Excerpt: ...s, it appears the tree was on his property. The homeowner's association hired Douglas Landscape to trim the tree. But Douglas's employees did not cordon off the area as required, and a branch fell on the plaintiff injuring her. Green was not there when the incident occurred. The defendants submit evidence that the plaintiff is claiming around $3 million in damages and her medical expenses alone at this point total over $558,000. In their mind, a ...

Excerpt: ...ntense Lighting, LLC, within 14 days of the hearing date. Defendants filed a motion to compel the “second” deposition of the plaintiff because she had been instructed not to answer five specific questions. The defendant confirmed the deposition date of its Person Most Qualified but later it refused to produce that person for deposition until after plaintiff's second deposition. However, there is no authority for the proposition that plaintiff...

Excerpt: ...und $225,000. Counsel claims attorney fees at an hourly rate of $675, and paralegal fees at an hourly rate of $175. Defendant compares the initial 998 Offer to Compromise on March 3, 2020 (which was rejected), with the 998 Offer accepted on March 8, 2022. 1. The 2020 Offer was for a buy-back, dismissal of the action with prejudice, a payment to the plaintiff of $28,658.78, and $10,000 for attorney fees and other costs. 2. The 2022 Offer was for a...

Excerpt: ...versity, neither the complaint nor the cross-complaint are so limited. Plaintiffs, for example, seek additional relief in the complaint. In Paragraph 27 of the complaint, plaintiffs allege the defendants “have and continue to engage in other actions that are causing damage to [Bethesda University] including the manipulation of managers and personnel to implement the Fake Board's financial directives resulting in the inadequate funding” of the...

Excerpt: ...ion. In Paragraph 25, plaintiff pleads that, “Defendant failed to provide proper meal and rest breaks for employees. Plaintiff regularly worked twelve (8-10) hour shifts; however, he could not take all his meal and rest breaks on many days.” This is sufficient to put the defendant on notice of the claim against it. The pleading is not uncertain. Moreover, there is no procedural requirement that plaintiff must plead the dates and thereby estab...

Excerpt: ...or sanctions and monetary sanctions should likely be imposed. But the question is: against whom? Hyundai Westlake is a non-party, and so are the service technicians, one who does not even work at the dealership anymore. Yet the plaintiff wants sanctions imposed against them? Based on a review of the competing declarations, defense counsel does not seem to have been at fault. The delay seems to have been at the dealer's end, so why should defendan...

Excerpt: ...egligence and wrongful death. They also alleged two causes of action against Grace's parents for wrongful death and negligence based on the theory of negligent entrustment of their vehicle to Grace. It was alleged that around three months prior to this accident, Grace was arrested for driving under the influence with a BAC of .15. And around two months before that, Grace drove while intoxicated and struck a parked vehicle, and then fled the scene...

Excerpt: ... included agreements over the final approval of changes and any additions to the scope of work. The demurrer asserts that, “Nowhere in that contract does it state Laidlaw was to be involved in any manner as the Owner's representative regarding change orders or additions to the scope of work.” However, the alleged breach of contract is based on more than just the written agreement. It is also based on the alleged oral agreements. As such, the ...

Excerpt: ...l papers regarding the request, which they did. Defendant argues that he has a right to conduct a physical examination of the plaintiff; if it is delayed until after the revision surgery, he will be limited to accepting the opinions of plaintiff's expert. In response, plaintiff says she has always been willing to undergo a physical examination, but that the defendant sat on his rights. The complaint was filed May 12, 2022; and defendant filed his...

Excerpt: ...ortunities to correct the deficiencies in the motion for leave to amend and sanctions under Code of Civil Procedure section 128.7. Plaintiff's failure to do so is well documented. This is the tentative ruling posted on the Internet on March 1, 2023, for the court's March 2, 2023 law and motion calendar, italicized for clearness. It was not made part of the minute order, which is this Department's normal practice and needs to be made part of the r...

Excerpt: ...e. However, that may all be a minor issue now. The court notes that the basic factual claims have changed dramatically: 1. In the complaint, the plaintiff alleged the landlord refused to consent to the use of the residence as a “small family day care.” Under the law, a small family day care center is for 6 to 8 children. 2. In the amended complaint, she now alleges she told the landlord that she wanted to operate a “large family day care ce...

Excerpt: ...that plaintiff did not meet and confer in good faith. The motion to compel was filed before a second requested extension to respond had expired. Defendant was trying to respond to a meet-and-confer letter that covered 151 discovery requests, and there were no pressing deadlines. Based on the court's review of the record, it appears plaintiff granted a two-week extension to respond to the initial meet-and-confer letter. When the two weeks had pass...

Excerpt: ...s defendant, and most of the evidentiary documents in support of its summary judgment motion filed March g, 2022. Defendant claims these records relate to "confidential financial information, and to medical or personal identifying information related to minor Plaintiff." Further, counsel for this defendant states in his declaration in support of the motion to seal that resolution of the case is "conditioned on strict confidentiality regarding, am...

Excerpt: ...ntiff objected on the ground that there are some documents subject to a right to privacy. The court has been advised that during the meet and confer process, the only concession made by defendants was that plaintiff's tax records would not have to be produced. Plaintiff has a constitutional right to privacy that may be abridged only if, after balancing the competing interests, the balance weighs in favor of disclosure. Here, plaintiff has shown t...

Excerpt: ...ties do not dispute that general jurisdiction does not apply to this defendant. Rather, the only question to be decided is whether the court may exercise specific personal jurisdiction over him. Specific personal jurisdiction may be exercised over a nonresident defendant if he has purposefully availed himself of the privilege of conducting activities within the forum State and the controversy arises out of or is related to the defendant's contact...

Excerpt: ...ant and cross-complainant Newport Window Maintenance was in charge of providing janitorial services for the office building. Along with Dolphin Partners, plaintiff sued Newport Window was sued for negligence and premises liability. Newport Window cross-complained against South Shore for implied indemnity, comparative contribution, equitable indemnity, and declaratory relief. South Shore had a contract to power wash the walkways and the trash cont...

Excerpt: ...met its initial burden to show that this was a trivial defect. Although there is some dispute as to the exact height of the raised portion of the sidewalk—the defendant's maintenance person says it "was no more than one inch," and there are photographs of the uplift at the time of the accident. The photographs submitted by plaintiff's expert (the ones unadorned by the cross-hatching) do not show an uplift that is close to two inches high. Her e...

Excerpt: ...ivil Code section 1793.2, subdivision (b); Violation of Civil Code section 1793.2; Breach of an Express Written Warranty; Breach of the Implied Warranty of Merchantability; and, Fraud. Evidentiary Objections a. Plaintiffs' evidentiary objections to the Declaration of Sandra Beshai, Nos. 1-5, are OVERRULED. The basis of the objections is that the statements in the declaration are based on lack of foundation and/or personal knowledge, are irrelevan...

Excerpt: ...defect. Although a landowner is not an insurer of a guest's safety, the landowner must exercise ordinary care by making reasonable inspections of the property to ascertain whether there are any dangerous conditions. Where the dangerous condition is caused by a third person, the landowner must have some knowledge, direct or constructive, of the dangerous condition. Here, the defendant never comes out and directly states a lack of knowledge of a da...

Excerpt: ...ase in the cost of litigation. In reviewing a motion brought under this section, the court applies an objective test: Whether the papers filed are frivolous, legally unreasonable, or without any factual foundation. As the Supreme Court teaches, "We measure the truth-finding inquiry's reasonableness under an objective standard and apply this standard both to attorneys and to their clients." (Bockrath v. Aldrich Chemical Co., Inc. (Iggg) 21 Cal.4th...

Excerpt: ...y legally refuse to permit the defense and its experts from entering the property unless they first execute a liability waiver. Plaintiff's counsel does not suggest that a party may require a liability waiver in every case. Counsel argues, and has submitted his own declaration in support thereof, that this particular property is so dangerous that an executed waiver of liability is necessary to protect the plaintiff. Defendant's counsel argues in ...

Excerpt: ... the name as listed in the Doe amendments and the answer— Anderson.) Summary Adjudication of Issues The defendants joined a motion for summary adjudication of issues with the motion for summary judgment motion. This part is denied on procedural grounds. The defendants failed to comply with Rule 3.1350(b) of the California Rules of Court. Summary Judgment 1. Facts This is a dog bite case. Plaintiff was walking through the parking lot at the Full...

Excerpt: ...gaged in the interactive process, which is why there were, among other things, eleven leaves of absences. Whether the employer's engagement with the employee was "reasonable" is a triable issue of material fact. The court notes Disney appears to concede that there were no "actual conversations" between a Case Advocate and the plaintiff, but it argues that there is no requirement that there be direct communications with the employee under the Cali...

Excerpt: ...laintiff's parents, occurred December 8, 2020. Grace Coleman suffered a conviction for felony vehicular manslaughter as a result of the accident and is now serving a lengthy term in state prison. She pled guilty on June 24, 2022. The court has been informed that the parties went to private mediation on August 29, 2022. It was unsuccessful. On September 22, 2022, the court set a 7-10 day jury trial for June 12, 2023. Grace Coleman's deposition was...

Excerpt: ...y, the helicopters located in Alabama were therefore not covered and there was no breach of contract by Hartford. To the extent plaintiff appears to try to pin Aon's alleged negligence on Hartford, the rule is clear: “Unlike an agent, a broker does not act for the insurer, and the insurer is not liable for the broker's acts or omissions.” (Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 929.) Summary Judgment—Aon Risk Defendant Aon R...

Excerpt: ...mplaints (internal and external, such as to the United States Securities and Exchange Commission) about alleged wrongful conduct of the cross-complainants. The cross-complaint alleges in essence that the plaintiffs and cross-defendants were terminated because they engaged in various wrongful conduct, such as taking of pages and pages of confidential and proprietary files, including customer information and proprietary financial information. The c...

Excerpt: ...llowed Payne's financial advice. However, defendants failed to account for the money he invested or to return it in breach of the agreement. Other causes of action were alleged. But the thrust of the complaint was that plaintiff and defendants had an agreement. Defendants filed an answer denying all allegations. The motion for summary judgment claimed defendants had no duty to the plaintiff. They asserted that plaintiff had been the victim of a f...

Excerpt: ...compel arbitration is based on the sales agreement signed by the plaintiffs when they purchased the vehicle from a dealership in Tustin. That sales agreement contains a common arbitration provision. It is undisputed that neither Nissan North America nor the Nissan dealer that performed the repairs were signatories to the sales agreement. One California case, Felisi/da v. FCA US, LLC (2020) 53 Cal.App.5th 486, has held that a non-signatory, third-...

Excerpt: ...e of Georgia, due to the Covid-lg pandemic. Georgia declared that business of plastic surgery was non- essential. The defendant argued—and proved—it could not make the monthly payments because it did not have any business income due to being closed. Moreover, the defendant was clear that it was prepared, and able, to continue making monthly payments once Georgia let it reopen. The court rendered judgment for the defendant. In its minute order...

Excerpt: ...strike the Complaint is GRANTED in part and DENIED in part. The motion to strike the prayer for punitive damages is GRANTED. The plaintiff has not alleged sufficient facts to support the conclusory allegations that Seki's conduct was malicious, fraudulent, or oppressive within the meaning of Civil Code section 3294. The motion to strike is otherwise DENIED. The court does not find that any of the other challenged portions of the Complaint to be i...

Excerpt: ... of attorney fees. The prevailing party in a Lemon Law case such as this one is entitled to an award of attorney fees "based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code, S 1794, subd. The court finds as a matter of law that plaintiff was the prevailing party. The fact that the vehicle was purchased "used," and there i...

Excerpt: ...LC (2020) 53 Cal.App.5th 486. There, the appellate court found the arbitration provision was enforceable by the non-signatory manufacturer. Federal cases such as Ngo v. BMW (9th Cir. 2022) 23 F.4th 942 have found the reasoning in Felisilda unpersuasive. As this court has noted before in various other Lemon Law cases, if it were writing on a clean slate, it would deny the motion because it believes the federal cases are far better reasoned, and ri...

Excerpt: ...g tolled the statute of limitations for civil causes of action 180 days from April 6, 2020, until October 1, 2020. Thus, the statute of limitations did not expire in January 2021 as defendant asserts but would have expired six months later. The filing of the complaint on March g, 2021, was thus not time- barred. The defendant seeks summary adjudication as to the breach of contract claim in the First Cause of Action involving the Palmdale Project....

Excerpt: ...ney Parks and Resorts U.S., Inc. In Futrell v. Payday California, Inc., (2010) 190 Cal.App.4th 1419, the Court of Appeal held: "The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes. The preparation of payroll is largely a ministerial task, albeit a complex task...

Excerpt: ...iled non-opposition to both motions. The Request for an Evidentiary Hearing Defendants MemorialCare Medical Foundation, MemorialCare Surgical Center at Orange Coast, LLC, and Beach Surgical Holdings, LLC, filed a request to hold an evidentiary hearing as permitted under Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394. Defendant MemorialCare Medical Group also seeks an evidentiary hearing, but it is not a party to eithe...

Excerpt: ...r was filed July 19, 2022, denying the allegations in the complaint and asserting various affirmative defenses. The parties filed Case Management Conference Statements in mid-September 2022, and on September 26, 2022, the court issued a Case Management Order that scheduled trial in this matter for March 13, 2023. At the defendant's request, this was set as a one-day jury trial. (No jury fees have been posted by either side, and the court intends ...

Excerpt: ...e parties vacated. Irving now asks the court to reconsider that order primarily on the ground it has new evidence. The motion is DENIED for the reasons given below. The Motion is Deemed Timely The court deems the motion for reconsideration, brought pursuant to Code of Civil Procedure section 1008, timely under the peculiar facts of this case. Section 1008 states that a motion for reconsideration must be filed within 10 days of the Notice of Rulin...

Excerpt: ...by the defendant. Thus, the court concludes that the better course is deny the current motions as moot and address any perceived deficiencies via new motions to compel further responses. Accordingly, the motions are DENIED as MOOT. Sanctions The plaintiff has requested sanctions of $5,900 against the defendant and her attorney. This request is beyond the pale. These were two very simple discovery motions to compel responses to two sets of discove...

Excerpt: ...with Larschan, Jr., as Successor Trustee. The lease was first entered into in 2011. The plaintiffs' claims for mold and water intrusion began in 2016, before the death of Larschan, Sr. It is alleged that they have continued through 2021 during the tenure of Larschan, Jr., as the Successor Trustee. Four attempts were made to state a cause of action against Phillip Larschan, Jr., in his individual capacity. (Claims against him solely in his represe...

Excerpt: ...attached to the petition as Exhibit “A”) indicates who the “Company” is. The parties agree, however, that the employment application was for a position with Crevier BMW at the Auto Mall in Santa Ana. Attached to the Employment Application was an “Applicant Statement and Agreement” which the plaintiff had to execute. In the text of the “Statement and Agreement” was an arbitration provision. By its express terms, this “agreement�...

Excerpt: ...llow statutory protocols. However, the court has decided this time to address the demurrer on the merits. Plaintiff's counsel is warned that continued failure to comply with the meet and confer requirements of the law may result in the imposition of sanctions against counsel. 2. Proofs of Service The defendants failed to attach proofs of service of the demurrer and the reply. Because the plaintiff filed opposition, it appears he received the demu...

Excerpt: ...erts that the mother has a gambling addiction, and the property transfers were an effort to avoid creditors. The son brings his cross-complaint primarily as a derivative action on behalf of the family corporation against his parents. He owns 30 percent of the corporation, and the parents own a combined 70 percent. It is alleged that the impetus for this action is that the transfer of one property apparently triggered a due-on-sale clause from the...

Excerpt: ...ntanyl was given to the decedent and his ultimate death. Statute of Limitations The defendant first argues the survival cause of action is time-barred by Code of Civil Procedure sections 335.1 and 366.1. A review of the original Complaint shows the action was brought (in part) on behalf of the Estate, and that it pled a survival cause of action. The defendant concedes that as of the filing of the Complaint the statute of limitations had not yet e...

Excerpt: ... for a medical examination is made “over objection.” (Query if such a separate statement is required where the objection is—as here—untimely?) The defendant's objection was untimely and therefore the defendant waived any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) Any objection must be served within 20 days of service of the demand. Here, the demand was served November 11, 2022 (with an examination date of December...

Excerpt: ...ion is otherwise sufficient to meet defendant's initial burden that defendant did not violate the standard of care. Given the initial burden was met, and there is no opposition, the motion must be granted. The court is aware that this is the second motion for summary judgment brought by this defendant. The first one was withdrawn after opposition (including a declaration from plaintiff's expert, Dr. Gregory Hammer) was filed. Although the motion ...

Excerpt: ...ur. Robert I. Cohen, with 30 years of practice and a focus on business litigation, bills at $430 per hour. The defendant argues that these hourly rates are inflated and should be adjusted downward to $350 per hour. But she fails to provide any evidence as to the prevailing rate in Orange County in support of her request for a downward modification. The court finds the rates charged reasonable within the local Orange County legal community for the...

Excerpt: ... computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data,” as well as “[k]nowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external...

Excerpt: ...iscrimination. They are Black. They also allege violations of Business and Professions Code section 17200 as well as Article I, section 7, and Article IV, section 16(a) of the California Constitution on grounds of alleged violations of substantive due process. The parties agree that defendant Inland Empire Health Plan is a “local agency” as that term is defined by statute. The plaintiff further concedes that the complaint was not filed in the...

Excerpt: ...ges he had not consumed any alcohol in the prior 12 hours. The test results were sent to his employer, and he was fired based on those breath test results. Plaintiff further alleges the EBT device was not properly calibrated and had not been properly maintained in accordance with the manufacturer's instructions or state law and thus the test results were not accurate. The transmission of those results by defendants to his employer and the FAA res...

Excerpt: ... not the alleged written agreement, the applicability of the forum selection clause is irrelevant. In their reply, the defendants ignore whether the forum selection clause is void and argue that because defendant is a resident of Los Angeles County, a change of venue is appropriate. They also argue that the plaintiff has stipulated, tardily, to a change of venue. The motion is DENIED without prejudice. The Motion and the Evidence in Support The m...