Excerpt: ...of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.) Declarations must be made on the basis 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.) Defendants seek relief on the basis of mistake, i.e., that they believed there was no requirement to respond until all defendants had been served with the Complaint and Summons. Wit...

Excerpt: ...04) 32 Cal.4th 771, 790.) A plaintiff must demonstrate that defendant is guilty of something more than negligence; he must show reckless, oppressive fraudulent or malicious conduct. (Delaney v. Baker (1999) 20 Cal.4th 23, 31 [recklessness refers to a subjective state of culpability, which has been described as a "deliberate disregard" of the "high degree of probability" that an injury will occur].) "Recklessness, unlike negligence involves someth...

Excerpt: ...lso violates a duty independent of the contract arising from principles of tort law…… An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty].) In addition, the court sustains the demurrer to the second and third causes of action on the grounds that no actual harm has been alleged. There is a claim of excessive seepage, but no claim of crop loss. The inference is that the seepage...

Excerpt: ...o the meet and confer letters of counsel are overruled. In ruling on a demurrer, this court is required to accept as true the allegations of the underlying pleading, but not contentions, deductions or conclusions of fact or law. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) Here, the first amended petition alleged respondents were engaged in a project consisting of the secret transport of water from wells near the City of Lemoore, to Blakeley Canal...

Excerpt: ...terests of the Living Trust were assigned to Hanford Renaissance LLC. The Living Trust (even if it could be a party to a lawsuit), no longer has an interest in the real property in Hanford that was security for the loan. The court agrees with plaintiff that the Living Trust has no standing to file the proposed cross-complaint. (Johnson v County of Fresno (2003) 111 Cal App.4th 1087, 1096 [ once the transfer has been made, the assignor lacks stand...

Excerpt: ...at is better than when the lease commenced].) Here, the SAC at ¶9 cited to the lease allegedly requiring inspection of the air conditioner on a monthly basis, and repair and replacement of defective conditions of the air and heating systems and roof. The court cannot say as a matter of law at the pleading stage whether plaintiff is entitled to recover damages for the alleged failure to inspect, repair or replace defects discovered after regainin...

Excerpt: ...willingness to consider the actions of Valdez in failing to follow her orders and completing job assignments supports plaintiff's harassment claims because evidence of discrimination based on protected status may be evidentiary support for the harassment claims. (Brennan v Townsend & O'Leary Enterprises Inc (2011) 199 Cal.App.4 th 1336, 1361[ The Supreme Court held that “discrimination and harassment claims can overlap as an evidentiary matter]...

Excerpt: ...s his agent. Defendant has also failed to present evidence that plaintiff's husband, the resident at defendant facility, took actions that would have led defendant to reasonably believe his wife was his agent, with authority to sign the arbitration agreement. (Flores, supra at 587‐ 88 [agency “can be established either by agreement between the agent and the principal, that is, a true agency [citation], or it can be founded on ostensible autho...

Excerpt: ...784.) Defendant is entitled to a verified response from plaintiff as to the medical care, examination and treatment received as a result of the accident. Defendant's motion to compel a further response to Form Interrogatory # 20.8 is granted. Plaintiff's objection that it is calling for expert information is overruled. Plaintiff's reference to the police report is inadequate. Defendant is entitled to a verified response from plaintiff as to the h...

Excerpt: ...cause of action do not address any facts underlying the lack of care plaintiff's decedent allegedly received from defendant. Defendant's demurrer to the second cause of action for medical negligence for failure to state facts sufficient to state a cause of action is sustained. The complaint is not directed to Dr. Magavalli, who was added as a Doe defendant eight months after the complaint was filed. Facts to support all elements of such a cause o...

Excerpt: ...leged in the complaint, or that may be judicially noticed. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal.App.3d 593, 604.) When determining the merits of a demurrer, the facts as alleged are accepted as true. (Ibid.) Workers compensation preemption is an affirmative defense that defendant must plead and prove and such conclusion may not be asserted based on non- existent facts, speculation and inferences. (Doney v Tombouratgis (1979)...

Excerpt: ... have corrected the dangerous condition. (Gov. Code §835.) The complaint alleged that plaintiff slipped and fell on a wet floor that had been recently mopped. The employees were alleged to have mopped the floor during visiting hours, and failed to place warning signs of the wet floor. The court accepts these facts as true and finds that the TAC adequately alleged facts sufficient to state a cause of action under Government Code section 835. (Zel...

Excerpt: ... reduced the number of employees in this PAGA class by a third. The court at page 7 of its 3/16/22 order specifically ordered defendant to answer the previously ordered discovery responses as to “all current and former non-exempt hourly employees.” The court rejects defendant's assertion that plaintiff was required to file a motion to compel further responses by April 20, 2022, given the court order of March 16, 2022. Defendant recently filed...

Excerpt: ...ne if some of the medical expenses incurred by plaintiff related to plaintiff's prior medical condition, and the report of defendant's IME, which discounted permanent damage to plaintiff's muscles or back. The court finds that the objections and answer were adequate responses to the interrogatory. Plaintiff's sanction request is denied. Requests for admission As to Defendant Vargas (Some of the questions have been summarized/ shortened) #5 asks d...

Excerpt: ...d with the motion to intervene].) Leave to file a complaint in intervention containing a caption naming intervenors as substituted class representatives is granted. Case law supports a motion to intervene by putative class members when the initially named class representative is found unsuitable. (La Sala v American Savings & Loan (1971) 5 Cal.3d 864, 872 [in the present case, the superior court did not find that plaintiffs were not, at the comme...

Excerpt: ...kly Admin Inc v Superior Court (2020) 9 Cal.5 th 279, 326.) Defendant argues breach of fiduciary duty is a fact issue for a jury, but a breach of fiduciary duty will be treated as an equitable action when an accounting is required. (Van de Kamp v Bank of America (1988) 204 Cal.App.3d 819, 864 [Where an accounting is required, the action is equitable; An accounting is necessary where the fiduciary becomes liable for various sums of money and plain...

Excerpt: ...tives. On these facts, we conclude that dismissal of the action requires prior notice to the class]; Jaimez v Daiohs USA Inc (2010) 181 Cal.App.4th 1286, 1308 [ As leave to amend is routinely granted and because the class presented two new class representatives (in direct response to the trial court's concern regarding the adequacy of Jaimez as a class representative), we conclude the trial court abused its discretion in denying leave to amend].)...

Excerpt: ...ve not been resolved. In plaintiff's points and authorities at page 6, plaintiff has agreed to limit deposition category #4 to documents reflecting the number of 2018 Ford Fiesta vehicles repurchased or replaced by Ford under California's Lemon Laws (limiting the request from “any state or federal lemon law.”) Plaintiff also agreed to limit the request to repurchases or replacement due to similar warranty non-conformities as the subject vehic...

Excerpt: ...n order to recover under this code section, plaintiff must first prevail on her claim of discrimination or harassment. (Carter v Cal. Dept of Veteran Affairs (2006) 38 Cal.4 th 919. 925 Fn 4. ) The California Supreme Court has found that this code section describes a separate unlawful employment practice, rejecting the argument that an independent cause of action had not been stated. (Ibid.) This court overrules the argument that plaintiff did no...

Excerpt: ...or should have known of the conduct and fails to take immediate and appropriate corrective action]) and the 7th cause of action for intentional infliction of emotional distress. Within ¶25 of the second cause of action, plaintiff seeks recovery for emotional distress due to the sexual harassment against her by her supervisor. Punitive damages are also being sought against Duran in the second cause of action. The only way to reconcile the cases c...

Excerpt: ...laintiffs are simply requesting the addition of a survival claim for damages incurred by decedent before his death, such as personal property damages and medical expenses. Plaintiff's SAC is to be filed within 10 days of the court hearing. ...

Excerpt: ...hat the repairs to conform the vehicle to applicable warranties were not commenced within a reasonable time, nor completed within 30 days. The complaint did not allege the number of days the car was in the shop for repairs. This information is included within the repair history (and was recited in the opposition P&A). Given the specificity of the facts required to state a cause of action and the conclusory allegation of its violation, the court f...

Excerpt: ...o support the defense. (See's Candy Shops Inc v Sup Ct (Silva) (2012) 210 Cal. App. 4 th 889, 900.) If the plaintiff does not make this showing, it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied. (Ibid.) In connection with its summary adjudication motion, plaintiff did not present an expert opinion, or any other evidence contradicting defendant's affirmative defenses based on comparative negligence, su...

Excerpt: ...West Management Group. The FAC does not allege that Inspire Brands entered into a continuing guaranty agreement. Absent such an allegation, the obligations of Inspire Brands terminated on the assignment of the lease to Far West Management Group. (Central Building LLC v Cooper (2005) 127 Cal.App.4 th 1053, 1059.) On that basis, the FAC fails to state facts sufficient to state a cause of action. The motion to strike the punitive damage and attorney...

Excerpt: ...e FAC filed by plaintiff contains paragraphs requesting punitive damages (¶¶ 34, 59, 76) and a prayer for punitive damages was added in the FAC (#5). In addition to having been filed beyond the time for amendment, the FAC was also filed in direct contradiction to the court order on the motion to strike. The court sua sponte moves to strike the FAC. The court renews its prior order that the punitive damage claims are stricken without prejudice. ...