Excerpt: ...stantively deficient. Service of both motions was made via electronic means on May 24, 2019, and June 6, 2019, respectively. In order for service by electronic means to be proper, the parties must expressly consent to accept service of process in that fashion. See California Rules of Court, rule 2.251. The motions are also procedurally deficient in that they appear to be made on behalf of a corporation – Defendant Coast Xpress, Inc. – by a pe...

Excerpt: ...are a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, rule 3.1312, and to provide notice thereof to the opposing party as required by law and the California Rules of Court. The order is to be submitted by electronic filing to Hon. Brian L. McCabe. Cross‐ Defendants' Motion to Compel Cross‐Complainants to Provide Further Responses to Discovery Cross‐ Defendants' Motion to Com...

Excerpt: ... 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. Note: Notifying Court Call of your intent to appear does not satisfy the requirement of notifying the court. Plaintiff's request for information as set forth in Form Interr...

Excerpt: ...09) 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. Note: Notifying Court Call of your intent to appear does not satisfy the requirement of notifying the court. contract, (2) plaintiff's performance or excuse for nonperformance, (3) ...

Excerpt: ...egligent infliction of emotional distress under either the “bystander” or “direct” theory set forth in legal precedent. (See Dillon v. Legg (1968) 68 Cal.2d 728 and Thing v. La Chusa (1989) 48 Cal.3d 644 with regard to the “bystander” theory and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 with regard to the “direct” theory.) In opposition, Plaintiffs have failed to provide any additional facts they might allege whic...

Excerpt: ... 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. Note: Notifying Court Call of your intent to appear does not satisfy the requirement of notifying the court. Defendants' meet their burden of setting forth allegedly undisputed material facts (UMFs) which, if actually undisputed, would support both summary judgment, and summary adjudication of the two...

Excerpt: ...y response because he did not receive a copy of the summons and complaint until May 22, 2019. However, plaintiff filed a proof of service executed by a registered process server stating under penalty of perjury that on April 15, 2019 he served a copy of the summons and complaint on defendant at his residence by substituted service followed by mailing an additional copy of the summons and complaint to defendant. Filing a proof of service from a re...

Excerpt: ...attacking a witness' credibility, it may be shown that he or she has been convicted of a felony. Evidence Code section 788. Assuming the Court decides evidence of Cross‐Complainant's prior felony conviction may be admitted, Section 788 authorizes only two methods of proof of a conviction for impeachment purposes: the first is the “examination” of the witness, and the case law has developed limitations on the method of inquiry. The witness m...

Excerpt: ...e Court recognizes this is not the vehicle “at issue” in the Plaintiff's complaint, it does appear that information related to the 2013 Lincoln MKZ Hybrid may be relevant to the ultimate determination of Plaintiff's damages (if any) in this action. Therefore Plaintiff's motion to compel with regard to Category 2 is GRANTED. However, Plaintiff does not demonstrate “good cause” to compel Defendant's responses to Category 4 – regarding com...

Excerpt: ... of Issues) as well as Issue 10 (Plaintiff cannot recover punitive damages) and DENIES summary adjudication of the other Issues (2‐9) set forth in the Defendant's notice, including that the Plaintiff's claim of retaliation brought under Health and Safety Code Section 1278.5 is barred, as follows. With regard to Defendant's motion for summary adjudication of Plaintiff's causes of action for retaliation, disability discrimination, failure to enga...

Excerpt: ...ding but not limited to the following: (1) Mattey Tucker is a necessary party in Michael Matthew Tucker, et. al. v. Thomas Anderson, et al., Merced County Superior Court Case No. 17CV‐01423, (2) the parties have stipulated to the consolidation, (3) the cases involve the same parties and are based on the same or similar claims; (4) the cases arise from the same or substantially The following tentative rulings shall become the ruling of the court...

Excerpt: ...Merced Furniture, a canceled Limited Liability Company dba Lane Home Furnishings”, as it appears that Plaintiff's counsel erred in naming this entity as a defendant herein. Furthermore, the Court exercises its discretion to allow Plaintiff to file a First Amended Complaint naming as a defendant “Merced Furniture Inc. dba Lane Home Furnishings”. The First Amended Complaint shall be filed not later than ten (10) days after notice of entry of ...

Excerpt: ...fend claims against the principal. (See Probate Code section 24459.) However, in such a case, the agent may appear only as a guardian ad litem for the principal, after appointment by the court. Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1151–1152. Furthermore, the agent must appear in the action through an attorney. Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1829–1832. Therefore, the Court, on its own motion, strikes the Plain...

Excerpt: ...summons and never had any conversation with a delivery person.” Defendant admits finding the summons in his front yard “many days later.” Plaintiff filed a proof of service executed by a registered process server stating under penalty of perjury that he personally served defendant on February 6, 2019 at 6:48 p.m. with a copy of the summons and complaint. Filing a proof of service from a registered process server that complies with statutory...

Excerpt: ...onths, Selig's conflict of interest is imputed to the entire Brunn firm, unless Brunn can show compliance with Rule 1.10(a)(2) of the California Rules of Professional Conduct, namely timely screening and written notice to the former client. Brunn fails to provide any details of the screening procedures used. Also, no written notice was given to the former client. Brunn argues that once Selig left the firm on April 11, 2019, Selig's imputed confli...

Excerpt: .... By failing to file a written opposition, defendant has not provided any explanation for his willful failure to comply with the order to provide discovery and therefore the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. The moving party is directed to prepare a written order consistent with the Court's ruling fo...

Excerpt: ...ss of renting motor vehicles. Under federal law, a rental car company and its affiliates cannot be held vicariously liable for the negligent acts of its customers. (See 49 U.S.C. § 30106.) In this case, the complaint does not allege any non‐conclusory facts stating a cause of action for direct liability of the demurring defendants based on their negligence (such as negligent entrustment) or criminal wrongdoing. (See 49 U.S.C., § 30106, subd. ...

Excerpt: ... failing to file a written opposition, defendant has not provided any explanation for his willful failure to comply with the order to provide discovery and therefore the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. Plaintiff shall submit a request for default and default judgment and supporting papers forthwith...

Excerpt: ..., 2018. Defendant has provided no excuse for her willful failure to comply with the court's order. Since defendant apparently has not participated in this litigation since filing her answer in June 2014, the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. Plaintiff shall submit a request for default and default ju...

Excerpt: ... which the Court takes judicial notice, Plaintiff, a minor who sues via her guardian ad litem, filed a timely claim with the Defendant on January 8, 2018. The District rejected the Plaintiff's claim on February 8, 2018, and provided notice of its rejection of the Plaintiff's claim by certified mail to both Plaintiff and her legal counsel on February 9, 2018. As set forth in Government Code section 945.6(a)(1) ‐ Plaintiff was required to bring s...

Excerpt: ...otion admits that they were served with the summons and complaint on February 13, 2019, and in response they “moved out” of the premises rather than respond to the summons and complaint. The prevailing party is directed to prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, rule 3.1312, and to provide notice thereof to the opposing party as required by law and the Califo...

Excerpt: ...rney's impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) All other work product receives qualified protection; such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.” (§ 2018.030, subd. (b).) Coito v. Superior Court (2012) 54 Cal.4...

Excerpt: ... actual labor costs for agency staff, paralegals, electronic document preparation costs, and reasonable attorneys' fees, provided the attorneys' fees deal with record issues warranting legal expertise. However, mere compilation of staff reports, meeting agenda, minutes, meeting transcript(s), etc., other than reviewing the record to assure it complies with Code of Civil Procedure section 1094.5 would not seem to warrant the incursion of attorneys...

Excerpt: ...; 2) Failure to provide reasonable accommodation; 3) Discrimination on the basis of a disability (or perceived disability); and 4) Failure to take all steps reasonably necessary to prevent discrimination from occurring. However, in conjunction with her opposition to the Defendant's motion, Plaintiff dismissed three of her causes of action: the first, third and fourth. The only remaining cause of action at issue is the Plaintiff's second cause of ...

Excerpt: ...mary judgment, ALL of the moving undisputed facts should first be set forth in numerical order. Then, to support the requests for alternative relief, Defendant can restate the facts which support summary adjudication of each issue, by reference to the same number facts. For instance if there are ten (10) moving facts total, but only facts 2, 4, and 7 support summary adjudication of the first cause of action, only those facts should be stated. In ...