Excerpt: ...his shifts the burden of proof to Defendant to offer admissible evidence establishing a triable issue of material fact. First, Defendant fails to provide a Separate Statement of Undisputed Fact. This alone is grounds for granting the Motion for Summary Judgment. Second, Defendant fails to provide any admissible evidence controverting any of the evidence offered by the moving party and therefore fails to establish that there is a triable issue of ...

Excerpt: ...stigation report is privileged. Defendant has established a prima facie case that the investigation report is privileged (See Holm v. Superior Court (1954) 42 Cal.2d 500; Travelers Ins. Cos. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to appear. 2. You must give notice to all other parties be...

Excerpt: ...ations that while in the care of Defendant, Plaintiff, an elder, suffered stage III and IV pressure ulcers requiring surgery, malnutrition, and sepsis leading to the death of such elder. The action is brought by Plaintiff's successor in interest. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to...

Excerpt: ...abate the alleged nuisance by immediate removal of the pipeline, (b) general damages, (c) costs, and (d) other relief. The relief requested for the Second Cause of Action is (a) injunctive relief to abate the alleged nuisance by immediate removal of the encroaching trees, (b) costs, and (c) other relief. The relief requested for the Third Cause of Acton is (a) restitution of the premises, (b) general damages, (c) costs, and (d) other relief. Ther...

Excerpt: ...mended Complaint's Eleventh Cause of Action for Fraudulent Concealment and the Twelfth Cause of Action for Recission are OVERRULED. The Sixth Amended Complaint's Eleventh Cause of Action for Fraudulent Concealment alleges, with particularity, communications in the 2004 time frame concerning the potential for water intrusion from the Merced Irrigation District Canal that adversely affected the residential subdivision built on those properties. The...

Excerpt: ...ered to contact the clerk of the court at (209) 725‐ 4240 to provide their contact information for the remote hearing. The OSC re sanctions is DISCHARGED. In the future, the parties are ordered to set a hearing on the Court's 8:15 a.m. Law and Motion Calendar whenever any party files objections to a Special Master Order. The Objections by Merced Irrigation District filed March 3, 2021 are OVERRULED. The primary objection is that Merced Irrigati...

Excerpt: ...ies of all information supporting the alleged charges is provided to Plaintiff on the grounds that Plaintiff cannot effectively explain his conduct without additional information about the charges. There is no evidence that Plaintiff has exhausted his administrative remedies by formally requesting unredacted copies of all documents supporting the alleged charges, and no evidence that Plaintiff has exhausted his administrative remedies by requesti...

Excerpt: ...ith Cross‐Defendant Kleinfelder, Inc. excluded any warranty claim, so the liability of Cross‐Defendant Kleinfelder, Inc. is based on the theory that Cross‐Defendant Kleinfelder, Inc. was negligent in discovering and warning about the negligence of contractors who were providing a warranty for their products and services. Put another way, even if Cross‐Defendant Kleinfelder, Inc. were found liable for 100% of the unpaid balance of the cost...

Excerpt: ...erior Court (1997) 58 Cal.App.4th 1126, 1131.) Since the parties vigorously contest the veracity of the evidence submitted in support of the motion to set aside the default judgment, discovery on jurisdictional issues is appropriate. Defendant's filing on January 24, 2017 with the California Secretary of State established that his corporate address for his corporation, Family Tree Landscape Contractors, Inc., was 1082 Arizona Drive, Merced CA 953...

Excerpt: ...(q) because it was filed within three years of January 1, 2020. CCP § 340.1 expressly applies to entities, and Government Code § 905 excludes claim presentation requirements for claims brought against public entities under CCP § 340.1. The Legislature therefore intended that CCP § 340.1 apply to public entities. “Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those respons...

Excerpt: ...aised at trial were not alleged in the answer is not a basis for new trial because the pleadings frame the issues on which trial is conducted. The claims that witnesses lied and that the court is biased are unsubstantiated and therefore are not a basis for new trial. There was no surprise at trial that ordinary prudence would not have guarded against. Again, Moving Parties had an opportunity to conduct discovery. The fact that Moving Parties may ...

Excerpt: ... Defendant correctly points out that the opening of escrow and the purchaser's good faith intent to reside in the property for at least one full year are two of the six elements the plaintiff owner must prove to be entitled to the reduced 30‐day period of notice under Section 1946.1, subdivision (d). Neither the language of the statute nor any case authority cited by defendant requires the owner to specifically allege each element of Section 19...

Excerpt: ...vidence of oppression, surprise, or sharp tactics, that the agreement is conspicuous, that the fact that specific arbitration rules are not mandated, but are to be agreed to by the parties does not render the agreement unconscionable or inadequate, and that the choice of law provisions are not unconscionable and are of a type commonly enforced. The court finds that Plaintiffs' arguments regarding substantive unconscionability are unavailing. The ...

Excerpt: ...arp tactics, that the agreement is conspicuous, that the fact that specific arbitration rules are not mandated, but are to be agreed to by the parties does not render the agreement unconscionable or inadequate, and that the choice of law provisions are not unconscionable and are of a type commonly enforced. The court finds that Plaintiff's arguments regarding substantive unconscionability are unavailing. The absence of a Berman hearing does not r...

Excerpt: ...iness during the pendency of this litigation. The preliminary injunction is without prejudice to the right of Defendants to appear by noticed motion, or if exigent circumstances exist, ex parte, to seek modification of the preliminary injunction to permit a specific transaction. Plaintiff shall post an undertaking of $50,000. Defendants have not established that attachment is inappropriate simply because the ownership of the land to be attached i...

Excerpt: ...ld Textile Services, San Diego, LLC, Wash Encore Holdings, LLC, Jaye Park, and Chris Sznewajs named in the CrossComplaint filed by Automatic Boiler Company, Inc. on August 18, 2020 filed the instant motion to strike the pleadings of Automatic Boiler Company, Inc. on the grounds that The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 ...

Excerpt: ... Courts should generally be liberal in permitting amendments to pleadings, as long as the statute of limitations has not expired and the opposing party will not be prejudiced by the amendment from, for example, a delay in the trial of the case, the loss of critical evidence, or added costs of trial preparation. Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240. Since the motion only seeks to reduce the size of the class, there is no preju...

Excerpt: ...etaliation, Failure to Prevent Discrimination, etc. If more than one administrative action is asserted to violate a given FEHA cause of action, e.g. discrimination with regard to sick leave and discrimination with regard to termination of employment, each alleged discriminatory action should be alleged as a separate cause of action. The Demurrer for Failure to State a Cause of Action is SUSTAINED WITH LEAVE TO AMEND to allege exhaustion of the FE...

Excerpt: ...of motions in limine, all decision regarding evidence in a matter rest with the sound discretion of the trial judge. Defendants do not provide, as required by CCP § 475, that a different result would be probable if the motions in limine had been rejected for if the motion for new trial was granted. 3. Documentary Evidence Not Served on Defendant Entered Into Evidence. There is no contention that the documentary evidence was no admissible or that...

Excerpt: ...uant to CCP § 425.16 envisions a two‐step process: First the Defendant must make a threshold showing that the challenged allegations arise from a protected activity. If Defendant makes the required showing, Plaintiff must present competent admissible evidence showing a probability that they will prevail on the merits. Cross‐ Defendants satisfied their initial burden by demonstrating that the First Amended Cross‐Complaint's Paragraph 116 in...

Excerpt: ... form DRE and that he would provide adequate legal services which Plaintiff retained Defendant to provide.” Such facts do not entitle either Plaintiff to punitive damages. Paragraph 65 alleges “Defendant introduced Plaintiff to other clients of his, one of them being Shearer, concerned this would create a conflict of interest, Plaintiff voiced her concerns to defendant. Defendant expressly assured Plaintiff there was no conflict of interest. ...

Excerpt: ...iled to establish any manner of mistake or excusable neglect, he simply ignored the litigation. Third, the request is more than six months beyond the date that the default was entered on October 5, 2020. Fourth, and finally, the judgment is based on a claim on a promissory note for money loaned to Defendant. Defendant has failed to provide any evidence that a different result would have been probable if relief were granted. amend. ...

Excerpt: ...le Action Against Merced County Office of Education and Winton School District is DENIED. The weight of evidence before this court is that Plaintiff never filed a claim or an application to file a late claim with either Merced County Office of Education or Winton School District. Documents submitted to Merced County with regard to a claim against Merced County do not satisfy the need to file a separate claim with Merced County Office of Education...

Excerpt: ...regard to a claim against Merced County do not satisfy the need to file a separate claim with Merced County Office of Education and Winton School District. While mistake concerning the respective legal relationship between Merced County and Merced County Office of Education and Winton School District may, under certain circumstances, qualify as grounds justifying a late claim, it does not excuse the filing of any claim whatsoever. The weight of e...

Excerpt: ...d that a general anesthesia was necessary when in fact a local anesthetic and ¼ inch incision was adequate in order to induce Plaintiff to cancel a procedure scheduled with another surgeon; (2) Defendant falsely stated that the object removed was a venting wire or fencing wire when in fact a guide wire left behind from a previous surgery; and (3) Although Plaintiff requested that the foreign object that was removed be retained, Defendant falsely...

Excerpt: ...NTS (audio recording(s)) between Esurance Property & Casualty Company's claims adjuster and Plaintiff's Counsel Robert T. Tang, Esq.” The objection that such subpoena fails to comply with the requirements for seeking the personal consumer records of the Defendant is frivolous. The subpoena seeks evidence of a conversation between Plaintiff's counsel and an Esurance Claims Adjuster, not any personal record of the Defendant. While it appears that...

Excerpt: ...by concealing the fact of his incarceration. Exercising its independent judgment, this court finds that the Commissioner property determined that Petitioner was subject to profesional discipline and the Commissioner did not abuse his discretion by determining that the appropivate discipline was license revocation. This Court further finds that, under the circumstances, revocation of Petitioner's license is in the Public's Interest. ...

Excerpt: ...2015‐00669, Detective Johnson of the Merced Police Department interviewed Decedent Alejandro Alex Vega and using the reference name “CW‐1” prepared a 3 page written report of the interview in which “CW‐1” reported that Joseph Elias Castrillo confessed to “CW‐1” that Castrillo had murdered Merced Taxi Cab driver Dean Barker” and “that in the written report of the interview with “CW‐1” by Detective Johnson in Case #201...

Excerpt: ...ties are ordered to contact the clerk of the court at (209) 725‐4240 to provide their contact information for the remote hearing at 1:30 p.m. No appearance is necessary at the 8:15 a.m. hearing. For the convenience of the parties, the court issues the following tentative ruling: The Application for Preliminary Injunction is DENIED and the Temporary Restraining Order currently in effect is DISSOLVED. Merced Irrigation District bears the burden o...

Excerpt: ...ed on October 27, 2017 and vacate the default judgment entered on March 20, 2019 is DENIED as untimely. A motion under section 473, subdivision (b) must be brought no more than six months after the judgment or order was made. In addition, a motion under section 473(b) must be accompanied by a copy of the answer or other responsive pleading the moving party intends to file. No proposed answer or responsive pleading was filed with the moving papers...

Excerpt: ...to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (See e.g. Record v. Reason (1999) 73 Cal.App.4th 472, 478 [“even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial”][quoting Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939–940].) Second, the Class Action Allegations contained in the P...

Excerpt: ...ased on a 60‐day notice to quit The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. ...

Excerpt: ...ng of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. To limit the spread of the COVID‐19 virus, the court will only conduct remote hearing...

Excerpt: ... Interrogatory #2 [All Facts Supporting Contention that the trailer does not qualify for repurchase], #3 [All persons who have knowledge supporting such contention], #5 [Identification of Customers supporting response to Interrogatory 4], #6 [All persons who have knowledge supporting response to Interrogatory 4], and 7 [Number of customer complaints regarding same make, model, and year vehicle]. The objections by Defendant Eclipse Recreational Ve...

Excerpt: ... and retention, a Fourth Cause of Action for Negligence in violation of Government Code § 815.2(a), and a Fifth Cause of Action for Violation of the Unruh Act arising from the treatment the minor Plaintiff at his school. Plaintiff seeks to compel Defendant Celine Bautista to provide further responses to Form Interrogatories, Set One, Nos. 10.2 [physical or emotional disabilities you had prior to the incident], 12.1 [witnesses and statements to i...

Excerpt: ...f fails to state a claim for which relief can be granted. The demurrer to the First Cause of Action for Cancellation of Deed is OVERRULED. Paragraphs 15 and 16 allege that the Quit Claim deed Plaintiff signed was represented to be a transfer of utilities, a grounds for cancellation under Civil Code § 3412. While the complaint is uncertain in that it fails to specify whether the misrepresentation concerning the nature of the document signed is al...

Excerpt: ... Enrique Cervantes Zamora for release of wage hour claims that are not included in the PAGA action as partial consideration for his agreement to settle the PAGA claims for $55,000. Clearly Plaintiff Enrique Cervantes Zamora has a conflict of interest between what is best for him personally and what is best for the PAGA class, and is therefore no longer a suitable representative Plaintiff for the PAGA action. PAGA counsel would appear to have a co...

Excerpt: ... Enrique Cervantes Zamora for release of wage hour claims that are no included in the PAGA action as partial consideration for his agreement to settle the PAGA claims for $55,000. Clearly Plaintiff Enrique Cervantes Zamora has a conflict of interest between what is best for him personally and what is best for the PAGA class, and is therefore no longer a suitable representative Plaintiff for the PAGA action. PAGA counsel would appear to have a con...

Excerpt: ... the allegations of the complaint appear to allege a claim that is distinct from the other litigation. A formal order was filed on January 11, 2021, Notice of Entry of Order was filed on January 14, 2021, and this Motion for Reconsideration was filed on January 19, 2021. A hearing was held on February 11, 2021, where this Court [Hon. Proietti] issued a tentative ruling which granted reconsideration on the court's own motion, and changed the rulin...

Excerpt: ...nst defendant based on termination of defendant's employment and right to occupy the premises. (See Code Civ. Proc., §§ 1161(1), 1166.) Defendant's lengthy demurrer does not identify any pleading defect that would make the complaint vulnerable to general demurrer. Defendant's special demurrer to the complaint for uncertainty is OVERRULED. (Code Civ. Proc., § 430.10, subd. (f).) The complaint alleges all the necessary facts to constitute a caus...

Excerpt: ...ablishing liability under Government Code § 815.2, Government Code § 815.4 or Government Code § 820 are insufficient, because liability depends on terms of the specific statute under which liability is asserted. (See Government Code § 815; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 [“…direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creat...

Excerpt: ...835 and qualify as a dangerous condition on public property, then every step and stairway located on any California Public Property (and for that matter, every curb to every sidewalk located on public property) would also qualify as a dangerous condition because a person approaching the step or curb from the lower side will fall if they fail to observe the step and fail to step up onto the step. Whether there is a dangerous condition may be resol...

Excerpt: ...at a court must conduct when addressing a claim that a civil matter is Yount‐barred as follows: Heck [v. Humphrey (1994) 512 U.S. 477, [114 S.Ct. 2364, 129 L.Ed.2d 383] (“Heck”)] bars a section 1983 claim if it is inconsistent with a prior criminal conviction or sentence arising out of the same facts, unless the conviction or sentence has been subsequently resolved in the plaintiff's favor. (Id. at pp. 486–487, 114 S.Ct. 2364.) In essence...

Excerpt: ...ng 25% of the approximately $15,840.00 residual, i.e. approximately $3,960 to be split between 39 employees, or an average of approximately $101.00 per employee. If, for example, the allocation to Plaintiff were reduced to $3,000, the residual would increase to $27,840, and the 25% allocated to the 39 other employees would increase to $6,960 or an average of $178 per employee, a 76% increase to the aggrieved employees. The briefing should also ad...

Excerpt: ...ct, the employer of the truck's driver, Defendant Jack William, is GRANTED. As a matter of first impression in California, this court finds that the Graves Amendment, 49 U.S.C. § 301106(a) preempts California Vehicle Code § 17150 in cases such as this where the elements of the Graves Amendment are satisfied and the Graves Amendment savings clause does not apply. This court finds that Defendants Undisputed Facts are supported by admissible evide...

Excerpt: ...d its tentative ruling which denied without prejudice the request for OSC re Preliminary Injunction and TRO with regard to the First Cause of Action for Public Nuisance, granted in part and denied in part the request for OSC re Preliminary Injunction and TRO with regard to the Second Cause of Action for Unfair Business Practices and issued an OSC re Preliminary Injunction and TRO 20 categories of specific safety precautions, and ordered Plaintiff...

Excerpt: ...iversity of California implemented data analysis to support UC PATH mitigation], 62 [Identify the results of the data analysis conducted to support UC PATH process mitigation], 63 [Identify all documents containing the results of the data analysis conducted to support UC Path process mitigation], 66 [State the employee identification number of each person employed by the University of California in the Payroll Analyst 2 job position at any time b...

Excerpt: ...son, due to multiple alleged conflicts of interest. The court has been unable to locate the declarations and evidence alluded to throughout the motion as establishing the alleged conflicts of interest and it appears that such declarations were not filed with the court on December 15, 2020, although the proof of service indicates that Declarations of Cyrus Nownejad, Gita Nownejad, and K. Raldis were served on the parties along with the moving pape...

Excerpt: ... Misrepresentation, and the Fourteenth Cause of Action for Rescission Based on Fraud are adequate to state a claim against an individual defendant, the allegations of the Fourth Amended Complaint do not satisfy the stricter pleading requirements for fraud against corporate defendants. Unless all of the Plaintiffs received the same representation at the same time, in the same manner, and from the same person, each plaintiff must allege (1) the nam...

Excerpt: ... Contract‐ Personal Guaranty, a Sixth Cause of Action to enforce License Bond against Surety, a Seventh Cause of Action for Foreclosure of Mechanics Lien, and an Eighth Cause of Action (named in the complaint as a second Seventh Cause of Action) to Enforce Private Work Stop Payment Notice. On November 19, 2020, Plaintiff filed a motion for summary judgment, or in the alternative, summary adjudication, of the First, Second, Third, Fourth, and Fi...

Excerpt: ...akes bare allegations that are not supported by the facts or evidence in this case” (May 13, 2020 Order of Denial at Page 2:23‐25), and (2) the August 26, 2020 Ruling on Informal Request for Issuance of a Subpoena For Evidence Supporting Petition for Writ of Habeas Corpus are judicial acts to which Judge Jeanne Schechter is entitled to absolute judicial immunity. Accordingly, the demurrer must be SUSTAINED on that grounds alone. Furthermore, ...

Excerpt: ...aratory Relief pursuant to California Code of Civil Procedure section 1060. The instant application by Plaintiffs for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction seeks eleven categories of mandatory injunctive relief and is supported by twelve initial and four responsive declarations. Notice of the instant application has been provided to Defendant and Defendant has filed an opposition supported by three initial ...

Excerpt: ...ere as follows: The Motion by Lenice Wilson as Trustee of the Wilson Charles & Lenice 2015 Revocable Living Trust Incorrectly Sued as Estate of Charles Rayburn Wilson to Compel Responses by Estate of Edyna Sischo‐Nownejad to Request for Admissions, to Strike Improper Objections, Compel Verification, and Request for Monetary Sanctions of $2,343.75. pursuant to CCP § 2033.010 is GRANTED. The Motion by Lenice Wilson as Trustee of the Wilson Charl...

Excerpt: ...de standing to litigate the reasonableness of an industrial use of water. (See In re Water of Hallett Creek Stream Sys. (1988) 44 Cal.3d 488, 472 fn 16.) While COVID‐19 related guidelines may be relevant to whether an injunction may issue at a given point in time, they do not preclude litigation of the underlying rights for which injunctive relief is sought and cannot preempt state law concerning unreasonable use of water within that state. Fin...

Excerpt: ...ce requirements under the COVID‐19 Tenant Relief Act are inapplicable and the Act does not require dismissal of this action because the notice to quit is not based on a demand to pay COVID‐19 rental debt. (See Code Civ. Proc., § 1179.03(a).) Accordingly, the demurrer to the complaint on the ground that the notice to quit is insufficient to establish a cause of action for unlawful detainer is overruled. The Court notes, however, that the comp...

Excerpt: ...lex Vega and using the reference name “CW‐1” prepared a 3 page written report of the interview in which “CW‐1” reported that Joseph Elias Castrillo confessed to “CW‐1” that Castrillo had murdered Merced Taxi Cab driver Dean Barker” and alleged in Paragraph 30 “that in the written report of the interview with “CW‐1” by Detective Johnson in Case #2015‐00669 included personally The following tentative rulings shall beco...

Excerpt: ... motion seeks to continue. Second, while the court is sympathetic to the death of counsel's sister and the delay that may have caused to the filing of a motion to disqualify defense counsel, there has as yet been no showing that the outcome of the motion to disqualify is relevant to the right of the Defendants to obtain the discovery sought, regardless of whether their current counsel is disqualified. The court notes that the nature of the discov...

Excerpt: ...ncerns can be addressed by a suitable protective order or redaction of employee identifying information and assignment of an identification code to each record. Defendant is ordered to produce records of employees who are members of the putative class alleged in the operative complaint having even numbered social security numbers, without regard to employment location, without regard to business line, unless the parties enter into a written agree...

Excerpt: ...e regular rate of pay of covered employees udering the relevant time period] and 32 [Describe Defendants methods, polices and procedures during the relevant time period for rounding covered employees' overtime pay] and for monetary sanctions of $4,666.50 against Defendants and its counsel of record pursuant to CCP § § 2023.010 is GRANTED IN PART. Defendant's objections are frivolous and are therefore overruled, and Defendant is ordered to serve...

Excerpt: ...the employees of Defendant Smart & Final Stores, LLC employed during the period applicable to each claim by representative plaintiffs. It would appear that the only potential conflict where a firm represents more than one PAGA representative Plaintiff against the same Defendant would be the potential effect that the representation of one PAGA representative Plantiff might have on a different PAGA representative Plaintiff's ability to be compensat...

Excerpt: ...led a Notice of Settlement. The declaration indicates that the parties have reached an impasse on the wording of the release. The acceptance of a CCP § 998 constitutes an agreement to enter judgment for the agreed upon amount in the pending action which in turn, pursuant to the doctrine of res judicata, bars further actions on claims that were brought or could have been brought in the pending action. In does not necessarily bar “all claims kno...

Excerpt: ... its documents in support of or in opposition to the motion [for class certification] must be filed.” (Cabrini v. Superior Court (1994) 26 Cal.App.4th 239, 244.) While there is merit to Defendant's contentions that some discovery requests were unartfully drafted or contained provisions barred by the discovery rules, the remedy is to provide appropriate responses to the portion of a request that seeks legitimate discovery and refuse to provide r...

Excerpt: ... complies or orders declaring matter admitted or established if answers are not received. It is only when a party persists in disobeying the court's orders that the ultimate doomsday sanctions of dismissing the action is justified. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez v. Watchtower Bible & Tract Soc. Of New York, Inc. (2016) 246 Cal.App.4th 566, 604; Siry Investments, L.P. v. Farkhondepour (2020) 45 Cal.App.5th 1098, 1117 [disc...

Excerpt: ...fendant Travelers Property Casualty Company contends that Plaintiff has failed to establish a prima facie case that it is entitled to judgment as a matter of law because proposed undisputed facts are not supported by admissible evidence, and that an exclusion for professional services contained in the subject policy precludes coverage because there is a triable issue of material fact as to whether Plaintiff Architectural Firm Bunton, Clifford & A...

Excerpt: ...o Facts Number 2, 6, 7, 8, and 10. Plaintiff's evidentiary objections are SUSTAINED. Motion for Summary Judgment by Defendants Richard J. Meyer, Linda B. Meyer and Meyer Family Trust. ‘ The motion for Summary Judgment by Defendants Richard J. Meyer, Linda B. Meyer and Meyer Family Trust is GRANTED. First, the Complaint's first cause of action for Dangerous Condition on Public Properly Pursuant to Government Code § 835 does not establish a clai...

Excerpt: ...cordance with Code of Civil Procedure sections 2023.030(a) and 2033.280(b), the Court imposes a monetary sanction in the amount of $355.00 against defendant Florence Manning which is due and payable to plaintiff ten days after notice of The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to appear. 2...

Excerpt: ...the first, second, and sixth causes of action of the complaint by Bernards Bros, Inc. in Case 19CV‐03817 is DENIED. Defendants fail to provide admissible evidence establishing a prima facie case that they are entitled to judgment as a matter of law. Even if Defendants were deemed to have established a prima face case, Bernards Bros., Inc, has established triable issues of material fact with regard to each ground on which summary judgment or sum...

Excerpt: ...fendant Travelers Property Casualty Company contends that Plaintiff has failed to establish a prima facie case that it is entitled to judgment as a matter of law because proposed undisputed facts are not supported by admissible evidence, and that an exclusion for professional services contained in the subject policy precludes coverage because there is a triable issue of material fact as to whether Plaintiff Architectural Firm Bunton, Clifford & A...

Excerpt: ...‐4240 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. To limit the spread of the COVID‐19 virus, the court encourages remote hearings by telephone or video. Parties who contest the tentative ruling or wish to appear remotely must contact the cl...

Excerpt: ...nt cause of the accident does not entitle Defendant to judgment as a matter of law because California is a comparative negligence state and even though a jury might find Plaintiff to be 99% or 100% at fault, the degree of Plaintiff's comparative fault is a triable issue of material fact. Defendant's Undisputed Facts Numbers 1‐7 are supported by admissible evidence and establish a prima facie case that Defendant is entitled to judgment as a matt...

Excerpt: ...of Request for Admissions Numbers 1‐3 and unambiguously denies the reaminder. Sanctions in the amount of $1,220.00 are awarded pursuant to CCP §§ 2023.010 and 2023.030(a). Plaintiff is to serve Supplemental responses and payment of sanctions by September 25, 2020. Motion for Summary Adjudication Defendant Liberty Packing Company's motion for summary adjudication of the following issues: (1) The First Cause of Action for Discrimination is with...

Excerpt: ...tion. Accordingly, leave to amend would appear to be futile. This court therefore SUSTAINS the Demurrer to the Third Amended Complaint WITHOUT LEAVE TO AMEND. Under White v. Square, Inc. (2019) 7 Cal.5th 1019, a person intending to use web based services who encounters a facially neutral term of service that bars some categories of transactions but not others, does not have standing to pursue intentional discrimination claim based on allegations ...

Excerpt: ...tion. Accordingly, leave to amend would appear to be futile. This court therefore SUSTAINS the Demurrer to the Third Amended Complaint WITHOUT LEAVE TO AMEND. Under White v. Square, Inc. (2019) 7 Cal.5th 1019, a person intending to use web based services who encounters a facially neutral term of service that bars some categories of transactions but not others, does not have standing to pursue intentional discrimination claim based on allegations ...

Excerpt: ...nce that establishes a prima facie case that Defendant Apple, Inc. is entitled to judgment as a matter of law. This shifts the burden of proof to Plaintiff to establish a triable issue of material fact. The essence of Plaintiff's opposition is that Defendant failed to accommodate Plaintiff's disability because Plaintiff was unable to perform the duties of the job she was hired to perform, even with reasonable accommodations because she suffered e...

Excerpt: ...ing information from discovery is asserted, the party asserting such privilege, work product or other grounds for withholding documents or information from discovery will be barred from offering such documents or information, or testimony about such documents or information, at trial. That motion is GRANTED. Any party is free to waive privilege, work product, or other basis for withholding information from discovery; however, to the extent that a...

Excerpt: ...of Request for Admissions Numbers 1‐3 and unambiguously denies the reaminder. Sanctions in the amount of $1,220.00 are awarded pursuant to CCP §§ 2023.010 and 2023.030(a). Plaintiff is to serve Supplemental responses and payment of sanctions by September 25, 2020. Motion for Summary Adjudication Defendant Liberty Packing Company's motion for summary adjudication of the following issues: (1) The First Cause of Action for Discrimination is with...

Excerpt: ...o Facts Number 2, 6, 7, 8, and 10. Plaintiff's evidentiary objections are SUSTAINED. If there is any objection to this tentative ruling, this motion is continued on the court's own motion to Friday, September 11, 2020 at 8:15 a.m. in Courtroom 8. Motion for Summary Judgment by Defendants Richard J. Meyer, Linda B. Meyer and Meyer Family Trust. The motion for Summary Judgment by Defendants Richard J. Meyer, Linda B. Meyer and Meyer Family Trust is...

Excerpt: ...s of action for (1) Inverse Condemnation against Merced Irrigation District, (2) Negligent Maintenance against Merced Irrigation District, (3) Dangerous Condition on Property against Merced Irrigation District, (4) Nuisance against Merced Irrigation District, (5) Breach of Contract against the Ransom Piro Construction and Development Defendants, (6) Violations of Civil Code § 895 against the Ransom Piro Construction and Development Defendants, (...

Excerpt: ...isting order are not being obeyed. The appropriate remedy for any violation of the existing restraining order is to report such violation to the police. If, in January of 2021, Respondent wishes to extend the terms of the restraining order, she may file an application for renewal on or before the existing order expires on February 26, 2021. Since there is no action for the court to take at this time, the Petition to Modify is DISMISSED. If there ...

Excerpt: ...se the plaintiff lacks mental competence allegedly as a result of a traumatic brain injury suffered as a result of the incident giving rise to this action. Consequently, the Guardian Ad Litem lacks personal knowledge of many facts that a typical competent plaintiff could testify to based on the Plaintiff's own personal knowledge. When receiving discovery requests, the Guardian Ad Litem has an obligation to conduct a diligent search and make reaso...

Excerpt: ...t Defendant's Motion to Quash Plaintiff's Subpoena for Business Records filed by Defendant Foster Poultry Farms. The stay appears to apply only to this court's June 29, 2020 order and not to other matters pending in this case. In this motion for sanctions by Defendant Foster Poultry Farms, to which Defendant Dan Huber joins, Defendants seek an order, pursuant to CCP § 2023.010(g) either (a) an order dismissing Plaintiff Curtis LaClaire's Second ...

Excerpt: ...closes the expert who prepared the existing Defense Cost of Repair Allocation, all reports by that expert, including the subject Defense Cost of Repair Allocations must be produced. If Bernard Bros., Inc. discloses a different expert for Cost of Repair Allocations, then the subject report will remain privileged, and the new report of the designated expert will be produced in accordance with normal expert discovery rules. If Bernard Bros., Inc. do...

Excerpt: ...uses of action arising out of the refusal of Merced Irrigation District to sell water to Cross‐Complainants between two lawsuits, Case 19CV‐02453 in which CrossComplainants brought a Verified Petition for Peremptory Writ of Mandate to compel the sale of water that had been allegedly denied for not being in the best interest of Merced Irrigation District, and this action, Case 19CV‐03470, in which they seek damages for the both the original ...

Excerpt: ...yment contract with Apple to maintain an office in their home that meets specified requirements, but who are not reimbursed for the expense of such home office. The complaint seeks damages and reimbursement for the expenses incurred by members of the class in maintaining the home office. Thus, inspection of Plaintiff's home, and the home office within it, is reasonably calculated to lead to the discovery of admissible evidence as to the appropria...

Excerpt: ...xist. Accordingly, there are triable issues of material fact with regard to Facts 3, 4, 5, 6 and Additional Disputed Fact F. Plaintiff's lay opinion that the floor was excessive slippery, an issue within the scope of her day to day experience, is based on her percipient observation of the floor and is admissible evidence that the floor was excessively slippery. ...

Excerpt: ...unts terminated on the basis of their occupation without evidence that they engaged in a transaction prohibited by the terms of service. An intentional discrimination claim cannot be based on an arbitrary termination of services based on an algorithm absent allegations that such algorithm uses a protected classification as a criteria for the termination of services. Absent the allegation that a protected class criteria is applied, an algorithmic ...

Excerpt: ... entry of order is GRANTED. Plaintiff served defendant with notice of the order. It is undisputed defendant has not provided plaintiff with responses to the request for production of documents. (Solomon Decl., ¶ 3.) By failing to file written opposition, defendant has not provided any explanation for her willful failure to comply with the order to provide discovery and therefore the Court concludes it is unlikely a lesser sanction would be effec...

Excerpt: ...ompensation is claimed as part of an alleged continuing claim. Note that if there are claims involving multiple properties, separate facts establishing a continuing claim must be alleged for each property. The motion to strike the injunctive relief claim for failure to comply with the Government Claims Act is DENIED. The motion to strike the drainage injunctive relief claim is GRANTED WITH LEAVE TO AMEND to separately allege specific facts establ...

Excerpt: ... strike is GRANTED WITHOUT LEAVE TO AMEND. This will become the order of the court unless a party notifies the court that it objects to the tentative, in which case, the order of the court will be that the matter is CONTINUED TO TUESDAY MAY 26, 2020 at 8:15 a.m. in Courtroom 8. ...

Excerpt: ...urt (2017) 3 Cal.5th 531, 545.) Motion to Approve Settlement The motion by Plaintiff Sherry Bruns to approve settlement is continued to Wednesday, April 15, 2020 at 8:15 A.M. Plaintiff Bruns and Defendant Smart & Final are ordered to file, by April 3, 2020, allocation estimates allocating the $3,470,000.00 settlement to the Labor Code violations being released by the proposed settlement, i.e. the amount being paid for each type of claim being rel...

Excerpt: ... California law, parties to a commercial lease may agree to their own notice requirements for termination of the tenancy. In this case, the complaint alleges all the necessary facts to constitute a cause of action for unlawful detainer based on termination of a commercial lease. (See Code Civ. Proc., § 1166.) Defendant shall file her answer within five days of notice of entry of order. (Cal. Rules of Court, rule 3.1320(g); Code Civ. Proc., § 47...

Excerpt: ...el further response to Requests 12‐14, 19, 28, and 32 is granted with respect to document involving driver Jeffrey Cone and otherwise denied. The motion to compel further response to Requests 48‐51 are granted with regards to documents in Responding Party's possession and control and otherwise denied. The motion to compel further response to Requests 58‐59 is denied. The motion to compel further response to Requests 60‐64, 71, 73, 79‐80...

Excerpt: ... discovery, but not to extrinsic evidence of facts in declarations filed by adverse parties contradicting the pleading. (See Del e. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604‐605.) Since the allegations of the First Amended complaint's ¶ 24 are not contradicted by matters of which this court takes judicial notice, and since the allegations on their face state facts sufficient to establish a cause of action and are no...

Excerpt: ...essed to and received by crossdefendant) referenced in the cross‐complaint are not attached as exhibits to the pleading. Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery proc...

Excerpt: ...c. to the first cause of action for breach of the agreement to pay full rent is SUSTAINED for failure to allege facts sufficient to constitute a cause of action, based on facts showing the affirmative defenses of (1) release and (2) accord and satisfaction. Those facts were judicially noticed from 17CL0229, 18CL0196, and the Pylon Sign Lease Agreement, and trump contrary The following tentative rulings shall become the ruling of the court unless ...

Excerpt: ...nd notice of the entry of the default judgment was served by mail on the moving defendant on December 14, 2018. To challenge the entry of default, the motion must be filed and served within a reasonable time, but no later than six months after the entry of default. (Code Civ. Proc., § 473, subd. (b); Bae v. T.D. Serv. (2016) 245 Cal.App.4th 89, 97.) Here, defendant's motion challenging the default entered on March 16, 2018 and default judgment e...

Excerpt: ...oper remuneration. In addition to provisional relief, MID seeks damages for conversion and trespass. Before the Court this day is a defense motion to remove and transfer the action to a “neutral” county. Pursuant to CCP §394(a), any action brought by a government agency in its own locality against an entity doing business in a different county shall be removed and transferred to a neutral county – that is, a county where neither the plaint...

Excerpt: ...id not require defendant to provide responses to plaintiff's requests for admissions. Further, to the extent plaintiff moves for a terminating sanction based on defendant's failure to pay the monetary sanctions ordered, the motion fails as a matter of law. Failure to pay discovery sanctions does not justify a terminating sanction. Sanctions orders are enforceable as money judgments therefore the remedy to enforce payment of monetary sanctions is ...

Excerpt: ... § 657).) Plaintiff's arguments do not support claims of error based on the explicit grounds contained in Code of Civil Procedure section 657. Plaintiff's seventeen (17) purported “grounds” are actually arguments that Plaintiff has already made in support of its objections to the Court's Statement of Decision. Thus, Plaintiff has failed to raise any new issue of fact or law not already fully considered by the Court because each issue raised ...

Excerpt: ...on of showing one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action, and therefore the burden shifts to plaintiff to show the existence of one or more triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not met his burden. As an initial matter, the Court notes that the complaint does not contain any charging allegations against Brittany Mc...