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: ...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...