Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...at- will basis, which means that either you or the School may terminate the employment relationship at any time without cause or notice.” Plaintiff argues that the document also references execution of a contract of employment, making the terms of the contract ambiguous. However, she does not allege that a second employment contract as referenced was ever executed or that the terms of such a contract contradict the at-will provision she undispu...

Excerpt: ...mely filed within the six-month limitation period of the Gov't Claims Act Although CalOptima was not named in the caption of the original Complaint, it is clear from the allegations in body of the Complaint that CalOptima was the intended defendant in this matter. Plaintiff brought this action against “County of Orange, which includes its subdivision CalOptima.” (9/6/22 Complaint, Preamble Paragraph). Furthermore, the complaint alleges employ...

Excerpt: ...reach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) Plaintiff has pled the existence of a valid contract between it and defendant/cross- complainant Rezidential Development, Inc. ...

Excerpt: ...ices, Inc. (the “entity defendant”). With regard to the individual defendant, the motions are GRANTED. With regard to the entity defendant, the motions are GRANTED – subject to the filing of a supplemental declaration attaching the discovery requests and the proofs of service. According to the declaration of plaintiff's counsel, all three discovery devices were served on the defendants and no responses were received. California Code of Civi...

Excerpt: ...urrer First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.) Plaintiff's opposition ...

Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...

Excerpt: ... breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.) “It is fundamental that in order to take charge of a person in such a manner as will create a duty to control his conduct, one must possess the ability to control that...

Excerpt: ...ce documents responsive to subpoena request Nos. 4 – 7 at this time. Before the court is a request to order Plaintiff's current counsel of record to produce documents responsive to a subpoena duces tecum (“Subpoena”). (Civ. Proc. Code § 2031.240.) The basis for the Subpoena is that CST previously represented Plaintiff and his mother/bankruptcy attorney Amanda J. Potier in another action (“CTI Action”). Several of the Defendants in this...

Excerpt: ... Civ. Proc. Code § 405.38. (Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42-43.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (J&A Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42.) “The term prevailing party was not defined in the statute and, as a result, courts determine the prevailing party by taking a practical approach that ...

Excerpt: ...o matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3...

Excerpt: ...n other than the date, time, and length of calls made and received, redacted. This motion concerns Plaintiff's Request for Production No. 19, which seeks: “All bills and usage statements for the date of the INCIDENT (i.e., the 24-hour time period) for any mobile communications device (such as a cellular telephone) in YOUR possession, custody and/or control on the date of the INCIDENT.” (¶8 of Nikarjam Declaration and Exhibit B thereto.) As n...

Excerpt: ...tated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molina...

Excerpt: ...rst and fourth causes of action). The general demurrers of defendants Samantha Zehngut and Julia Mestas to the fifth cause of action are SUSTAINED with 30 fays leave to amend. First cause of action for gender and pregnancy discrimination. The first cause of action is for gender and pregnancy discrimination and is brought against all three defendants. A prima facie case for a discrimination requires a showing by the plaintiff of the following elem...

Excerpt: ...First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success…‘[C]laims with the requisite minimal merit may proceed.' ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, 205, fn. omitted.) “Assertions that are ‘merely i...

Excerpt: ...st produce evidence they were subjected to ‘offensive comments or other abusive conduct' that is (1) based on a ‘protected characteristic' (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.' (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) … Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically t...

Excerpt: ...itive damages. A. First Cause of Action – Hostile Work Environment Harassment “[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].” (Ortiz v. Dameron Hospital Assn. (2019) 37 Ca...

Excerpt: ...orber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment pursuant to Civ. Proc. Code § 483.010, which requires 1) an action on a claim or claims for money; 2) each of which is based upon a contract, express or implied; 3), where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fe...

Excerpt: ...unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042.) A. First Cause of Action – Harassment/Hostile Work Environment To establish a prima facie case of harassment/hostile work environment...

Excerpt: ... against him on summary judgment, they are not entitled to recover any costs, citing Labor Code § 218.5. Plaintiff contends that, under this code section, if the prevailing party in a court action is not an employee, attorney's fees and costs may only be awarded if the Court finds that the employee brought the action in bad faith, i.e., it finds that the action is unreasonable, frivolous, meritless, or vexatious. Plaintiff contends that the acti...

Excerpt: ...rty's or one's own act or default.” (INDEMNIFY, Black's Law Dictionary (11th ed. 2019).) “Express indemnity refers to an obligation that arises “ ‘by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.' ” [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, i...

Excerpt: ...documents, and requests for admission are due 30 days after service (plus appropriate time for method of service). (CCP §§ 2030.260, 2031.260, and 2033.250.) With respect to the Requests for Admission, a propounding party may ask the court for an order that deems the matters contained in the requests for admission admitted if the receiving party fails to respond to the requests for admission. (CCP § 2033.280(b).) The court shall grant the orde...

Excerpt: ... either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) NNA moves to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract ("RISC") attached as Exhibit 4 to the Maugeri Declaration. The RISC, dated 5/30/20, is between plaintiffs Yesenia Delao and Patricia Delao ("Plaintiffs") as "Buyer" and Buena Park Nissan as "Seller-creditor." NNA acknowledges that it is not a signatory...

Excerpt: ...he request for issue and terminating sanctions. As a threshold matter, defendants have met their burden of showing that plaintiff intentionally destroyed evidence after contacting a lawyer and while considering litigation. In her deposition, plaintiff admitted that, prior to turning in her computer to her employer, she downloaded certain files onto thumb drives and used a special program to entirely wipe the computer. Furthermore, although we do ...