Excerpt: ...ond Amended Complaint's First, Second, Third, Fourth, and Fifth Causes of Action for uncertainty is GRANTED. The demurrers to such causes of action on other grounds are OVERRULED AS MOOT. The Complaint fails to state the precise legal grounds (e.g. privity, assignment, third party beneficiary, novation, estoppel) that Plaintiff, West Creek Builders LLC, asserts as entitling it to enforce each of the contracts alleged in the Second Amended Complai...

Excerpt: ...(118.1 hours times $275=$32,477.50) plus costs of $5,113.02, for a total award of $37,590.52 fees and costs, and denies the motion to the extent a greater amount was requested. First, this Court's reasonable fee analysis begins with the fact the $32.477.50 of attorney's fees awarded above is more than double the amount Plaintiff's counsel would have received as a contingent fee if this matter had been litigated to a judgment of $30,000, the amoun...

Excerpt: ...Third, Fourth, Fifth, and Sixth Causes of Action fail to state a cause of action and are uncertain is OVERRULED. Plaintiffs have standing and have substantially complied with CCP § 377.32. Each cause of action is not uncertain and states sufficient facts, which are assumed to be true, to establish the causes of action alleged. Motion to Strike (1) the claim for injunctive relief, (2) general damages, (3) attorney's fees and costs, (4) punitive d...

Excerpt: ...ve 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. To limit the spread of the COVID‐19 virus, the court ...

Excerpt: ... constituted outrageous conduct. Assuming that premise to be true, Defendant ECP LP is not alleged to be a party responsible for the wrongful foreclosure, but is alleged to be the purchaser of the property at the foreclosure sale. Thus, as alleged, the facts stated in the Second Amended Complaint do not allege outrageous conduct by Defendant ECP LP and therefore fail to state a cause of action for intentional infliction of emotional distress agai...

Excerpt: ...an agency employing Defendants Jason Enger and Patrice Lorenzo‐Bostrom to an agency employing Defendant and moving party Sandra Genova concerning Plaintiff's fitness as a foster care provider. Defendant Sandra Genova has established a prima facie case that Plaintiff's claims are subject to CCP § 425.16 because it demonstrates that the communications were exercise of free speech in connection with a matter of public interest in that the fitness...

Excerpt: ...owever on April 12, 2021, after the instant motion as filed, Plaintiff dismissed Defendant Pioneer Elementary School District, thereby rendering that portion of these Motions moot), filed January 27, 2021, initially set for hearing on April 14, 2021, and continued to October 7, 2021 by the 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�...

Excerpt: ...of settlement, preliminarily approves class counsel's attorney's fees as $157,500 and reasonable costs not to exceed $20,000, preliminarily approves payment of an enhancement award of $5,000 to the class representative, preliminarily approves allocation of $30,000 as the PAGA Settlement payment of which 75% will be paid to CLWA and 25% to class members, preliminarily approves settlement administration services to be provided by CPT Group. Inc. fo...

Excerpt: ...29, 2020, that an employee found the Dependent Adult on the street but failed to take protective action, with the result that the Dependent Adult continued to walk into a canal area, fell into a canal and drowned. These allegations are assumed to be true for purposes of the instant demurrer. Accordingly, the demurrer is OVERRULED. Motion to Strike Portions of Plaintiffs' First Amended Complaint Defendant's motion to strike portions of plaintiffs'...

Excerpt: ...l Interrogatories, Set One, numbers 1‐3, 5‐7, 9‐10, 12, 14, 17, and 20‐21 by September 30, 2021. Defendant's request for monetary sanctions pursuant to CCP §§ 2023.010‐2023.040, 2023.030(a), and 2030.290(c) against Plaintiff and her attorney is GRANTED. Plaintiff and/or their attorney is ordered to pay $2,205.00 in monetary sanctions by September 30, 2021. The Court will not sign the proposed order lodged with the court on August 13, ...

Excerpt: ...l 7, 2020 through the date of his death on June 12, 2020 and that during that period he developed sepis, multiple stage three and two pressure ulcers, a UTI, an acute kidney injury, and malnutrition. (See Complaint ¶¶ 9‐33.) The Complaint alleges a First Cause of Action for Violation of Patients' Rights pursuant to 22 Cal Code Regs § 72527(a), a Second Cause of Action for Negligence/Wrongful Death, a Third Cause of Action for Willful Miscond...

Excerpt: ...l 7, 2020 through the date of his death on June 12, 2020 and that during that period he developed sepis, multiple stage three and two pressure ulcers, a UTI, an acute kidney injury, and malnutrition. (See Complaint ¶¶ 9‐33.) The Complaint alleges a First Cause of Action for Violation of Patients' Rights pursuant to 22 Cal Code Regs § 72527(a), a Second Cause of Action for Negligence/Wrongful Death, a Third Cause of Action for Willful Miscond...

Excerpt: ...ding Judge. The Motion to Compel Deposition of Defendant's Person or Persons Most Knowledgeable re Categories 15, 21 and 22 and Request for Monetary Sanctions pursuant to CCP § 2023.030(b) is GRANTED and Defendant's objections are OVERRULED. While the ultimate question of whether Defendant's 6th, 9th, 11th, 18th, 20th , 22nd, and 24th Affirmative Defenses are meritorious may constitute a legal conclusion, all facts to be offered at trial in conn...

Excerpt: ...Products LLC offer significant evidence that Defendant Kleinfelder, Inc. was negligent in the performance of the inspection duties that Merced Union High School District hired it to perform, Defendants Custom Building Products, Inc. and Custom Building Products LLC offer not evidence or argument as to why such negligence fails to satisfy the Tech‐Bilt factors given the agreement that Defendant Kleinfelder, Inc. would not be liable for any porti...

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: ...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: ...(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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...