Excerpt: ...auses of action are alleged only against the Vessel Defendants. A. Motion for Summary Adjudication Although the caption of the notice of motion states “Defendant Foster Wheeler LLC's Notice of Motion for Summary Judgment, Or, In The Alternative, Summary Adjudication,” Defendant did not comply with the rules for making a motion for summary adjudication. For example, California Rules of Court rule 3.1350(b) requires the notice of motion to spec...

Excerpt: ...dings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the m...

Excerpt: ...ument about which asbestos fibers caused the decedent's disease and whether causation occurred after her disease was underway. Pursuant to the July 8, 2022 CMO, motions about the substantial factor test and but for causation are deemed made and denied so long as the trial court intends to use CACI 435. Therefore, the motion is denied so long as the trial court intends to use CACI 435. Plaintiffs' MIL No. 4 This motion seeks to exclude improper st...

Excerpt: ...ion. The motion is granted except as to life expectancy and damages. The evidence may be relevant to those issues. The motion is granted in part and denied in part. Plaintiffs' MIL No. 2 Plaintiffs move to exclude derogatory comments against Plaintiffs' counsel. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from this order. Therefore, the motion is granted. Defendants' MIL N...

Excerpt: ...t. The Court cannot conclude before the trial on a motion in limine that no evidence supports a particular point. The motion is denied without prejudice to a contemporaneous objection at trial. Plaintiffs' MIL No. 2 Plaintiffs seek to exclude reference to their residency status and the residency status of other witnesses. Pursuant to Evidence Code section 351.2, the motion is granted. However, witnesses may discuss Jose Diaz life on a farm near e...

Excerpt: ...At her deposition, Jolucvar could not recall ever purchasing any powder or makeup product from Ralphs. (UMF 6-12.) Plaintiffs filed a notice of non-opposition. Defendant satisfied its initial burden of showing Plaintiffs do not have evidence Ralphs sold or delivered to them any asbestos-containing product. Because Plaintiffs did not oppose, they failed to show any disputed issue for trial. Therefore, summary judgment is granted for Ralphs. The mo...

Excerpt: ...hat Fryer-Knowles Washington employees performed because by 1973, it was no longer doing business in California. Such California work was performed by Fryer Knowles, Inc. dba Fryer-Knowles, Inc. a California Corporation (“Fryer Knowles California”). A. Objections 1. Plaintiffs' Objections to Request for Judicial Notice The request for judicial notice is granted. The Court may take judicial notice of the legal effects of the documents. (Scott ...

Excerpt: ...f action for vicarious liability, sixth cause of action for premise liability, and seventh cause of action for loss of consortium. Plaintiff's Objection No. 1 is sustained. Defendant's Objection Nos. 1-18 are denied. A. First Cause of Action Defendant contends that the first cause of action alleges the defendants “manufacture, supply, market, distribute or otherwise place asbestos-containing products into the stream of commerce,” none of whic...

Excerpt: ...reet in Carson. On July 14, 2017, Plaintiff tripped over an unsafely parked pallet jack at the work site. Plaintiff alleges that Defendants did not carry workers' compensation insurance in violation of the Labor Code. Plaintiff sues Defendants for (1) direct employer negligence, (2) negligence, and (3) negligent hiring, training, and/or retention. This motion was originally scheduled to be heard on February 3, 2022 but was continued to allow the ...

Excerpt: ...dure sections 36 subdivision (a). A party who is over 70 years old may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) An affidavit submitted in...

Excerpt: ...eral territory, federal land, federal property, federal facilities and/or other federal enclave.” (Complaint, ¶ 14.) A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.) Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury...

Excerpt: ...e first sentence. Denied as to the rest. Nos. 5, 6, 7-46, 48, 51: Denied. 2. Defendant's Objections to Moline Nos. 1-13, 15, 17-27, 29-62: Denied. Nos. 14, 16, 28: Granted. 3. Defendant's Objections to Longo Nos. 1-5, 7, 8, 9, 12, 13, 15, 16, 23, 25-28: Denied. Nos. 6, 11, 14, 17, 18, 19, 20, 21, 22, 24: Granted. 4. Defendant's Objections to Barley Nos. 1, 2, 3, 6, 7, 9, 10, 11, 13, 14, 16, 17, 24, 25, 26, 41, 43, 45, 46, 51-55: Granted. Nos. 4, ...

Excerpt: ...lties, Inc. filed a motion to quash service of summons on the ground that this court lacks personal jurisdiction over it. On July 6, 2022, Defendant The Stephan Co. filed a motion to quash for lack of personal jurisdiction. A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, o...

Excerpt: ...tation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).) In addition, the court in its discretion may grant a motion for preference supported by a showing that satisfies the court that the interests of justice will ...

Excerpt: ...n, Farshadnia alleged a cause of action for loss of consortium. On July 5, 2022, Defendant Honeywell International, Inc. (“Defendant”) filed a demurrer to the third, fourth, and fifth causes of action for false representation, intentional torts, and loss of consortium. A. Third Cause of Action – False Representation Defendant argues Plaintiffs did not adequately allege the third cause of action for false representation under section 402-B o...

Excerpt: ...eous objection at trial. Plaintiffs' MIL No. 2 Plaintiffs seek an order excluding the caption of the complaint and references to other defendants. The court cannot exclude references to defendants who will be part of the trial. If the motion seeks to exclude reference to defendants not involved in the trial, then pursuant to the July 8, 2022 CMO, the motion is deemed made and denied without prejudice to a contemporaneous objection at trial. Plain...

Excerpt: ...d not have followed warnings because he did not follow warnings about smoking. The motion is granted as to arguments that smoking evidence is relevant to the failure to warn claims. Defendants did not show that smoking cigarettes (which are highly addictive) is similar to working with asbestos-containing products (unlikely to be highly addictive), such that the evidence has any probative value regarding whether the decedent would have followed wa...

Excerpt: ...s. Pursuant to the July 8, 2022 CMO, a motion to preclude evidence of the bankruptcy of an alleged tortfeasor not present at trial is deemed made and granted. Defendants did not show good cause to depart from this order. Therefore, the motion is granted. Plaintiffs' MIL No. 3 Plaintiffs move to preclude any mention of the contents of the complaint and for the defendants no longer present and to revise the captions of documents to be shown to the ...

Excerpt: ...of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).) “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) “The ...

Excerpt: ... fourth cause of action for intentional tort because there is no evidence Defendant and Solis had any relationship giving rise to a duty to disclose facts, and the claim for punitive damages. A. Objections 1. Plaintiffs' Objections Nos. 1-3: Sustained. No. 4: Sustained. No. 5: Overruled 2. Defendant's Objections Nos. 1-8: Overruled. The objection to the request for judicial notice is overruled. The Court takes judicial notice of the OSHA regulati...

Excerpt: ...ert opinion showing that plaintiff cannot establish a claim against it” and that Plaintiffs do not possess and cannot reasonably obtain evidence to prove his causes of action. (Motion at p. 7.) A defendant seeking summary judgment must “conclusively negate[] a necessary element of the plaintiff's case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial.” (Guz v. Bechtel Nat. ...

Excerpt: ...)(A), a party seeking to having a document filed under seal needs to file a motion to seal within 10 days of the notice of lodging being served. No party filed a motion to seal. Therefore, pursuant to California Rule of Court 2.551(b)(3)(B), the lodged documents are to be filed in the public file. Because the documents were lodged on paper, Plaintiff is ordered to file electronically all documents lodged in opposition to the motion for summary ju...

Excerpt: ...tates Plaintiff have not produced additional photos. If Plaintiff has produced all responsive photos in her possession, custody, or control, she is to serve a verified, code-compliant response so stating within twenty days. For example, if she has no photos of Yeomans, she is to state in the response, pursuant to Code of Civil Procedure section 2031.230, that a diligent search and a reasonably inquiry has been made and specify why she is unable t...

Excerpt: ...t, or in the alternative, summary adjudication of the fourth cause of action for intentional tort, seventh cause of action for loss of consortium, and claim for punitive damages. (Motion at p. 4.) Plaintiffs state they dismissed the state law causes of action, including the fourth cause of action. (Opposition at p. 10.) Plaintiffs filed a request for dismissal of the first through sixth causes of action against Defendant on July 5, 2022, which wa...

Excerpt: ...nded and to contest Kondor's alleged liability and amount of damages alleged by Plaintiffs. The motion is unopposed. The request for judicial notice is granted as to Exhibits A and C. Exhibit B is missing from the filed version, but is irrelevant to the court's ruling. Under California law, an insurance carrier who is not a party to an action can intervene on behalf of its insured when the insurance carrier could be subject to a subsequent action...

Excerpt: ...ng a 1968 memo and Washington Post article. Defendant argues evidence of the Navy's knowledge and negligence is relevant under California law to prove Defendant's negligence and that Defendant is entitled to prove Valdez' injury was caused by the negligence of a third party, the Navy. Plaintiff did not show there is no evidence of the Navy's knowledge. In opposing causes of action for negligence and strict liability, a defendant may assert and se...

Excerpt: ...raining, and retention of employees; (7) failure to pay wages and/or overtime; (8) violation of Business and Professions Code section 17200; and (9) constructive discharge in violation of public policy. On May 27, 2022, Defendants filed a motion to compel arbitration and stay the action pending the completion of arbitration. When seeking to compel arbitration of a plaintiff's claims, the defendant must allege the existence of an agreement to arbi...

Excerpt: ...led a demurrer and a motion to strike. DEMURRER A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) A. First Cause of Action – Fraudulent Concealment Fraud based on concealment ...

Excerpt: ...accompanying declaration. The Court may order that a record be filed under seal only if it finds that (1) there is an overriding interest that overcomes the right of public access to the record, (2) the overriding interest supports sealing the record, (3) a substantial probability exists that the overriding interest will be prejudiced absent sealing, (4) the proposed sealing is narrowly tailored, and (5) no less restrictive means exists to achiev...

Excerpt: ...Ex. D.) On June 9, 2022, Plaintiffs filed a motion for attorney fees, costs, and expenses. Plaintiffs' Objection Nos. 1-4 are overruled. As the prevailing party, Plaintiffs are entitled to an award of reasonable attorney fees. (Civ. Code, § 1794, subd. (d).) California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins ...

Excerpt: ...edars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) A. First and Second Causes of Action – Breach of Contract The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaint...

Excerpt: ...camera regarding issues of dishonesty including items 1-16 as listed in the motion at pages 1-2. The Court will review the Vega and Miramontes personnel files regarding issues of dishonesty and use of excessive force as stated in items 1-16. Defendant argued at the initial hearing that items 1-7 listed on pages 2-3 of the motion are too broad. Item 6, which concerns previous employment or experience, is not related to dishonesty or use of excessi...

Excerpt: ...reimburse TIAA, and Dr. Shafiq breached a guaranty in connection with the Master Lease Agreement. TIAA also alleged an account stated against both defendants for the $52,420.26. On January 24, 2020, Shafiq filed a cross-complaint against Canon Medical Finance Systems USA, Inc. (“Canon”) and TIAA, alleging a declaratory relief cause of action seeking a determination about various contractual matters under the Master Lease Agreement, unjust enr...

Excerpt: ...ing interest will be prejudiced absent sealing, (4) the proposed sealing is narrowly tailored, and (5) no less restrictive means exists to achieve the overriding interest. (California Rules of Court, rule 2.550(d).) A motion seeking an order sealing records must be accompanied by a declaration containing facts sufficient to justify the sealing. (California Rules of Court, rule 2.551(b)(1).) A. Exhibit in Opposition to MIL No. 6 On April 7, 2022, ...

Excerpt: ...anted Plaintiff's motion to set aside the dismissal. On March 11, 2021, Defendant filed an answer and cross-complaint. At the March 9, 2021 case management conference, the Court scheduled a jury trial for March 28, 2022. On March 11, 2022, the Court continued the trial to August 22, 2022. On May 25, 2022, the Court granted Defendant's motion for judgment on the pleadings with 10 days' leave to amend. The Court also continued the trial to October ...

Excerpt: ...d Defendant had engaged in unfair business practices by retaining, collecting, and demanding illegal rent in violation of LARSO, and Plaintiff sought restitution of all illegally collected and retained rents, adjustment of future rents, injunctive relief, and attorney fees. On February 23 and 2024, 2022, the Court tried the section 17200 cause of action first in a bench trial. After post-trial briefing, the Court issued a tentative decision and p...

Excerpt: ... when water leaked from Unit 1004 to Unit 904. The complaint also alleges that Davidoff breached the lease with Plaintiffs by failing to timely make appropriate repairs after the leak. On April 11, 2022, Wilshire Manning filed a first amended cross-complaint (“FACC”) against Dacarett-Char and Davidoff, alleging breach of contract, express indemnity, implied indemnity, comparative contribution, total equitable indemnity, and declaratory relief...

Excerpt: ...y of Judgment stating they had settled their dispute and agreed that Zubaid and Sanittek would make payments and that if they failed to make the payments, a judgment would be entered against them. On May 5, 2022, Plaintiff filed the Stipulation for Entry of Judgment and a proposed judgment against Zubaid and Sanittek, stating those two defendants had failed to make the agreed-upon payments. Plaintiff requested the judgment be entered against them...

Excerpt: ...ful misconduct, and (5) wrongful death. On May 26, 2022, Plaintiffs filed a motion for an order to conduct pretrial discovery of the financial condition and net worth of Defendants Genesis Healthcare, Inc. (“Genesis Inc.”), Summit Care, LLC (“Summit”), Montebello Care Center, LLC dba Montebello Care Center (“Montebello LLC”), and Genesis Administrative Services LLC (“Genesis LLC”) (collectively, “Defendants”). Plaintiffs' obje...

Excerpt: ...tered a judgment of dismissal on February 14, 2022. On April 13, 2022, Defendant filed a motion for attorney fees. The Court continued the original May 13, 2022 hearing so Plaintiff could file an opposition. A. Availability of Attorney Fees Defendant seeks attorney fees of $13,450 pursuant to contact, plus $60 in filing fees for the motion. Attorney fees are recoverable only when authorized by contract or law. (Code Civ. Proc., § 1033.5, subd. (...

Excerpt: ...e truth of the contents of the documents. EVIDENTIARY OBJECTIONS A. Defendant's Objections to the Declaration of Brad Avrit Nos. 1-11: Overruled. Avrit's qualifications are based on his status as a licensed civil engineer with extensive experience in consulting and accident investigation and reconstruction. (Avrit Decl. ¶¶ 2-3.) Defendants did not show that a contractor's license is required to form the opinions he expressed. (See Reply at p. 5...

Excerpt: ...position. The Court granted the ex parte application and continued the jury trial to September 26, 2022. On April 28, 2022, Strada filed this motion for leave to file a first amended cross-complaint (“FACC”). The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pl...

Excerpt: ... party, Plaintiff is entitled to an award of reasonable attorney fees. (Civ. Code, § 1794, subd. (d).) California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1...

Excerpt: ...11, 2022. Borzina's counsel, who also represents Plaintiffs, did not provide available dates for the deposition, so Defendant moved to compel the deposition. Defendant argues that Borzina's counsel agreed to provide a deposition date but never did. Defendant contends Borzina has relevant information because Plaintiffs rented a house from her and made a claim for property damage while they were renting the house, and they were still renting the ho...

Excerpt: ...nses with objections. On May 16, 2022, Plaintiff filed three motions to compel further responses to the first set of requests for production, second set of requests for production and second set of special interrogatories. The Court rules as follows: First Set of Requests for Production No. 23: Denied. This request seeks all accounting records related to Defendant including all bank statements, general ledgers, P&L statements, tax returns, and pa...

Excerpt: ...�); (2) pregnancy discrimination, interference with leave, and retaliation in violation of FEHA; (3) disability discrimination in violation of FEHA; (4) failure to accommodate and engage in a good faith interactive process in violation of FEHA; (5) hostile work environment in violation of FEHA; (6) retaliation; (7) failure to prevent discrimination, harassment, and retaliation; (8) retaliation and interference/violation of kin care; (9) interfere...

Excerpt: ...act, (8) negligence, (9) declaratory relief re: duty to defend, (10) declaratory relief re: duty to indemnify, and (11) declaratory relief re: contractual duties and obligations. On May 18, 2022, Cross-Defendant filed an answer and a combined demurrer and motion to strike. Code of Civil Procedure sections 430.41, subdivision (a) and 435.5, subdivision (a) require the demurring party to meet and confer in person or on the phone with the party who ...

Excerpt: ...able accommodations, (5) retaliation in violation of FEHA, (6) age discrimination, (7) wrongful termination in violation of public policy, and (8) intentional infliction of emotional distress. On May 2, 2022, Home Depot USA Inc. (“Defendant”) moved to transfer venue to San Bernardino County. Defendant's request for judicial notice of the complaint and filings in Rosa Jensen et al. v. Home Depot U.S.A., Inc. et al., Case No. BC577638 (RJN, Exs...

Excerpt: ...tion and stay the action pending completion of arbitration. Defendants' request for judicial notice of the Complaint is granted. DISCUSSION When seeking to compel arbitration of a plaintiff's claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 (Condee).) The burden then shifts to the plaintiff to prove the falsity of the agreement. (Ibid.) After the Cour...

Excerpt: ...filing fees. A. Documents Gamble and Sullivan argue the subpoenas and motion are defective because Plaintiff failed to file a separate statement. Plaintiff responds that no separate statement is required to compel a deposition. However, a separate statement is required to move to compel further responses to requests for documents and for the production of documents. Because Plaintiff did not file a separate statement with her motion, the motion t...