Excerpt: ...996) 12 Cal.4th 913, 917; CACI 400.) “Premises liability is a form of negligence based on the holding in Rowland v. Christian, supra, 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Mgmt. Corp. (1989) 215 Cal. A...

Excerpt: ...through Fifth, Ninth and Fourteenth Causes of Action. The Demurrer is OVERRULED as to the Thirteenth Cause of Action. The Demurrer brought by Defendants Keith Pace, Monica Han and Steve Brashear, directed against the First through Fifth Causes of Action: As explained by the Court Court in Usher v. White (2021) 64 Cal.App.5th 883, “to be held liable under section 558.1, an ‘owner'…must either have been personally involved in the purported vi...

Excerpt: ...rden is on the responding party to justify any objections made to document disclosure. (Kirland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) AGRO contends that because PENINSULA's Cross-Complaint alleges that its invoices contain “disproportionate differences between the costs of labor,” it needs PENINSULA's history of payments with other farm labor contractors to determine PENINSULA's cost of labor in prior seasons; that it should be all...

Excerpt: ...red in bringing this motion. Defendant submitted evidence establishing that Plaintiff has failed to comply with the Court's September 27, 2021 Order requiring that Plaintiff comply with the Court's April 6, 2021 Order which ordered Plaintiff to provide verified responses, without objections, to Defendant's First Set of Form Interrogatories, Special Interrogatories, and Requests for Production, as well as requiring Plaintiff to pay sanctions in th...

Excerpt: ...8(a)(1), “if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” Additionally, if the drafting party materially breaches the arbitration agreement, the c...

Excerpt: ...he authority to act as the agent of Defendants Unity, Thorne, and Portioned” and that all defendants led Plaintiffs to believe that ZUCKERMAN “had the authority to act, on all matters pertaining to and within the scope of the Agreement” to act on their behalf. (See SAC, ¶ 19.) As such, Plaintiffs reference that “Defendants” made certain representations includes ZUCKERMAN. The SAC also alleges that Defendants represented that “all gro...

Excerpt: ...w why he [or she] is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]' ” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-624.) In a motion under section 473, the initial burden is on the moving party to prove inadvertence, surprise, excusable neglect or mistake by a “preponderance of the evidence.” (Id. at p. 624.) “In order to qualify for relief under section 473, the movin...

Excerpt: ...s discretion rules as set forth below. Next, the Court also notes that the opposition papers were untimely filed and served. Nonetheless, the Court, in its discretion, will consider the late papers. Motion 1: As to the Demurrer by Cross-Defendant State Farm General Insurance Company (“Cross-Defendant”) to the 2 nd and 3 rd COA in the First Amended Cross-Complaint by Nili N. Alai (“Alai”) and TSC, Inc. (“TSC”) (collectively, “Cross-C...

Excerpt: ...he requirement is not grounds to overrule or sustain a demurrer. (Id., subd. (a)(4).) The Court will address the merits, discussed below. First Cause of Action – Breach of Contract: “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman...

Excerpt: ...nts”) were filed and served late in violation of Code Civ. Proc. § 437c(b)(2). However, the Court will consider the opposing papers. Plaintiff's Request for Judicial Notice The Court DENIES Plaintiff's request to judicially notice the screenshots and/or documents from the California Secretary of State website and from the California Medical Board, attached as Exhibits 2 and 5 to Plaintiff's Compendium of Evidence (“COE”), as they are not r...

Excerpt: ...for Judicial Notice is GRANTED as to Exhibits C and D. While they are not particularly helpful to the instant motion, they are recorded documents pertaining to the subject real property “[T]he trial court has the power to consolidate an unlawful detainer proceeding with a simultaneously pending action in which title to the property is in issue. That is because a successful claim of title by the tenant would defeat the landlord's right to posses...

Excerpt: ...vide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384] To establish a prima facie case of retaliation a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. I...

Excerpt: ...nied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (CCP § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th ...

Excerpt: ...ent meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal....

Excerpt: ... 35.) As to Plaintiffs' breach of contract allegations against Defendant as an employer, the TAC alleges that Defendant breached the employment agreement by not paying Plaintiffs “for services provided from 2015 to 2017 leaving a balance of no less than $21,000 as provided in Exhibits A and C”. Exhibits A and C, however, are either spreadsheets which identify certain projects and contract job costs and amounts or a spreadsheet which list chec...

Excerpt: ...chment is based upon a written contract for the provision of farm labor services. (See Pacheco Decl., ¶¶ 3-6, 8-10, Exh. 1.) Plaintiff presents evidence that the sum to be attached is readily ascertainable as Plaintiff rendered $551,721.50 in labor services and Defendant only paid Plaintiff for $300,719.98 leaving a balance of $251,001.52 due and owing. (Id., Exh. 2.) Plaintiff also seeks to attach $2,500 in estimated attorneys' fees. (See Agui...

Excerpt: ...atory statement that “Keystone overloads its managers and its managers thus cannot do a good job for their clients.” (See Complaint, ¶ 49.) Plaintiff alleges this statement was made by defendant to “Earl Richmond”. (Id., ¶ 9.) This statement is the basis for the defamation cause of action. Defendant contends that her statement that Plaintiff KEYSTONE managers cannot do good jobs for its clients because it overloads its managers concerne...

Excerpt: ...teenth, and twenty-second affirmative defenses in Defendant's Answer filed on July 13, 2020 as to any cause of action in Plaintiff's Complaint filed on May 26, 2020. Evidentiary Issues The Court GRANTS Plaintiff's Request for Judicial Notice as to the first six documents pursuant to Evidence Code section 452(d), and the seventh document pursuant to Evidence Code section 452(h), but declines to take notice of the truth of the contents contained th...

Excerpt: ...30), the FAC also alleges that Defendants represented that “all gross sales collectible for MPK does not get charged to MPK, but through a separate billing account set up by Defendants”; that “all gross sale collectibles and the taxes born from there are the obligations of Defendants through their own tax ID number”; and that “Plaintiffs are only obligated to pay taxes on any money Defendants pay directly to Plaintiffs.” (See FAC, ¶ ...

Excerpt: ...a lawyer may withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively”. Rule 1.16(b)(5) also permits a lawyer to withdraw if a “client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fu...

Excerpt: ...e of California v. Superior Court, 32 Cal. 4th 1234, 1239, (2004); Rubenstein v. Doe No. 1, 3 Cal. 5th 903, 906,(Cal. 2017)) A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute. (Gong v. City of Rosemead, 226 Cal. App. 4th 363, 374, (2d Dist. 2014); see Esparza v. Kaweah Delta Dist. Hospital, 3 Cal. App. 5th 547, 552–554,(5th Dist. 2016)) If a pl...

Excerpt: ...ation sought will lead to the discovery of admissible evidence.” [Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110 . With respect to the argument that the deposition should be stayed, the Supreme Court case Gutierrez is referring to is attached to the Motion as Ex. A. The case is entitled FAC US LLC v. Superior Court. The issue is whether the Superior Court should have granted coordination of cases involving FCA's Chrysler Pa...

Excerpt: ... that its Software was suitable for Plaintiff's needs and would work constitute an express warranty.” (See FAC, ¶ 65.) In Opposition, Plaintiff contends that Defendant ignores the allegations that the warranties provided in writing are incorporated by reference. (See, e.g., FAC, ¶¶ 28-30, 48-52, 64-68, 73, Exhs. A-D.) Civil Code section 1791.2(a)(1) specifically defines “express warranty” as a “written statement”. As such, the allega...

Excerpt: ...and exact same addendum. Both pleadings establish the existence of the contract which was Ex. 1 AGREEMENT TO PURCHASE AN INDEFINITE OPTION TO PURCHASE A MEMBERSHIP INTEREST IN CALCULATED RISK ANALYTICS, LLC, which Parma pleads was “exercised” and Ex. 2. The addendum which provides for the monthly payments to Parman (via the Avrek Law Firm). The only difference is that Parman is now explaining that CRA made a scrivener's error in drafting Ex. ...

Excerpt: ...inal case. (In Re Alpha Media Resort Investment (2019) 39 Cal.App.5th 1121, 1131-1132.) The determination is made in light of the particular circumstances and interest at hand and the test considers the following: “ ‘[T]he decisionmaker should consider “the extent to which the defendant's fifth amendment rights are implicated.” [Citation.] In addition, the decisionmakers should generally consider the following factors: (1) the interest of...

Excerpt: ... that its Software was suitable for Plaintiff's needs and would work constitute an express warranty.” (See FAC, ¶ 65.) In Opposition, Plaintiff contends that Defendant ignores the allegations that the warranties provided in writing are incorporated by reference. (See, e.g., FAC, ¶¶ 28-30, 48-52, 64-68, 73, Exhs. A-D.) Civil Code section 1791.2(a)(1) specifically defines “express warranty” as a “written statement”. As such, the allega...

Excerpt: ...thers may warrant those damages. In this instance, Plaintiff is seeking to impose punitive damages against the drunk driver's parents for negligently entrustment and negligence. It is not sufficient to show that the defendant's conduct was negligent, grossly negligent or even reckless, since such findings will not support a claim for punitive damages . Instead there must be conduct that is so vile, wretched, and loathsome that it would be looked ...

Excerpt: ...second session of deposition; (6) pay sanctions in the amount of $2,695. Initially, the court notes that Hernandez improperly combined two motions into one document and paid only one filing fee, as she seeks (1) an order compelling further responses to requests for production of documents served on 11/23/2020, and (2) an order compelling further responses to requests for production of documents accompanying the deposition notice served on 11/23/2...

Excerpt: ...s. A motion to compel further responses to request for production of documents must set forth specific facts showing good cause justifying the discovery sought by the discovery request. (CCP § 2031.310(b)(1).) Here, the following Requests for Production, Set One (“RFP”) are at issue: REQUEST NO. 45: Any and all DOCUMENTS relating to YOUR net worth from 2015 to present. REQUEST N0. 46: Any and all DOCUMENTS relating to YOUR balance sheets, pr...

Excerpt: ...ior to the hearing on this Motion and informed Defendant's counsel of same. (See Juarez Decl., ¶ 2, Exh. A.) As such, the Motion is MOOT as to these discovery requests. since Plaintiff has agreed to serve further responses and produce the documents requested. Special Interrogatory No. 19 seeks a yes or no answer only and does not seek the disclosure of any information included in a tax form . Request for Production No. 19 seeks information prote...

Excerpt: ... 945, 951 in support of its contention that the arbitration provision must either be stricken or the case bifurcated as to the issue of a public injunction. Blair analyzed the McGill rule which provides that a waiver of public injunctive relief in “any contract—even in a contract that has no arbitration provision”—is unenforceable under California law.” (Blair, supra, 928 F.3d at p. 827.) The McGill rule is a generally applicable contra...

Excerpt: ...ing thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) This includes the power to disqualify counsel in appropriate cases. (In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 575.) “An attorney-client relationship reaches the point at which the attorney can be subject to a disqualification motion when a prospective client engages in preliminary consultations with the attorney with a view to retaining that attorney, even if retention doe...

Excerpt: ...efendant moves to Compel Further Responses to Form Interrogatories, Set 2. For the reasons stated above, the motion is untimely. Tentative Ruling: Defendants ACCION LABS US, INC. and EMEAL BENFORD CLARK,Jr. Motion to Compel Plaintiff SECURE CHANNELS, INC. to provide further substantive and verified responses to Defendants' form Interrogatories (Set Two) is DENIED as untimely. CCP§2024.020(a). Since the opposition to motion 2 is essentially a dup...

Excerpt: ...Record Form submitted to the State by Dreambuilder dated February 18, 2020; Exhibit 2: Section 1-001 of the Caltrans Construction Manual entitled “Purpose” dated May 2018. GRANTED 2. Plaintiff seeks judicial notice of the following in support of its opposition: Exhibit 1: Caltrans 2018 Standard Specifications, Section 5- 1.43 – Potential Claims and Dispute Resolution, Pages 58 to 67; Exhibit 2: Caltrans 2018 Standard Specifications, Section...

Excerpt: ...hat demonstrates some legitimate, nondiscriminatory reason for the action taken against the employee. [See Caldwell v. Paramount Unified School Dist., (1995), 41 CA4th 189, 202-203] Here, the Defendant proffered evidence that not only negates elements of each cause of action, but also shows that the decision to terminate Plaintiff was for a legitimate, nondiscriminatory reason; that is, Airborne terminated Mr. Forrester's employment based on what...

Excerpt: ...arty standing on the contract is substantially destroyed, the doctrine of commercial frustration may apply to excuse performance. Here, the Cross Complaint alleged: Defendant was required to make sixty (60) monthly payments of $3,560.64, payable on the twenty- seventh day of each month, beginning April 27, 2017. From April 27, 2017 to March 27, 2020, despite facing numerous unexpected issues with the Equipment, Cross-Complainants continuously per...

Excerpt: ... parties and their counsel should not be held in contempt for failure to comply with the Court's order. 1. Demurrer: Hernandez argues that the entire complaint is barred because under TAG's Articles of Incorporation, the “liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law.” Here, the complaint-in-intervention alleges misconduct, acts/omissions contrary ...

Excerpt: ...ection 815.2 does not govern property related defects. Such liability is governed by Government Code sections 830 to 835.4 and by the limitations set forth in sections 840 to 840.6 for a public employee's liability for dangerous public property conditions resulting from the employee's acts or omissions. The circumstances caused by the growth of the tree roots would constitute a dangerous condition despite Plaintiff's attempt to phrase a different...

Excerpt: ...elements of fraud, as it alleges 15 misrepresentations concerning the identity of the buyer of the Property and that Damon and Plaintiff would agree on specific terms for the seller financing as part of the proposed sale; Damon's knowledge of the falsity of these representations; intent to defraud; justifiable reliance by Plaintiff in causing Withdrawals to be prepared, notarized and delivered to the title company; and resulting damage in that Da...

Excerpt: ... to be effective, must be lodged with the court's electronic service providers. Rather than lodging the documents as required by the CRC, the court was referred to an internal website at the defendant's law firm. Defendants have offered no authority that provides “lodging” occurs when the court is provided with a web link. The defendants were given two chances to comply with the CRC and have been unable to comply. Tentative Ruling: Motion to ...

Excerpt: ...n of the first and second causes of action on the grounds that LAB never paid the option price: County contends that the Option Agreement provided that LAB was required to pay $100 in full upon execution of the Option Agreement. LAB contends that there was adequate consideration for the Option Agreement, that the payment was immaterial and that the County waived any breach. Evidence submitted by LAB raises a triable issue of fact as to whether LA...

Excerpt: ...ion is DENIED. The Court notes that recent cases have held that the court may summarily adjudicate an issue of duty without regard for the dispositive effect of such ruling on other issues of litigation. The County did not object to the motion on this ground. 1. LAB contends that Defendant County owed LAB a duty to provide LAB the exclusive option to lease the Premises during the Option Term. LAB contends that the Option Agreement provides the te...