Excerpt: ...e, allows a party to bring a special motion to strike a meritless SLAPP suit at an early stage of the litigation. Rusheen v. Cohen, supra, at pp. 1055–1056; Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443. Code of Civil Procedure section 425.16 prescribes a two‐step process for courts to follow in determining whether a cause of action constitutes a SLAPP. Navellier v. Sletten (2002) 29 Cal.4th 82, 88. In the first ...

Excerpt: ...3 cases where Plaintiff Castillo may not have seen the commencement of the injury‐producing event but she perceived it while it was occurring and understood her child was being injured. Thus, the facts sufficiently support bystander NIED as against a demurrer. 1Zuniga v Housing Authority (1995) 41 Cal.App.4th 82 2Ortiz v. HPM Corp.(1991) 234 Cal.App.3d 178 3 In re Air Crash Disaster Near Cerritos (9th Cir. 1992) 967 F.2d 1421 Defendants' Motion...

Excerpt: ...levant to the analysis; how Plaintiff characterizes the incident in question and the statements Mr. Halpern makes are not offered for the truth but as background to the motion. Motion: The motion is granted to the extent that Mr. Justin Monical, as the person most knowledgeable, is ordered to comply with the deposition notice and make reasonable efforts, within the District, to obtain information related to the categories in the Deposition Notice...

Excerpt: ...te the action is initially set for trial, whichever is later, unless the court otherwise permits.” However, this motion could not have been brought earlier because the decision Defendants cite as barring the first three causes of action was only recently decided on April 7, 2022, three days after the initial trial date. Since Code of Civil Procedure section 438, subdivision (e) provides the court discretion to allow for a latefiled motion (impo...

Excerpt: ...l briefing be filed and served according to Code. No further briefing has been filed and the Court interprets this as each party's request that the Court now decide the motion based on the prior pleadings filed. Motion: The motion is granted. Whether a defendant is subject to personal jurisdiction in the forum state involves two separate factors. Namely, (1) the basis for jurisdiction or the existence of a constitutionally‐sufficient basis for ...

Excerpt: ...h 486 [holding arbitration was proper for claims against both the manufacturer and retailer under an arbitration provision with language the same as the one currently at‐issue].) The agreement is not unconscionable. The Fourth District Court of Appeal has taken the position that “[t]o describe a contract as adhesive in character is not to indicate its legal effect.... [A] contract of adhesion is fully enforceable according to its terms [Citat...

Excerpt: ...d failures to act—the alleged failure to maintain the hotel, failure to inspect and keep the hotel free of bed bugs, and failure to warn Plaintiffs the room being rented to them was infested with bedbugs. To hold that these allegations support the intentional tort of battery would be to greatly expand battery to include most negligence claims, as virtually all negligence injuries involve some sort of harmful or offensive contact resulting from ...

Excerpt: ...FAC) comprised of over 1121 paragraphs (not including the 186 paragraph Prayer of the FAC), seeks to hold Seller's Choice and Reyes, an escrow officer and escrow company, liable based upon a series of loan transactions. According to Plaintiffs' FAC, Plaintiffs entered into various loans with co‐defendant Kevin Zhang and/or his entities, and that Plaintiffs suffered damages because Plaintiffs did not receive the loan monies, and instead the loan...

Excerpt: ...hat the allegations are ambiguous, uncertain and unintelligible pursuant to Code of Civil Procedure section 430.10, subdivision (f) is overruled, because based upon a review of Plaintiffs' First Amended Complaint (FAC), and taking the allegations of Plaintiffs' First Amended Complaint as a whole, Plaintiffs' FAC and specifically, Plaintiffs' Fifth, Sixth, Tenth, and Eleventh Causes of Action contained therein are not so vague or so ambiguous or u...

Excerpt: ...g the motion in his Report Number 11. On March 4, 2022, Plaintiff filed a request for Oral Argument on this Motion before the Referee and on April 27, 2022, in Report #12, the Referee recommended that the Court deny the request. Plaintiff then directly requested that the Court consider oral argument on the Motion and the Court granted it. After considering the written papers filed in support and in opposition, the Court's tentative is to grant th...

Excerpt: ...G's initial deposition even without prior knowledge of the purported new evidence. Alternative causation is virtually a ubiquitous defense in personal injury cases. (See e.g. the District's answer to the complaint.) As a result, good cause has not been shown for a second deposition as to topics “a,” “b,” and “e.” The “additional information” topic is simply too broad and therefore good cause has not been shown for topic “h.” M...

Excerpt: ...t while corporations are nominal defendants in shareholder derivative suits, they are actually plaintiffs. (Forrest, supra, 58 Cal.App.4th at p. 74; Blue Water, supra, 192 Cal.App.4th at p. 489 [explaining such corporate entities are “actually plaintiffs in the eyes of the law.”].) Defendants' opposition is premised almost entirely on Opinion 1999‐153 (attached to Exh. B to Sichi's declaration) and its interpretation of what is now rule 1.1...

Excerpt: ... Court (Ingrassia) (2003) 114 Cal.App.4th 475, 480‐81) the privacy right is personal to the individual and “does not survive but dies with the person.”1 (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821‐22, overruled by statute on other grounds per Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1008; Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 869‐70; Flynn v. Higham (1983) 149 C...

Excerpt: ...finition of "professional negligence" in Code Civ. Proc., § 340.5, has four elements: (1) a negligent act or omission to act by a health care provider in the rendering of professional services; (2) which act or omission is the proximate cause of injury or wrongful death; (3) provided that such services are within the scope of services for which the provider is licensed; and (4) which are not within any restriction imposed by the licensing agency...

Excerpt: ...Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487, fn.8 [“Filing a document makes it a part of the permanent court file, whereas lodging a document makes it only temporarily a court record.”]; Beltone Electronics Corp. v. Superior Court (1978) 87 Cal.App.3d 452, 455 [Lodging documents is “the temporary deposit of the documents in conjunction with a motion to file, until the court determines them to be relevant. In the event ...

Excerpt: .... § 2032.320, subd. (a).) The notice of motion must state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination. (Code Civ. Proc. § 2032.310, subd. (b).) Defendants' motion does not contain any Notice of Defense Medical Exam and there is no indication one has ever been served. The motion identifies the specialties of the examiners, but it does not state the time, place, or ident...

Excerpt: ...h Lindsey Defendants seek to enforce arbitration is not demonstrated. As for compelling arbitration of Richard and Dorothy Landsverks' claims, the 2012 Agreement is an agreement with “LFG Family Office Services” and the Lindsey Defendants do not provide any analysis or discussion of the basis under which they may compel arbitration under the 2012 Agreement. As for the 2018 Agreement between the Landsverks and Lindsey Financial, Inc., the othe...

Excerpt: ...ndant District served its responses and on February 11, 2021, it served a supplemental response to one of the at‐issue RFPs. (Halpern Decl. at ¶¶2‐3; Miller Decl. at ¶¶1‐2, Exh. B.) Plaintiff's Motion to Compel was filed on June 24, 2021. This discovery dispute was reviewed and considered by a discovery referee. On March 3, 2022, the Court granted Plaintiff Nicole's Motion for Reconsideration of the ruling by the Discovery Referee. A mo...

Excerpt: ...ce to Plaintiff of the continued date but there is no notice in the court's file. In considering the merits, the Court notes that the action was originally set for trial on May 25, 2021 for a trial date of February 7, 2022. This was well within the two year statute for discretionary dismissals. This trial was only continued, again on the Court's own motion as a result of COVID. Defendants filed their motion prior to the February trial date and th...

Excerpt: ...onsider the Court's file without judicial notice. 1. Demurrer to Second Cause of Action for False or Fraudulent Registration: The demurrer is overruled. The new cause of action is not necessarily inconsistent with the Court's ruling on the prior demurrer. Rather than allege infringement of their own validly registered mark, Cross‐ Complainants now allege that Plaintiff and Cross Defendant committed fraud in the procurement of the federal and st...

Excerpt: ...riting.” (Code Civ. Proc., §§2030.300, subd. (c); 2031.310, subd. (c); 2033.290, subd. (c).) After a telephonic meet and confer it was agreed Defendant would have three weeks to respond to the meet and confer letter with a commensurate extension for Plaintiff to bring his motion to compel. This was confirmed via an email exchange on August 26, 2021. (Carter Decls., ¶5; Exh. D.) This would extend the deadline to Thursday, September 23, 2021. ...

Excerpt: ...The Court reserves the right to exclude any such evidence upon proper objection or allow the evidence during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. As to any motion granted, the parties are ordered to refrain from conveying to the jury any of the evidence excluded without first obtaining permission of the Court outside the presence of the jury. Furthermore, it is the obligation of...

Excerpt: ...ned Motion to Transfer: The motion is denied. Defendant failed to meet her burden of demonstrating no exception to the general venue rule applies, in particular Code of Civil Procedure section 395, subdivision (b).1 Subdivision (b) provides another “statutory exception to the general venue rule …” in cases involving certain consumer obligations. (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is undisputed that the recovery...

Excerpt: ... the parties on notice that should this occur again, the Court will continue the hearing and consider the issuance of sanctions against the non‐ complying party. First Cause of Action for Negligent Infliction of Emotional Distress (NIED): The demurrer is overruled. Plaintiff concedes that this cause of action is based only on direct liability for negligent infliction of emotional distress as opposed to a claim based upon bystander liability. In...

Excerpt: ...mit Defendants to only filing an Answer even though the proposed pleading was an Answer. Therefore this objection is overruled. First Cause of Action for Fraud: The demurrer is sustained, with thirty days leave to amend. The allegation that Defendants knew the promises were false when made is absent or what representations were made by whom and what authority either defendant had to speak on behalf of the entity. Second Cause of Action for Conver...

Excerpt: ...does not alter this limitations period. The Mexia Court only found that the latent defect did not have to be discovered within one year of the purchase to be actionable but did not hold that the implied warranty period could be extended indefinitely past the four‐year limitations period which begins at the time of sale. Further, because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties...

Excerpt: ...e information is relevant for discovery purposes on the causes of action for Disparate Treatment and Retaliation. The information on hours and days worked by employees appears to the Court to be also an employer record and to this extent is not protected by an individual's privacy interests. Even if it is, this is a minimal intrusion as other employees observe when other employees are present at work and when they are not. The fact that an indivi...

Excerpt: ...important ways. The answer “I do not recall” does not definitively answer the question about whether or not any such conversations were actually had but he does not recall the substance. I do not recall may also mean – I do not recall if we ever HAD any discussions or it may mean yes we had conversations but I do not recall the content. Furthermore, a responding party's obligation when answering propounded interrogatories is to answer the i...

Excerpt: ...ugh it is of concern to the Court that Defendant cites many cases not originally cited in its moving papers, denying Plaintiff the opportunity to meaningfully respond. These cases should have been cited in its original moving papers. The motion is denied. Defendant Segway, Inc. has failed in its burden to establish that there was ever an agreement between Plaintiff and Defendant to arbitrate; or that Plaintiff ever received the alleged agreement ...

Excerpt: ...d within 30 days of service of the complaint is permissive and not mandatory. In addition, it is in the court's discretion to consider the filing so long as the court's action does “‘not affect the substantial rights of the parties.'” Moreover, as the court concluded in Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 58‐59, “lack of timely service is waived when the party discusses merits despite its objection”, which Plaintiff has d...

Excerpt: ...ute as to the latter but Plaintiff has met his burden as to the former. Defendant concedes that certain amounts are owed but that the amount of the lien is incorrect. Furthermore, “ * * * a lien claimant may include in the mechanics' lien an amount for the reasonable value of the labor, services, equipment, or materials furnished based on the owner's breach of contract, even if based on oral modifications to the contract.” (44 Ca Jur Mechanic...

Excerpt: ... a stipulated Protective Order which the parties have entered into and claim to have been filed with the Court on October 20, 2021. The Court record does not show such a protective order was ever filed by the parties or signed by the Court. TRULINE moves for (1) an order compelling Plaintiff Excel Packaging System, Inc. (EXCEL) to serve further responses to all 38 of the RFPs propounded by TRULINE on it and (2) an order compelling Cross‐Defenda...

Excerpt: ... Defendants' Reply Separate Statement as the summary judgment statute does not provide for a ‘Reply Separate Statement'. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. 2 Before Trial § 10:220.6, citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Renumbered Separate Statement: In the opposition to the separate statement, instead of citing additional material facts, Plaintiff renumbered the original facts from Defendants and ad...

Excerpt: ...ent, the proper surgical procedures, and medical supplies/devices (e.g., wheelchairs, cane), adequate food and water, and housed in an ADA compliant unit (¶¶62‐78, 109‐125). Defendants argue Plaintiff and/or Decedent have no evidence that the purported discrimination was because of Decedent's disability. Under both the ADA and Rehabilitation Act, the plaintiff must show the exclusion from a program was solely because of his disability. (Wei...

Excerpt: ...2, the Court, at defendant's request, granted a continuance of the hearing on Plaintiff's motion for a preliminary injunction. The Court did not, however, grant permission for any further briefs to be filed. On January 18 and 19, 2022, Defendant filed identical additional Reply briefs. In the exercise of the Court's discretion, the Court considers the Reply filed January 18, 2022. Notwithstanding this consideration, the Court grants the prelimina...

Excerpt: ...covery responses, and in the exercise of the court's discretion, the Court considers the motion notwithstanding the defects. 2. The objections are all without merit. There is no evidence supporting the unduly burdensome objections and evidence is required to sustain such an objection. (W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) The requests are also not overbroad and they seek relevant information since the requests are c...

Excerpt: ...: 1. First Cause of Action for Breach of Contract: The motion is denied. The allegations are sufficiently alleged. 2 2. Second and Third Causes of Action for Negligent and Intentional Misrepresentation: The motion is denied as to the Third Cause of Action but granted as to the Second Cause of Action, with thirty days leave to amend. In the Complaint, Plaintiff Connelly alleges Defendant Sherman misrepresented that she would pay for the purchased ...

Excerpt: ... intentionally caused the flooding or plumbing issues—only that Defendant failed to keep the subject property in a habitable condition, and Defendant acted unreasonably in delaying the repairs with the recognition that Plaintiffs would likely suffer annoyance or discomfort while being unhoused for an extended period of time with their young children. (See, e.g., Stoiber v. Honeychuck, supra, 101 Cal.App.3d at p. 921; Erlach v. Sierra Asset Serv...

Excerpt: ... of Court, rule 2.550(a)(3) [stating sealed record rules do not apply to discovery motions].) Here, given what is at issue in the special interrogatory motion, the specific names are not necessary for consideration of the motion and the names should have been redacted. Plaintiff could have just provided a description of the exhibits as providing lists of names and the number of names. The Court orders Exhibits 1 and 2 attached to Eric J. Goodman'...

Excerpt: ... The demurrer is overruled. The allegations that Plaintiff refused to discriminate when he was told that he was hiring too many black employees coupled with the removal of job duties is sufficient to allege Plaintiff Martinez engaged in a protected 2 activity and as a result, suffered from an adverse employment action– i.e. complaining to supervisors regarding instructions to engage in discriminatory hiring practices – and that as a result of...

Excerpt: ...There is a split of authority regarding whether a demurrer may be properly sustained on the ground that a cause of action is duplicative. (Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth 2 (2016) 248 Cal.App.4th 268, 290 [demurrer properly sustained to cause of action for “breach of governing documents” on ground that cause of action was duplicative of cause of action for breach of fiduciary duty], with Blickman Turkus, LP v. M...

Excerpt: ...rden of proof in showing that Plaintiff's Motion for Relief for Mistake of Law or Fact was frivolous, without factual or legal merit, and was filed primarily for improper purposes to delay this action and harass Defendant in violation of Code of Civil Procedure section 128.7. Initially, Plaintiff filed an Ex Parte Application to Vacate Judgment which was denied, without prejudice, on March 23, 2021 as there was no judgment on file with the Court....

Excerpt: ...0 a.m. in Department S29. The trial attorneys shall personally appear at the TRC – no court call. The trial document exchange is on or before March 31, 2021 (which is a non‐appearance date) and the trial documents filing date is April 11, 2022, except that motions in limine shall be filed and served in accordance with the local rules. The parties are ordered to comply with the Court's Trial Setting Order which is attached to this Order and wi...

Excerpt: ...ated evidentiary objections. (Hartwell Corp. v. Superior Court (2002) 27 Cal. 4th 256, 279 fn.12; Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 889 [“no ‘official web site' provision for judicial notice in California”].) 2 Defendants' Evidentiary Objections: 1‐14. “Facts” ‐ Overruled. Separate statements are not evidence. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) Because undisputed f...

Excerpt: ...of the settlement agreement. The Court is authorized to enter judgment pursuant to the settlement regardless of whether the settlement's obligations were performed or excused. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184‐1185.) Regardless, Plaintiff filed this motion to enforce payment of the settlement funds, which was undisputedly overdue. Defendant's failure to respond to Plaintiff's counsel's emails prior to the motion, and its prompt ...

Excerpt: ...onvention was required. Plaintiff has demonstrated that the requirements of the Hague Convention need not be followed in this instance. (See Kott v. Superior Court (1996) 45 Cal.App.4th 1126.) In the reply, Defendant Zhang argues that Plaintiff Chu did not exercise reasonable diligence in attempting to obtain her address. Zhang asserts Chu never asked her counsel for her address, but this is not established in any declaration. In the supplemental...

Excerpt: ...y for recovery, versus a new factual claim [Hagan Decl. at ¶27]. No demonstrated prejudice lies by allowing its addition. Third, while collection of a possible judgment is not a justified basis for adding decedent's wife as a party, the proposed allegation that Janet Thompson was aware, accepted, approved, and benefited from the acts and services rendered1 implicates Family Code § 914, subdivision (a), which states: “[A] married person is per...

Excerpt: ...pare Stephens Compl. ¶¶16‐67, with Leach Compl. ¶¶15‐66.) Plaintiffs even copy/paste allegations regarding the evidence needed to prove both cases. (See Stephens Compl. ¶53; Leach Compl. ¶52.) [“Evidence for DEFENDANTS' indifference for the acuity levels of the FACILITY'S patient population can be found through a comparison of the average registered nurses to resident ratios in California facilities verses the FACILITY.”].) 2 While ...

Excerpt: ...atement was filed by Plaintiff in support of the motion but again it was not in compliance with the Court rules which require that all the text of all responses (original and supplemental) be included and the reasons justifying compelling further responses. The reason for this is so the Court does not has all of the information in one document. Nonetheless, the Court will rule on the motion but 2 admonishes Plaintiff's counsel that any further vi...

Excerpt: ...nst him. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [citations omitted].) 2. Demurrer to First Cause of Action ‐ Fraud: The demurrer is overruled. The allegations are sufficient as against a demurrer. 3. Demurrer to Second Cause of Action ‐ Negligent Misrepresentation: The demurrer is overruled. The factual allegations regarding the misstatements and omissions are sufficient for the fraud cause of action, and Defenda...