Excerpt: ...y strong smell of raw marijuana, and that the size and use of that type of duffle bag was inconsistent with lawful conduct. Probable cause was bolstered by the unusually nervous and furtive behavior of the defendant. Accordingly, the motion to suppress is DENIED. ...

Excerpt: ...DENIED WITHOUT PREJUDICE. Defendant is ordered to contact witness Rosalba Sanchez and consult with the witness and, if necessary, her doctors to ascertain the circumstances and time under which a deposition might not place an undue burden on her health. One issue may be the time by which she expects to have sufficiently recovered from COVID so as not to present a risk of infection to others, and by which she would be capable of answering question...

Excerpt: ...�] as asserted without authority in the Motion to Dismiss and why the District Attorney has not filed an opposition to the motion allegedly delivered to a District Attorney Court Box. The Court notes that the Request for Admission Number 2 that are the subject of the pending Motion to Compel set for hearing on September 1, 2021 would, if deemed admitted or proven at trial, appear to establish that the subject proceeds were obtained in exchange fo...

Excerpt: ...the First, Second, Third, Fourth, and Fifth Causes of Action therein on grounds of uncertainty and failure to state a claim. The Demurrer to the First, Second and Third Causes of Action on the grounds of uncertainty and failure to state a claim are OVERRULED. The Demurrers to the Fourth and Fifth Causes of Action for Fraud and Negligent Misrepresentation are SUSTAINED WIITHOUT LEAVE TO AMEND. Plaintiff has failed to allege fraud with particularit...

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: ...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: ...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: ... 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: ...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: ... 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: ... 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: ...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: ... 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: ... 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: ...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...