Excerpt: ...mmunity Hospital nursing staff did or did not do was a substantial factor in causing Plaintiff's shoulder dystocia or the brachial plexus injury during her mother's labor, delivery or after her delivery.” (SSUF No. 20). In opposing the instant Motion, Plaintiff raises two theories of liability: (1) Plaintiff asserts Defendant Kim was the ostensible agent of Defendant La Palma, such that Defendant La Palma is liable for his negligence; and (2) P...

Excerpt: ... not been prejudiced as it had the opportunity to file a reply. The court will address the arguments raised in petitioner's opposition. The SAP alleges the arbitration award was procured by corruption, fraud, or other undue means under Code of Civil Procedure section 1286.2. Corruption, Fraud, or Other Undue Means: This ground applies either to fraud perpetrated by the arbitrator or to fraud by a party. (Pacific Crown Distributors v. Brotherhood ...

Excerpt: ... his claims derivatively on behalf of CHARTWELL. (See Corp. Code § 2116; Vaughn v. LJ International, Inc. (2009) 174 Cal.App.4th 213, 223.) Under the New York Business Corporation Law § 626(a), “[a]n action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates.” He...

Excerpt: ...ng his cross-complaint in the 2018 case, Plaintiff filed a voluntary dismissal of this action on 9/14/21. Defendants timely filed a memorandum of costs on 9/21/21 seeking the following costs:  $2,670 in filing and motion fees  $18,750 in attorney fees  $45 in electronic filing/service fees  $100 under “other” Defendants are the prevailing party entitled to recover costs under Code of Civil Procedure section 1032(a)(4): “(4) “P...

Excerpt: ... the status quo. Plaintiff is only seeking to maintain the status quo during the arbitration. “Code of Civil Procedure section 1281.8, subdivision (b), authorizes a party to an arbitration agreement to seek a provisional remedy in the trial court pending arbitration “but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief....” This requirement applies in addition ...

Excerpt: ...ach fails to state a cause of action and are uncertain. Cross-Defendants contend concurrent co-counsel cannot recover on a theory of equitable indemnity against one another based on public policy considerations. There are two policy considerations that have led California courts to prohibit indemnification claims brought by a predecessor attorney against a successor attorney: (1) conflict of interest; and (2) confidentiality. (Musser v. Provenche...

Excerpt: ...� (City of San Diego v. San Diegans for Open Government (2016) 3 Cal.App.5th 568, 577.) Code Civ. Proc., § 430.10 (b) authorizes a Demurrer when “The person who filed the pleading does not have the legal capacity to sue.” First Cause of Action for Breach of Contract: “'A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (...

Excerpt: ...ttorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Under subdivision (b)(1), such actions may include the filing and service of a complaint. Subdivision (b)(2) defines “frivolous” as “totally and completely without merit or for the sole purpose of harassing an opposing...

Excerpt: ...ng to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility tha...

Excerpt: ...uck Ins. Exchange (2003) 31 Cal.4th 635, 648.) “The ordinary rules of contract interpretation apply to insurance contracts. [Citation.] To protect the interests of the insured, coverage provisions are interpreted broadly, and exclusions are interpreted narrowly.” (Stellar v. State Farm Gen. Ins. Co. (2007) 157 Cal.App.4th 1498, 1503.) Issue 1: Whether Defendant's Thirteenth Affirmative Defense, which contends that “there is no coverage for ...

Excerpt: ...and that the nonmoving party will not be irreparably injured by its issuance. If the stay is denied by the trial court, the defendant may forthwith file a petition for an extraordinary writ with the appropriate appeals court. If the trial or appellate court stays enforcement of the judgment, the court may condition the stay on whatever conditions the court deems just, but in any case it shall order the payment of the reasonable monthly rental val...

Excerpt: ...he burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the positi...

Excerpt: ...ship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245; CACI no. 2342.) Like a Tameny claim, constructive discharge is premised on the wrongful termination of an employment relationship. “There can be no Tameny cause of action without the prior e...

Excerpt: ...; see also SAXC ¶¶ 20-27.) 4th cause of action, breach of fiduciary duty. The demurrer is moot in light of the ruling on the motion to strike. 5th cause of action, intentional interference. The SAXC fails to state facts sufficient to constitute this cause of action. This claim is based on contracts between the building's owners and residents. (See SAXC ¶¶ 6-8, 10, 19, 32-34.) As noted in sustaining the prior demurrer, a contracting party cann...

Excerpt: ...-011996671. Evidentiary Objections Floorit Financial's evidentiary objections nos. 1 through 4 are sustained. Law Regarding Contempt “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is ...

Excerpt: ....) The court finds that moving plaintiff has shown a probability of prevailing on the merits of its breach of contract cause of action, and that the balance of equities favors plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract]; Lam v. Ngo (2001) 91 Cal.App.4th 832, 844 [“A single cause of action can sustain a preliminary injunction”]; Bajwa Decl., ¶¶ 3, 4, 8, 9, 14-27, 30; Vaughn Decl.,...

Excerpt: ...n its own motion to take judicial notice of the petitioner's opening brief in Viking River Cruises, Inc. v. Moriana, United States Supreme Court No. 20-1573, which is available on the Supreme Court's website. (See Evid. Code, §§ 452(d), 455(a).) Plaintiff Bella Medrano originally filed this case as a class action without a PAGA claim. Defendants moved to compel arbitration of Plaintiff's claims on an individual basis, citing an arbitration agre...

Excerpt: ... policy that should not have been sold to any investor because split- dollar agreements were no longer being recognized by the IRS as offering tax relief, that Johnston and NFP knew that selling such a policy was unsuitable for the Trust and inappropriate under industry standards, that NFP also knew that the Policy was inappropriate because Minnesota Life had previously refused to underwrite the Policy in 2014, that the sale of the Policy was for...

Excerpt: ...rt of negligent entrustment of a motor vehicle is “premised on the ‘[a]wareness [by the defendant], constructive or actual, that a person is unfit or incompetent to drive.” (Id. at 558). The elements for Negligent Entrustment are outlined in CACI 724 and include: (1) A driver was negligent in operating a vehicle; (2) Defendant owned or possessed the vehicle which was operated by the driver; (3) Defendant knew or should have known that the d...

Excerpt: ...ayed pending completion of the arbitration. The Case Management Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for August 25, 2022 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes that there exist valid agreements between plaintiff and defendants to arbitrate the individual c...

Excerpt: ...ill effectuate a “stay” of the production until further order of the Court. The court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Furthermore, under Code of Civil Procedure section 2019.030, the court may restrict discovery where it is “unreasonably cumulative or dup...

Excerpt: ...n. Plaintiff's objections are therefore OVERRULED. The Court proposes on its own motion to take judicial notice of the petitioner's opening brief in Viking River Cruises, Inc. v. Moriana, United States Supreme Court No. 20-1573, which is available on the Supreme Court's website. (See Evid. Code, §§ 452(d), 455(a).) Plaintiff Siavash Abderezai originally filed this case as a class action without a PAGA claim. He then amended his complaint to add...

Excerpt: ...s a JCCP since 2012, and the included actions go back as far as 2009. A. The Wage Statement Settlement In 2019, during an earlier phase of this coordinated proceeding, the Court entered judgment finally approving a class/PAGA settlement of a wage statement claim. (ROA 1008.) The release in this settlement covered “all claims . . . arising from, or related to, the alleged failure to provide accurate and itemized wage statements, including . . . ...

Excerpt: ...burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Thayer decl., Exs. A, B.) All of plaintiffs' causes of action “arise[] out of” or are “in connection with her employment or cessation of employment.” (Thayer decl., Ex. A at pp. 4-5.) Plaintiff met her burden to show some degr...

Excerpt: ...mages. In addition, Plaintiff also includes facts and exhibits that are outside of the operative complaint and judicial notice has not been requested. Accordingly, this evidence is not considered by the Court. Pursuant to Civil Code § 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Civil Code § 3294(c) defines “malice” as conduct which is intended to cause injury or despicable conduct carried on with a...