Excerpt: ....1346 [must serve motion on deponent].) The court is initially inclined to continue the motion to permit Bottorff to be properly served. The parties should be prepared to discuss whether Bottorff has or needs to be personally served. The main issue is this: Whether communicatons between Bottorff and representatives of The Regents are protected by the attorney-client and/or work product privilege. This is a thorny question under the facts. General...

Excerpt: ...far as it relates to the fourth cause of action for failure to prevent harassment. However, the law is clear that a supervisor cannot be held personally liable under FEHA for failing to prevent the alleged discrimination. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326; see also, Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 279- 280.) Demurrer (Blower- Dempsay) The demurrer of defendant Blower-Dempsay Corporation to the fi...

Excerpt: ...ement of a proper meet and confer would not serve the intent of the code requirement. The first amended cross-complaint alleges four causes of action: breach of fiduciary duty, fraud, conversion, and breach of contract. The demurrer complains that the four causes of action are uncertain and therefore they each fail to state a viable cause of action. However, the alleged "uncertainties" are little more than challenges to the merits of the crosscom...

Excerpt: ...ilding. But the contractor did not perform and was terminated. The association then hired Champion Construction Services to complete the project. Champion's demurrer to the original complaint was sustained with leave. Plaintiff filed a first amended complaint to which Champion has again filed a demurrer. The amended complaint has made several minor adjustments to the factual pleadings, but it has done little to address most of the key issues rais...

Excerpt: ...uted them to plaintiffs. The complaint seeks damages of over $253,000. The complaint raises six causes of action: 1. Breach of contract; 2. Negligence; 3. Intentional misrepresentation; 4. Negligent misrepresentation; 5. Unjust enrichment; and, 5. Money had and received. The complaint seeks monetary damages and exemplary damages for the alleged misrepresentations as to the status of the ERCs. The answer alleges the following affrmative defenses: ...

Excerpt: ...d a person most qualified, and it properly objected to the scope and breadth of the propounded discovery. The defendant manufacturer states it is willing to turn over all documents related to the vehicle in issue—and has already done so. What it objects to is the overreach of the discovery requests, in terms of the numbers of discovery requests and the fact they relate to other vehicles and other dealerships. The PMQ, the Deposition Date, and T...

Excerpt: ...position. (ROA 120.) In essence, it argued that the third amended complaint improperly seeks to add Christopher Atkins, the husband, as a plaintiff, because he did not file a Government Tort Claim; and it improperly seeks to revive a claim for infliction of emotional distress and to add a cause of action for loss of consortium for Christopher Atkins. The basic problem with the motion is that it is procedurally improper on numerous levels. Thus, i...

Excerpt: ...esponses by cross-complainant Microwine Group, Inc., to Request for Production of Documents (Set wo) and for sanctions. Counsel for Xu concedes in a declaration filed November 2, 2023 (ROA 225) that counsel for Microwine Group, lnc„ served responses to the Request for Production of Documents on October 16, 2023. Xu contends, however, that the responses are not code compliant and therefore he refuses to withdraw the motion. The responses were se...

Excerpt: ...ction of emotional distress, which is the subject of this demurrer. The key allegation is that plaintiff was visibly pregnant at the time of the accident, that the acc:ident caused her to hit her stomach into the steering wheel, and that caused her serious concerns for the health of her unborn child. To properly analyze whether a cause of acton for intentional infliction of emotional distress has been pled, the allegations of the third cause of a...

Excerpt: ...division defendant provides no evidence that shows these costs were unnecessary or unreasonable. Defendant has not met its burden. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Item No. 8 Defendant argues the $1,530 claimed for expert fees was unreasonable because Lemon Law plaintiffs do not need to present expert testimony to prevail. Its reliance on Oregel v. American Isuzu Motors, Inc. Cal.App.4th 1094 at page 1102, footnote 8, is mispl...

Excerpt: ...n District. The first cause of achon is for racial discrimination. The second alleges retaliation. And the third complains that defendant failed to prevent the discrimination, harassment, and retaliation. On a moton for summary judgment and/or summary adjudication of issues brought by the employer in a case alleging employment discrimination, the court engages in a 3-step, burden-shifting process under McDonnell Douglas Corp. v. Green (1973) 411 ...

Excerpt: ... entitled to attorney fees. The matter has since been reassigned to this department because Judge Marks has retired. It is this court's understanding that Judge Marks' retirement is official and that she will not be returning on assignment. Thus, this court may rule on the motion. The court has reviewed the minute order statement of decision, the judgment, and the papers filed by the parties in support of and in opposition. It is undisputed that ...

Excerpt: ...Hoang alleges that the homeowner's association foreclosed on and then sold his condominium unit in a nonjudicial sale. It was sold, according to the association, for Hoang's failure to pay certain assessments. Defendants were the successful bidders and purchasers of the unit at the foreclosure sale. Hoang suggests that during this time he was overseas, and when he returned, he was unaware of the redemption period. This is an old case. Hoang filed...

Excerpt: ... filing an answer or a responsive pleading, Neil Nam Hoang, doing business as aest Home Construction and Repair, filed a Case Management Conference Statement on November 2, 2021. (ROA 39.) On March 9, 2022, the plaintiff and the court attempted to determine who was the proper defendant. It was suggested that Neil Nam Hoang was not a party, and that the named defendant, Best Home Construction and Repair, was a non-existent entity and that is why i...

Excerpt: ...dules. That resulted in an over-reporting of plaintiff's income, causing him to pay more taxes than he owed. He also alleges the defendant intentionally concealed the error. When the California Franchise Tax Board made numerous audit inquiries, apparently to determine whether all California income was properly reported on the California returns rather than the returns of other states, defendant hid key documents that would have disclosed defendan...

Excerpt: ...Thomas Marantz as the named defendant and Doe defendants. (ROA 7.) The gist of these allegations was that Thomas Marantz was the driver of the other vehicle that caused plaintiff's injuries. Thomas Marantz filed an answer to the complaint (perhaps unaware of the first amended complaint on file?) on May 11, 2022. (ROA 36.) Nowhere in his answer does he indicate he was not the driver. Indeed, his last affrmative defense—imminent peril—suggests ...

Excerpt: ...sted in Rule 3.1332(c) of the California Rules of Court. Here, no good cause has been shown. The complaint was filed February 9, 2022, for an accident that allegedly occurred on March 3, 2021. (ROA 2.) According to the complaint, plaintiff was walking along the sidewalk in a residential street when a branch from a tree that was being trimmed fell on her head. Defendant Douglas Landscape, Inc., filed its answer on April 21, 2022. (ROA 40.) Defenda...

Excerpt: ...n issue by alleging in the complaint that he suffers and continues to suffer embarrassment, emotional distress, and mental anguish. He also seeks damages for "pain and suffering, and emotional distress." These allegations seek damages for what is more than garden-variety emotional distress. He makes the same requests in his responses to basic discovery requests. Courts generally do not issue orders compelling a mental examinaton of a party unless...

Excerpt: ...re are no detectable warnings" as required under the Uniform Building Code. He alleged "the lack of an accessible path of travel (i.e., accessible route) at the Property is a violation of the Americans with Disabilities Act [l and therefore per se violation of the Unruh Civil Rights Act." (Italics in original.) Plaintiff has failed to meet his initial burden of proof and thus the motion must be denied. First, plaintiff does not establish that he ...

Excerpt: ...t objection or a request for a protective order, and were used within the litigation and settlement process. The court has been advised that the matter has now "settled" but the parties are unable to consummate the settlement because the plaintiff is demanding that his medical records in the possession of defendant and defendant's counsel be destroyed. Defense counsel apparently refuses to agree to execute a protective order for various reasons, ...

Excerpt: ...everly Consumer Warranty Act [l, are subject to abuse. Because Plaintiffs may recover their attorney fees from Defendant, Plaintiffs' attorneys have no incentive to keep their fees and costs to a reasonable minimum, or to exercise any judgment or restraint in the number of hours they bill. Despite the absence of any evidence that this case was in any way unusual, Plaintiffs claim they are entitled to $58,134.37 in fees, costs and expenses in a ro...

Excerpt: ...e records as her son's business address. She further concedes she helped her son by volunteering at least 15 hours of her time to pick up animals for cremation for her son's benefit. Whether this defendant was just helping her son as a good mother does or was more intimately involved in the starting and conducting of the business is a material issue of fact for a jury to decide. The court notes both sides have suggested that the court could contn...

Excerpt: ...tions" against plaintiff Newport Investment Group, LLC. This motion, set for hearing on October 5, 2023, also asks that the plaintiff "be prohibited from introducing into evidence, whether at trial or in opposition to summary judgment, any facts, documents or other responsive materials omitted from its untimely and non-compliant response" to this court's prior discovery orders. (Emphasis added.) Meanwhile, trial in this matter has been continued ...

Excerpt: ...es. She continues to suffer residual pain. The moton asserts summary judgment is appropriate because plaintiffs cannot establish, as a matter of law, that Podolsky breached the applicable standard of care. In addition, plaintiff cannot establish that any negligent act or omission by Podolsky caused or contributed to plaintiff's injuries. Podolsky filed the declaration of Dr. Ronald Kvitne who opined, after reviewing all the records, that "the car...

Excerpt: ...District denied plaintiff's government tort claim and was served with the complaint on April 9, 2021. District first appeared in the acton on June 7, 2021, when it filed a demurrer and motion to strike to the plaintiff's complaint. It was represented by attorneys Linda Bauermeister and Robert Kostrenich of the Law Offices of Barber and Bauermeister. In response, plaintiff filed a first amended complaint on July 23, 2021. District's demurrer to th...

Excerpt: ...complaint. At the last hearing, plaintff again asked for time to hire an attorney to represent her and to dismiss the matter. The court granted the continuance. But despite this leniency, plaintiff has failed to secure legal counsel and has failed to file any opposition to the motion for summary judgment. At the request of the plaintiff, the entire matter will be DISMISSED with prejudice as to all defendants. Thus, the defendant's motion for summ...

Excerpt: ...Under the law a family daycare center is considered a "residential" use and the landlord's consent for such use is not needed as a matter of law. But then the plaintiffs alleged that the lessor refused to give its written consent for the state operational permit for a "small daycare center," which is for businesses of six to eight children. The plaintiffs asserted that the lessor could not refuse to give consent under the aw, and of its refusal t...

Excerpt: ...judgment is denied but each cause will be addressed under the moton for summary adjudication of issues. Analysis of the motion was made particularly difficult because the plaintiff filed opposition including a separate statement of undisputed facts that was procedurally deficient. Defendants moved to strike that document (see below), and plaintiff responded by attempting to file an amended separate statement that, unfortunately, is also procedura...

Excerpt: ...a's vehicle. Moreno was dismissed (ROA 2W); apparently because he filed for bankruptcy. (See Clerk's Rejection Notice [Duument Filed listed as "Notice of Dismissal—Bankruptcy"], ROA 196.) He also settled for $5,500 and signed a Release of All Claims on June 15, 2023. Defendant Megan Garcia was the driver of the vehicle that hit Garcia's vehicle. Although Brian Lokken was a named defendant, he was dismissed without prejudice on June 14, 2023, on...

Excerpt: ..., Cal. Practice Guide: Civil Procedure Before Trial (2022) ¶6:795, p. 6-207.) Rather, it adds new allegations which occurred after the original pleading was filed. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.) Here are the critical pleadings: 1. On August 25, 2021, the plaintiff filed a complaint alleging five causes of action arising out of his employment with the District. Named as defendants were District and employee Richard Kwiecien; ...

Excerpt: ... accurate itemized wage statements, failure to pay all wages due on separation, unfair business practices, and intentional infliction of emotional distress. A jury trial in this matter is scheduled for November 13, 2023. Summary Judgment Plaintiff alleges he was an employee; defendants assert he was an independent contractor. In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, our Supreme Court held that a worker is presumed ...

Excerpt: ... party seeks a protective order on the ground the number of requests is unwarranted, the burden is on the propounding party to justify the number of requests for specific discovery. (Code Civ. Proc., § 2020.090, subd. (b), and § 2033.040, subd. (b).) The plaintiff has filed to meet its burden as to the Form Interrogatories, the Requests for Admission, and the Special Interrogatories. The motion for a protective order as to those discovery reque...

Excerpt: ...iduciary duty because the alleged breaches of fiduciary duty are little more than allegations of breach of contract. Plaintiff alleges Aviation Consultants stopped making cash distributions while it continued to allocate profits to him, and this was done so as to pressure plaintiff (and other minority shareholders) to sell their shares. Plaintiff alleges he was damaged because he incurred tax liability without having the corresponding cash distri...

Excerpt: ...is insufficient because defendants did not enter into any agreement with plaintiff contractor. The contract identifies the client as the address “@Odyssey VR.” It was signed by “Lei Zhao,” and even though it does not identify his capacity, the amended complaint alleges that he was “Defendants' Chief Operating Officer at the time of execution.” A check for the initial payment was also cut by Irvine Management Company “to the order of...

Excerpt: ...ject files, but only selected portions related to this case. Defendant complains that the plaintiff is seeking everything and something less would be appropriate. The parties are ORDERED to meet and confer meaningfully about these discovery requests. Defendant seeks to compel further responses to Special Interrogatories Nos. 127-132. They seek information about plaintiff's finances because of her claims of emotional distress based, in part, on he...

Excerpt: ...on of these tentative rulings, no new counsel has filed a substitution of attorney. (One was rejected August 7, 2023 (ROA 168), which the court assumes was to substitute out Howard.) Because Microwine is a corporation, the order shall advise it that it may only appear by counsel licensed to practice law in California. Demurrer/Motion to Strike (Microwine Cross-Complaint) The demurrer and motion to strike of cross-defendant Tao Xu to the cross-com...

Excerpt: ...use no copy of the complaint filed with the California Civil Rights Department, or the right-to-sue letter, are attached to the complaint. Exhaustion of remedies is a jurisdictional prerequisite to litigation. Failure to allege facts showing exhaustion renders the complaint subject to demurrer. Here, the complaint alleges a complaint was filed with the Civil Rights Department and a right-to-sue letter was issued on or about March 24, 2023. Based ...

Excerpt: ...s, it appears the tree was on his property. The homeowner's association hired Douglas Landscape to trim the tree. But Douglas's employees did not cordon off the area as required, and a branch fell on the plaintiff injuring her. Green was not there when the incident occurred. The defendants submit evidence that the plaintiff is claiming around $3 million in damages and her medical expenses alone at this point total over $558,000. In their mind, a ...

Excerpt: ...heinhart v. Nissan North America, Inc. (2023) 92 Cal.App.5th 1016.) Here, the plaintiff has presented evidence she timely opted out of the class action settlement. The first cause of action alleges breach of the express warranty for defendant's failure to promptly repurchase or replace the vehicle after a reasonable number of repair attempts. The statute clearly requires the defendant be afforded more than one attempt to repair the vehicle. (See ...

Excerpt: ...ntense Lighting, LLC, within 14 days of the hearing date. Defendants filed a motion to compel the “second” deposition of the plaintiff because she had been instructed not to answer five specific questions. The defendant confirmed the deposition date of its Person Most Qualified but later it refused to produce that person for deposition until after plaintiff's second deposition. However, there is no authority for the proposition that plaintiff...

Excerpt: ...und $225,000. Counsel claims attorney fees at an hourly rate of $675, and paralegal fees at an hourly rate of $175. Defendant compares the initial 998 Offer to Compromise on March 3, 2020 (which was rejected), with the 998 Offer accepted on March 8, 2022. 1. The 2020 Offer was for a buy-back, dismissal of the action with prejudice, a payment to the plaintiff of $28,658.78, and $10,000 for attorney fees and other costs. 2. The 2022 Offer was for a...

Excerpt: ...versity, neither the complaint nor the cross-complaint are so limited. Plaintiffs, for example, seek additional relief in the complaint. In Paragraph 27 of the complaint, plaintiffs allege the defendants “have and continue to engage in other actions that are causing damage to [Bethesda University] including the manipulation of managers and personnel to implement the Fake Board's financial directives resulting in the inadequate funding” of the...

Excerpt: ...ion. In Paragraph 25, plaintiff pleads that, “Defendant failed to provide proper meal and rest breaks for employees. Plaintiff regularly worked twelve (8-10) hour shifts; however, he could not take all his meal and rest breaks on many days.” This is sufficient to put the defendant on notice of the claim against it. The pleading is not uncertain. Moreover, there is no procedural requirement that plaintiff must plead the dates and thereby estab...

Excerpt: ...or sanctions and monetary sanctions should likely be imposed. But the question is: against whom? Hyundai Westlake is a non-party, and so are the service technicians, one who does not even work at the dealership anymore. Yet the plaintiff wants sanctions imposed against them? Based on a review of the competing declarations, defense counsel does not seem to have been at fault. The delay seems to have been at the dealer's end, so why should defendan...

Excerpt: ...egligence and wrongful death. They also alleged two causes of action against Grace's parents for wrongful death and negligence based on the theory of negligent entrustment of their vehicle to Grace. It was alleged that around three months prior to this accident, Grace was arrested for driving under the influence with a BAC of .15. And around two months before that, Grace drove while intoxicated and struck a parked vehicle, and then fled the scene...

Excerpt: ... included agreements over the final approval of changes and any additions to the scope of work. The demurrer asserts that, “Nowhere in that contract does it state Laidlaw was to be involved in any manner as the Owner's representative regarding change orders or additions to the scope of work.” However, the alleged breach of contract is based on more than just the written agreement. It is also based on the alleged oral agreements. As such, the ...

Excerpt: ...l papers regarding the request, which they did. Defendant argues that he has a right to conduct a physical examination of the plaintiff; if it is delayed until after the revision surgery, he will be limited to accepting the opinions of plaintiff's expert. In response, plaintiff says she has always been willing to undergo a physical examination, but that the defendant sat on his rights. The complaint was filed May 12, 2022; and defendant filed his...

Excerpt: ...ortunities to correct the deficiencies in the motion for leave to amend and sanctions under Code of Civil Procedure section 128.7. Plaintiff's failure to do so is well documented. This is the tentative ruling posted on the Internet on March 1, 2023, for the court's March 2, 2023 law and motion calendar, italicized for clearness. It was not made part of the minute order, which is this Department's normal practice and needs to be made part of the r...

Excerpt: ...e. However, that may all be a minor issue now. The court notes that the basic factual claims have changed dramatically: 1. In the complaint, the plaintiff alleged the landlord refused to consent to the use of the residence as a “small family day care.” Under the law, a small family day care center is for 6 to 8 children. 2. In the amended complaint, she now alleges she told the landlord that she wanted to operate a “large family day care ce...

Excerpt: ...that plaintiff did not meet and confer in good faith. The motion to compel was filed before a second requested extension to respond had expired. Defendant was trying to respond to a meet-and-confer letter that covered 151 discovery requests, and there were no pressing deadlines. Based on the court's review of the record, it appears plaintiff granted a two-week extension to respond to the initial meet-and-confer letter. When the two weeks had pass...