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...

Excerpt: ... to either motion, and indeed has not been heard from since he DocuSigned the substitution of attorneys on 08/30/21. The motion for terminating sanctions is DENIED without prejudice. The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12. Although this Court has broad...

Excerpt: ...on were at issue in the earlier demurrer, which this Court sustained. Demurrer to the 1 st cause of action for breach of the 05/22/20 Commercial Property Purchase Agreement is sustained based entirely upon plaintiffs' concession thereto and express representation that the claim will be voluntarily dismissed. Demurrer to the 4 th cause of action for promissory fraud is sustained without leave to amend, but without prejudice to a later motion for l...

Excerpt: ...he Court this day is plaintiff's application for a preliminary injunction barring defendant from taking possession, despite an order from the related UD action (UD‐21‐000303) that she surrender possession. The application for preliminary injunction is DENIED in part and GRANTED in part. The proper way to stay an eviction order is through the UD bench officer issuing the order (or through the appellate channels associated therewith). See CCP �...

Excerpt: ...es of action alleged in the operative pleading. The oral/implied contract upon which plaintiff sues was negotiated and formed in California by members residing in California. That the contract ultimately inured to the benefit of an Arizona entity is of no consequence since the Arizona entity did not exist when the oral contract was consummated, and subsequent incorporation does not erase or sanitize the extensive California contacts made to secur...

Excerpt: ...otion, the demurrer and motion to strike directed at the First Amended Complaint is continued to 04/12/22 at 8:30 a.m. in this department. The demurrer and motion to strike currently on calendar for 03/10/22 is hereby advanced to today's date and continued to 04/12/22 at 8:30 a.m. in this department. The CMC currently on calendar for 03/14/22 is hereby advanced to today's date and continued to 06/13/22 at 8:30 a.m. in this department. All future ...

Excerpt: ...ing arbitration, pursuant to the lengthy arbitration clause printed on the back of the Retail Installment Sale Contract. On a motion to compel arbitration under Code of Civil Procedure §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 c...

Excerpt: ...caped a discovery referee and/or a sizable monetary sanction – would ask this Court to revisit that order. Nevertheless, Code of Civil Procedure §1008(a) requires that any motion for reconsideration be supported by an affidavit from the moving party setting forth “what new or different facts, circumstances, or law are claimed to be shown.” The motion is not properly presented as one for statutory reconsideration under Section 1008 because ...

Excerpt: ...on clause covering “any dispute arising from enrollment” (emphasis added) is broad enough to cover torts committed by defendant's employee during periods of instruction, which is controlled in part by the related question of whether the FAA actually applies to the substantive question of how to resolve ambiguities. See Victoria v. Superior Court (1985) 40 Cal.3d 734; Nixon v. AmeriHome Mortgage Company, LLC (2021) 67 Cal.App.5th 934; Western ...

Excerpt: ...ludes Kevin and Pauline Doan (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 a special motion to strike, directed at seven of the eight causes of action in the Plaintiffs' Maste...

Excerpt: ...ty of its claim to possession and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. Based on the pleadings before the Court, Plaintiff has established the probable validity of his conversion claim since the evidence suggests defendant has no intention of completing the work or returning the vehicle. Plaintiff has shown a right to immediate possession of the vehicle and...

Excerpt: ... Montenegro and for Monetary Sanctions against Frank E. Montenegro and Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford and McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP, pursuant to CCP Section 2031.310(H); c) Plaintiffs' Motion to Compel Further Responses to and Further Production in Reponses to the First Set of Demands for Inspection and Copying from Frank E. Montenegro and for Monetary Sanctions against Frank E. Montenegro a...

Excerpt: ...for strict product liability. According to the defense, this cause of action is time‐barred and not sufficiently similar to plaintiff's viable claims to relate back. The demurrer is OVERRULED. At the pleading stage, defendant must negate relation back, and in this instance the allegations supporting the original negligence claim and the new product liability claim appear to be based on the same general set of facts, seek recovery against the sa...

Excerpt: ...sion shall issue after a noticed hearing if (1) the plaintiff has established the probable validity of its claim to possession and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. Based on the pleadings before the Court, Plaintiff has established the probable validity of his conversion claim since the evidence suggests defendant has no intention of completing the work...

Excerpt: ...ternative for reconsideration of the order granting the motion for summary judgment. The motion for relief in the alternative is DENIED. First, there is no legal nor factual basis presented for setting aside the Judgment under CCP §473, which was necessary after defendants prevailed on their summary judgment motion. Second, regarding the motion for summary judgment itself, the time to seek reconsideration of the determination on the motion has a...

Excerpt: ...on, defendant explains his ignorance about the need to tender such fees, including the defective advice he received from a third‐party legal service provider, which together qualifies for discretionary relief under Code of Civil Procedure section 473(b). See, e.g., Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 697; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1140‐ 1141. Moreover, defendant could have avoided the first appearance fee ...

Excerpt: ... and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has made a prima facie showing that it is entitled to summary judgment, it "causes a shift, and the opposing party is then subjected to a burden of production of [their] own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th...

Excerpt: ... and the April 2015 transfer of House's shares in Pollination Inc. to the corporation and (2) providing other relief in accordance with sections 3439.07 and 3439.08 and this opinion.” On the same day that plaintiff filed this motion, this Court issued a Minute Order setting a hearing for March 1, 2022, with a briefing schedule commensurate therewith, to address the second part of the Court of Appeal order. Where a reviewing court reverses a jud...

Excerpt: ...fs' causes of action for elder abuse and wrongful death do not state sufficient facts is OVERRULED. However, this Court finds that both causes of action as pled are uncertain and on that ground the Defendants' demurrer is SUSTAINED, with leave to amend. Plaintiffs have not carefully considered the scope of a survival action versus the wrongful death action, and in neither instance are the allegations contained in the complaint adequately tethered...

Excerpt: ...he evidence presented is inconclusive and amplified by conjecture. In opposition to the application, Defendant admits to receiving a hierarchy table from his son after the issuance of the injunction and before his son stopped working for Plaintiff. According to Defendant, the hierarchy chart was (1) not proprietary at all, (2) not used in any way and (3) shared for innocent reasons (Defendant's son was “boasting”). Although this hierarchy cha...

Excerpt: ...the lack thereof. However, petitioners are entitled to fees under CCP §1021.5 because they were successful in an action which has resulted in the enforcement of an important right affecting the public interest, and which conferred a significant benefit to a large class of persons. Additionally, Respondents' request to disallow fees associated with the motion to strike the prayer for attorney fees is GRANTED. Hearing on the Petitioners' motion is...

Excerpt: ...endant has not shown clearly, positively and unmistakably from the text alone that Code of Civil Procedure section 340.1(q) and/or Government Code section 905(m) violate either the constitutional right to due process or the proscription against gifts of public funds. Defendant's general demurrers against the first and/or second causes of action for failure to state facts sufficient to state a cause of action are SUSTAINED with twenty (20) days le...

Excerpt: ...tter for “trial” on the merits. Based on the parties' pleadings, the essential dispute apparently centers around the “right” to present “live” testimony at the hearing, including the “right” to do so unique to the fourth cause of action for disgorgement. However, given the unique nature of writ proceedings, there is no “right” to present “live” testimony at any hearing the Court conducts, and a determination by this Court ...

Excerpt: ... for a deposition. Defendant's request for monetary sanctions is DENIED. Though not in perfect form, plaintiffs' “Notice to Cancel and Reschedule” is the functional equivalent of a motion for an unfiled protective order, which should have caused counsel to resolve the scheduling issue rather than seeking fees and a court order. See CCP §§ 2025.420(b), 2025.450(b)(2); Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109...

Excerpt: ...her First Amended Complaint ‐ CONTINUED on the Court's own motion to January 28, 2022, at 8:30 a.m. in Department 24. a) Defendant's moving papers – including its separate statement of undisputed material facts, the declarations of Kaitlin E. Showerman and Armando Flores, the exhibits attached thereto and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has ma...

Excerpt: ...ponses, no substantial justification or unjust conditions are shown to avoid the imposition of modest sanction. This Court finds that the filing fee of $60, plus 1.5 hours of attorney time, is reasonable, for a total sanction of $750.00 – payable by plaintiffs within 10 days. Defendant to give notice. ...

Excerpt: ...e court finds consolidation is proper because plaintiff has shown the presence of “common question[s] of law or fact.” (Code Civ. Proc., § 1048, subd. (a).) Gregg v. Patrick CV‐21‐002839 is to be consolidated into this action, with CV‐19‐005163 remaining the lead case number. b) The granting of defendant Patrick's consolidation request means this case is no longer at issue, such that all discovery and related deadlines will be calcul...

Excerpt: ...aint – GRANTED. Defendant Pedro Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections to th...

Excerpt: ...ourth Causes of Action of Plaintiffs' Third Amended Complaint ‐ SUSTAINED, without leave to amend; d) Defendant Doctors Medical Center of Modesto Inc.'s Demurrer to Plaintiffs' Third Amended Complaint – SUSTAINED, WITHOUT leave to amend. (a) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (b) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (c) Both causes of action subject ...

Excerpt: ...ion to Compel Responses from Defendant Valiplug, Inc. to Requests for Production; e) Plaintiff and Cross‐ Defendant Rainy Prock's Motion to Compel Responses From Defendant Valiplug, Inc. to Requests for Admission; f) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses from Defendant Darron Silva to Requests for Inspection or Production of Documents; g) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses...

Excerpt: ...omplaint – GRANTED. Defendant Candida Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections...

Excerpt: ...djudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint – GRANTED. Defendant Orlando Torres Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Gari...

Excerpt: ...OWELL's fencing in the area of the incident are designed and maintained in such a way that it meets or exceeds the requirements set forth in the Food and Agriculture Code.” Plaintiff's expert opines that “[t]he livestock industry standard is to attach fence wires to the inside of the posts” instead of to the outside of the posts, where the expert inferred defendant's wires had been attached, but no source of authority is provided as to why ...

Excerpt: ...instead deeming the arbitration clause valid. (See, e.g., Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1144–1145.) All evidentiary objections are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of the motion (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important” objections that “are critical ...

Excerpt: ...e policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.' ” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562–563.) A plaintiff opposing a motion to dismiss on the ground asserted here need only “make[] some showing of excusable delay” (Ibid), and that standar...

Excerpt: ...rator distributing $7,500 of that amount directly to the California Labor and Workforce Development Agency and distributing the remaining $2,500 to the class members. The proposed attorney's fees of $146,666.66 and litigation costs of $12,901.97 are reasonable and shall be approved as payable to class counsel. Also, the proposed service payment for the named plaintiff is hereby approved, and the two named plaintiffs shall equally divide a service...

Excerpt: ... exists. (See, e.g., New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d., 689–690.) However, such a cause of action must be pled with particularity. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526; see also Snider v. Whitson (1960) 184 Cal.App.2d 211, 214 [“Where a plaintiff relies upon wilful misconduct there are sound reasons why he should be required to state the facts more fully than in ordinary negligence cases so that it may ...

Excerpt: ...t to fail because Atlantic allowed the Machado defendants but not plaintiffs to withdraw from the sale without consequence, thereby protecting the Machado defendants at plaintiffs' expense when the Atlantic defendants were allegedly obligated to represent each set of parties equally. Because plaintiff's allegations are focused on the structure of the sale rather than advice about the sale, the court also disagrees that “Plaintiffs' entire claim...

Excerpt: ...t and obsessive” litigants. Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1198. Section 391 provides, in pertinent part, as follows: (b) “Vexatious litigant” means a person who does any of the following: (1) In the immediately preceding seven‐year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (...

Excerpt: ...court by Code of Civil Procedure section 583.420 in favor of granting the motion at this time. “ ‘Although a defendant is entitled to the weight of the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.' ” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562–...

Excerpt: ... to declare Plaintiff Harpreet Dhaliwal a vexatious litigant. Code of Civil Procedure section 391.6 states (in pertinent part): “Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished, ...

Excerpt: ... that the causes of action for defamation and fraud must each be pled with specificity, and that the cross‐complaint fails to meet that standard. (See, e.g. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.”]; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612 [discussing pleading rules for defamation claims].) It also appears that each cause o...

Excerpt: ... and reminds plaintiff that elder abuse must be pled with specificity. At present, this court is having difficulty seeing how the decedent's final fall was the result of “abuse” or “neglect” within the meaning of the Elder and Dependent Adult Civil Protection Act because the complaint admits that by that time the facility had provided a shower chair and staff was present. The cause of action for wrongful death is also uncertain, because i...

Excerpt: ...s that plaintiff's injuries were caused by bedbugs, but that fact is not in dispute. Mr. Brown's declaration opines that defendant must have been negligent but states no basis for that opinion. It therefore cannot meet plaintiff's burden in opposition on summary judgment. “An expert's speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. [Citations.] Plai...

Excerpt: ...Perez, in Her First Amended Complaint – GRANTED. a) Defendant's moving papers – including his separate statement of undisputed material facts, his declaration, the declarations of Kaitlin E. Showerman and Armando Flores, and the exhibits attached thereto – demonstrate that Defendant is entitled to summary judgment. Where a party has made a prima facie showing that he is entitled to summary judgment, it "causes a shift, and the opposing part...

Excerpt: ...pon which is sought summary adjudication.) UMF No. 14, states, essentially that the 2006 Prothers Agreement carved out a portion of the [property at issue herein] to be treated differently, stating (and the Court is paraphrasing here in an attempt to be clear): Prothers shall retain grazing rights … [on the property in question]. This description of the “carve out” is not necessarily accurate, as noted by the Defendants in their opposition ...

Excerpt: ...tition for Writ of Mandate and directing Respondent to notify the Department of Justice that the reports of child abuse filed with it involving Petitioners have been determined to be “unfounded” and request Petitioners' immediate removal from California's Child Abuse Central Index (CACI) database. In addition, the Court would issue a writ directing Respondent to update the Child Welfare System/Case Management System (CWS/CMS, CWS‐CARES) to ...

Excerpt: ...ynne's Motion to Deem Requests for Admission Admitted and Request for Monetary Sanctions is GRANTED and unopposed. The Requests for Admission, Set One, served on Plaintiff Ernest Latta on or about March 25, 2021, are hereby DEEMED ADMITTED. Defendant Sharon Wynne is awarded mandatory sanctions pursuant to Code of Civil Procedure section 2033.280(c) in the amount of $335. Plaintiff Ernest Latta is directed to pay the monetary sanctions directly to...

Excerpt: ... First Amended Complaint; c) Defendant Sofia‐Esther Marquez's Motion for Summary Judgment or, in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint; d) Defendant Cuauhtemoc Torres Marquez's Motion for Summary Judgment or, in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Maricela...

Excerpt: ... (UVTA) and demurrer 8 – to the second UVTA “count” ‐ are OVERRULED. The first and second counts state facts sufficient to constitute a cause of action under the UVTA. Demurrers 4, 9, 14 and 19 – alleging the complaint is “uncertain” because Plaintiff erred in naming “Robert Carlson” instead of “Robert Crabtree” a handful of times – are OVERRULED. The error does not render the complaint uncertain in the manner required by ...

Excerpt: ..., or the plaintiff continued to litigate after it clearly became so.” (Gov't Code, § 12965(b); Cal. Prac. Guide Employment Litigation (TRG 2021) Ch. 17‐G, § 17:1572‐1572.1 [effective 1‐1‐19, prevailing defendant in a FEHA action may recover costs and fees only if the court finds that the plaintiff's action was “frivolous, unreasonable, or groundless,” etc., regardless of whether the plaintiff rejected a statutory offer to compromi...

Excerpt: ...nia (1995) 33 Cal.App.4th 1767, 1773 fn. 2 [“We may properly take judicial notice of these documents. However, we remind respondent we do not take judicial notice that everything contained in these documents is true”], citing Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354.) When considered in the context of the allowable use of judicial notice to contradict the allegations of the pleadings that otherwise must be accepted as true...

Excerpt: ... part and DENIED in part. The Court DENIES Defendants' motion to the extent it requests “correction” of the arbitrator's award and GRANTS Defendants' motion in all other respects confirming the arbitrator's Final Award as follows: Arbitral finality is a core component of the parties' agreements to submit to arbitration. As a result, this Court is generally powerless to review the arbitration awards for errors of fact or law, even when those e...

Excerpt: ...selection clauses, such as the one at issue here (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496 (Smith)). Rather, forum selection clauses are generally enforced “in the absence of a showing that enforcement of such a clause would be unreasonable.” (Ibid..) “Although [plaintiff] relies upon the factors of inconvenience and expense of a[n Illinois] forum, both [plaintiff] and [defendants] reasonably can be held to...

Excerpt: ...his action. This court therefore accepts the guidance from the Court of Appeal that the previous award appeared to include fees that were noncompensable, and this court accepts counsel's calculation that 20 percent of the time in this case was devoted to the claims that were determined to be noncompensable on appeal. This court thereby reduces the previous award by 20 percent and awards to the City of Patterson attorney fees in the amount of $538...

Excerpt: ... MD, Erik Lacy MD, Rex Adamson MD, Ricky Bassi MD, Rohini MD, Marney Fern, Cheryl Harless, Harvey Palitz MD, John Pfeffer MD, & Randy Winter MD's Demurrer to Complaint – SUSTAINED, with leave to amend; c) Defendant Hospitalists of Modesto Medical Group, Inc., Arun Manoharan, MD, Swapna Kamireddy, MD, Li Huange, MD, Otashe Nyoku Golden, MD, Vicoria Yehm MD, Qazi Muzaffar Mohsin MD, Patrick Wong DO, Natalie J Slowik MD, and Yan Li, MD's Motion to...

Excerpt: ...ty plans. See, e.g., Peterson v. Bank of America Corp. (2014) 232 Cal.App.4th 238, 255 [suit by hundreds of customers borrowing money from Countrywide “easily a complex case” given the number of parties and volume of documents]; Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 835 n.8 [“the coordinated actions with which we are here concerned are ‘complex' within the meaning of this rule only because of the large number of repr...

Excerpt: ...arez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 643.) On this motion, plaintiff therefore has the burden of showing that an exception to Privette applies. (Ibid.) Gonzalez v. Mathis (2021) 12 Cal.5th 29 (Gonzalez), on which this court requested supplemental briefing, held that there are only two exceptions to Privette such that, according to the Gonzalez court “a hirer may be liable when it retains control over any part o...

Excerpt: ...stments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.) The SAC and its attachments show that there was a section 1031 contingency in favor of the demurring defendants, and the SAC does not plead that this condition was satisfied, such that the SAC fails to plead that the demurring defendants ever acquired a duty to perform. The court therefore SUSTAINS the demurrer to the first cause of act. It appears plaintiff's complaints about t...

Excerpt: ...lays in this case (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939–940 [“The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.”]), and that prejudice to defendants would likely occur if the amendment were allowed. (See, e.g., Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 [“[i]It would be p...

Excerpt: ...lisilda. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense.”].) As plaintiffs failed to show that Felisilda is meaningfully different from this case, the court finds it must grant the pe...

Excerpt: ...v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in...

Excerpt: ...posed second amended complaint (SAC) is insufficiently specific and therefore allows plaintiff to file the SAC. (See, e.g., Tarmann v. State Farm Mutual Auto. Insurance Co. (1991) 2 Cal.App.4th 153, 158 [ the “requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy' [citation] or ‘when the facts lie more in the knowledge of the ...

Excerpt: ...ourts may consider the consequences which might flow from a particular interpretation and must construe the statute with a view to promoting rather than defeating its general purpose and the policy behind it.” ' ” (Pacific Merchant Shipping Association v. Newsom (2021) 67 Cal.App.5th 711, * 7.) ‘“ ‘The purpose of [Code of Civil procedure section 1030 (section 1030)] is to enable a California resident sued by an out-of-state resident “...

Excerpt: ...016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corp...

Excerpt: ...), and neither party appears to object to this approach. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) Plaintiff's meet and confer efforts on this motion were adequate because counsel says he called to obtain alternate deposition dates. (Code Civ. Proc., § 2025.450, and subd. (b)(2).) The court grants the motion and compels the City of Ceres to produce its PMK for deposition within 30...

Excerpt: ...leadings at which they are directed, the Court is of the initial impression that 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 abatement via voluntarily dismissal of the other three cases as a complete merger thereof. A master complaint would relate back to the f...

Excerpt: ...ws: 1. Judge Howard Broadman (ret) is appointed as referee for all purposes related to discovery in this action. Judge Broadman's address and telephone number are as follows: 300 N. Willis Street, Visalia CA 93291 (559) 738-1800. 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 matter; the demonstrated ...

Excerpt: ...nicate with all necessary parties and no discussion could occur because the attorney who was contacted was on vacation. (Code Civ. Proc., § 2034.250, subd. (a).) In part because of the weakness of the meet and confer efforts and in part because of the rest of the factors discussed below, the court finds there is “good cause” to alter the expert witness designation dates set forth in Code of Civil Procedure section 2034.230, subdivision (b). ...

Excerpt: ...See, e.g., Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations...

Excerpt: ...September 2018 for purposes of Code of Civil Procedure section 761.020, subdivision (d). Because the other causes of action are valid and because plaintiff alleges the acts of which he complains were performed in conjunction with a licensed realty transaction, the court overrules the demurrer to the fourth cause of action under Business and Professions Code section 17200, as well. ...

Excerpt: ...ure to respond to discovery was “willful” (see, e.g., Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994), or that an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for terminating sanctions is therefore DENIED. The court orders plaintiff to reimburse defendant Janelle Lynn Clowers the $300 p...

Excerpt: ...ir names removed from the CACI under the traditional mandamus statute, Code of Civil Procedure section 1085. “ 'To obtain [this type of] relief, a petitioner must demonstrate (1) no “plain, speedy, and adequate” alternative remedy exists [citation]; (2) ‘‘ ‘a clear, present ... ministerial duty on the part of the respondent' '' ; and (3) a correlative ‘ '‘clear, present and beneficial right in the petitioner to the performance of ...

Excerpt: ...to “meaningfully separate the attorney's fees incurred in litigating contractual claims from the attorney's fees incurred in litigating the inverse condemnation claim,” as required by both Carter and the court that heard defendants' appeal from the original attorney fees order. (See, e.g., (City of Patterson v. Patterson Hotel Associates (Jan. 11, 2019, No. F074038) at *7 [nonpub. opn.]).) Plaintiff has therefore failed to meet its burden on ...

Excerpt: ...t an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for monetary sanctions is denied for noncompliance with Code of Civil Procedure section 2023.040. The notice of motion requests an amount of sanctions that is different from the amount requested in the supporting memorandum and declaration, so the declarati...

Excerpt: ...re[s] a creditor wishing to invoke the doctrine to demonstrate the absence of a plain, speedy, and adequate remedy at law would protect against reverse piercing being used to bypass legal remedies.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 223 (Curci).) Here, plaintiff still has an unsatisfied writ of execution and has not pursued remedies such as a charging order or wage assignment order. (Cf. Curci, 14 Cal.App.5th at p. 2...

Excerpt: ...cts sufficient to show why the City of Riverbank should be held liable for alleged torts of the independent contractor it hired to collect trash. The rule regarding this kind of liability is: “a private person who hires an independent contractor can be liable for an injury to an independent contractor's employee, even when the injury is proximately caused by an act or omission of the independent contractor, provided the private hirer (1) retain...

Excerpt: ...ary judgment granted upon submission of a judgment. a) With respect to plaintiff's first and second causes of action for discrimination and the fifth for retaliation, the court will use a “burden-shifting system [that] requires the employee first establish a prima facie case of . . . discrimination [on the basis of a protected category or retaliation as authorized by law]. If the employee does so, the employer is required to offer a legitimate ...

Excerpt: ...as to Each Cause of Action and/or Related Issues Asserted by Plaintiff, Maricela Cuevas Perez, in His First Amended Complaint – CONTINUED, on the court's own motion, to October 29, 2021, at 8:30 a.m. in Department 24. The court finds it would be inappropriate to rule on a motion that could be dispositive as to plaintiff Garibay's pleading without notice to his conservator, and/or to any other person who will represent Garibay's interests in thi...

Excerpt: ...efendant Les Schwab Tire Center's Objections to Plaintiff's Requests for Production of Documents (RFPs), Set One; Request for Sanctions in the Amount of $2,860.00 from Defendant Les Schwab Tire Center and its Attorneys of Record, Vincent Castillo, Esq. and Allen Glaessner Hazelwood Werth - DENIED AS TO RFP NOS. 3, 4, 8, 17, 20, 21, GRANTED AS TO RFP Nos. 6, 10, 11, 14, 15, 16; d) Plaintiff Sandra Bunday's Motion to Compel Further Responses and to...

Excerpt: ...laintiff falsely accused defendant Silva of harassment or that she attempted to steal from her employer are subject to the ant-SLAPP statute, and the court does not see how those allegations could fall into one of the categories described by Code of Civil Procedure section 425.16, subdivision (e). The court must “disregard[]” those allegations and therefore makes no orders regarding them. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) ...

Excerpt: ...tion to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.”]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [“We agree with the majority of courts holding that lack of diligence may be a ground for denying a request for a continuance of...

Excerpt: ...er. (See, e.g., Id. at p. 1227 [“ ‘ “[W]hether an environment is ‘hostile”' or ‘abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' “].) The court declines to consider the contentio...

Excerpt: ...tiffs' Complaint - DENIED. (a)The Court finds that the insurer defendant is entitled to enforce the appraisal provisions contained in the contract. However, the scope of the appraisal process is limited to the determination of the amount of loss incurred under the policy, and it does not encompass determination of Plaintiff's other claims at issue in this matter. (See, e.g. Appalachian Insurance Company v. Rivcom Corp. (1982) 130 Cal.App.3d 818.)...

Excerpt: ...notes that Defendant failed to submit a substantive response to the motion but only challenged the sufficiency of Plaintiff's initial meet-and-confer efforts. With regard to Form Interrogatory 7.1, the Court finds that all objections are waived due to the lack of a verified response. However, the substance of the response is sufficient. Therefore, Plaintiff is entitled to obtain Defendant's verification but no additional responsive information is...

Excerpt: ... Second Amended Complaint - SUSTAINED, with leave to amend; d) Defendants Robert Barandica, M.D., and CEP America-California's Motion for Order Striking Portions of Plaintiffs' Second Amended Complaint - DENIED, as MOOT; e) Defendants Thanh Huynh, M.D. and Hospitalists of Modesto Medical Group, Inc.'s Demurrer to the Third and Fourth Causes of Action of Plaintiffs' Second Amended Complaint - SUSTAINED, with leave to amend; f) Defendants Thanh Huy...

Excerpt: ...he motion is untimely with regard to the request to recover costs, which is governed by the provisions of Cal. Rules of Ct., rule 3.1700 et seq. (See, e.g. Sanabria v. Embrey (2001) 92 Cal.App.4 th 422.) Therefore, the motion is DENIED as to costs on that basis. Further, to the extent the motion seeks recovery of expert fees incurred by Cross-Defendants, the Court finds that the moving parties have failed to demonstrate that the contract provisio...

Excerpt: ...subject subpoena. Therefore, the Court finds that the records in question shall be produced first to Plaintiff's counsel, who will perform an initial review in order to identify the materials which meet the agreed-upon criteria for production as to time frame and body part limitations. Plaintiff's counsel shall prepare a detailed privilege log with regard to all redacted information; the privilege log shall contain sufficient factual information ...

Excerpt: ...ilizing, or disclosing any of Level-It's proprietary, confidential and/or trade secret information and/or utilizing anyone in Defendant's employment to do the same;  Performing any future contracts obtained through the use of Level-It's proprietary, confidential and/or trade secret information;  Soliciting Level-It's employees through the use of Level-It's confidential, proprietary, and/or trade secret information or through the use of inti...

Excerpt: ...onstrated sufficient meet and confer efforts with regard to the requested depositions, as Plaintiffs' evidence reveals that they are amenable to proceeding with further deposition sessions pursuant to stipulation but seek additional clarification as to the scope of such examinations. Therefore, it appears to the Court that the potential exists for the parties to resolve these issues informally if substantive meet-and-confer discussions are conduc...

Excerpt: ...ords that the hours claimed were reasonably incurred and substantially contributed to the ultimate successful result. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 132 Cal.App.4th 359, 394.) Therefore, the hours claimed by Plaintiff's counsel are approved as reasonable in this contest. Reasonable Hourly Rates – In its determination, the Court has considered the skill and experien...

Excerpt: ...ations as alleged in paragraph 22 of the Complaint. (Hudson Decl. Exh. A.) Therefore, defendant argues that Plaintiff and her counsel lack a good faith basis to bring the Complaint. Plaintiff, however, submits her own declaration, stating that during her hiring process she was required to undergo a criminal background check as a condition of employment. She states that Patrick Warden of Defendant's Human Resources Department presented her with a ...

Excerpt: ...e Court finds his claimed lack of custody or control of the subject documents to be disingenuous. Finally, having considered Defendant's objections based on privacy concerns and the provisions of Civ. Code §3295, the Court finds that the subject discovery appears to relate to the central issues in the case, such that the law favors disclosure in instance. (See, e.g. Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86.) Therefore, Defendant shall...

Excerpt: ...ard and Plaintiff is ordered to provide such verification within 14 days. With regard to the request for an order compelling further responses to Demand for Inspection of Documents, Set Two, the Court finds that Defendant's motion is deficient in that no separate statement was submitted as required by Code Civ. Proc. §2031.310(b) and Cal. Rules of Ct., rule 3.1345. Therefore, the motion is DENIED in that regard. Lastly, Defendant has failed to d...

Excerpt: ..., sufficiently pleads facts supporting the elements of the stated claims. b) The motion is GRANTED to the extent that the First Amended Petition purports to seek recovery of fees and costs incurred in the previous dependency and appellate matters. The Court finds no basis for concluding that it has jurisdiction to determine such matters in the instant case. Moreover, such items are not recoverable as a matter of law in connection with dependency ...

Excerpt: ...ure has already determined the confidential nature of proceedings in juvenile matters, both before the trial court and on appeal. (See, e.g. Welf. & Inst. Code §827 and Cal. Rules of Ct., rule 8.401 et seq.) Therefore, the Court finds that the adjudged confidentiality of such matters, as determined by the legislature, must be preserved in connection with the submission of such underlying documents in the context of this proceeding. The Court bel...

Excerpt: ...hat Defendant has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. The Court further finds that Plaintiffs are entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the subject discover...