Excerpt: ..., marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status of any person, to . . . discharge the person from employment . . . or to discriminate against the person. . . .” (Govt. Code, § 12940, subd. (a).) Plaintiff must allege facts to demonstrate that: (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the...

Excerpt: ...ed as of June 30, 2016. Plaintiff's lawsuit was filed on May 12, 2017; she timely filed her PAGA letter with the LWDA on May 15, 2017. Without any stays, the deadline for filing a PAGA cause of action was November 2, 2017. (See Labor Code 2699.3; Brown v. Ralphs Grocery Company (2018) 28 Cal. App. 5 th 824, 839; Defendant's Reply at 3.) Defendant's motion to compel arbitration was filed on September 13, 2017 and was decided on October 27, 2017. D...

Excerpt: ...NED in part and OVERRULED in part. First Cause of Action for Breach of Contract The court sustained with leave to amend Defendants' prior demurrer to the breach of contract cause of action as to defendants Secure Channels and Proximity finding that California courts do not recognize a theory of vicarious liability of an entity for the acts and omission of an individual, so-called “reverse piercing.” Postal Instant Press, Inc. v. Kaswa Corp. (...

Excerpt: ...2017-00941552 (“RNR Action”). Because the allegations in the FACCs in both actions are nearly identical, as are the demurrers and the motions to strike, the Court permitted Health Net to file a joint opposition to the motions to strike and a joint opposition to the demurrers. Similarly, it allowed RNR and NDR to file a joint reply in support of the motions to strike and a joint reply in support of the demurrers. (4/25/19 Minute Order.) The Co...

Excerpt: ...e basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care,...

Excerpt: ...ed. The general demurrers to the third cause of action for intentional infliction of emotional distress and fifth cause of action for public nuisance are sustained with 15 days leave to amend. The Court declines to consider Defendant's reply papers, because they were not filed “at least five court days before the hearing,” nor were they served by a method “reasonably calculated to ensure delivery to the other party or parties not later than...

Excerpt: ...nded are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. The prevailing party has the burden of showing ...

Excerpt: ...ruction Co. v. City of San Bernardino (1995) 32 Cal. App. 4th 687, 704. Section 1983 applies to persons acting “under color of” state law, and normally does not apply to private actors. (See Flagg Bros., Inc. v. Brooks (1978) 436 U.S. 149, 155–156.) “A private individual may be liable under section 1983 if she conspired or entered joint action with a state actor. [Citation.]” (Franklin v. Fox,312 F.3d 423, 441 (9th Cir.2002).) See, Dwig...

Excerpt: ...” The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only where no prejudice is shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 ...

Excerpt: ...evelop the property. The motion substantially complies with California Rule of Court 3.1324. The motion does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). However, the motion includes a serially numbered proposed amended pleading. It also states the effect of the amendment, which is to add Fifth and Sixth Causes of Action. It states that it is in furtherance of justice to add all causes...

Excerpt: ...ommitted misconduct by allegedly relating personal experience during deliberations. See Cal. Civ. Proc. Code § 657(1), (2). Plaintiff also argues that the jury awarded inadequate damages, that the evidence was insufficient to justify the jury's comparative fault finding, and that the verdict was against the law. Seeid. § 657(5), (6). For the following reasons, Plaintiff's motion is denied. Irregularity in Proceedings (Cal. Civ. Proc. Code § 65...

Excerpt: ...is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. Counsel's valuation of the wage statement claim states there are “46 pay periods in the wage statement Class Period and 26 full time equivalent employees who each worked 46 pay periods ….” (Ackermann Decl., ¶ 31.c.) Counsel should explain whether the “wage statement Class Period” differs from the “Cla...

Excerpt: ... Plaintiff's supplemental request for judicial notice filed on 6/7/19 is DENIED. (See Evid. Code § 453 (“trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.”).) The Court did not consider Plaintiff's reply papers filed on 6/7/19, in r...

Excerpt: ...videntiary sanctions, or instructions to the jury, were to be fashioned. Failing to respond to an authorized method of discovery is a misuse of the discovery process. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516. Imposition of sanctions for misuse of discovery lies within the trial court's discretion. Doppes v. Bentley Motors, ...

Excerpt: ...pellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Currently, there are two binding appellate decisions that contain conflicting holdings on whether claims for unpaid wages under Labor Code § 558 are arbitrable: Zakaryan v. Men's Wearhouse, In...

Excerpt: ...Defendants South Coast Behavioral Health Inc., Charles A. McPhail, and Abdull Khan move to compel arbitration of this dispute and to stay this action pending resolution of the arbitration. (CCP 1280, et seq.; 9 USC § 4, et seq. the Federal Arbitration Act [FAA].) Co-Defendants South Coast Behavioral Health LLC and South Coast Behavioral Health Guesthouse Inc. also join in the motion. The court DENIES the motion as to all three Defendants, for th...

Excerpt: ...scope of the responses thereto, which were not produced, and that reasons existed to compel further production for these, then the Court reasonably required and requested a separate statement in accordance with CRC 3.1345(c). After the Motion was filed, MP filed a Separate Statement, however, the document is transforming the matter into another dispute, namely one to compel a further response – for some 45 RFPs approximately. The Separate State...

Excerpt: ...depose Toyota's Person Most Knowledgeable to obtain relevant information regarding how Toyota handled his warranty claims under the Act. (See McGaffey Decl. at Ex. B, Notice of Deposition.) In particular, Plaintiff argues that in order to recover a civil penalty of twice the amount of damages for his claim under Civil Code 1793 (c), he must prove that Defendant's failure to replace the vehicle or make restitution to him was willful and was not th...

Excerpt: ...tlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Cal. Civ. Proc. Code § 664.6. Defendant contends that Plaintiffs and Defendant entered into a valid and binding settlement agreement before the court on February 25, 2019. In ruling on a motion to enter judgment pursuant to section 664.6, the trial court acts as a trier of fact. Kohn v. Jaymar- Ruby, Inc. (1994) 23 Cal.App.4 ...

Excerpt: ...r hearing on 6/27/19. In support of that motion, Servite filed the declaration of its former president Peter Bowen. Servite moves to seal paragraph 29 of the Bowen declaration because it contains confidential information regarding its former employee Larry Toner, who is not a party to this action. Disclosure of that information would invade Toner's third- party privacy rights in the details of his personnel file and his former employment. The cou...

Excerpt: ...71). This privilege should be differentiated from the privilege protecting confidential marital communications. (Evid. Code § 980). The privileges are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal. App. 3d 706.) Here, the court finds that both apply. Plaintiff argues in Opposition that she discussed the ongoing alleged harassment and hostile work environment with witness Mrs. Hulme as it was occurring. But Mrs. H...

Excerpt: ...al or emotional injury'; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” Britt v. Sup. Ct., 20 Cal.3d 844, 864 (1978). And even where information is directly relevant to the plaintiff's claim, any compelled di...

Excerpt: ...erefore unnecessary to the litigation. For the following reasons, M.D.A.'s motion is denied. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable...

Excerpt: ...sidering all of the parties' papers, including their supplemental briefs, the court issues the following tentative ruling: Defendants' Petition to Compel Arbitration and Stay Litigation On 11/13/18, Plaintiff Kenneth B. Blye filed his Complaint alleging 15 causes of action against the following named Defendants: 1. Cresa Management LLC (CM) 2. Cresa Partners of Orange County LP (CPOC) 3. Cresa Partners-West Inc. (CPW) 4. Jeff A. Manley 5. Wayne L...

Excerpt: ...rers are OVERRULED. As a preliminary matter, CCP 430.41(b) is inapplicable here as no demurrer was previously sustained in this action. The prior motion to dismiss was brought under the FRCP, not CCP. First Cause of Action – Unfair Competition The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Defendants contend that the Ye...