Excerpt: ...t after the accident with plaintiffs. The discovery requests have been reviewed by the court with an aim at balancing the plaintiff's right to discovery against the defendant's right to privacy and the fact that at trial, it would be error to allow evidence of the circumstances of the accident, when defendant has admitted liability and the only issue is the extent of plaintiff's injury. ( Boler v Superior Court (1987) 201 Cal.App.3d 467, 472; Fue...

Excerpt: ...asserts that no claim has been made under the FEHA. Plaintiff agrees that the claim for conversion set forth in the 10th Cause of Action does not state facts sufficient to state a cause of action. (Voris v Lampert (2019) 7 Cal.5th 1141 [failure to pay wages due under the Labor Code does not support a tort claim for conversion].) The motion for judgment on the pleadings is granted without leave to amend as to the 10th cause of action. Given that p...

Excerpt: ...ts and manipulated data from the lab supervisor, Mr. Fleming. Labor Code §1102.6 sets for the burden of proof for recovery of damages under this code section. The plaintiff must demonstrate, by a preponderance of evidence, that the activity proscribed under 1102.5 was a contributing factor in the alleged prohibited action against the employee. The employer then has the burden of demonstrating by clear and convincing evidence that the termination...

Excerpt: ...e court makes the following observations: Defendant has represented and the court accepts that defendant has (or is willing to) set forth in verified responses to the discovery that defendant admits liability for the accident, that defendant admits having driven while intoxicated, defendant admits she was convicted of one misdemeanor drunk driving charge stemming from the accident with plaintiff, defendant asserts she has not been charged or conv...

Excerpt: ...has dismissed without prejudice defendant Ceja. The remaining defendants' motions for summary judgment are denied. Defendants' motions for summary adjudication as to each cause of action are discussed below. Defendant Topete and defendant Gonzalez' motions for summary adjudication of the first cause of action for sexual harassment are denied. (Gov Code §12940 (j)(3) [an employee is personally liable for sexual harassment].) There is a triable is...

Excerpt: ...ched as an exhibit. The note allowed for a line of credit up to $81,000 and required minimum monthly payments of $75. The note provided that the final payment was due 10/10/16. Plaintiff cites authority that even though it was a sold out junior due to the foreclosure of the first lien on the property, it may still seek collection on the promissory note. (Bank of America v Graves (1996) 51 Cal App. 4th 607, 611.) The parties are in disagreement wh...

Excerpt: ...ement, breach of fiduciary duty in not properly representing the true value of the partnership assets] . These allegations are not necessarily inconsistent, or result in a finding that a complaint is a sham pleading. (Steiner v Rowley (1950) 35 Cal.2d 713, 718-719 [complaint may plead inconsistent causes of action/ or counts, if there are no contradictory or antagonistic facts].) The demurrer to the second cause of action for illegal and unfair b...

Excerpt: ...ions under Section 1102.5 are predicated upon an employer/employee relationship. See Cal. Lab Code § 1102.5. The relevant portions of the statute clearly indicate that the statute is meant to establish prohibited activity by employers, rather than individuals]; Jones v Lodge at Torry Pines Partnership (2008) 42 Cal.4th 1158, 1173 [Retaliation under the FEHA].) The demurrer to the 4th and 5th causes of action on the grounds of failure to file a t...

Excerpt: ...se documents in support of its demurrer. The court sustains petitioner's lack of foundation objection to the note, deed of trust, and certificate of death and sustains the hearsay, improper opinion testimony, and matter not capable of judicial notice under Evidence Code §451 and 452 objections as to the letter. The court does not find merit to the argument that this court does not have jurisdiction of the dispute due to the absence of an adminis...

Excerpt: ...of proving that party's liability for the loss or damage. Here, the discussion of defendant's financial situation was in the context of why plaintiff reasonably believed that defendant intended to continue to discuss settlement of this class action lawsuit. The statements may be considered in this motion in accordance with Evidence Code §1120 (b)(2) [an exception to the mediation privilege is if it relates to an agreement to extend the time to a...

Excerpt: ...re due 10 days after service of the notice of ruling. The court has considered the submission of plaintiff's supplemental responses which were forwarded to opposing counsel on the same day the motions to compel further responses were filed. The offer to consider further responses made by defendant counsel related to answers without objections. (Letter dated May 12, 2020.) The supplemental responses for the most part continue to object to the requ...

Excerpt: ...that, “I was not impeded by security.” If the process server had an escort, it is likely this would be described in the declaration. Defendants also dispute the assertion that the process server served Jane Doe as a person “apparently in charge” in an office left of the secretary in what the process server believed were defendants' administrative offices. Defendants assert in a declaration from the casino's chief financial officer, that t...

Excerpt: ...ause of action are discussed below. Defendant Topete and defendant Gonzalez' motions for summary adjudication of the first cause of action for sexual harassment are denied. (Gov Code §12940 (j)(3) [an employee is personally liable for sexual harassment].) There is a triable issue of fact if the daily sexual comments and frequent physical touching of plaintiff by Topete (8 to 10 times a day) was sufficiently pervasive and severe to constitute sex...

Excerpt: ...d to the complaint as an exhibit, and no facts were alleged or implied that the hospital offered a paid trainee position to plaintiff in its hospital science lab for the 2018 semester. All the communications in the email chain, obtained by defendant after meet and confer discussions with plaintiff, were between plaintiff and SJSU. The plaintiff presents an alternative theory of liability, but no facts are contained in the complaint to support a c...

Excerpt: ...ng papers at footnote 3 page 5 also asserted hospital is engaged in interstate commerce. (Patterson v Tenet Healthcare Inc (8th Cir 1997) 113 Fed 3d 832, 835-37 [FAA governs arbitration of disputes of employees involving interstate commerce [excluding maritime or railroad employees]; Willis v Prime Healthcare Services Inc (2014) 231 Cal.App.4 th 615, 626 [payments of Medicare or Medicaid funds are transactions involving commerce; receipt of Medic...

Excerpt: ... are persuasive that the process server could not have obtained service by serving Mr. Nolan at the address on the loan documents. Mr. Nolan denies being present at the alleged service address. Mr. Nolan denies being an agent for service of process for the company. There is no declaration from the process server to contradict these assertions. The few facts set forth in the process server's declaration of due diligence concerning the appearance o...

Excerpt: ...mplaint and cross-complaints. To the extent the declaration is based on information and belief, and not personal knowledge, it is inadequate to support the argument that severance for discovery and trial is needed to reduce the prejudice, delay and unnecessary expense to NSP3 (and Borga Steel) while at the same time not causing undue prejudice to the remaining parties. (Pelayo v JJ Lee Management Co Inc (2009) 174 Cal.App.4 th 484, 494 [key is if...

Excerpt: ...arent from the delay in filing. The court takes judicial notice of 17CM0213 in accordance with Evidence Code section 452, subdivision (d). Defendant was convicted of a misdemeanor drunk driving charge stemming from the accident at issue. Prior convictions were not alleged. The defendant was ordered to complete a first offender 3 month DUI program. This contradicts the allegation in the first amended complaint that plaintiff was a DUI repeat offen...

Excerpt: ...ffirmative defenses in defendant's 3/29/19 answer. Plaintiff's motion fails to address the statute of limitation defense. Due to the above defects, the plaintiff's motion for summary judgment did not shift the burden to defendant. The motion for summary judgment must be denied. (Rawlings v DM Oliver Inc (1979) 97 Cal.App.3d 890, 896.) ...

Excerpt: ...ity against a concurrent tortfeasor, 'there can be no indemnity without liability].; Civ. Code §2778 (2) [the person indemnified is not entitled to recover without payment thereof].) This applies to the first three causes of action in the cross- complaints for equitable indemnity, equitable apportionment, declaratory relief. The claims set forth in the cross-complaints in any event duplicate affirmative defenses in the answers of defendants/cros...

Excerpt: ...nahue v State of California (1986) 178 Cal.App.3d 795). The claim in Donahue was premised on the theory that the Department of Motor Vehicles negligently permitted an uninsured driver to take a licensing test. The complaint alleged that the testing officer failed to use due care in directing the operation of the vehicle. Donahue is distinguishable. A claimant need only include a general description of the loss, so far as it may be known at the ti...

Excerpt: ...facts requisite to a valid service].) Defendant has filed a declaration challenging the purported substitute service on the casino and the individual defendants on the basis of: 1) failure to supply details as to why the process server believed he had served a person apparently in charge in light of defendant's declaration that no person described by the process server was employed by defendant and could have been considered a person in charge an...

Excerpt: ...ve an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule].) The motion to change venue based on CCP §397, subdivision (b ) is denied. The plaintiff has failed to allege facts to support a finding that there is reason to believe an impartial trial cannot be had in Kings County. (Nguyen v Superior Court (1996) 49 Cal.App.4 th 1781, 1791 [T]he prospect of jury trial is extremel...

Excerpt: ...ement provided any dispute was to be construed under Colorado law; there is no equivalent statute in Colorado; 3) by its unambiguous language, indemnity for defense costs is not precluded under Labor Code §3864. For the reasons discussed below, the court declines to consider the first or second argument as a basis for its ruling. Instead, the court finds that by its unambiguous language, Labor Code §3864 does not prevent a third party from seek...

Excerpt: ...led to credit for the restitution paid in the sum of $6000. CCP §1021.4 provides that in an action for damages against a defendant based upon that defendant's commission of a felony offense, for which the defendant has been convicted, the court may award attorney fees to a prevailing plaintiff. The court sua sponte takes judicial notice of 17CMS6083 and the transcript excerpts of the preliminary hearing and the sentencing hearing. The notations ...