Excerpt: ...of an act or omission of the public entity or a public employee or any other person and (b) The liability of a public entity established by this part (commencing with Section 814) is subject 1 The Demurrer states it is being brought by all three defendants. However, only Chaffey is a defendant as to the second cause of action for dangerous condition of public property. Page | 2 to any immunity of the public entity provided by statute, including t...

Excerpt: ...oyed certain information on a protected computer within the meaning of the statute. Due to Defendant's alleged actions, Plaintiff seeks punitive damages from Defendant. (See FAC ¶ 82 and Prayer for Relief, ¶ 7.) Contrary to Defendant's arguments and assertions, Plaintiff has alleged sufficient facts in her FAC to allow for recovery of punitive damages if those damages are available based upon the causes of action alleged. However, Defendant arg...

Excerpt: ... the history of difficulty in obtaining the deposition of Valeko, Valeko's demand to take the depositions of Defendants' employees prior to his deposition, Valeko's refusal to attend noticed depositions and objections, and the issues raised at the discovery conference. (Yang Decl. at ¶¶2‐14.) Yang's testimony regarding Valeko's refusal to answer simple questions regarding his ability to give competent testimony which could be later used at tr...

Excerpt: ... allowed. Instead of addressing the prejudice issue, the opposition only focuses on Cabrera's purported prior knowledge of Nancy's identity and the purported time‐ barred nature of the claims. The Court has discretion to deny leave to amend where the proposed pleading is barred on its face (Kittredge Sports Co. v. Superior Ct. (1989) 213 Cal.App.3d 1045, 1048; California Casualty General Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 2...

Excerpt: ...t Cause of Action – Breach of Contract The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) In the first cause of action, Plaintiff alleges that a copy of the subject written Purchase Agreement is attached to the Complaint as Exhibit 1 “and incor...

Excerpt: ... to the Court but had not yet been processed. Page | 4 Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so that Defendants could file an amended declaration of Dr. Sung. The Court ordered Defendants to submit an amended declaration within 10 days and then Plaintiff would have 20 days to file an opposition and Defendants would have 10 days to file a reply. On March 10...

Excerpt: ...ds each of these causes of action fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e) & (f).) Second Cause of Action – Civil Code § 1942.4 Defendant argues Plaintiffs still fail to name any public officer or enforcement agency that allegedly inspected the property or provided notice to Defendant. Additionally, Plaintiffs fail to allege the date the notice was provided to determine the 35 day...

Excerpt: ...e Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it was noticed for March 23rd. However, this issu...

Excerpt: ...onstruction, Inc. and Katherine Hall a. Discussion i. 1st Cause of Action (“COA”) – Fraud 2nd COA – Negligent Misrepresentation The Koala Defendants assert both the allegations of fraud and negligent misrepresentation are not specifically pled as required. Cross‐Complainants argue the causes of action are well‐pled. For Hani and Frances Sayegh as to the second cause of action, they argue the cross‐ complaint does not allege they mad...

Excerpt: ...he premises expert witness declarations would not be based on the new trial date. Now, Defendant seeks to subvert the court order they prepared in stipulated to. Defendants have not complied with Code Civ. Proc., §2034.720 and the motion must be denied. Here, Plaintiff will be prejudiced by allowing Defendant to submit tardy expert witness information. Plaintiff was prepared to go to trial in February 2020. Defendant offered to go to mediation a...

Excerpt: ...dog. The motion is supported by a separate statement of fact, a declaration from defense counsel (Tracy W. Goldberg), and portions of the transcript from Foster's deposition. The undisputed facts presented with the motion indicate Foster was walking her dog, Doodles, when one of defendants' dog attacked and bit Doodles. (Fact No. 1.) In response, Foster attempted to protect Doodles by pulling him away from defendants' dog to get Doodle's back int...

Excerpt: ...on contained in the SAC and make the mistaken assumption that a positive ruling as to the 1st, 4th, and 5th causes of action will moot the 2nd, 3rd, and 6th causes of action resulting in a judgment in their favor. Code of Civil Procedure, section 437c specific states: Page | 2 “… the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the...

Excerpt: ...'s counsel, David M. DeBerry, also declares the statute of limitations defense has also been the subject of written discovery propounded on Plaintiffs. (DeBerry Decl., ¶7.) DeBerry further declares at the demurrer hearing in early 2020, Great Dane requested a limited discovery stay to allow it to proceed with a summary judgment motion on the statute of limitations defense. (DeBerry Decl., ¶8.) Great Dane argues the omission of the statute of li...

Excerpt: ...stice seem[] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) The proponent of the stay or protective order must establish good cause. (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754 [indicating “a presumption of good cause exists should be indulged only if circumstances warrant”].) The U.S. Supreme Court has also stated that the power to stay a proceeding is incidental to the power inhere...

Excerpt: ... at the time of the determination.' [Citation.]” (Bussard, supra, 164 Cal.App.4th at p. 864.) Liberality should be exercised in granting continuances when they are not prejudicial to the other parties. (Capital Nat. Bank of Sacramento, supra, 62 Cal.App.2d at p. 339.) Further, and as noted, in determining whether good cause exists to continue trial, “threats to procedural fairness” is a “touchstone for granting such a motion.” (Panoche,...

Excerpt: ...pers supporting a motion to compel an answer to a deposition question or to compel production of a document, electronically stored information, or tangible thing from a nonparty deponent must be personally served on the nonparty deponent.” On the other hand, when a subpoena is properly served upon an organization that is a California resident (such as leaving it with any officer, director, or custodian of records or with any agent or employee a...

Excerpt: ... aggrieved employee may bring a civil action “within one year from the date of that notice.” (Gov. Code, § 12965, subd. (b).) Given the May 24, 2019 right‐to‐sue notice, Plaintiff ordinarily would have had to file his Motion by Tuesday, May 26, 2020, as the one‐year period expired on Sunday, May 24, and as May 25 was the Memorial Day holiday. (§§ 10, 12 12a, subd. (a), 12b.) However, as Plaintiff points out, on April 6, 2020, the Jud...

Excerpt: ... to control the deposition proceedings or the information obtained thereby. (See Code Civ. Proc., § 2025.420.) The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Generally, this requires a showing that the burdens involved in the deposition proceeding clearly ...

Excerpt: ...tion, meaning she has waived these issues1 . (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Next, and as to the first cause of action for breach of contract, “‘[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effec...

Excerpt: ...thout an allegation of tender, a complaint challenging a foreclosure does not state a cause of action. (Karlsen v. Gibralter Sav. & Loan Assn. (1974) 15 Cal.App.3d 112, 117.) “It has been held that, at least when seeking to set aside the foreclosure sale, the plaintiff must also show prejudice and a tender of the amount of the secured indebtedness, or an excuse of tender.” (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 929.) Howe...

Excerpt: ...cessary because the majority of the communications between Ms. Brody and attorney Kevin Crockett were in writing, Ms. Brody is a witness to the purported settlement agreement. For this reason, Plaintiff is entitled to take her deposition. However, the Court agrees with Defendant that the scope of the deposition should be limited to Ms. Brody's communications (both written and oral) with attorney Kevin Crockett between May 5, 2020 and August 5, 20...

Excerpt: ...ts pursuant to Code of Civil Procedure § 1032 and attorneys' fees incurred prior to July 1, 2019 as allowed by California law and to be determined by the Court to be necessary and reasonable for the prosecution of this action. 7. It is expressly understood that only those attorneys' fees and costs incurred prior to July 1, 2019 are eligible to be awarded. There shall be no allowance for fees and costs incurred for the mediation or for submitting...

Excerpt: ...motion and still has not filed verified supplemental/further responses to Plaintiff's FRG#1. Defendant filed Oppositions on the grounds that on February 25, 2021, Defendant served its Further Responses to FRG#1. In her Reply, Plaintiff agrees that Defendant served its Further Responses to FRG#1, however, those responses were unverified and provided the same “n/a” responses although in same cases with an add clarify. Also in her Reply, Plainti...

Excerpt: ...rt takes the matter off calendar and the movant can refile when a code compliant meet and confer is accomplished. In doing the above, the Court suggests the parties discuss the following: As the loss of consortium is a common law cause of action, it cannot lie against CalTrans. In opposing, Plaintiff Guadalupe points to two cases. In Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1066, fn. 3, the Court of Appeal held in conjun...

Excerpt: ...s treated as a admission that the motion is meritorious.) As a result, the parties failure to oppose the Demurrer is construed as an admission that there are no fact that could be alleged to cure the defects in the pleadings and that the Demurrer is meritorious. The Demurrer is sustained with 10 days leave to amend. The Motion to Strike is moot based upon the demurrer ruling. Date _ Judge ...