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: ...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: ...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: ...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...