete answers....

Excerpt: ...Civ. Proc., S 2031.310.) This Page | 3 motion can be utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comply that is incomplete or evasive. (Code Civ. Proc., S 2031.310, subd. A motion for an order compelling further responses "shall set forth specific facts showing good cause justifying the discovery sought by the demand." (Code Civ. Proc., S 2031.310, subd. (b)(l); Ki...

Excerpt: ...1-50, inclusive Motion(s): Motion for Summary Judgment Movant(s): Defendants and Cross-complainants Ahmad Salamah, individually and dba A&A Auto Sales Respondent(s): Plaintiffs Mario Lalama and Noemi Lalama Discussion Analysis The undisputed Material Facts. Defendants submit 13 undisputed material facts (UMFs). In sum, the parties agree that this lawsuit arises out of an accident that occurred on June 26, 2019 in which Mario Lalama was driving hi...

Excerpt: ...provide a procedure for the summary determination of whether a valid agreement to arbitrate exists, and such summary procedure satisfies both state and federal law. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th394, 413.) Under Code of Civil Procedure section 1281.2, a party to an arbitration agreement may move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall order the parties ...

Excerpt: ... to constitute a valid cause of action pursuant to Code of Civil Procedure sectons 430.10, subdivision (e). Sufficiency of Factual Allegations: Ford argues that Plaintiffs' cause of action for violation of Business and Professions Code section 17200 et seq. (LJCL) is inadequately pled because they do not provide any factual allegations to support their claim that Ford's "business practices" are unfair, unlawful, or fraudulent under Business and P...

Excerpt: ...Cal.App.2d 366, 370-371 states: A moton to strike a complaint is permitted under section 435 of the Code of Civil Procedure, which provides in relevant part that "The defendant, within the time required in the summons to answer, ... may serve and file a notce of motion to strike the whole or any part of the complaint.... If defendant serves and files such a notice of moton without demurring, his time to answer the complaint shall be extended... (...

Excerpt: ...tisfied. Protectve order. Code of Civil Procedure section 2030.050 requires any party propounding more than 35 special interrogatories to any other party to attach a declaration justifying the number of interrogatories. The supporting declaration must justify exceeding 35 interrogatories for one of three reasons: (1) the complexity or the quantity of the existing and potential issues in the particular case; (2) the financial burden on a party ent...

Excerpt: ...asonable diligence to personally serve Defendant, resorting to substituted service at a house that was no longer Defendant's dwelling house or usual place of abode, and that Plaintiff has not substantially complied with the statutory requirements for service of process so as to confer actual notice of the summons and complaint on the Defendant. a. Plaintiff Meets Evidentiary Burden Regarding Proper Service On a motion to quash service of summons ...