Excerpt: ...standing, to carry out their custodial obligations. (Cal.Welf. & Inst.Code § 15610.57(b), Carter v. Prime Healthcare Paradise Valley LLC, (2011), 198 Cal. App. 4th 396, as modified (Aug. 24, 2011). Neglect includes failure to assist in the provision of food and to protect from health and safety hazards. (CACI 3103, Welfare & Institutions Code § 15610.57). “Recklessness” refers to a subjective state of culpability greater than simple neglige...

Excerpt: ... the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967. The Cou...

Excerpt: ... composed of accounts receivable in the sum of $703,938. Plaintiffs also seek to levy Defendant's bank accounts. Defendant's accounts receivable and bank accounts are not subject to a writ of possession. An application for a writ of possession “shall include a particular description of the property and a statement of its value”. (Code of Civil Procedure § 512.010). The Court finds that some items sought to be levied against are not listed wi...

Excerpt: ...eks summary adjudication as to the following issues: 1. Petitioners' claim that Mr. Fischer has not filed the accounting as ordered by the Court; 2. Petitioners' claim that Mr. Fischer has not complied with the March 3, 2020 Order appointing him as successor trustee and has not filed any response to the Motion to Tax Costs; 3. Petitioners' claim that Mr. Fischer, in spite of having acknowledged service as a defendant in Case No. PR-19-000546, has...

Excerpt: ...ties as a going concern are all issues that are only relevant under Corporations Code 2000. The Court further finds that to date, Defendants have not invoked their right to purchase Plaintiff's shares under said Corporations Code thereby rendering any expert witness testimony relating to the fair value/valuation of the Stuart and Jasper Orchards properties or of the possibility of selling off the Stuart and Jasper Orchards properties as a going c...

Excerpt: ...ts were provided by percipient witnesses two (2) years ago about incidents that occurred 30 years ago and there is significant potential for such statements to be used as impeachment evidence. Accordingly, the Court hereby grants Defendant's request that Plaintiff respond further to the Defendant's request for production by producing the ten (10) witness statements. The witness statements are to be produced to Defendant's Counsel within (10) ten ...

Excerpt: ...also finds that the arbitration agreement entered into by the parties is not unconscionable as Plaintiff was not required to sign said arbitration agreement as a condition of being admitted to Defendant's facility. Furthermore, the Court finds that said arbitration agreement demonstrates a modicum of bilaterality. (Little v. Auto Stiegler, Inc., (2003) 29 Cal. 4th 1064) The new issues and evidence raised in Defendant's reply will not be considere...

Excerpt: ...ck Trust Note, Judy Trust Note and Security Agreement, as well as an undertaking. (Code of Civil Procedure §512.060.) With regard to the issue of valuation as it pertains to the amount of the undertaking required by Code of Civil Procedure §515.010 et seq., the information presented in the application demonstrates that the sum claimed by Plaintiffs from Defendants is less the value of the collateral by an estimated $289,904.00. Plaintiffs are t...

Excerpt: ...hat a jury trial is a matter of right in a civil action at law, but not in equity. (Cal. Const. Art. 1, § 16, Caira v Offner (2020) 126 Cal.App.4th, 12. In addition, a minority shareholder's action for damages for the breach of fiduciary duties of the majority shareholder is one in equity, with no right to a jury trial. (Nelson v. Anderson, (1999), 72 Cal. App. 4th 111). Furthermore, there is no state constitutional right to jury trial of shareh...

Excerpt: ...blished the absence of a triable issue of material fact regarding Defendant's said indebtedness to Plaintiff. Therefore, Plaintiff is entitled to entry of summary judgment in its favor herein in the sum of $7,489.76 being principal of $666.26 and costs of $823.50 (Code of Civil Procedure §473 (c)). Accordingly, the Court hereby GRANTS judgment in favor of Plaintiff American Express National Bank. and against Defendant Iris Saberola in the instan...

Excerpt: ...rial fact on the issue of whether Defendant/Cross Defendant, California Materials Inc., has an express contractual duty to defend Teichert Construction, and by extension CALTRANS, against the claims being asserted in this action in Plaintiff's Second Amended Complaint. (Code of Civil Procedure §437c(f)(1), Code of Civil Procedure, §§ 2772 & 2778. In the absence of any opposition by Defendant, California Materials Inc., the Court finds that no ...

Excerpt: ...tillo, Moriarty, Tran and Robinson – a) The Court finds that Plaintiff may elect to have her deposition held remotely. Further, any party or Counsel may, but is not required to be physically present at the location of the deponent. (Cal. Civ. Proc. Code § 2025.310). The Court further finds that due to Plaintiff's use of oxygen, her general health, her doctor's recommendations for a remote deposition to preserve her health as well as the Execut...

Excerpt: ...Court further finds that no meet and confer was required between the parties where, at the time of filing the motion, no responses had been provided by Plaintiff/Cross Defendant. (See Dmyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777‐778). Since the filing and service of the instant motion Plaintiff/Cross Defendant has filed and served Responses to said Request for...

Excerpt: ...l originated from Plaintiff's work as an anesthesiologist with Memorial Medical Center. The Court also finds that Plaintiff's employment with Memorial Medical Center is so interwoven with his employment contract with Gould Medical Group that Plaintiff cannot be reinstated with Memorial Medical Center without being reinstated with Gould Medical Group. Accordingly, the Court finds that Plaintiff's claim for reinstatement with Gould Medical Group is...

Excerpt: ...ne's December 2019 decision includes a finding that MID's 2016 rates were “unlawful” – “the Court has not determined whether MID's electric rates exceeded its costs”. Obviously, both statements cannot be true. In the Court's view, Judge Beauchesne's decision did conclude that MID's rates were unlawful – and constitute an improper tax. While Judge Beauchesne mentioned two specific facts in support of this conclusion – a reported $2.6...

Excerpt: ...n (15) days of signing same but failed to do so thereby breaching said agreement. The Court further finds that Plaintiff waived said breach by subsequently arranging with Defendant to retrieve said items on 9/15/22 (Whitney Inv. Co. v. Westview Dev. Co, (1969) 273 Cal. App. 2d 594). Accordingly, on 9/15/22 P should have delivered all items agreed upon in 2.e.1‐8 of said Settlement Agreement to Defendant. The Court also finds that under said Set...

Excerpt: ...in respect of Lara 1, as well as in respect of the Dismissal with Prejudice subsequently filed therein. (Probate Code § 50, Garcia v. Rehrig Int'l, Inc., (2002) 99 Cal. App. 4th 869). The Court further finds that Plaintiff's claims herein are precluded by the Settlement Agreement and dismissal with prejudice entered in Lara 1. Plaintiffs herein cannot state facts sufficient to constitute a case of action as they are estopped from doing so. As it...

Excerpt: ...September 9, 2022 minute order requiring Plaintiff to retain a lawyer and file a First Amended Complaint by November 7, 2022, in the absence of which Plaintiff was required to provide a declaration under penalty of perjury explaining the basis of said failure. Plaintiff has failed to retain a lawyer, failed to file a First Amended Complaint and failed to provide an explanatory declaration. Accordingly, Defendants' Motion to Dismiss is hereby GRAN...

Excerpt: ...o be premature for failure to participate in mediation and for failure to demonstrate good faith participation in the arbitration ordered by the Court in its minute order of January 3, 2022. (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc (2018) 22 Cal. App. 5th 970, 981.) Should Plaintiff subsequently elect to refile the instant application, the Court will require Plaintiff to demonstrate the inability of Plaintiff's estate to...

Excerpt: ... Defendant Lodi Memorial Hospital Association Inc dba Adventist Health Lodi Memorials' Motion to Strike Portions of the Complaint – MOOT. a) The Court finds the allegations of the First Cause of Action for Elder Abuse are insufficient at the pleading stage to state the challenged cause of action. In addition, the First Cause of Action for Elder Abuse is uncertain in that the Complaint does not distinguish between the two named defendants with r...

Excerpt: ...properly propounded Form Interrogatories, Set One and Requests for Production of Documents Set One constitutes misuse of the discovery process and warrants discovery sanctions. (Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913). The Court also finds, considering the length of time over which Defendant has willfully failed to comply with the Court's order (5 months), that lesser sanctions would be ineffective. (Department of Forestry &...

Excerpt: ...errupted possession, hostile to the true owner and under a claim of title for 5 years. (Sevier v. Locher (1990) 222 Cal App. 3d 1082 citing Gilardi v. Hallam (1981) 30 Cal. 3d 317, 321). The Court further finds that the defects in Plaintiff's pleadings are incurable at present as Plaintiff is no longer in possession of the subject property and the delinquent property taxes have been paid by Defendant. Defendant's demurrer is hereby accordingly su...

Excerpt: ...urt explicitly finds that Plaintiff Harpreet Dhaliwal's opposition to this motion to compel was unjustified. As evidenced by Plaintiff's provision of further responses to the requests for production on October 12, 2022, it is clear that Plaintiff's original responses were inadequate and not code‐ compliant. While the Court appreciates Plaintiff's willingness to admit as much and provide supplemental responses, where a motion to compel is necess...

Excerpt: ...ourt's jurisdiction with regard to party applications for reconsideration or renewal. (Code Civ. Proc., § 1008(c).) Second, the Court's inherent power to reconsider its own rulings and decisions sua sponte does not survive entry of judgment and finality. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 [court loses jurisdiction to rule on a pending motion for reconsideration after entry of judgment and it is immaterial that the mo...

Excerpt: ...ce of Motion, was filed on August 23, 2022. Counsel for Defendants declaration attaches exhibits that only unilaterally confirm an extension on the forty‐five (45) time limit to compel further responses applicable to both motions through July 28, 2022. Even then, a stipulation to extend the 45 day time limit “on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc...

Excerpt: ...1, Defendant shall accordingly provide further substantive responses to same. Plaintiff's request for further responses to Form Interrogatory 17.1 is hereby denied for failure to comply with California Rule of Court 3.1345(c)(5) Plaintiff did not include in the accompanying separate statement, Defendant's verbatim responses to Plaintiff's request for admissions. Monetary sanctions of $1460 are awarded against Defendant and his Counsel of record G...

Excerpt: ... for Admission, Set One, within the next ten (10) days. The Court explicitly finds that Plaintiff Pauline Doan's opposition to this motion to compel was unjustified. If Plaintiff is indeed incapacitated and unable to respond to discovery (a fact which was not established by the evidence Plaintiff submitted in opposition to the motion), it is Plaintiff's counsel's duty to determine how best to advance Plaintiff's claims herein. But if Plaintiff ch...

Excerpt: ... Inc. v. Moriana upon the Court's finding of a valid enforceable arbitration agreement between the parties. (Viking River Cruises Inc. v. Moriana (2022)142 S.Ct. 1906). Accordingly, Plaintiff's individual PAGA claim is hereby ordered to arbitration. However, the Court finds that the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitration agreement appears to be an open question...

Excerpt: ...e names of and information related to Defendant's former pupils and employees. Defendant's students are further protected from the disclosure of said information by the California Education Code §§ 49075 and 49077. Plaintiff's motion for further responses to Form Interrogatories, Set 1, is GRANTED as to 12.2, 12.3, 12.6, 12.7, 14.2 and 17.1, and DENIED as to 12.4 and 12.5 on the grounds of work product and attorney client privilege. Further, an...

Excerpt: ...etween Plaintiffs and Central Valley Nissan that Defendant may rely on the doctrine of equitable estoppel to compel arbitration between Plaintiffs and Defendant. Proceedings herein are accordingly stayed pending completion of arbitration. Defendant's Request for Judicial Notice is GRANTED. The Court acknowledges that Defendant did not demand arbitration pursuant to code, however, resolving the motion based on this point would be a fruitless endea...

Excerpt: ...ended Cross‐Complaint of Nirmal Singh and Ks Chandi; b) Defendants Nirmal Singh, Prabhjot Singh, Matthew Bradford, Marc Robinson & Robinson Bradford LLP's Special Demurrer to Causes of Action 1 Through 8; c) Plaintiffs Kevin Doan, Pauline Doan and Harpreet Dhaliwal's Motion to Quash Subpoena to First American Title – This is an action for corporate mismanagement brought by the majority shareholders against a corporate officer (and minority sh...

Excerpt: ...lure to meet and confer in good faith; Request for Monetary Sanctions in the Amount of $690.00; c) Plaintiff Doctors Medical Center of Modesto, Inc.'s Motion to Compel Further Responses from Defendant, Tiger Lines, LLC to Special Interrogatories, Requests for Admission, Requests for Production of Documents, and Form Interrogatories, Set One; Request for Monetary Sanctions in the Amount of $6,200.50 – DROPPED on the Court's own motion due to the...

Excerpt: ...he delegation clause require the arbitrator to determine which of the Plaintiffs' claims are arbitrable? With regard to the first issue, Defendant has established that decedent Olivia Deloach signed the arbitration agreement on February 13, 2020. The supplemental declarations of Cristina Lewis and Ashlee Gilliam, combined with the original declaration of Deanna Brummell, establish that the decedent's electronic signature was generated a) in the p...

Excerpt: ...d the Decedent Shirley Strickland while she received treatment from them. Further, Defendants' evidence establishes that a family practice physician and a physician's assistant cannot be held to the same standard of care as applicable to cardiology experts. The Court further finds that Defendants have established the absence of a triable issue of material fact regarding a crucial element of Plaintiff's medical malpractice claim against Defendants...

Excerpt: ... complaint states Defendant sprayed on April 3, 2020. On the other hand, Plaintiff's Motion for Summary Judgment and the exhibits and evidence submitted therewith state Defendant sprayed on April 2, 2020. This material contradiction in the moving papers means Plaintiff has not met his burden to establish no material disputes of fact such that summary judgment or summary adjudication would be appropriate. Even if Plaintiff had met his moving burde...

Excerpt: ... Code §47 under the auspices of Code of Civil Procedure §425.16. The burden then shifts to Defendant and Cross‐Complainant CAO to demonstrate the probability that it will prevail on the merits of the subject causes of action. The Court finds that CAO has failed to meet its burden particularly as there is no evidence that Lucky 8 disseminated the email to other than its customers. Therefore, the Court finds the Cross Complaint filed by CAO sha...

Excerpt: ...o two parts, sending one part to arbitration and the other to dismissal. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a prepon...

Excerpt: ...ion suit, petitioners and similarly‐situated electric customers claim that Modesto Irrigation District built a sizable electric slush fund and – instead of reimbursing electric customers for the surplus – is surreptitiously using the electric slush fund to cover serious losses from its irrigation customers. Petitioners contend (1) that Respondent's practice of robbing Electric Peter to cover Irrigation Paul's debt is an unauthorized tax on ...

Excerpt: ...troversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967. Neither side disputes the existence of an agreement to arbitrate between plaintif...

Excerpt: ... Watsonville, California. The operative pleading is the First Amended Master Complaint. Before the Court this day is a demurrer by all defendants to all eight (8) causes of action set forth in the operative pleading on the ground that none of them include facts sufficient to constitute a cause of action (CCP §430.10(e)). This type of demurrer only succeeds if there is no cognizable theory for relief of any kind, regardless of the labels and theo...

Excerpt: ...nt may at any time apply to the court for an order requiring the plaintiff to furnish an undertaking to cover a future award of litigation costs. See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibility” that the moving defendant will prevail, as well as a good faith estimate of the costs/fees previously i...

Excerpt: ... to both. On or about 03/09/22, plaintiffs caused to be served upon Alliant Insurance Services a subpoena for the production of records containing insurance applications from, and communications with, defendants regarding any insurance coverage from 03/01/10 to the present. Although the subpoena called for the production to occur at 8:00 a.m. on 03/28/22, it included two different locations for where the records were to be produced (compare Box 1...

Excerpt: ...f all this, this Court concluded that a discovery referee for some aspect of this case is needed. This Court ordered both sides to submit the name of someone they would propose to serve as discovery referee. This Court selected defendant's proposal (Attorney Michael Kronlund), largely because he had a lower hourly rate (see Minute Order dtd 05/13/22). Before the Court this day is a motion by plaintiff to reconsider that order. Central to plaintif...

Excerpt: ...re and treatment provided to an individual with schizo‐ affective disorder, who is reportedly subject to an LPS conservatorship. The operative pleading is the original complaint filed 05/21/21, and consisting of the following seven causes of action: unfair practices; breach of the implied covenant of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Alla...

Excerpt: ... part and DENIED in part. In order to be code‐compliant, Plaintiff must represent that a “diligent search and a reasonable inquiry has been made in an effort to comply with the demand.” Code of Civil Procedure section 2031.230. As Plaintiff's response does not include this representation, Plaintiff shall amend it accordingly. As for the Defendant's argument that Plaintiff didn't identify anyone she “believes” might possess information r...

Excerpt: ...esto. Plaintiff opposes the request for leave, and requests sanctions in relation thereto. Pursuant to CCP §428.10, a party against whom a cause of action has been asserted may file a cross‐ complaint to include any cause of action he has against a person alleged to be liable thereon, if the cross‐ claim (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) assert...

Excerpt: ... GRANTED, and unopposed. In their moving pleadings, Defendants make a prima facie showing that they are entitled to judgment against Plaintiffs as a matter of law. The Court GRANTS the Defendants' request for judicial notice. Based on the Declaration of Denise Billups‐Slone, the exhibits attached thereto, including the Declaration of Dr Justin Birnbaum, and the First Amended Complaint filed on June 13, 2019, as well as the other pleadings the C...

Excerpt: ...istress), neglect and abandonment by failing to bring plaintiff food and leaving him in the shower (causing emotional distress), and pharmaceutical abuse (causing plaintiff to fall in the shower). Before the Court this day is a defense demurrer and motion to strike, directing at most of the charging averments in the operative Fifth Amended Complaint. Pertinent Background Facts On or about 02/15/20, plaintiff was transferred from University of Cal...

Excerpt: ... agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; Martinez v. Bar...

Excerpt: ...r and motion to strike directed at the First Amended Complaint, as well as the continued hearing on defendant's motion to compel further responses to special interrogatories. The discovery motion was continued to this date to clear the confusion regarding an opposition brief. In the interim, the parties have filed two more discovery motions, both set for hearing on 06/30/22. For the convenience of the parties, and since the scope of discovery mig...

Excerpt: ...;  on 06/24/17, during a recreational ride within the Oceano Dunes in San Luis Obispo, plaintiffs Julio and Christian sustained serious injuries when the Hisun 1000 roll cage collapsed upon them. Before the Court this day is an unopposed motion to continue trial, and a demurrer to L&K's cross‐ complaint against Hisun for express contractual indemnity and declaratory relief. As to the former, Hisun's motion to continue trial, and to trail all...

Excerpt: ...e class allegations, leaving just her PAGA claim. What remains, as such, of this motion is whether the PAGA claim is subject to arbitration. First, defendant did not ask this Court to compel arbitration of the PAGA cause of action (see Notice 2:5‐6 and MPA 1:19‐24). Second, as both sides readily concede, the established law here in California is that PAGA claims are not subject to an aggrieved employee's private agreement with an employer to ...

Excerpt: ... prayer for punitive damages. The issue is whether the third cause of action, to which the prayer for punitive damages attaches, is viable in light of the economic loss rule. The economic loss rule bars most tort claims for purely economic losses covered by a contract, but does not apply to tort claims based on a theory that the defendant actually said something to the plaintiff at or about the time of contracting that was materially false. This ...

Excerpt: ...nt Nirmal Singh – for a derivative undertaking of $50,000. Regarding plaintiffs' motion for clarification, this apparently stems from the following statement contained in this Court's 09/01/21 minute order: “the only way to streamline what remains of these complex disputes post‐arbitration is to bring all of the remaining matters under one metaphorical roof in the form of a master complaint by Doan et al under the lead case 684071, with aba...

Excerpt: ...pproval. 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.) The class is conditionally certified for purposes of settlement and this matter is therefore d...

Excerpt: ... Motion to Strike Portions of First Amended Complaint; e) DMC Defendants' Demurrer to First Amended Complaint; f) Hospitalists of Modesto Medical Group Inc., Arun Monoharan MD, and Li Huang, MD's Demurrer to Plaintiff's First Amended Complaint – After thorough review of the operative pleading in this case, the Defendants' special motions to strike, the Plaintiff's oppositions thereto, as well as the relevant statute (CCP Section 425.16) and cas...

Excerpt: ...chael C. Kronlund is appointed as referee for all purposes related to discovery in this action. Mr. Kronlund's address and telephone number are as follows: Quinn | Kronlund, LLP, 3439 Brookside Road, Suite 207, Stockton, CA 95219; (877) 943‐3955. 2. The following exceptional circumstances require this appointment: The parties' continual pursuit of numerous, time‐consuming motions related to discovery issues throughout the pendency of the matt...

Excerpt: ...n this matter and does not file any opposition to the Plaintiff's application for writ of possession. Additionally, Plaintiff caused the clerk to enter Defendant DTL Logistics Inc.'s default on 4/21/22. Based on its review of the Plaintiff's application, the declaration filed in support of the application and the operative complaint in this matter, the Court finds Plaintiff has established the probable validity of its claim to possession of the p...

Excerpt: ...nes associated with new tax liens incurred from 2018 forward. Motion to augment the judgment is DENIED without prejudice. Although the Judgment entered on 01/25/12 indicates that it “may be amended nunc pro tunc to include any and all additional [fees/fines] for the 2010/2011 and subsequent tax years” (see Para 5, emphasis added), this was a default judgment and the operative pleading does not include any claim for debts that accrued from 201...

Excerpt: ... Court this day are two plaintiff motions for order compelling further responses to Special Interrogatory Nos 14, 25, 40‐ 45, 51‐63, 65, and further responses to Document Production Nos 1‐3, 9, 13‐16, 17, 31, 37‐78, 84‐87. The motions are GRANTED in part, and DENIED in part. Regarding the Special Interrogatories, while the defendant is correct that – to some extent – these motions (like many in the lemon law field) are an exaltati...

Excerpt: ... terms of that settlement, which this Court subsequently confirmed on 12/17/21. There is a genuine concern regarding this Court's continued jurisdiction to resolve this motion in light of plaintiff's dismissal with prejudice entered 11/12/21, Victoria's failure to personally request jurisdiction reserved, and the previously pending appeals. See Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 916‐ 919; Cunningham v. Mag...

Excerpt: ...ion for final approval of the settlement. The gross settlement amount (“GSA”) is $225,000.00, which is intended to cover 149 class members. This represents an average payout of just under $800.00. This is a non‐reversionary settlement (meaning nothing goes back to the defendant). Based on the whole of the record, this Court concludes that the gross settlement amount is fair and reasonable in light of the pertinent factors to consider. See J...

Excerpt: ... WITHOUT PREJUDICE. Although the underlying motions to compel were served upon defendant personally, notice of this Court's 12/10/21 order was only served upon defense counsel (who had just emerged from suspension). The current motion for terminating sanctions was also served only on defense counsel, despite his 11/29/21 declaration indicating that he had COVID, his secretary died from COVID, and his office was – to put it politely – in shamb...

Excerpt: ...rogatories, Set Two Propounded on Plaintiff Raven Sharp and Request for Monetary Sanctions – This is a business dispute between putative partners in a marijuana dispensary, with a sprinkling of alleged attorney self‐dealing. Before the Court this day are three defense motions seeking orders compelling further responses to special interrogatories and requests for production of documents (the motion set for 04/28/22 is included herewith). At is...

Excerpt: ...der barring defendants from selling the property before plaintiff's right to purchase can be fully vetted on the merits. Within 10 days after service of a written notice of entry of an order, an aggrieved party may make a motion to reconsider the order based upon new or different facts, circumstances, or law. CCP §1008(a). The moving party must demonstrate something new or different for the court to consider, and a satisfactory explanation for n...

Excerpt: ... Before the Court this day is the hearing on plaintiff's application for final approval of the settlement. The gross settlement amount (“GSA”) is $925,000.00, which is intended to cover 2,469 class members. This is a non‐reversionary settlement (meaning nothing goes back to the defendant). Based on the whole of the record, this Court concludes that the gross settlement amount is fair and reasonable in light of the pertinent factors to consi...

Excerpt: ...sel, class representative, third‐party administrator), preliminary approval of settlement, and approval of a PAGA portion. Since the last hearing, plaintiff has addressed the concerns raised by this Court, including payment of the $75 filing fee per § 2699.3(a)(1)(B), submission of the actual proposed settlement to the LWDA per §2699(l)(3), and provision of a conformed copy of the complaint to the LWDA within 10 days of filing per §2699(l)(1...

Excerpt: ...ice staff in failing to provide a conformed copy of the complaint to the LWDA within 10 days of filing per §2699(l)(1). This Court will forgive the error since no prejudice is shown. Plaintiff has provided the requested information supporting the request for reimbursement of litigation costs, as well as a declaration from plaintiff supporting his request for an enhancement. Since plaintiff actually attended the mediation, his request for $7,500....

Excerpt: ...y “first look” at the records and authority to redact as warranted. The motion is in essence a CCP §1008 request for reconsideration of that 06/08/21 order, and shall be viewed as such. A motion for reconsideration is only timely if presented “within 10 days after service upon the party of written notice of entry of the order,” subject to challenge. CCP §1008(a). There is no notice of entry in this Court's registry, and no evidence of a...

Excerpt: ...pposed demurrer to plaintiff's complaint, which does not effectively state any cause of action. The demurrer is SUSTAINED with 20 days leave to amend. Injunctive relief is not itself a cause of action, but rather a remedy attendant a properly‐framed substantive claim. Department of Fair Employment and Housing v. Superior Court (2020) 54 Cal.App.5th 356, 384‐ 385. The pleading here might be one for declaratory relief pursuant to CCP §1060, or...

Excerpt: ...ed. While this was previously sufficient inandof itself to seek withdrawal, the current rule requires counsel to “given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation.” Compare CRPC 3‐700(C)(1)(f) with CRPC Rule 1.16(b)(5). There is no statement regarding client consent or proposed order with the motion. See CRC 3.1362(c) and (e). Motion DENI...

Excerpt: ... Motion to Strike Portions of First Amended Complaint; e) DMC Defendants' Demurrer to First Amended Complaint; f) Hospitalists of Modesto Medical Group Inc., Arun Monoharan MD, and Li Huang, MD's Demurrer to Plaintiff's First Amended Complaint – This is a business dispute between an oncologist and the hospital with which is works. The operative pleading is the First Amended Complaint filed 11/15/21, which includes eight (8) causes of action aga...

Excerpt: ...ng the principal record of transactions between a debtor and creditor arising out of a contractual relationship between the two. CCP §337a. Defendant filed an answer denying all allegations of wrongdoing, and asserting a number of defenses to the debt – including at its core that she did not request or “accept” the credit card. There is no opposition filed to the motion. The moving papers do appear to have been mail ‐served on defense co...

Excerpt: ...nopposed demurrer to plaintiff's pleading, which defendant describes as a disguised writ of mandate. The demurrer is SUSTAINED with 20 days leave to amend. Injunctive relief is not itself a cause of action, but rather a remedy attendant a properly‐framed substantive claim. Department of Fair Employment and Housing v. Superior Court (2020) 54 Cal.App.5th 356, 384‐385. The pleading here might be one for declaratory relief pursuant to CCP §1060...

Excerpt: ...7 (hereinafter “Pena”). Pena is a class action lawsuit against the same defendant, based on the same wage/hour violations. A PAGA cause of action was added to that case on 01/07/22. The case at bar is not a class action, but instead a straight PAGA action. The case at bar was filed 12/07/21 – after Pena was commenced but before the PAGA cause of action was added. Courts wrestling with this issue have looked to pleas in abatement, the policy...

Excerpt: ...y be set aside on grounds implicating the validity of the sister‐state judgment (CCP §1710.40), and CCP §473.5 is generally inapplicable to motions attacking domestication of a sister‐state judgment. See Conseco Marketing, LLC v. IFA & Insurance Services, Inc. (2013) 221 Cal.App.4th 831, 844; Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 21. However, before drilling down into the merits, this Court notes that there is no proo...

Excerpt: ...successful Vietnamese farmers), Harpreet Dhaliwal (gas station operations), and Amanda Bui (attorney and investment advisor). The “defendant group” includes Nirmal Singh (successful businessman), his long‐standing attorneys, and various persons/entities associated with his business. Before the Court this day is the continued hearing on defendants' special motion to strike seven of the eight causes of action in the Master Complaint. As previ...

Excerpt: ...w regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions or conclusions of fact/law are not. In general, a pleading is ade...

Excerpt: ...e accident. The motion to quash is DENIED, but a protective order is GRANTED limiting the reach of the subpoenas to just five years pre‐ accident. Plaintiff's request for sanctions is DENIED because the demand to limit the records to “parts of the body” impacted is not reasonable given the type of injuries claimed, and a good faith meet and confer (CCP §§ 1987.1, 1985.3, 2017.020, 2025.420(a)) should have led to some resolution without ju...

Excerpt: ... a traditional writ of mandate under CCP §1085. Traditional mandamus is used to review adjudicatory decisions made without conducting evidentiary hearings required by law. Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4 th 117, 122‐124. It is most commonly used to compel an agency to exercise either a ministerial, or a discretionary, duty. See Keyes v. Bowen (2010) 189 Cal.App.4 th 647, 657‐ 661. An ac...

Excerpt: ...�Doe” and seeking leave to amend the pleading with that party's true name. CCP §474. Ignorance relates to either the defendant's identity (his name) or the capacity/manner in which the defendant may be responsible for the wrongdoing described in the operative pleading. McOwen v. Grossman (2007) 153 Cal.App.4 th 937, 942‐943. Ignorance as to “who” or “in what capacity” must be real, not feigned. See A.N. v. County of Los Angeles (2009...

Excerpt: ...d as follows: Delores Gates (hereinafter “decedent”) was an 88 year‐old elderly woman afflicted with dementia, and residing full‐time at defendant's senior memory care facility in Modesto since the summer of 2019. On the evening of 05/06/20, staff members applied a prescription lice treatment to decedent's scalp in the hopes of eradicating an on‐going (at recurring) lice infestation. The topical treatment was to have been rinsed out tha...

Excerpt: ...each of a mandatory duty under Govt. Code §815.6. Public employee liability is limited by statute, and 815.6 specifies that liability only attaches to public entities. Individuals are not public entities. See Govt. Code §811.2. This is further evident from Govt. Code §820.4 [public employees not liable for failing to enforce laws], §821 [public employees not liable for failing to enforce enactments], and §822.2 [public employees not liable f...

Excerpt: ...bstantial injustice. Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5 th 463, 468; Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5 th 759, 766. Thus, “an affirmative showing of good cause” is required for any such motion. See CRC 3.1332(c). Good cause generally exists where (1) parties, lawyers or essential witness are unavailable for trial “because of death, illness, or other excusable circumstances;” (2) new counsel mu...

Excerpt: ...esto. Plaintiff was a front‐seat passenger in a Chevy Silverado truck. Defendant James Adams was operating a cement mixer on behalf of do‐defendants Calaveras Materials and/or South Valley Materials, and collided into the rear of the truck plaintiff was in. This would be a garden‐variety auto accident case but for plaintiff's contention that the defendants are morally culpable beyond mere negligence because they had reason to know that Adam...

Excerpt: ...atories from Frank E. Montenegro and for Monetary Sanctions Against Frank E. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Beatty, Slattery, Borges & Ambacher LLP, Pursuant to CCP, Section 2030.300; c) Plaintiffs' Motion to Compel Further Responses to First Set of Special Interrogatories from Celia M. Montenegro and for Monetary Sanctions Against Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Be...

Excerpt: ...of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Allan Ladd – the conservatee – and Pamela Ladd – the conservator. Before the Court this day is a defensive demurrer and motion to strike, directed at the entirety of the pleading. Although the demurrer and motion to strike were served on plaintiff(s), no proper opposition was filed. There was a “...

Excerpt: ...lish by a preponderance of the evidence that plaintiff actually signed any contract containing an arbitration agreement. See Civil Code §1633.9; Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 546; Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1065; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844. Defendant also waived the right to seek arbitration by waiting 245 days from appearing to bring the m...

Excerpt: ...ting separate lawsuits for trial, where they involve common questions of law or fact. The purpose is to enhance trial court efficiency and avoid the danger of inconsistent adjudications. As such, the power to consolidate cases pursuant to CCP §1048(a) only exists when the actions subject to consolidation are still pending. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147‐1148; Martin–Bragg v. Moore (2013) 219 Cal.App.4th 367...

Excerpt: ...voked to bypass state law statutory protections. Where a collective bargaining agreement contains an arbitration clause, both sides shall be imputed with an intention to arbitrate claims relating to rights provided by that agreement, but shall not be imputed with an intention to also arbitrate facially‐similar statutory claims unless the agreement includes a clear and unmistakable waiver thereof. This Court finds the decisions in Wilson‐Davis...

Excerpt: ...e at any time [between 01/21/17] and when notice to the class is sent.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, preliminary approval of class settlement, and approval of a PAGA settlement. The gross settlement amount (“GSA”) is $600,000.00, which is intended to cover 1,260 employees suffering one of many wage/hour violations. The hearing is CONTINUED to address/re...

Excerpt: ...leave to file a cross‐complaint against co‐defendant Hisun Motors Corp. USA (hereinafter “Hisun”) for express contractual indemnity and declaratory relief. The motion is GRANTED. First, since L&K never filed an answer to Hisun's 06/05/20 cross‐complaint, Hisun never secured entry of default thereon, and Hisun did not dismiss its cross‐complaint until after the pending motion was filed, L&K was arguably entitled as a matter of right to...

Excerpt: ...d a motion to strike directed at the prayer for punitive damages. The demurrer is SUSTAINED with 30 days leave to amend. The motion to strike is MOOT. The suggestion for a stay of the action pending the Supreme Court's review in Rattagan v. Uber Technologies, 19 F.4 th 1188 (9 th Cir. 2021) is premature. To begin, while the parties seem to agree that the principal issue to address on the demurrer is the economic loss rule, it is not quite so simp...

Excerpt: ...r, in pro per. On 03/12/21, plaintiff caused to be served upon defendant at his address of record Request for Admissions 1‐6. Pursuant to CCP §§ 1013 and 2033.250, defendant had 35 days from the mailing to provide a verified written response. Defendant did not timely (or ever) serve responses. See Russo Decl Para 6. Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the...

Excerpt: ...rejudice. Courts have a duty of inquiry regarding the grounds for the motion, and are not required to accept at face value vague, unsupported or uncertain representations as to reasons why an attorney wants out. Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134‐1136. Counsel has a corresponding duty to respond and to describe the general nature of the issue, within the confines of any privilege. Aceves v. Superior Court (1996...

Excerpt: ...non‐exempt employees of [Mercer Foods LLC] within the State of California between 01/04/17 and the present.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, approval of the management group (class counsel, class representative, third‐party administrator), preliminary approval of settlement, and approval of a PAGA portion. The application must be continued to 04/19/22 at 8...

Excerpt: ... Court this day is a defense demurrer directing at the elder abuse cause of action in the First Amended Complaint, and a motion to strike directed at the prayers for treble damages and attorney fees. Regarding the elder abuse cause of action, to state such a claim, plaintiffs must plead with particularity facts for each of the following essential elements: (1) decedent was a dependent adult; (2) decedent was abused or neglected; (3) defendant's e...

Excerpt: ...� 2699.3(a)(1)(B), (c)(1)(B). Counsel to advise. 1. A conformed copy of the complaint “shall” be provided to the LWDA “10 days following commencement” of the action. §2699(l)(1). Counsel to explain the delay. 2. The LWDA is supposed to receive a copy of the actual proposed settlement agreement, not just notice of a settlement. Compare Safaei Decl para 25 with §2699(l)(3). 3. Regarding litigation costs, there is no paid invoice provided ...

Excerpt: ... Defendant Ciminocare dba Orangeburg Manor; Request for Sanctions – This is a personal injury action. Before the Court this day are three motions, filed by the plaintiffs, seeking an order compelling the defendants to provide further supplemental responses to Form Interrogatories (12.1, 12.6), and Document Requests (4, 8, 9). The motions are GRANTED as set forth herein. A party responding to interrogatories has an obligation to provide response...

Excerpt: ...een the parties to arbitrate the claims at issue in the operative Complaint. Although the parties did agree to arbitrate “any dispute arising from enrollment (excluding non‐ payment of tuition or fees),” the term enrollment is ambiguous. Whether it is to be interpreted against the defendant (Civil Code §1654) or still in favor of arbitration (Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 663‐668), enrollment is gen...