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...