Excerpt: ... 452, 458 [elements of breach of contract claim]; Plaintiff's Separate Statement, Fact Nos. 41-51 [existence of contract], 12- 29, 34, 51, 52 [performance or excuse for nonperformance], 34, 51, 55-66, 69 [breach], 12- 29, 34, 40, 50, 51, 69 [damages].) As moving plaintiff has met her initial burden, the burden then shifts to the defendant to present evidence sufficient to create a triable issue of material fact. (CCP 437c(b)(2), (p)(1).) Defendan...

Excerpt: ...action is time-barred. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213 [four-year statute of limitations under Cal. Comm. Code 2725 applies to claims under Song-Beverly Act]; Cal. Comm. Code 2725(2) [“breach of warranty occurs when tender of delivery is made”]; Complaint at Para. 9 [subject vehicle acquired 3-26-13].) Further, the complaint fails to adequately allege any basis for tolling the statute of limitations: �...

Excerpt: ...ith leave to amend, based on failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) The complaint shows on its face that these claims are barred by workers' compensation exclusivity. (CA Labor Code 3600, 3601(a), 3602(a) [workers' compensation generally exclusive remedy]; Labor Code 3601(b) [no employer liability where “injury or death is proximately caused by the willful and unprovoked physical act of aggression of...

Excerpt: ... apply to summary judgment, the court finds that Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228-29, is the better reasoned decision, and that the facts set forth in plaintiff's evidence do not constitute a “default,” “default judgment,” or “dismissal.” (See Code Civ. Proc. § 473, subd. (b)). Plaintiffs' evidence fails to establish that the failure to attach Mr. Jones' declaration to the moving papers was caus...

Excerpt: ...ard applicable to decisions by State Personnel Board]; JKH Enterprises, Inc v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057 [defining substantial evidence].) SCIF cited eight grounds under Gov't Code 19572 for petitioner's dismissal: (1) incompetency; (2) inefficiency; (3) inexcusable neglect of duty; (4) insubordination; (5) dishonesty; (6) discourteous treatment of the public or other employees; (7); willful disobedience...

Excerpt: ...constructive notice of the dangerous condition. Defendant's second ground for relief fails in the first instance because it does not address all of the material allegations of the complaint. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889 [if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them]; see also Teselle v. McLoughlin (2009) 173 Cal.Ap...

Excerpt: ...peated, verbatim, in the separate statement of undisputed material facts.” (Calif. Rules Court, rule 3.1350, subd. (b)). Defendant Crocs, Inc.'s separate statement fails to comply with these requirements, lumping all of the undisputed facts into a single list and making no reference to the two issues noticed for summary adjudication (i.e. the 2 nd & 3rd Causes of Action). Additionally, the separate statement includes photographs, which are evid...

Excerpt: ...ated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 839- 840 [examples of possible factors supporting unity of interest].) Both defendants' demurrer to the first cause of action for promissory fraud is sustained, with leave to amend, as this cause of action fails to allege the purported representations with the required specificity. (Complaint, Para. 20; Lazar v. Superior Court (1996) 12 Cal.4 th 631, 645 [fraud must be pled with pa...

Excerpt: ...ts supporting knowledge of falsity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements of fraud]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [fraud must be specifically pled].) Defendant's knowledge of falsity is alleged as a conclusions only (FAC at Para. 17), without any supporting facts. However, the remaining elements of fraud are sufficiently pled. The remainder of the demurrer is overruled. Moving party fails to explai...

Excerpt: ... the pleadings and GRANTED as specified below. Issue Nos. 1-3. Defendants have failed to meet their initial burden with respect to these issues, and plaintiffs Sue Gross, Sally Warpinski, Joseph Warpinski, M.D., and Sandra Stubban (collectively, plaintiffs) have also demonstrated they are entitled to relief with respect to these issues under Code of Civil Procedure section 437c, subdivision (h). With respect to the first cause of action for intru...

Excerpt: ...lace the fireplace glass pane per the 03/13/14 recommendation from Capo Fireside), with a money damages award (based upon an 03/22/19 bid from Capo Fireside to replace the fireplace glass). Neither of the two authorities cited by defendants involve a court sitting in equity converting a judgment ordering a party to take action to replace a defective item to a money judgment. Had the arbitrator meant to award money damages, he could have easily or...

Excerpt: ... agreement. This was not a pre-printed or “form” contract. The terms of the contract were negotiated. The evidence presented indicates that the terms of the contract were discussed and defendant compromised on some of the terms. See Cook declaration. Plaintiff did not complain about the provision for arbitration in Washington. The provision was not buried in a long, complicated contract. The contract between the parties consisted of less than...

Excerpt: ...t (2010) 181 Cal.App.4 th 633). Defendant's evidence established all three factors. Plaintiff as the party opposing enforcement of the arbitration agreements, has the burden of proof. (See St. Agnes Med. Ctr. v. PacifiCare of Calif. (2003) 31 Cal.4th 1187, 1195). Plaintiff failed to meet her burden of proof. A contract may be superseded or modified by another contract, in which case the superseded or modified contract is usually referred to as th...

Excerpt: ...ition or from any other source. Defendant Regents carried its burden of demonstrating that the 5-11-16 e-mail is a protected attorney client communication. See, Scripps Health v. Superior Court (2003) 109 Cal.App.4 th 529, 533 and Ins. Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 765 to 766. Next, defendant Regents established that it is the holder of the privilege. See, People v. Gionis (1995) 9 Cal.4 th 1196, 1207. Further,...

Excerpt: ...ion. As to plaintiff's cause of action for retaliation such an action cannot be stated against a supervisor in his or her individual capacity. See, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4 th 1158, 1173 to 1174. As to the cause of action for sexual discrimination, such an action cannot be stated against a supervisor in his or her individual capacity. See, Reno v. Baird (1995) 18 Cal.4 th 640, 663 and Janken v. GM Hughes Electron...

Excerpt: ...structive fraud is overruled. The District contends that this cause of action fails as to the element of duty. The District argues that (1) there is no fiduciary relationship between a school district and its students; and (2) there is no statute imposing a mandatory duty on a school district for constructive fraud. (Moving papers at 4:23-5:7, citing C.A. v. William S. Hart Union High School District (2010) 117 Cal.Rptr.3d 283.) In a footnote, th...

Excerpt: ...) Item No. 11: grant in the amount of $6,094.21; (7) Item No. 13: grant in the amount of $35,685.91. The remainder of the motion is denied. On its own motion, the court takes judicial notice of: (1) plaintiffs' Second Amended Complaint (ROA No. 272); (2) defendant Richard Perlin's motion for nonsuit filed on 2-19-15 (ROA No. 915); (3) plaintiffs' Opposition to defendant Perlin's motion for nonsuit (ROA No. 926); and (4) the court's 2-20-15 minute...

Excerpt: ...econsideration. Motions denied. First, moving party filed an appeal of these orders on 7-24-18; thus, it appears the court lacks jurisdiction to reconsider them. (CCP 916(a).) Second, as to the motion to reconsider the 5-4-18 order, even accounting for an extension of time after Khan's electronic service of notice of the 5-4-18 order, Kabir's motion for reconsideration is untimely. (CCP 1008(a) and 1010.6(a)(4)(B); Rutter Group, Civil Procedure B...

Excerpt: ...prise or excusable neglect to support late claim relief. See, The People ex rel. Department of Transportation v. Superior Court (2003) 105 Cal.App.4 th 39, 44. Third, petitioner Quon's failure to investigate within the claim period is not excusable. See, People ex rel Department of Transportation, at 44. The Viles case is distinguishable as an adjustor advised the injured employee she had one year to bring her claim. There is no evidence of any a...

Excerpt: ...e expected to want to conceal their contact information from plaintiffs asserting employment law violations, the state policies in favor of effective enforcement of these laws weigh on the side of disclosure, and any residual privacy concerns could be protected by affording the employees notice and an opportunity to opt out from disclosure, Williams v Superior Court, supra, 3 C5th at 553–555. As this case is not a class action, the authority in...

Excerpt: ...efendant Horgan's engaging in a proposed initiative relating to gun control constitutes protected activity. See, Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4 th 892, 907. But, plaintiff CHB carried its burden that defendant Horgan's initiative was both constitutionally and statutorily invalid. See, Liu, at 752 to 753, City of Needles v. Griswold (1992) 6 Cal.App.4 th 1881, 1892 and penal code sections controlling automatic and semi-...

Excerpt: ...enticates a copy of the Employer's Return showing that MP is paid $5,578.41 every two weeks. (Phan Decl. in support of Opp, Para. 3; Ex. H thereto [purple flag].) RP correctly points out as MP is paid every two weeks, this totals 26 pay periods per year. $5,578.41 bi-weekly, times 26 pay periods, totals an annual gross income of $145,038.66; divided by 12, this yields a monthly gross income of $12,086.55, not the $11,156.82 claimed by MP. MP's li...

Excerpt: ... law were not offered at the initial hearing of the petition. (See Code Civ. Proc. § 1008(b); Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500). The “Notice of Permission to Strike” contained in the petition reflected the fact that petitioner was already aware of the various infirmities in the purchase agreement identified by the court at the time of the 05/11/18 order. Thus, the change in purchase agreement terms do not constitute a �...

Excerpt: ...paid. Be that as it may, the arbitration award is confirmed and can be reduced to judgment for whatever that is worth. Moving party to give notice and prepare judgment. ...

Excerpt: ...om the obvious similarity in names, both entities share common directors (Scrivens and Proctor); further, Price was a Senior Director for P5GI and now serves as the CEO of P5GLLC. (Moving party Request for Judicial Notice, Exs. 1 and 5; Leask Decl. in support of motion, Paras. 7 and 8; Leask Decl. in support of motion, Para. 8.) The fact that “one or more persons were officers, directors, or stockholders of both corporations” is sufficient to...