Excerpt: ...[alleged by plaintiff] more likely than not'—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (20...

Excerpt: ...[alleged by plaintiff] more likely than not'—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (20...

Excerpt: ... that its October 12, 2022 Order allowed for the filing of a motion to compel further responses upon Defendant's failure to timely comply. For the reasons addressed below, Plaintiff's motion for terminating, issue and/or evidentiary sanctions is premature and unwarranted. However, the court finds that further responses to the discovery requests should be ordered and monetary sanctions are warranted. Generally, the court “may make those orders t...

Excerpt: ...ing a protective order but he asserts in his reply that Defendant has not moved for one and that Defendant thus cannot assert objections based on commercially sensitive, trade secret, or private information. However, Plaintiff has not stated any objections to the entry of a protective order and has not addressed Defendant's contention that Plaintiff's review of and response to the draft protective order remains outstanding. Neither party has pres...

Excerpt: ...to adequately intervene or effectively care for Martinez by either providing additional care instructions to Hacienda Post-Acute, reporting the abuse and neglect to Adult Protective Services, in order to prevent further falls. As with the FAC, the allegations in the SAC are not adequately specific with respect to the alleged manner in which Dr. Nagavalli is supposed to have been made actually aware of the care home's purported neglect and abuse a...

Excerpt: ...at Plaintiff's evidence in opposition to the motion creates a triable issue of fact with respect to whether Defendants breached the standard of care. (Reply at 2, 3 n.1.) Accordingly, the court does not address this issue further in its ruling but accepts, for purposes of this order, that there exists a triable issue of fact as to whether Defendants breached the standard of care during labor and delivery. As for causation, Defendants present the ...

Excerpt: ...aims that the representative claims can successfully go forward. Given the Kim decision and the reasoning in Gavriiloglou, there are strong arguments presented why the California Supreme Court should find that plaintiffs retain standing to proceed with the representative PAGA claims. (Kim v Reins International California Inc (2020) 9 Cal.5 th 73, 91-92; Gavriiloglou v Prime Healthcare Management Inc (2022) 83 Cal. App.5th 595.) But if this case d...

Excerpt: ...nt sought an extension of time due to illness. Counsel sent an email on 8/30/22 extending the time to respond by three weeks (which plaintiff says meant three weeks from the August 17 due date, making responses due September 7, 2022) Plaintiff counsel sent an email on September 28, 2022 seeking responses and noting that “technically all objections have been waived.” Defendant served responses, which consisted only of objections, on September ...

Excerpt: ...nst the trust. (Powers v Ashton (1975) 45 Cal App.3d 783, 787; Han v Hallberg (2019) 35 Cal.App.5 th 621, 632 [a trust cannot sue or be sued or otherwise act in its own name, instead the trustee acts on behalf of the trust].) The complaint alleges all facts to state a cause of action for partition under Code of Civil Procedure section 872.230. The demurrer to the cause of action for an accounting is overruled. A co- ownership of real property was...

Excerpt: ...e contract between the parties is entitled “Indemnification by Owner for Hazardous Material Not Caused by Design-Builder.” This is the indemnification clause which forms the basis of Filanc's second cause of action for contractual indemnity. It is this cause of action that Lemoore seeks to strike in its motion brought pursuant to CCP §425.16. Lemoore's special motion to strike is denied. The second cause of action for contractual liability a...

Excerpt: ...ries to prisoners with certain statutory exceptions. (Gov. Code §844.6 [a public entity is not liable for an injury to any prisoner]; Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383 [“Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code §815.2), that rule does not apply in the case of injuries to prisoners.”].) Among these exceptions is the liability of a public entity where an...

Excerpt: ...ifically addressed the issues needed for supplemental responses, demonstrated willingness to address privacy concerns through a confidentiality stipulation, and provided extensions and additional time. Plaintiff allowed approximately a full six weeks from the most recent communication from defense counsel before filing the motion. Additionally, the parties appear to have engaged in additional meet and confer efforts as ordered by the court on Nov...

Excerpt: ...e date and shall take precedence over all other cases, except older matters of the same character, and matters to which special precedence may be given by law.” Cross-Defendants have presented no persuasive or binding authority that the appeal of the preliminary injunction precludes Cross-Complainants from trial preference. Further, the court notes that even where preference is granted, the right to preference may expire if the case is mooted a...

Excerpt: ... appeal. The appellate court affirmed the award of attorney fees awarded in accordance with Civil Code §1717, CCP §1032 and CCP 685.040 at pages 40-41 of its opinion. This decision is the law of the case; it controls the award of attorney fees on appeal. (MBNA America Bank NA Gonnman (2006) 147 Cal.App.4 th Supp 1, 13-14 [Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is als...

Excerpt: ...rogatories (Set One) and for Monetary Sanctions November 29, 2022 at 10:30 a.m. in D-8, J. Chrissakis Defendant's motions to compel are granted. Plaintiff is ordered to provide verified responses, without objections to Defendant's Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) within thirty (30) days of service of this Order. Additionally, if verified responses to Defendant's R...

Excerpt: ...mail archiving system (or a cloud storage) by IT without preservation of any emails sought by plaintiff, knowing this would compromise plaintiff's lawsuit. Here, plaintiff counsel sought emails, but did not take the precaution of sending a notice to preserve the emails. Defense counsel denies any knowledge about the city's IT decision to switch email archiving systems. Defense counsel met and conferred with plaintiff counsel about search terms an...

Excerpt: ...re shown to have vacated the premises. Plaintiff has demonstrated that the requisite notice to terminate the subject tenancy was provided. A thirty‐day written notice is adequate to terminate a month‐to‐month commercial tenancy. (Civ. Code §1946.) A thirty‐day notice does not have to state the reason for the eviction and may be without cause. (Ibid.) Here, the notice was provided by mail on July 13, 2022, indicating the tenancy was to be...

Excerpt: ...e restrained party if the final determination is that the plaintiff was not entitled to the injunction. (Code Civ. Proc. § 529; see also TopCat Productions, Inc. v. Michael's Los Feliz (2002) 102 Cal.App.4th 474, 478.) “[T]he trial court's function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” (ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14;...

Excerpt: ...asis of personal knowledge by one who is competent to testify as to the facts involved. (Kendall v. Barker (1988) 194 Cal. App. 3d 619, 624.) Regarding John, he contests proper service of the Complaint and Summons and further attests that he was not required to respond based on lack of service. John states in his declaration that he was never personally served with the Complaint and Summons and instead found a copy in his mailbox, without postage...

Excerpt: ...s to the declaration of Mike Casey. The court finds that the arbitration agreements signed by the four plaintiffs are not substantively or procedurally unconscionable. (Armendariz v Found Health Psyhcare Services Inc (2000) 24 Cal.4th 83, 114.) The agreements all preceded enactment of Labor Code §432.6 (effective 1/1/20), which is not applied retroactively. (Labor Code §432.6, subd (h) [ This section applies to contracts for employment entered ...

Excerpt: ...the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96.) “An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by ...

Excerpt: ...trate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) The court's role under the FAA is limited to determining (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the agreement encompasses the dispute at issue. (Chiron Corp. v. Ortho Diagnostic Systs.,...

Excerpt: ...” under the heading “Renter” is sufficient to establish Defendant Corey as the exclusive renter, while Plaintiff asserts that this receipt is insufficient to demonstrate a lack of rental relationship or liability on Tahler's behalf. In the court's view, the receipt appears to relate primarily to the payment for the claim arising from the subject collision and does not establish the parties to the rental agreement or the terms with respect t...

Excerpt: ... 415.10.) However, under section 415.20(b) of the California Code of Civil Procedure, service may also be accomplished, in lieu of personal delivery, by leaving a copy of the summons and complaint at the person's dwelling house or usual place of abode in the presence of a competent member of the household and subsequently mailing a copy to the place where the summons and complaint were left, also known as substituted service. (Id. § 415.20(b).) ...

Excerpt: ...possession issued on 5/9/2022. On 9/13/22, Defendant filed an ex parte application to set aside default and default judgment on the basis of excusable surprise, given that she was never served with summons and complaint. The court granted to motion at a hearing on 9/15/22 and ordered Defendant to file an answer within 5 days. Demurrer (filed 9/20/22) The complaint is based on a 3-day notice to pay rent or quit, but no notice is attached to the Co...