Excerpt: ...ed. An affidav it 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 b e 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 ha...

Excerpt: ...here are no triable issues of fact as to Plaintiffs' first, second, third and fourth causes o f acti on. First Cause of Action for Adult Abuse and Negl ect Page | 1 The elemen ts of a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the Act) are: (1) defendant had a substantial caretaking or custodial relationship with plaintiff/decedent, involving ongoing responsibility for plaintiff's basic needs, which an able -...

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

Excerpt: ...hat Singh and A&A knew of their identity yet unreasonably delayed filing and serving the Doe amendment until only a few months before trial even though their cross-complaint was filed nearly two years ago. Counsel for Avey, Richard C. Moreno, submits a declaration and attaches exhibits to show where their identity was revealed in discovery. Avey states that Singh and A&A knew of their existence and the factual and legal basis by which they could ...

Excerpt: ...tion(s): Motion to Set Aside Entry of Default, Default Judgment, Renewed Judgment, Writ of Executon and other orders Movant(s): Defendant Ha Tien Thi Ha aka Ha Tien Thi (erroneously sued and served as Tien T. Ha aka Tien H. Ha aka Ha Tien Ha aka Tina Ha aka Ha Tien Ha, et al. Respondent(s): Plaintiff Unifund CCR Partners, a New York Partnership Discussion - Here, Defendant seeks to set aside the judgment on the ground that it is void because she ...

Excerpt: ...eet and confer requirement applies to amended pleadings Page | 6 as well as originals. (Code Civ. Proc., S 430.41, subd. (a).) The meet and confer shall occur at least five days before the date the responsive pleading is due. (Code Civ. Proc., S 430.41, subd. If there is no resolution, the demurring party shall submit a declaration with h-s/her demurrer stating either (a) the means in which the parties met and conferred and that no resolution was...

Excerpt: ...lege that CDA has a possessory right to the property itself; thus, the cause of action does not state sufficient facts to support nor does COA have standing to bring a trespass cause of action. Additionally, GS8 also specially demurs that the trespass cause of action is uncertain because the FAC fails to allege who owns or possesses the property. In response, Plaintiff argues that it has adequately alleged that it owned the pipeline and the groun...

Excerpt: ... or in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437c, subdivision (f) in favor of Defendants and against Plaintiff's SAC and the following causes of action contained in Plaintiff's SAC: (1) First Cause of Action for Breach of Contract; and, Page | 10 (2) Second Cause of Action for Conversion. Analysis: Plaintiffs First Cause of Action for Breach of Contract: Plaintiff's First Cause of Action is for Breach ...

Excerpt: ...ch 27, 2023, Faerber served his Designation of Expert Witnesses listing Richard Lewis Ruffalo, M.D. (Ruffalo), an anesthesiologist and pharmacologist, along with Kevin P. Becker, M.D., another anesthesiologist, both of whom are to testify concerning causation and damages according to the sworn declaration of defense counsel. (Scott Decl„ 96; Exh. 1.) Scott further declares one of the arguments proffered in support of Faerber's motion for summar...

Excerpt: ...a claim for fraudulent concealment are: "(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose that fact to the plaintiff; (3) the defendant Page I 2 intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if she had known of the concealed or suppressed fact; and (5) plaintiff sustained damages...

Excerpt: ...ameda County action (Jonathan Bullinger v. The Finish Line, Inc. (Case 23CV038515)) is transferred to San Francisco and that action is consolidated with this action (CGC-23-605200) for all purposes. All future filings shall be under case number CGC-23-605200. While plaintiff s dismissal of several of his Labor Code claims in this case reduces the overlap, there remains overlap regarding the enforceability of the parties arbitration agreement. Tha...

Excerpt: ...n (l), allows for the recovery of attorney fees associated with litigation compelling an employer to comply with its obligation to produce the personnel file. Plaintiff also contends that he can recover attorney fees under Labor Code section 432.6, subdivision (d),l which provides a court may award reasonable attorney fees to a prevailing plaintiff who enforces his rights under this section. An employer is precluded from requiring as a condition ...

Excerpt: ...74, among other cases cited in Plaintiffs Moving Papers; (2) The specific defects that affected the Subject Vehicle, including: a. Transmission Defects (Request Nos. 7-17); b. Engine Defects (Request Nos. 18-28); Page 2 c. Electrical Defects (Request Nos. 29-39); and, d. Structural Defects (Request Nos. 40-50) (Subject Vehicle Discovery). GM's Opposition: GM asserts that Plaintiff's motion to compel should be denied on the merits. GM argues that ...

Excerpt: ...) as evasive or incomplete, an objection is without merit or too general, or the exercise of the option to documents is unwarranted or the required specification of those documents is inadequate can move to compel further responses. (Code Civ. Proc., 52030.3W, subd. (a).) The motion to compel must be noticed within 45 days of receipt of the responses (plus the additional time if not personally served). (Code Civ. Proc., "2030.300, subd. (c), 2031...

Excerpt: ...mpromise, filed November 20, 2020, In re Donald Ray Paulson, supra (RJN Exh. B); • Docket for Saunders v. Paulson, Ap#llate Case No. D0751921, with underlying civil Case No. CIVDS1828407 (RJN Exh. C). There is no opposition to the request. The Court will grant Defendant's request and take judicial notice of the existence of court filings RJN Exhibits A and C, and take judicial notice of the Bankruptcy Court order RJN Exhibit B. Analysis With he...

Excerpt: ...sability is unable to perform his/her essential duties even with reasonable accommodations or cannot perform those duties in a manner that would not endanger others even with reasonable accommodations. (Gov. Code S 12940, subd. (a) Further, under California Government Code section 12926, subdivision (m), physical disability is defined as: "(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that d...

Excerpt: ..., LLC; and Bubba Likes Tortillas, LLC (Plaintiffs) then commenced the underlying lawsuit against the City and its City Manager, Andrea Miller, alleging defendants engaged in a "pay for play" scheme; committed government waste; failed to provide the full scoring rubrics used to determine the Page | 2 licenses; the scoring was not conducted rationally; and defendants failed to follow proper procedure and the Brown Act. Overall, the complaint and wr...

Excerpt: ... as to why the untimeliness of this motion was not addressed. However, the Court is not limited as by this oversight. 1 The moton in this case was filed 25 days after the application was mailed and e-mailed. The timeliness of the motion is not raised in the opposition. The Initial Burden Martinez and FedEx filed an application for good faith settlement indicating there was a settlement with Du for $12,500. The non- monetary term involves the rele...

Excerpt: ...ion claiming he spent 49.1 hours on the case at per hour, with the time broken down by task. (Morris Decl., "6-7.) The rate and time spent appear reasonable and are not challenged. Instead, in opposition, Defendant argues recovery should have been pursued through the Worker's Com#nsation Appeals Board. Labor Code section 3502, subdivision (a), provides in part: "Where the conditions of compensation set forth in Secton concur, the right to recover...

Excerpt: ...ing party, evidence obtained through discovery, and matters judicially noticed. (Code Civ. Proc. 5437c, subd. (b).) Declarations must be based on the personal knowledge of the declarant, show affirmatively that the declarant is competent to testify to the matters stated, and set forth admissible evidence. (Code Civ. Proc. 5437c, subd. (d).) The essential allegations of any common count are: (1) the defendant is indebted to plaintiff in a certain ...

Excerpt: ...ood Faith Meet and Confer Pursuant to Code of Civil Procedure section 439: Here Defendants have not filed a declaration outlining the parties' meet and confer efforts that took place prior to the filing of Defendants' JOP in violation with Code of Civil Procedure section 439. This alone is enough to take this matter off calendar. More importantly, as correctly point out by Plaintiff in his Opposition, the grounds for Defendants' motion for judgme...

Excerpt: ....App.4th 421.) Per the statute, to obtain an order for Plaintiffs to post an undertaking, the Defendant Dr. Faerber must establish that the Plaintiffs are out-of-state residents, and that he has a reasonable possibility of prevailing in the instant action. If the former are satisfied, then public policy requires an evaluation of Plaintiffs' finances to determine if they are indigent and if an undertaking would deny their fundamental right of acce...

Excerpt: ...aint. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Roman v. County of Los Angeles (2000) 85 cal.App.4th 316, 324-325; stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 cal.App.4th 303, 321.) If the dates in question are not shown on the face of the complaint, there is no ground for general or special demurrer (dates not being essential t...

Excerpt: ... paragraph; and must state whether the challenge is to the entire pleading or to some specific cause of action therein. (Cal. Rules of Court, rule 3.1320(a).) Here, although Defendant's notce of hearing and memorandum contain passing references to uncertainty, Defendant's demurrer only includes a single ground for demurrer—that Plaintiff failed to plead facts suffcient to state a cause of action. (See Dem 3.)1 Thus, the Court construes Defendan...

Excerpt: ...attorney's fees are "allowable costs." (Code Civ. Proc., 51033.5, subds. (a)(10)(A), (8), & (C); Santisas v. Goodwin (1998) 14 Cal.4th 599, 606.) Page | 2 Costs statutes are to be strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281, 289.) If the items appearing on a costs bill appear to be proper charges, the party seeking to tax costs bears the burden of showing they are not reasonable or necessary. If the items are...

Excerpt: ... legal cause; and (4) damage to plaintiff. (George A. Hormel & Co. v. Maez (1979) 92 Cal.App.3d 963, 965; 4 Witkin Cal. Proc. Plead S 537.) Page | 2 In this case, the form-SAC contains the cursory elements of a negligence claim as the pleading indicates all defendants owed a duty, breached the duty, and that the breached caused negligence. (See SAC at pp. 23-26.) In the demurrer, the focal point is whether a duty of care was owed between Ferra an...