Excerpt: ...tiff alleges Defendants were strictly liable, or were negligent, reckless, unreasonable, and Page 2 of 8 careless in their design, manufacture, supply, installation, inspection, repair, renting, or leasing of the product. Plaintiff filed her Complaint January 27, 2021, asserting causes of action for General Negligence and Products Liability. On March 25, 2021, Canedo was personally served with the Summons and Complaint at 144 E. Arbeth Street, Ri...

Excerpt: ...orm complaint alleges two causes of action: (1) motor vehicle; and (2) general negligence. Plaintiff seeks punitive damages. Plaintiff filed a first amended complaint (FAC) on August 17, 2021 alleging the same causes of action and also seeking punitive damages. On August 24, 2021, Defendant filed this motion to strike punitive damages. Discussion Defendant has moved to strike any references to punitive damages within the exemplary damages allegat...

Excerpt: ...ROUND Plaintiff's First Amended Complaint From 2011 to 2018, Plaintiff Regina Mendoza (Plaintiff) was employed by Defendants Loma Linda University Shared Services, Loma Linda University Medical Center, and Loma Linda University Medical Center – Murrieta (Defendants). Plaintiff's job performance was exemplary, and she was repeatedly promoted, which resulted in her attaining the position of Director of SCM Purchasing. (¶¶ 13‐14, 16, 21.) Plai...

Excerpt: ...utor/trustee of the estate of Ascension Garcia (Decedent), and alleges causes of action for (1) fraudulent intentional Page 2 of 36 misrepresentation; (2) breach of contract; and (3) intentional infliction of emotional distress. The complaint alleges wrongdoing with respect to the burial of Decedent, who was Plaintiff's mother, in the wrong plot. On August 4, 2021, Defendant filed the instant demurrer and motion. DISCUSSION Statement of the Law D...

Excerpt: ...ts for production. Page 2 of 14 Plaintiff M.D.L.F., a minor by and through his guardian ad litem, Melinda Fields, (“Plaintiff”) filed this personal injury action against Defendants Morongo Unified School District (“the District” of “MUSD”), Cindy Arrowood (“Arrowood”), and Diana Fisher (“Fisher”) (collectively, “Defendants”). On September 23, 2020, Plaintiff filed a Third Amended Complaint (“TAC”), which includes seven...

Excerpt: ...ive First Amended Complaint (FAC) alleging the following five causes of action against defendants Lyft, Inc. (Lyft); John Doe Lyft Driver; and Alejandre: (1) Negligence (Against Lyft and John Doe Lyft Driver Only); (2) Negligent Infliction of Emotional Distress (NIED) (Against Lyft and John Doe Uber Lyft Only); (3) Negligent Hiring, Retention, Training & Supervision (Against Lyft Only); (4) Assault & Battery (Against Alejandre Only); and, (5) Int...

Excerpt: ...age 2 of 23 interrogatories. After Ashley Furniture sent an inquiry on July 30, 2021 and received no response, Ashley Furniture filed this motion to compel responses to form interrogatories and motion to compel responses to special interrogatories. Both motions request sanctions. On September 14, 2021, Nava filed oppositions to both motions indicating responses have now been served. Discussion Ashley Furniture has moved to compel responses to the...

Excerpt: ...e defendants knew there were intoxicated, aggressive, and dangerous patrons at the premises, but declined Mouton's request to call law enforcement. Defendants also failed to take any action to protect the safety of their patrons. Through the complaint filed on July 17, 2019, Mouton asserts causes of action for: (1) motor vehicle negligence against Does 90‐100, (2) general negligence, and (3) premises liability. Mouton also eventually name Leon ...

Excerpt: ...mplaint pleads ten causes of action: (1) negligence, (2) negligent supervision, (3) negligent hiring/retention, (4) negligence failure to warn, train, or educate, (5) negligence per se, (6) constructive fraud, (7) intentional infliction of emotional distress, (9) sexual harassment (Educ. Code, §220), (10) breach of fiduciary duties, and (11) failure to perform mandatory duties.4 Defendants answered. The Complaint alleges LD was a student at Bars...

Excerpt: ...f Contract; (2) Estoppel; and, (3) Declaratory Relief. On May 7, 2021 Plaintiffs filed an Amendment to Complaint adding Needles Public Utility Authority as Doe 1. Prior to a responsive pleading being filed, and as a matter of right pursuant to Code of Civil Procedure, section 472, on May 7, 2021 Plaintiffs filed the now operative First Amended Complaint (FAC) alleging the following three causes of action against the City and Needles Public Utilit...

Excerpt: ... in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (§ 437, subd. (a).) Good Faith Meet and Confer Effort Code of Civil Procedure, section 435.5 provides in...

Excerpt: ... has been waived by the petitioner; or (b) Ground exists for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. The moving party may also seek a stay of pending litigation either by itself ...

Excerpt: ... 2 of 11 complaint involves the property at 26787 Barton Road, Bryn Mawr, California 92373. Brennan Lynne alleges the following: Defendant Murphy owns the property. He is also the former owner/operator of a bar and restaurant known as Taylors Tavern, which is located on the property. On April 9, 2015, Murphy entered into a sale and purchase agreement with Brennan Lynn. Under the terms of the agreement, Murphy was to sell the assets of Taylors Tav...

Excerpt: ...that on September 8, 2016, Plaintiff purchased a 2017 Chrysler Pacifica vehicle (VIN 2C4RC1EG6HR537516 (the “Vehicle”) which was manufactured and distributed by Defendant FCA (Comp., ¶9). The sales price was $53,613.84 and the Subject Vehicle was primarily used for personal, family or household purposes from an entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail (Comp., ¶9). The car has various...

Excerpt: ...r train, engine, transmission and electrical systems. Moss Bros, and the vehicle's manufacturer (defendant FCA US, LLC), were unable to conform the vehicle to the warranties. Furthermore, no relief in compliance with the Song‐Beverly Consumer Warranty Act (the Act) was provided by defendants. (Compl. at ¶¶ 4 and 9‐18.) As a result, the Thompsons commenced the underlying litigation on March 18, 2021 against Moss Bros and FCA for various viol...

Excerpt: ...ace of a parent or legal guardian for student (Plaintiff) Jane LD Doe. Davis undertook an investigation of O'Neil and confirmed the existence of other alleged victims as early as November/December 2018. Page 2 of 10 On July 19, 2021, Plaintiff served a Deposition Subpoena Duces Tecum to Fraud Fighters, an investigative firm retained by Defendant to investigate Plaintiff's claims. Fraud Fighters was identified in a supplemental response to Form In...

Excerpt: ... presented evidence of the onboarding process, Defendants failed to submit evidence Plaintiff actually executed the Applicant Agreement, and Plaintiff maintained it was easy for other Appleone employees to sign an employee's Page 2 of 12 documents for him or her. In their Reply, Defendants presented additional evidence to further authenticate Plaintiff's electronic signature. The matter came before the Court on June 24, 2021, at which point the C...

Excerpt: ...ainst Smith. The operative Second Amended Cross‐Complaint (“Marini's SACC”) pled four crossclaims: (1) abandonment of express easement, (2) nuisance, (3) prescriptive easement, and (4) declaratory relief. Cross‐Defendants Smith answered. And by intervention. MM & CC, Inc. (“MM”) answered. On July 9, 2021, the Court granted Smith and MM's Motion for Summary Judgment. MM also filed a Complaint‐in‐Intervention against Marini alleging...

Excerpt: ...ided physical possession of Plaintiff's boat (and Plaintiff had physical possession of the jet skis), the consummation of this agreement was subject to all vehicles passing mechanical inspection. (¶ 8.) On or about September 20 or 21 of 2019, Defendant advised Plaintiff the boat had been stolen from Defendant's shop, and Plaintiff learned Defendant failed to secure the boat and trailer; instead, Defendant left it parked in a lot behind and adjac...

Excerpt: ...ght and the pleading added Jane Weng as a defendant. As for the underlying allegations, the Trust contends that on October 20, 2020, it offered to purchase the property through its agent, Maryam Golbakhsh, and from the Chiens, through their broker/agent, Weng. The Chiens counter‐offered and the Trust accepted the counter‐offer (FAC at ¶¶ 10, 14, 16, and 20‐21). Under the terms of the agreement, the Chiens were to provide disclosures withi...

Excerpt: ...ant was an abusive husband, who intentionally and/or recklessly abused Plaintiff emotionally, verbally, physically, and sexually. Plaintiff became emotionally distressed and depressed as a result of the consistent abuse she suffered at Defendant's hands, and she sought treatment with psychologists and therapists. (¶¶ 6‐7.) Plaintiff's treating psychologists opine that her symptoms are consistent with someone who has been traumatized, with the...

Excerpt: ...s, but they Page 2 of 15 declined Plaintiff's request to call law enforcement, and they otherwise failed to take any action to protect the safety of their patrons. Because of defendants' failures, Plaintiff was the victim of a vehicular assault and battery while she was a pedestrian in defendants' parking lot. Plaintiff filed her Complaint July 17, 2019, asserting causes of action for: (1) Motor Vehicle Negligence [Does 90‐100], (2) General Neg...

Excerpt: ...span to 10 years from the date of incident to the present. (Vine Dec., ¶¶ 2‐3; Exhibits 2‐ Page 2 of 30 3 to Vine Dec.) On June 14, 2021, Plaintiff clarified she did not object to the production of any medical records from Foothill, but she objected to the records from St. Mary's because none of those records pertain to the injuries claimed in the present lawsuit. (Vine Dec., ¶ 4; Exhibit 4.) On June 15, 2021, Defendant re‐issued subpoen...

Excerpt: ...s the accident occurred on July 20, 2019. The County of San Bernardino (“County”) was served with a claim for damages on January 13, 2020 and rejected on February 10, 2020. The Complaint asserted the following: Defendants negligently, recklessly and/or wantonly owned, maintained, managed operated, controlled and safe guarded the premises and or roadway at or near 17800 Glen Helen Rd., San Bernardino, CA 92407, such that an exposed hole and/or...

Excerpt: ...erson described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to Page 2 of 13 protect the person from unreasonable or oppressive de...

Excerpt: ...n, Cal. Prac. Guide (TRG 2013), Civil Procedure Before Trial, §8:1180‐8:1181.) “[P]arties may conduct discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Perlan Therapeutics, Inc. v. Superior Court (2009)178 Cal.App.4th 1333, 1351, ...

Excerpt: ...95, 999.) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice, in which case the judicially noticed content must be specified in the opening papers. (Code Civ. Proc., § 438, subd. (d); compare Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5 [on “nonstatutory” motion for judgment on the pleadings, court took judicial...

Excerpt: ...l and Joanna Davis. (See Compl. ¶19, Ex. C.) That allegation appears consistent with the express language of the assets sale and purchase agreement. (See Ex. A.) It seems disingenuous to take the position that Michael Davis executed the lease agreement and the assets sale and purchase agreement, both of which contain purchase option provisions, as President of Brennan Lynn, while at the same time taking the position that Davis did not sign the n...

Excerpt: ...¶¶3‐5, Exhs. 7‐9; Mills Decl. at ¶¶3, 5‐ 7, 9‐10, 12, Exhs. 1‐2, 4‐6, 8‐10.) Plaintiff M&Y timely moves to compel Deponent MLR to comply with the deposition subpoena. DISCUSSION Statement of the Law Code of Civil Procedure section 1987.1, subdivision (a) states: If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the ...

Excerpt: ...n in Violation of Labor Code § 1102.5; (3) Discrimination in Violation of FEHA; (4) Failure to Prevent Discrimination in Violation of FEHA; (5) Harassment in Violation of Page 2 of 25 FEHA; (6) Failure to prevent Harassment in Violation of FEHA; (7) Retaliation in Violation of FEHA; (8) Failure to Engage in the Interactive Process; (9) Failure to Provide Reasonable Accommodation; and (10) Sick Leave Retaliation/Labor Code § 233. The Complaint g...

Excerpt: ...action was arguably meritorious, the legal conclusion is that the party's motive was probably not solely to harass or cause unnecessary delay, Page 2 of 6 such that sanctions are not warranted. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 876.) Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.] Here, the court did...

Excerpt: ...response. (Code Civ. Proc., §§ 2031.310, subd. (c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐ day time limit is mandatory and “jurisdictional” such that the Court has no authority to grant a late motion. (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410 [late‐filed motion to compel must be denied where objection raised at hearing even if omitted in opposition papers].) However, the...

Excerpt: ...quested documents. Procedurally, the motion shall establish good cause justifying the production of the inspection of the demanded documents and shall be accompanied by a meet and confer declaration, or, where the individual failed to appear and produce requested documents, a declaration stating that the individual was contacted for inquiry about the non‐appearance. (Code Civ. Proc., §2025.450, subd. (b).) If a deponent fails to answer any que...

Excerpt: ...ived by the petitioner, (b) Ground exists for the revocation of the agreement, or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. The party may also seek a stay of pending litigation either by itself or in conjunction w...

Excerpt: ... 997; and, American Drug Stores, Inc. v. Stroh (1992) Cal.App.4th 1446, 1453); (2) Defendants' evidentiary objections to the Declaration of Raymond Babaian are Overruled in their entirety; (3) Defendants' evidentiary objections to Plaintiff's Exhibits 1‐3, 4, 6, 11‐13, 22, 24‐27 and 29‐30 are Overruled in their entirety; (4) Defendants' procedural and evidentiary objections to Plaintiff's Separate Statement of disputed facts are Overruled...

Excerpt: ...on as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules Page 2 of 14 of Court, rule 3.1332(b); see Super. Ct. San Bernardino, Local Rules, rule 418 [“The Court adopts California Rule of Court, rule 3.1332, with respect to requests for continuances”]; Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468.) “Although continuances of trials are disfavored, each request for a continuance must b...

Excerpt: ... Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Thus, the policy to allow amendm...

Excerpt: ...ts entered into a five‐year Lease agreement. The agreement called for a monthly rental payment of Page 2 of 10 $5,000. After expiration of the Lease, the Plaintiff and Defendants agreed to a month‐tomonth tenancy beginning August 1, 2020. Rent was increased to $7,500 as of December 1, 2020, and then $8,257.71 effective January 1, 2021. On February 26, 2021, a 30‐Day Notice to Vacate was served on Defendants by certified mail addressed to De...

Excerpt: ... Harassment; (3) Age Discrimination; (4) Sexual Harassment in Violation of FEHA; (5) Failure to Accommodate Disability; (6) Failure to Engage in the Interactive Process of Accommodation of a Disability; (7) Failure to Prevent Discrimination and Harassment in Violation of FEHA; (8) Failure to Correct and Remedy Discrimination and Harassment; (9) Wrongful Termination; (10) Retaliation for Engaging in Protected Activity; (11) Hostile Work Environmen...

Excerpt: ...o the Complaint, Plaintiff worked for TRC railroad from 1981 to 1994 as a brakeman and conductor. During his career with TRC railroad and while working in TRC's yards, buildings and along its right of way, Plaintiff was exposed to various toxic substances and carcinogens including, but not limited to, diesel fuels/exhaust, benzene, creosote, and rock/mineral dust and fibers. Plaintiff's exposure to such toxic substances caused or contributed to h...

Excerpt: ...their home when an unprotected water line was punctured by a nail. The original complaint alleged a single cause of action for products liability. Page 2 of 40 Ryland answered and cross‐complained against Roes 1‐50, alleging 10 causes of action: (1) breach of contract; (2) express indemnity; (3) implied indemnity; (4) equitable indemnity; (5) comparative negligence and contribution; (6) breach of implied warranties; (7) breach of express warr...

Excerpt: ...f Government Code section 12940; (5) failure to prevent discrimination and harassment in violation of Government Code section 12940; (6) retaliation in violation of Government Code section 12940; and (7) declaratory and injunctive relief. Wise alleges she was employed by Zeiss until her termination on January 13, 2020. She alleges she was terminated in retaliation for her complaints and opposition to unlawful discrimination by Parks. During her e...

Excerpt: ...laintiff's payments and sent a reinstatement demand of $25,920.98, even though Plaintiff made all payments under the modification agreement. On February 19, 2019, Chase recorded a Notice of Default and refused to accept Plaintiff's payments. As a result, Plaintiff lost a tenant. Plaintiff alleges she remains ready, willing, and able to tender payments as required under the parties' agreements. (Compl. ¶¶ 6‐29.) Plaintiff alleges the following...

Excerpt: ...Malan (Doe 4) as Defendants. On January 19, 2021, Plaintiff filed a Request for Dismissal, without prejudice, as to Defendant Katherine O'Neill. On April 26, 2021, Defendants Barstow Unified School District, James Davis, Amy McDonald, Jeff Malan and Scott Godfrey filed a Motion for Summary Judgment, with a hearing date of July 7, 2021. On June 16, 2021, Plaintiff moved ex parte to dismiss Defendants' motion for summary judgment or, alternatively,...

Excerpt: ...mended Complaint (FAC) added Defendant Jane Weng. The FAC Page 2 of 10 pleads two causes of action: (1) breach of contract against Chien and (2) breach of the implied covenant against all. The FAC alleges on October 20, 2020, the Trust made an offer to purchase the Subject Property through its agent, Maryam Golbakhsh, to Chien through their broker/agent, Weng. Chien counter‐offered. The Trust accepted the counter‐ offer (¶¶10, 14, 16, 20‐...

Excerpt: ... to rule on objections 1 and 64‐75, but note all objections proffered in Plaintiff's separate statement should be overruled as improper; b. Overrule objections 2‐12 (including objection “4.5”), 15‐ 26, all three objections numbered “29”, 32‐35, 38‐46, 49‐56, 58‐59, and 61‐63; c. Sustain objections 13 and 27 (hearsay); d. Objection 14 – Allow Plaintiff Anne Marie Meyer an opportunity to cure and properly filed a signed de...

Excerpt: ...he operative Second Amended Cross‐Complaint (“Marini's SACC”) pleads four cross‐claims: (1) abandonment of express easement, (2) nuisance, (3) prescriptive easement, and (4) declaratory relief. Cross‐Defendants Smith answered. And by intervention. MM & CC, Inc. (“MM”) answered. MM also filed a Complaint‐in‐Intervention against Marini alleging causes of action for nuisance and declaratory relief (“MM's Complaint”). Defendants...

Excerpt: ...e deposition notice. She objected to the unilaterally set date of deposition on the ground that she was unavailable on the noticed date. The parties met and conferred on the issue and ultimately agreed to a deposition date of April 13th. On April 2nd, Defendant served her responses to the document request portion of the deposition notice. On April 4th, Defendant again served objections to the deposition notice—this time based on the fact that d...

Excerpt: ...ufficient facts since the claims on their face are barred by the statute of limitations. The demurrer Page 2 of 7 is supported by a meet and confer declaration and a request for judicial notice of the complaint and the Court's docket.1 In opposing the demurrer, Young contends that the limitations period was tolled due to Emergency Rule 9 of the California Rules of Court. Young further indicates that the complaint was tendered for filing with OneL...

Excerpt: ...f Good Faith and Fair Dealing; (4) Enforcement of Mechanic's Liens; (5) Violation of Business & Professions Code section 7108.5; and (6) Violation of Civil Code section 8814. Page 2 of 13 This litigation pertains to construction performed on 182 units in six residential buildings known as the “Vintner on Foothill” located at 10130 and 10110 Foothill Boulevard in Rancho Cucamonga (the Vintner Project). Plaintiff alleges that in or about August...

Excerpt: ...rini filed a Cross‐Complaint against Smith. The operative Second Amended Cross‐Complaint (“Marini's SACC”) pleads four cross‐claims: (1) abandonment of express easement, (2) nuisance, (3) prescriptive easement, and (4) declaratory relief. Cross‐Defendants Smith answered. And by intervention. MM & CC, Inc. (“MM”) answered. MM also filed a Complaint‐in‐Intervention against Marini alleging causes of action for nuisance and declar...

Excerpt: ...rney to withdraw from its representation falls within the discretion of the trial court, and a trial court properly exercises such discretion if withdrawal can be accomplished without undue prejudice to the client's interests. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) The Motion must be accompanied by a declaration that “state[s] in general terms and without compromising the confidentiality of the attorney‐client relationship wh...

Excerpt: ...ngham, resided. (¶¶ 1, 13.) As part of these repairs, MCC instructed Plaintiffs to stop running the water in their home until the repairs were completed. (¶ 13.) On or about February 21, 2017, once the repairs were completed, Plaintiffs noticed the drain in the property was slow and gurgled when used. (¶ 14.) Plaintiffs were out of town from February 25, 2017 through March 11, 2017. (¶ 14.) Upon their return, Plaintiffs were washing clothes ...

Excerpt: ...larations in support of each motion which evidence the same meet and confer efforts. References herein are specific to the declaration in support of Plaintiff's motion to compel re: RFPs, but the same analysis applies to each motion. Page 2 of 14 and motion extension to which GM did not respond. (Macioce Decl. re: RFPs, ¶¶7‐14; Exhs. 4‐ 9.) GM argues the meet and confer was not in good faith because Plaintiff took unreasonable positions and...

Excerpt: ...mer Warranty Act), (2) breach of implied warranties (Song Beverly Consumer Warranty Act), (3) violation of the Song‐Beverly Act, Section 1793.2, and (4) negligent repair. Before the Court at this time is Plaintiffs' Motion to Compel Further Discovery Responses from Defendant, and Request for Sanctions (the “Motion”). By way of the Motion, Plaintiffs seek an Order compelling Defendant GM to provide further responses to Requests for Productio...

Excerpt: ...ni Jr. and Monica Theresa Marini own the adjoining property at 42900 Big Bear Boulevard, which is commonly referred to as the Convention Center Property. In response to the initial lawsuit, the Marinis filed a Cross‐Complaint, a First Amended Cross‐Complaint, and a Second Amended Cross‐ Complaint against the Smiths on May 15, 2018, October 10, 2018, and December 7, 2018, respectively. In their Second Amended Cross‐Complaint (SACC), the Ma...

Excerpt: ...o the freeway on‐ramp for Ramona Avenue, they drove over an unmarked uplift of the payment, which is part of the draining system, located at the beginning of the on‐ramp. This caused the motorcycle to jump up and driver Page 2 of 9 Courtney Gordon to lose control and crash. (Compl. ¶¶ 2, 4‐5.) Plaintiffs allege the following causes of action: (1) dangerous condition of public property; and (2) negligence. As part of the dangerous conditio...

Excerpt: ...rp. v. Structural Materials Co. Page 2 of 8 (1981) 123 Cal.App.3d 593, 604.) The court assumes the truth of all material facts that have been properly pleaded, of facts that may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) General Demurrer All that is necessary as against a general demurrer is to plead facts showin...

Excerpt: ... left‐hand turn, it was struck by another vehicle being driven by defendant Jonathon Arden, a San Bernardino County Sheriff Officer, who was on duty at the time of the collision, and who was allegedly driving twice the speed limit and without his lights or sirens activated. Page 2 of 6 Through the operative second amended complaint (SAC), Barajas asserts claims for (1) dangerous condition of public property against defendants CalTrans, Town of ...

Excerpt: ...ndment, Laura Moore, Scott Godfrey, Dr. Amy McDonald, and Jeffrey Malan. Jane Doe also dismissed O'Neil without prejudice (as she is apparently now deceased). According to the complaint, the abuse occurred on school grounds and the District was negligent in hiring and Page 2 of 7 retaining O'Neil. Jane Doe further alleges that Davis was informed that O'Neil had falsified an off‐campus lunch permit by signing in place of a parent or legal guardi...

Excerpt: ...ted. a. First and Second Causes of Action: Defendants did not breach any contractual or implied contractual provision of the Trust Deed when they were entitled to collect monies into an escrow account from Plaintiffs to cover property taxes and hazard property insurance, and were entitled to obtain their own property hazard insurance upon no proof of such 2 coverage from Plaintiffs. Plaintiffs breached the Trust Deed when they stopped paying thei...

Excerpt: ...n to strike were filed but before they were heard, the operative First Amended Complaint was filed on December 7, 2020, alleging the following causes of action: (1) breach of duty of care; (2) breach of contract; (3) fraud / intentional misrepresentation; (4) conspiracy tort – fraudulent misrepresentation; and (5) intentional infliction of emotional distress. DISCUSSION Legal Standard – Demurrer A demurrer challenges defects appearing on the ...

Excerpt: ...efendant Steel Machinery answered; no answer, default, or dismissal is on file for Delta Steel. The Complaint alleges Plaintiff McKey lost two fingers from his right hand on October 30, 2016, while using a Delta Leveling Line that was sold by Defendants Delta Steel and/or Steel Machinery. Defendant Steel Machinery filed a Cross‐Complaint against California Steel Services, Inc. fka Tehran Sanaat (esa Tehran Sanaat, Inc. dba California Steel Serv...

Excerpt: ... Discrimination in Violation of FEHA; (3) Failure to Prevent Harassment and Discrimination in Violation of FEHA; (4) Retaliation for Whistleblowing Activities in Violation of Labor Code section 1102.5; and (5) Intentional Infliction of Emotional Distress. This case was consolidated for law and motion purposes and transferred to Dept. 28 with four other cases, CIVDS2012538, CIVDS2012926, CIVSB2025375, and CIVSB2025900. In the Aboud v. Valdivia mat...

Excerpt: ... on Highway US 395 in an unincorporated area of San Bernardino, defendants “negligently and carelessly owned, operated, maintained, entrusted and repaired their vehicle, that the same was caused to, and did, strike plaintiff's vehicle, causing plaintiff to sustain personal injuries [sic].” (Compl. ¶ 5.) Plaintiffs' complaint includes two causes of action: (1) negligence; and (2) loss of consortium (by Lupe). DISCUSSION Statement of the Law A...

Excerpt: ...ent Infliction of Emotional Distress; and (8) Intentional Infliction of Emotional Distress. 2 DISCUSSION Overall Demurrer Standard The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed tr...

Excerpt: ...rer, all facts pleaded in the complaint are assumed to be true however improbable they may be. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) However, the Court does 2 “not accept as true contentions, deductions, or conclusions of fact or law.” (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1402, citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) B. Meet and Confer Requirement U...

Excerpt: ...6) intentional interference with contractual relations; (7) intentional interference with prospective economic interests; (8) negligent interference with prospective economic advantage; (9) unfair business practices (Bus. & Prof. Code, § 17200); (10) declaratory relief; (11) accounting; and (12) unjust enrichment. In May 2020, CMI approached AWL regarding warehousing and shipping needs. Mark from AWL made representations regarding having require...

Excerpt: ...ence; (4) fraud; and (5) conversion. 2 Proof of service was filed as to Adaimy by substitute service by leaving a copy with Mr, Adaimy's wife and a follow up mailing. (See February 11, 2021 proof of service.) Geico was personally served on December 8, 2020. (See December 18, 2020 proof of service). On March 23, 2021, Plaintiff requested entry of default, which was entered by the Clerk, on March 23, 2021 against Defendant Abdo Adaimy. Thereafter, ...

Excerpt: ...tly received favorable performance reviews. (¶¶ 9‐10.) In January 2020, Plaintiff notified human resources and his immediate supervisor of the need to take a two‐ week leave, under the California Family Rights Act (CFRA), so he could care for his mother, who was scheduled to undergo hip replacement surgery on February 17, 2020. (¶¶ 11‐13.) While Plaintiff's leave request was granted, he was advised upon his return on March 2, 2020 that ...

Excerpt: ...) Statement of Law – Motion to Compel Arbitration 2 California Law Code of Civil Procedure sections 1280 et seq. 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 t...

Excerpt: ...g inappropriate comments about his deceased mother, ridiculing his belief in God, calling him and co‐worker Robert lovers, and watching/leering at him and Robert while they changed in the locker room. Although he complained to his supervisor Ibarra, Murillo would deny them and then make false accusations against Mendoza. Ibarra would then write off Mendoza's complaints as silly and a waste of his time. Due to Murillo's false claims against him,...

Excerpt: ... 94.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions, or conclusions of fact or law. (Adelman v. Associated Int'l. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) The plaintiff's ability to prove the allegations is of no concern in ruling on a demurrer. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d...

Excerpt: ...ient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)2 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or cross‐complaint has been filed may, within 30 days after service of the complaint or cr...

Excerpt: ...hese motions were filed, even with a courtesy meet and confer letter. In opposition, Plaintiff's counsel, Edward Shkolnikov provides a declaration claiming that a recent move to a new office caused them to fall behind on work and that the discovery was mistakenly not calendared for a response. Counsel blames himself (and his paralegal) for the failure. He also claims he missed the meet and confer letter due to the volume of emails he receives. Th...

Excerpt: ...er compelling the parties to arbitrate a dispute covered by the agreement. California Code of Civil Procedure section 1281.2 provides in pertinent part that: [T]he court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission...

Excerpt: ...7c, subdivision (c), summary judgment is proper where there is no material fact in dispute as to any essential element of a cause of action. Code of Civil Procedure section 437c, subdivision (p)(1), provides that a plaintiff has met his/her burden of showing there is no defense to a cause of action if he/she has shown each and every element of the cause of action entitling the party to judgment on that cause of action. A defendant has met its bur...

Excerpt: ...y one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)1 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or c...

Excerpt: ...asions, and laceration and permanent scarring to MacPherson's nose. (Compl. ¶¶ 5‐12.) Page 2 of 13 On July 23, 2019, MacPherson filed a Complaint against Rodriguez, alleging causes of action for: (1) negligence; (2) strict liability; (3) negligence per se; and (4) premises liability. MacPherson alleges that after the attack, she had to plead with Rodriguez to get help at the hospital. While waiting for medical care, Rodriguez insisted, harass...

Excerpt: ...y Act— Breach of Express Warranty; (2) Violation of Song‐Beverly Act—Breach of Implied Warranty; and (3) Violation of the Song‐Beverly Act, section 1793.2. Page 2 of 12 On March 11, 2021, Defendant filed its “pretrial motion to determine the scope of Plaintiff's recoverable damages.” Plaintiff filed a timely opposition. At that time, trial was set for April 12, 2021. On March 19, 2021, Plaintiff filed his motion to compel the depositi...

Excerpt: ...blower retaliation statute); (4) FEHA failure to prevent discrimination and harassment; (5) IIED; and constructive discharge in violation of public policy. Page 2 of 13 On March 2, 2021, Defendant filed this motion to compel arbitration. Plaintiff filed a timely opposition. Defendant filed a timely reply. II. DISCUSSION Statement of Law California Law Code of Civil Procedure sections 1280 et seq. provide a procedure for the summary determination ...

Excerpt: ...lower retaliation statute); (4) FEHA failure to prevent discrimination and harassment; (5) IIED; and constructive discharge in violation of public policy. Page 2 of 13 On March 2, 2021, Defendant filed this motion to compel arbitration. Plaintiff filed a timely opposition. Defendant filed a timely reply. II. DISCUSSION Statement of Law California Law Code of Civil Procedure sections 1280 et seq. provide a procedure for the summary determination o...

Excerpt: ...nting and Drywall dba T&R Construction Group (“T&R”), filed its original Complaint against defendants, Fore Construction, LLC 2 (“Fore”) and CPR/FPC Foothill Owner, LLC (“CPR/FPC”). On March 10, 2020, as a matter of right, T&R filed the operative First Amended Complaint (“FAC”) alleging the eight causes of action: (1) Breach of Contract; (2) Quantum Meruit; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Enforce...

Excerpt: ...rer to the third, fifth, sixth, and seventh causes of action with leave to amend. The operative First Amended Complaint (“FAC”) was filed on January 12, 2021. Plaintiffs allege they purchased a new 2015 KIA Sportage vehicle on July 27, 2015. The vehicle was purportedly covered by KIA's 5‐year or 60,000‐mile express bumper to bumper warranty and its 10‐year/100,000 mile powertrain warranty. Subsequently, KIA provided a 10‐year/120,000 ...

Excerpt: ...as to Defendant Glass only. 1 Because some parties share a common last name, first names are used for clarity. No disrespect is intended. 2 The motion was set to be heard April 13, 2021, but at that hearing was continued by the Court to May 5, 2021. DISCUSSION Discretionary Provision under Code of Civil Procedure section 473(b) Under Code of Civil Procedure section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a p...

Excerpt: ...ve any publicly viewable content on the internet regarding any party to this litigation or the merits of this litigation. Finally, Defendants move for an order prohibiting Plaintiff's counsel or its surrogates from sending any communications to any state agency regarding any parties to this litigation or relating to the merits of this litigation. Plaintiff opposes arguing that there is insufficient legal authority, that there has not been a viola...

Excerpt: ... at ¶¶4‐5, 9, and Exhs. 1‐2, 8; Whitman Decl. [RFA] at ¶¶4‐5, Exhs. 1‐2; Brignoni Decl. at ¶¶5‐7, Exhs. D‐F.)1 Finding the responses and/or further responses deficient to (i) FR #1.1, 12.1, 15.1, and 17.1, (ii) SR #14, 19‐20, 23, 40‐41, 46, and 51‐53, (iii) RFPs #1‐5, 9, 17, 19, 31‐33, 37‐45, 53‐ 54, and (iv) RFAs #1‐2, 10‐11, 17‐20, 22, and 24, Plaintiffs Tindell and Libretti move to compel further responses...

Excerpt: ...ently filed Plaintiff's Opposition to Defendant's Motion rather than the Motion to Strike itself. Meanwhile, it appears the Motion was served on Plaintiff as she filed her Opposition to the Motion on December 10, 2020. A Reply was filed on December 16, 2020. However, as the Motion was never filed with the Court, it was not placed on calendar. On March 15, 2021, Defendants refiled the Motion to Strike Punitive Damages. The Court notes that there h...

Excerpt: ...were willful and deliberate, and that they constitute a wanton disregard of Plaintiff's interests. (Complaint, ¶¶ 25‐26.) However, the Motion to Strike does not move to strike these portions of the Complaint. 2 for punitive damages against him, as there are no facts pled demonstrating Defendant's actions or inactions rose to the level of malice, oppression, or fraud. Statement of Law “Any party, within the time allowed to respond to a plead...

Excerpt: ...e damages, as the conscious disregard of the safety of others is not, by itself, sufficient to establish malice or oppression. 2 Plaintiff timely filed his Opposition on April 9, 2021, arguing his allegation that Andrew Rodriguez willfully and wantonly operated a motor vehicle while intoxicated, and in total disregard of the health and safety of Plaintiff's father is sufficient, at the pleading stage, and before any discovery is conducted, to ove...

Excerpt: ...rer, all facts pleaded in the complaint are assumed to be true however improbable they may be. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) However, the Court does 2 “not accept as true contentions, deductions, or conclusions of fact or law.” (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1402, citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) B. Meet and Confer Requirement U...

Excerpt: ...t him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) 2 Under Section 473, subdivision (b), the motion must be made within a reasonable time, but in no case exceeding six months, and the proposed answer must be filed with such motion. The six‐month limit is jurisdictional in nature. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372.) An application for relief under Section 473,...

Excerpt: ...at may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal. 3d 120, 125.) Because the factual allegations are assumed to be true, the possibility that...

Excerpt: ...he arguments raise afford the relief requested, whether under section 663 or otherwise. On this basis alone, the motion could be denied. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 931 [Trial court does not abuse its discretion by denying motion containing no discussion relating to the facts of the case or to the law cited].) The opening brief and supporting evidence were also filed late pursuant to the ...

Excerpt: ...evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) 2 For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions, or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591; Adelman v. Associated Int'l. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Facts app...

Excerpt: ... fact or law, and may consider exhibits attached to the complaint. (Id. at 732‐33; Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) Specific factual allegations modify and limit inconsistent general statements. (Fin. Corp. of Am. v. Wilburn (1987) 189 Cal.App.3d 764, 769.) The court must interpret the complaint reasonably, reading it as a whole and considering all parts in their context. (Hale v. Sharp Healthcare (2010) 183 Ca...

Excerpt: ...AMINATION Statement of Law – Compel Medical Examination A defendant can seek a medical examination with leave of court pursuant to Code of Civil Procedure section 2032.310. The notice of motion must set forth 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).) The moving party must include a declaration showing a good faith at...

Excerpt: ... On December 21, 2020, the Court overruled Defendants' demurrer to Plaintiff's complaint. The Court ordered Defendants to file their answer within 30 days. On January 19, 2021, Defendants answered. On February 9, 2021, SCITC and Spectrum (“Moving Defendants”) filed this motion for leave to file a cross‐complaint against Plaintiff and a third‐party, Katya Linky. DISCUSSION Code of Civil Procedure section 428.50 provides: (a) A party shall ...

Excerpt: ...s, fluoroscopy procedures had been conducted at Hospital by staff who do not hold the requisite fluoroscopy permits, under the direction and supervision of a certified supervisor or operator. (¶44.) Accordingly, Hospital violated Health and Safety Code section 1071110, and is liable for $5,000 per offense, for an estimated $3.6 million. (¶¶47‐48.) At issue is a motion for judgment on the pleadings. 2 DISCUSSION Statement of Law – Motion fo...

Excerpt: ... to raise a triable issue of material fact. This is immaterial because the moving party Page | 2 bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co., (2001) 25 Cal. 4th 826, 850‐851. Where the plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Cod...