Excerpt: ...s discovered that its ruling on the motion concerning the responses to Requests for Admissions, Set Two was incomplete and requires correction. Specifically, the Court's denial of the motion was intended to be directed only to Requests 20-23 and 35. While the motion also sought to compel further responses to Requests 36-47, the ruling was not directed at those requests and was incomplete in that regard. Therefore, the Court finds that the relief ...

Excerpt: ...terrogatories 16.2 – 16.5 and rules as follows: Plaintiff has demonstrated that Defendant's responses do not comply with the requirements of Code Civ. Proc. §2030.220. Despite the possibility that later-acquired discovery may further inform and support Defendant's contentions in the case, the Code requires that the responding party provide responses that are as complete as possible based on the information that is reasonably available. Therefo...

Excerpt: ...e parties appear to be in agreement that responses to certain of the requests at issue turn on the implementation of a stipulated protective order regarding the nature of the materials to be disclosed; therefore, they are instructed to continue their efforts to reach a resolution of this issue which may, in turn, resolve certain of the arguments herein. Moreover, Defendant has demonstrated that some of the requests at issue have not previously be...

Excerpt: ...d Banke were not employees or agents of the hospital during the time period at issue in this action; (2) That the staff employed by the hospital met the standard of care in their treatment of Plaintiff; and (3) That no act or omission of the staff employed by the hospital caused or contributed to the injuries claimed by Plaintiff. The burden then shifts to Plaintiff to submit admissible evidence demonstrating the existence of triable factual disp...

Excerpt: ...in part; MOOT, in part. a)While Defendant has demonstrated that Plaintiffs failed to appear for their properly noticed depositions, the motion fails to comply with Code Civ. Proc. §2025.450(b)(2) in that Defendant does not demonstrate any efforts to contact Plaintiffs' counsel to discuss the non-appearances. Therefore, the motion is DENIED. Counsel are admonished regarding the Court's disfavor for the practice of resorting to law and motion proc...

Excerpt: ...action. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Plaintiffs have offered adequate substantiation as to certain of the challenged costs but have failed to offer adequate substantiation as to other challenged costs. The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyo...

Excerpt: ...e of material fact. With regard to the moving defendant's motion challenging Plaintiff Evan Mays' causes of action for negligence (2 nd) and joint and several liability (3 rd): The Court finds that Defendant has failed to meet his initial burden with regard to the application of the recreational use immunity prescribed by Civ. Code §846. Defendant fails to submit evidence that Plaintiff Evan Mays was trespassing on Defendant Price's property or ...

Excerpt: ... 3 rd and 6 th causes of action is SUSTAINED, with leave to amend. The Court finds that the pleading fails to state facts sufficient to support the stated causes of action and is uncertain. (Code Civ. Proc. §430.10(e), (f).) With regard to the 3 rd Cause of Action for Medical Battery, Plaintiff's opposition suggests an intent to proceed on a conditional consent theory, but the Second Amended Complaint does not sufficiently plead the elements of ...

Excerpt: ...4, 95, 162-173, and 238-249 are stricken and have not been considered. The Court will also address the five “issues” for summary adjudication out of order and begins with Issues 2, 3, and 4, together. These individual “issues” do not dispose of the entire cause of action, an entire affirmative defense, or an issue of duty. (Cal. Civ. Pro. 437c(f).) As framed by the moving party, the issues explicitly seek adjudication on the issue whether...

Excerpt: ... for Admissions, Set Two (2); Request for Monetary Sanctions in the Amount of $1,750.00; and Request for Issue Sanctions Re Notice Against Defendant for Willfully and Fraudulently Concealing Evidence of Prior Incidents - DENIED; c) Plaintiff's Motion to Compel Defendant City of Turlock to Provide Further Responses to Requests for Production, Set Three (3); Request for Monetary Sanctions in the Amount of $1,750.00; and Request for Issue Sanctions ...

Excerpt: ...ject discovery requests were served by mail on April 30, 2021, as previously promised. However, the evidence submitted by the defense raises a significant issue with regard to the veracity of the Plaintiffs' claims in this regard. Moreover, the defense has demonstrated that the opposition herein was not served in compliance with the requirements of Code Civ. Proc. §1005(c), despite the attestation contained in the proof of service attached there...

Excerpt: ...t Gardner Trucking, INC.'s Renewed Motion for Summary Judgment or in the Alternative Summary Adjudication – GRANTED, and unopposed. (a)Defendant, as the moving party, has the initial burden of establishing a prima facie showing of entitlement to judgment against Plaintiffs as a matter of law. The Court finds that the Defendant has met its burden with regard to the each challenged cause of action herein as well as the claim for punitive damages....

Excerpt: ...or Express Contractual Indemnity, the Court finds that the pleading fails to allege facts that give rise to express indemnity obligations arising out of this action under the relevant agreement. Therefore, the demurrer is SUSTAINED as to the First Cause of Action; however, the Court will grant leave to amend in this regard. With regard to the Second and Third Causes of Action for Implied Indemnity and Equitable Indemnity, the Court finds that the...

Excerpt: ... 18 th, and 20 th causes of action. The Court finds that the Second Amended Complaint fails to state facts sufficient to support the stated causes of action. (Code Civ. Proc. §430.10(e).) Moreover, Plaintiffs have not demonstrated that they are able to allege additional facts that would be sufficient to overcome demurrer on these claims, and the Court concludes that they are unable to do so. With regard to the 5 th, 8 th, 16 th, 17 th, and 19 th...

Excerpt: ...pursuant to the notice. Therefore, Plaintiffs are entitled to an order compelling the appearance of Defendant's Person(s) Most Knowledgeable at the location chosen by Plaintiffs within the statutory mileage limitations. (Code Civ. Proc. §§2025.250, 2025.450(a).) Counsel shall meet and confer to select a mutually agreeable date to complete the deposition, which should occur no later than June 18, 2021. With regard to specific issues presented by...

Excerpt: ...addition, Defendants are entitled to recover allowable costs pursuant to Code Civ. Proc. §§1032 and 1033.5. Therefore, Court exercises its discretion in determining the award, as follows: Hours Reasonably Worked – Regarding the lodestar fees calculation, the Court finds on the basis of Counsel's declarations and supporting exhibits, including time records,that the hours claimed were reasonably incurred and substantially contributed to the ult...

Excerpt: ...robate Code sections 859 and 21380(d) as well as Welfare & Institutions Code section 15657.5(a). Additionally, Petitioner Alexis Arsenio is awarded costs in the amount of $3,461.68. Petitioner filed a memorandum of costs on March 4, 2021 and there has been no motion to tax/strike costs filed. Therefore, the Court awards a total of $53,713.18 in fees and costs to Petitioner Alexis Arsenio in her capacity as successor trustee of the Arsenio Family ...

Excerpt: ...mination by Dr. Strassberg, and psychological testing by Dr. Berg. The Court finds that the demand sufficiently identifies the potential tests to be administered, and Plaintiff has failed to object to any of the tests identified. Therefore, the Court incorporates the list of potential psychological tests contained in the defense's demand and finds that such tests may be included, subject to Dr. Berg's discretion at the time of the evaluation. The...

Excerpt: ...et One- Employment, Special Interrogatories, Set One, and Request for Production of Documents – Set One; objections have been waived. (Code Civ. Proc. §§2030.290(a), 2031.300(a).) Therefore, Plaintiff is entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. With regard to Request for Admissions, Set One, the Court finds that Plaintiff is entitled to an order deeming the matte...

Excerpt: ...erial fact. (Code Civ. Proc. §437c(p)(2).) With regard to Issue 1 identified in the instant motion, Plaintiff has identified no material factual disputes and appears not to oppose the Court's finding that Defendant Modesto City Schools bears no direct liability for negligence herein. (Gov. Code §815.) However, this does not foreclose the possibility of the district's liability based on actions of its employees as provided by Gov. Code §§815.2...

Excerpt: ...determine the nature of the subpoenaed records from that document. In addition, the Court finds that Plaintiff's objections to the subject discovery were arguably waived by Plaintiff's failure to object to previous subpoenas which resulted in the disclosure of similar information from some of the same providers at issue here. (See, e.g. Jones v. Superior Court (1981) 119 Cal.App.3d 534.) In any case, the Court finds that Defendant has sufficientl...

Excerpt: ...e Court declines to award issue sanctions at this time; however, this determination is made without prejudice to consideration of the propriety of such sanctions in the event of future failures to comply with the Court's orders. Therefore, the Court finds that Plaintiff is entitled to monetary sanctions in connection with the defense's above- described misuse of the discovery process, which necessitated the instant motion. Sanctions are awarded a...

Excerpt: ...not explicitly set forth in the administrative charge if they are like or reasonably related to the other charges set forth and could reasonably be expected to grow out of the administrative investigation. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th 243.) Here, the Court finds that the allegations in the EEOC Complaint, when liberally construed, sufficiently raise the issue of discrimination based on sex, such that a reasonable invest...

Excerpt: ...elated to alleged defects, problems, complaints, symptoms, and/or features of the subject vehicles that are not at issue in this action, as defined by Plaintiff's pleadings and responses to discovery to date. Such requests are not reasonably calculated to lead to the discovery of admissible evidence herein. However, the moving papers do not afford sufficient information for the Court to determine which specific requests should be covered by the c...

Excerpt: ...hat the subject requests are worded broadly enough to potentially call for the production of privileged materials, Plaintiffs are nevertheless entitled to Code-compliant responses which provide sufficient factual information to allow Plaintiffs to evaluate the merits of the claims of privilege, including provision of a privilege log where necessary. The Court further finds that all responsive documents not subject to a claim of privilege should b...

Excerpt: ...elief under Code Civ. Proc. §473(b). In addition, the Court finds that Defendants failed to seek relief within a reasonable time and have failed to offer a reasonable excuse for the delay. (Code Civ. Proc. §473(b); Huh v. Wang (2007) 158 Cal.App.4 th 1406; Ludka v.Memory Magnetics, Int'l. (1972) 25 Cal.App.3d 316.) The moving party bears the burden of demonstrating that relief was sought within a reasonable time, whether or not the other party ...

Excerpt: ...ipient witness identified as “Fabiola.” The defense has demonstrated entitlement to discovery on these issues, and the Court finds that Plaintiff's asserted privacy concerns do not outweigh the right to discovery in this instance. The Court finds that the questions regarding counsel's referral of Plaintiff to certain health care providers qualify as prima facie confidential communications pursuant to Evidence Code §952, and Defendants have n...

Excerpt: ...demonstrates that Cross-Defendant Staffing Solutions Inc.'s failure to respond to the amended cross-complaint was the result of “mistake, inadvertence, surprise or excusable neglect” as set forth in Code of Civil Procedure section 473(b). Furthermore, contrary to opposing counsel's arguments in opposition, the discretionary provisions of Section 473(b) are available under these circumstances. “Discretionary relief may be granted for excusab...

Excerpt: ...s matter. Therefore, the Court presumes that the motion is directed against its order dismissing the action on 6-5- 2020. Plaintiffs have failed to set forth any facts or admissible evidence in support of their request for relief herein. Therefore, they have failed to demonstrate sufficient grounds for the relief requested and the motion is DENIED. (b) The motion is moot in view of the Court's above denial of the concurrent motion to set aside th...

Excerpt: ...ourt does not have discretion to dismiss an action where the events specified by the statute have not occurred. (See, e.g. Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4 th 1422.) Even if the Court has discretion here, the Court finds that the reasons for the delay outweigh any detriment to Defendants. ...

Excerpt: ...ion appears to acknowledge that notices were served for PMK depositions on all 3 subjects described in the papers herein. With regard to the depositions described as #s 1 and 2 (PMK depositions with regard to (1) Defendant Gurney's training of Defendant Mendoza, and (2) Defendant Gurney Trucking's safety training, safe driving protocols, safety meetings, and disciplinary protocols regarding unsafe driving), defense counsel's declaration demonstra...

Excerpt: ...subject materials. However, the scope of the production should be limited in time from the start of the previous academic year (fall 2017) through November 28, 2018. In addition, any such documents should be treated as confidential and dissemination outside the purposes of this litigation is prohibited. Lastly, the Court has concerns about the identification of additional non-party students in the documents to be produced and instructs that the s...

Excerpt: ...egard to other factors, including the strength of the interest, the seriousness of the invasion, and the availability of alternatives and protective measures. (Id., at 558.) Here, while Cross-Defendant's employees have a recognized privacy interest in their personal information, contact information has not been found to be particularly sensitive. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4 th 360, 372.) In addition, the pro...

Excerpt: ...ically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum and practical exposure of Defendant on the claims asserted herein. Therefore, Plaintiff shall submit shall submit supplemental briefing addressing these issues no later than March 19, 2020. ...

Excerpt: ...cations as constructed and/or as it existed at the time of the subject accident. (See, e.g. UMFs 26-32.) The Court's determination as to Defendant's failure in this regard is based on the following rulings on Plaintiff's objections to Defendant's supporting evidence: Objections 1, 2, 5, 6 and 7 are sustained on the grounds stated. Objections 3 and 4 are overruled to the extent the subject testimony relates to the scope of the design of the subjec...

Excerpt: ...uses of Action); MOTION FOR JUDGMENT ON THE PLEADINGS DENIED, as MOOT. a) With regard to the Fourth Cause of Action, the motion is moot based on the Court's order granting summary adjudication of that claim in favor of Defendant on 10-9-2020. With regard to the Third Cause of action, the Court finds that the pleading states facts sufficient to support the stated cause of action. b) As a preliminary matter, the Court exercises its inherent authori...

Excerpt: ...ed almost entirely upon activity that is protected pursuant to Section 425.16. The protected activity relied upon was not “incidental” as Plaintiff argues – it was fundamental. Indeed, the fact that Plaintiff dismissed his SAC rather than oppose the special motions to strike is an admission of this fact. Whether broadly construed as part of the peer review process, or as statements and comments made as a matter of public interest – i.e. r...

Excerpt: ... Therefore, the Court finds that Plaintiff is entitled to a Code-compliant response in this regard as well as to the opportunity to conduct the requested inspection of the subject premises and/or items. Defendant shall serve a verified further response within 14 days and counsel shall meet and confer to select a mutually agreeable date for the further inspection, which shall be completed no later than March 31, 2021. The Court further finds that ...

Excerpt: ...strating that both the convenience of witnesses and the ends of justice will be promoted by the requested change. (Pearson v. Superior Court (1962) 199 Cal.App.2d 69.) Even if the motion were procedurally proper at this juncture, it appears that Defendant's request does not establish that a transfer is warranted in this instance. ...

Excerpt: ... Expectations, as enacted by the City and made applicable to the construction of single-family residences. This failure constitutes an abuse of discretion in the City's approval of Mr. Noordeweir's applications in April and June of 2020. Therefore, the Court finds that the requested writ of mandate should issue and the City should be directed to comply with the subject procedure in connection with Mr. Noordeweir's applications. In view of the Cou...

Excerpt: ...led to demonstrate that the arbitration provisions were intended to convey a benefit to Defendant. Lastly, Defendant has not demonstrated that the allegations against it are so intertwined with the contract between Plaintiff and her non- signatory employer, who is not a party herein, that arbitration should be compelled under the doctrine of equitable estoppel. ...

Excerpt: ... in the action. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Plaintiffs have offered adequate substantiation as to certain of the challenged costs but have failed to offer adequate substantiation as to other challenged costs. The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy...

Excerpt: ...ifies as the prevailing party for the purposes of recovering her fees under the Court's holding in Santisas v. Goodin (1998) 17 Cal.4 th 599. While the Court recognizes that the voluntary dismissal of the action does not confer prevailing party status on Defendant on the contract claims under Civ. Code §1717(b)(3), the tort and contract claims arise from common issues, such that they are intertwined and apportionment is not feasible or necessary...

Excerpt: ...mely submitted (Code Civ. Proc. §2025.410(a)), did not state valid legal grounds for the refusal to appear, and Defendant has not sought a protective order, which requires a noticed motion. (Code Civ. Proc. §2025.420(a); see St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82.) Therefore, Plaintiff is entitled to an order compelling the appearance of Defendant's Person Most Knowledgeable as to the designated subjects of e...

Excerpt: ...annot dispute that he has received payments from the at-fault party and his workers' compensation carrier that exceed his $50,000 per person underinsured motorist (UIM) policy limit – even conceding that the settlement of the workers' compensation coverage lien reduced the amount of compensation paid to Petitioner. Section 11580.2 precludes Petitioner from recovering twice for the same injury. See e.g. Rangel v. Interinsurance Exchange (1994) 4...

Excerpt: ...ve a proper deposition notice in compliance with Code Civ. Proc. §§2025.270 and 1010.6(a)(4)(A). Accordingly, she has not demonstrated entitlement to the requested relief. 2. The Court finds that the Plaintiff's supplemental disclosure is improper under the circumstances, as the importance of expert testimony on the standard(s) of care applicable to the defendants herein and the calculation of repair damages appear to be fundamental issues whic...

Excerpt: ...Prof. Code §10023 applies to the relationship between Plaintiff and Defendants; that the criteria set forth in Unemp. Ins. Code §650 are met here; and that Lab. Code §2750.3 (d)(1), now enacted as Lab. Code §2778(b)(1), bars Plaintiff's claim. Likewise, the Court previously ruled that a challenge to the constitutionality of such legislation based on due process concerns fails because the newly enacted Labor Code provisions did not change the ...

Excerpt: ...Esq. Exhibits B-K thereto lack authentication and are inadmissible as described due to lack of foundation and lack of personal knowledge of the declarant. (Evid. Code §403, 702.) Exhibits L-M are not submitted in compliance with the requirements set forth in Cal. Rules of Ct., rule 3.1116. For instance, in Defendants' Separate Statement, Undisputed Fact Nos. 11-43 cite exhibits, and only exhibits, supporting the facts. Those exhibits are referre...

Excerpt: ...es not oppose Defendant's evidence establishing that the nurses and technicians in its employ met the standard of care with regard to her treatment, and Defendant is entitled to adjudication of that issue. Plaintiff opposed the motion on the sole issue of whether the hospital might nevertheless be held liable for Dr. Brock's conduct under an ostensible agency theory. In that regard, Plaintiff submitted evidence that the hospital's notice to her r...

Excerpt: ...ue with regard to the scope of Plaintiff's authority to agree to the subject arbitration provisions pursuant to the power of attorney she held for her mother. The law dictates that, regardless of the inclusion of a delegation clause in the subject agreement, this foundational issue must be determined by the Court. (Bruni v. Didion (2008) 160 Cal.App.4 th 1272, 1285.) Therefore, the Court finds that the power of attorney authorized Plaintiff to en...