Excerpt: ... of Starstone National Insurance Company – DENIED. a) Defendant, as the moving party, appears, on the face of the moving papers, to have met its burden of demonstrating entitlement to adjudication of the challenged causes of action herein. The Court has concerns, however, with regard to the narrow scope of evidence provided in support of the motion, particularly in view of the apparent existence of controverting evidence in the deposition of Mr...

Excerpt: ...set forth in Corp. Code §800(b). Moreover, matters subject to judicial notice demonstrate that the composition of the corporate entity's board of directors changed after the submission of the original Complaint, such that Plaintiff is now required to demonstrate compliance with Corp. Code 800(b) with regard to the board as currently comprised. (Apple, Inc. v. Superior Court (2017) 18 Cal.App.5 th 222.) Therefore, the allegations are insufficient...

Excerpt: ...nds that Defendant, as the moving party, has met the burden of establishing its entitlement to judgment on the entire action herein. Plaintiff has not established a statutory basis upon which to pursue a negligence theory against Defendant under the facts alleged herein. Assuming arguendo that the City of Oakdale Municipal Code §4-13 represents the duty alleged in this matter, this Court cannot conclude that such duty is mandatory within the mea...

Excerpt: ...y improper and deprived Plaintiff of an opportunity to respond to Defendant's arguments in that regard. Nevertheless, the Court finds that a determination as to the enforceability of the delegation clause is foundational to the permissible scope of the Court's decision with regard to the other issues presented by the instant motion. (Aanderud v. Superior Court (Vivint Solar Developer, LLC) (2017) 13 Cal.App.5 th 880.) Therefore, the hearing shall...

Excerpt: ...y improper and deprived Plaintiff of an opportunity to respond to Defendant's arguments in that regard. Nevertheless, the Court finds that a determination as to the enforceability of the delegation clause is foundational to the permissible scope of the Court's decision with regard to the other issues presented by the instant motion. (Aanderud v. Superior Court (Vivint Solar Developer, LLC) (2017) 13 Cal.App.5 th 880.) Therefore, the hearing shall...

Excerpt: ...equired element of notice. (Gov. Code §835(b).) The Court notes that Plaintiff argues constructive notice on the basis of evidence that the City performed routine maintenance procedures at the park which, when carried out with reasonable diligence, allegedly should have uncovered the defect. (See Plaintiff's evidence in opposition to UMF 3.) However, Plaintiff has failed to produce any evidence on the foundational issue of whether the defect exi...

Excerpt: ...ed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settlement and the associated fees and costs are approved as set...

Excerpt: .... With regard to that issue, the Court finds that Cross-Complainant is reasonably likely to prevail on her claim of trespass on the basis that Cross-Defendants' conduct exceeded the scope of consent reflected in the subject agreement when they undertook to authorize replacement of the subject irrigation valve affecting the flow of water to Cross-Complainant's property, resulting in the risk of irreparable injury in that regard. (Code Civ. Proc. �...

Excerpt: ...otion, particularly in view of the apparent existence of controverting evidence in the depositions of Mr. Hensel and Mr. Pilgrim, and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, Defendant would not have been able to carry its burden herein. In any case, assuming arguendo that Defendant has met its initial burden, the Court finds that Plaintiffs have satisfied their obligation to ...

Excerpt: ...fendant has established that there are no issues of material fact and no evidence to support Plaintiffs' causes of action herein. In the absence of any opposition, Plaintiffs have failed to offer evidence which raises a triable issue of material fact as to any theory of liability as against the moving defendant. Therefore, the motion for summary judgment is granted and judgment shall be entered in favor of Defendant Doctors Medical Center of Mode...

Excerpt: ...ature of the argument between the parties herein, i.e. the Plaintiffs' entitlement to obtain information and documentary evidence which may assist them to identify additional class members herein and the notice requirements, if any, which apply to protect such third parties' privacy interests at this pre-certification stage of the litigation. With regard to this issue, the Court finds that the holding in Belaire-West Landscape, Inc. v. Superior C...

Excerpt: ...laintiff to provide answers, without objection, to the subject discovery within 30 days. With regard to Requests for Admissions, Set One, the Court finds that Plaintiff has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2033.280(a). Accordingly, the Court has no discretion but to grant Petitioner's request. (Code Civ. Proc. §2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2...

Excerpt: ...ify Respondent's appraiser. With regard to Petitioner's request that the Court appoint a neutral umpire pursuant to Ins. Code §2071, the Court finds that the parties' disagreement over Mr. Andrews' qualifications to serve as Respondent's party appraiser appears to have impeded the appraisers' abilities to meaningfully confer as to possible agreement on this issue. In addition, the petition does not conform to the requirements of CCP §1286.1, in...

Excerpt: ...t it was the failure to provide billings that constituted the malpractice complained of. In fact, Cross-Complainants argue that the failure to provide billings covered up malpractice. They have properly alleged that they could not have discovered malpractice until they received the bill sometime after this matter was filed. As to the Ninth Cause of Action, for Fraud – Concealment, the Court SUSTAINS the Demurrer, with leave to amend. Cross-Comp...

Excerpt: ...just. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) Hours Reasonably Worked – Regarding the lodestar fees calculation, the Court finds, on the basis of Mr. Watts' declaration, that the hours claimed through September 2019 were reasonably incurred and substantially contributed to the ultimate successful result on the contract claims. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 1...

Excerpt: ..., California courts have recognized that "where an amendment does not add but simply corrects a misnomer by which an 'old' defendant was sued, case law recognizes an exception to the general rule of “no relation back." (Hawkins v. Pacific Coast Bldg. Products Inc. (2004) 124 Cal.App.4th 1497.) Plaintiffs seek to correct a misnomer by which Defendant BBVA USA aka Compass Bank was named in the original complaint. Therefore, a First Amended Compla...

Excerpt: ...position that some of the interrogatory responses were not accurate. Plaintiffs were dilatory in bringing the motion by waiting until ten days before the discovery cut off to depose defendant's PMQ, and then delaying to file its motion, such that it would have been heard less than 30 days before trial. However, the new trial date eliminates any concern of delay of that trial due to the granting of this motion. Moreover, defendant is not blameless...

Excerpt: ...emonstrating a material factual dispute. Plaintiff has failed to meet her burden in this regard, as there is no evidence of a contract supporting the subject cause of action as a matter of law. Therefore, the Motion is GRANTED as to the Second Cause of Action. As to the Third Cause of Action for Negligent Infliction of Emotional Distress, the Court finds that Defendants, as the moving parties, have met their initial burden of demonstrating prima ...

Excerpt: ...r and employee' or ‘independent contractor' for statutory purposes, including, but not limited to, withholding taxes on wages and for purposes of unemployment compensation, shall be governed by Section 650 and Sections 13000 to 13054, inclusive, of the Unemployment Insurance Code.” Section 650 of the Unemployment Insurance Code sets forth that no employment relationship exists if three criteria are met, all of which are met here. The Court re...

Excerpt: ...ucing evidence demonstrating the existence of material factual disputes, specifically with regard to whether harassing conduct directed against him by Defendant based on his sex continued into the early months of 2014, which would render the December 2014 administrative complaint and, in turn, the Complaint herein, timely. (See, at a minimum, Plaintiff's Additional Material Facts 7, 8, 9, 12, 14, 15 and supporting evidence.) Therefore, the motion...

Excerpt: ...) With regard to the issue of valuation as it pertains to the amount of the undertaking required by Code Civ. Proc. §515.010 et seq., the Court is inclined to find that Defendant possesses no interest in the property; therefore, no undertaking is required of Plaintiff herein. (Code Civ. Proc. §515.010(b).) However, Defendants shall be required to file an undertaking in the amount of $188,668.74 as a redelivery bond. (Code Civ. Proc. §515.020.)...

Excerpt: ...sistent with the State's goal of benefitting the public through enforcement of its labor laws. Specifically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum potential liability on the part of Defendant herein. In fact, it appears that the motion fails to identify the maximum penalties for the various Labor Code violations alleged in the First Amended Complaint, each of which may arguably g...

Excerpt: ...e that claim due to its failure to seek injunctive or other extraordinary relief as required by Gov't. Code §3309.5(d)(1). Moreover, it is Plaintiff's burden to establish how the pleading may be properly amended, and the Court finds that Plaintiff has failed to meet that burden in this context. Specifically, Plaintiff fails to provide any authority establishing that he is entitled to assert a claim for extraordinary relief, i.e. by way of petiti...

Excerpt: ...ting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settleme...

Excerpt: ...sponse did not comply with Code Civ. Proc. §2031.240 et seq. Moreover, the items appear to be reasonably related to the subject matter of the suit herein and the proper subject of discovery. Finally, Plaintiff has the burden of demonstrating why the existing protective order is inadequate to address its expressed privacy and confidentiality concerns and has failed to make any showing in that regard. Therefore, Plaintiff shall provide a further v...