Excerpt: ...ked as a construction worker for SEMA Construction. On December 2, 2016, Fernando was working on Spruce Street near the junction of the 60 and 91 freeways in Riverside. Fernando was moving Krails1 from one construction yard to another. SEMA contacted Gaspar Transportation, a truck broker, to provide trucks to transports the K‐rails. Gaspar chose Montano Trucking. SEMA also rented a crane and crane operator for Hydraulic Cranes, LLC to load the ...

Excerpt: ...d been vacated, and in informing banks and lenders not to refinances or otherwise encumber said properties due to said void abstracts, Lis pendens and liens [sic.], EDELSTEIN knew and intended to thereby cloud STORCK's tilte [sic.] to said properties and to thereby influence the conduct of third parties to not lend[,] finance, encumber or in any manner transact with said properties.” The Court found these allegations were insufficient to state ...

Excerpt: ...s. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 500.) Ordinarily, negligence may be alleged in general terms, without stating the acts constituting negligence or detailing the particular manner in which plaintiff's injury occurred. However, the bare allegation that Defendant's negligence caused Plaintiff's injury is insufficient to state a cause of action for negligence. Plaintiff must allege the acts or omissions that are claimed to have con...

Excerpt: .../2/19, Defendant Cannady filed his Cross‐Complaint for declaratory relief and comparative indemnity alleging that Jose Salgado was the individual at fault and responsible for any damages to Plaintiffs and that Cannady was not negligent. In the alternative, Cannady alleges that Salgado was contributorily negligent for the damages alleged by Plaintiffs and seeks indemnity from Salgado. By this Motion, Cross‐Defendant Salgado seeks summary judgm...

Excerpt: ... Bell fail due to Plaintiff's failure to exhaust administrative remedies. Defendants have established that AT&T and Pacific Bell are separate entities. Neither the caption nor the body of the DFEH names or references Pacific Bell or AT&T California. (Id.) As such, Defendants have demonstrated that Plaintiff failed to exhaust administrative procedures as to Pacific Bell. As to Issue 8, the MSA is GRANTED. To the extent that Plaintiff's Hostile Wor...

Excerpt: ...efendants' demurrers to Count Two of the Fifth Cause of Action. The demurrers of both defendants are sustained with 20 days' leave to amend as to the Fourth Cause of Action. With those exceptions, the demurrers are overruled. The case management conference is continued to November 18, 2020, at 8:30 A.M. in Department 10. Analysis: Request for Judicial Notice Exhibits C and D are capable of being judicially noticed, but they appear to be immateria...

Excerpt: ...amages apply. (Arista v. County of Riverside (2018) 29 Cal.5th 1051, 1062‐1063.) Although there is no general duty to avoid negligently causing emotional distress to others, such a duty is recognized with respect to two categories of person: 1) direct victim plaintiffs, i.e., persons who suffer serious emotional distress as the result of defendant's breach of a duty of care owed directly to them; and 2) bystander plaintiffs, i.e., persons who s...

Excerpt: ... was still out on maternity leave, Defendants' "Restructuring Team" gave Plaintiff a letter which provided that if Plaintiff wished to continue her employment with Defendants, Plaintiff was required to accept a demotion back to her former title of "Medical Assistant," as well as a pay cut from twenty dollars ($20.00) per hour to sixteen dollars ($16.00) per hour. About a month later, in March 2019, Defendants pressured Plaintiff to return from he...

Excerpt: ...ompensation Appeal's Board may have a res judicata effect in subsequent proceedings (Jones v. Brown (1970) 13 Cal.App.3d 513, 521), here, Defendant does not explain how arbitration in Worker's Compensation matters function, whether an arbitrator's decision is final, and inappropriately relies on a declaration filed in support of the demurrer to the original complaint in support of the present demurrer. (Memorandum, p. 5 [referring to a declaratio...

Excerpt: ...y as to his own losses and hardships (objections 1‐ 3), he does not establish personal knowledge with respect to the hardships and losses of other persons, including tenants and alleged customers (objections 4, 6‐8). With respect to what the appraiser did or did not consider (objection 5), Van Loon has not demonstrated personal knowledge. Further, Van Loon's testimony regarding whether the Property is located above the flood plain (objection ...

Excerpt: ...h any additional facts in the SAC to support his causes of action. In any event, regardless of whether there are material questions of fact regarding Bayview's alleged violations of Civ. Code §§ 2923.6 and 2923.7, Defendants fall within the safe harbor provision of Civ. Code § 2924.12(c), which provides, in relevant part, that “[a] mortgage servicer [or] mortgagee … shall not be liable for any violation that it has corrected and remedied p...

Excerpt: ...20, 8:30 a.m., Department 5. As to the third cause of action: The central issue is that that plaintiff has not sufficiently alleged publication, or a false statement of fact, and asserts the common interest privilege. As Witkin points out, “[i]t is sometimes said to be a requirement, and it certainly is the common practice, to plead the exact words or the picture or other defamatory matter. The chief reason appears to be that the court must det...

Excerpt: ... and the parties could not reach agreement to avoid the instant pleading motion (Antonyan Decl. ¶ 5, Exhibit 4). This demurrer and the motion to strike Page 5 of 7 were not filed until 7‐27‐20, the same day as the Exhibit 4 email from plaintiff's counsel to defendant's counsel describing plaintiff's decision of the meet and confer issues. The issues on the demurrer and motion to strike are fully briefed. In light of the circumstances on this...

Excerpt: ... on September 11, 2020, which trial date was vacated by general orders issued by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motions on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 8, 2020. DRMC has actually been litigating this matter outside of arbitration sin...

Excerpt: ...ed for some purpose other than to prove the truth of the matter asserted, such as for impeachment of the declarant (Evid. Code Section 1200(a).) The court declines to rule on Objections Nos. 1‐9, 11 and 12, as these objections are immaterial to the court's ruling under Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 and CCP § 437c(q). A defendant moving for summary judgment has the burden of showing that a cause of action cannot be established...

Excerpt: ...ough Horton substituted into said action, neither Mr. Horton nor the Horton firm ever entered into a retainer agreement with Vincent related thereto. Further, Vincent is informed and believes and thereon alleges the following: (a) Mr. Horton disclosed privileged information from Vincent to Scott Keenan, the defendant he was supposed to be pursuing in said action. This privileged information was obtained from Vincent in confidence, but Mr. Horton,...

Excerpt: ...ce. The dismissal decision was not an abuse of discretion. Further, the Board did not violate the Brown Act in connection with the meeting concerning Petitioner's dismissal. Petitioner does not specify the statutory basis for the writ petition. The Petition states that Petitioner seeks a writ of administrative mandamus directing respondent Moreno Valley Unified School District (the “District”) to: (1) vacate its act of terminating Petitioner ...

Excerpt: ... decisions of the Appeals Board on a petition for writ of mandamus, the trial court “ ‘ “exercises its independent judgment on the evidentiary record of the administrative proceedings and inquires whether the findings of the administrative agency are supported by the weight of the evidence.” ' ” (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 562 (“Paratransit”).) Petitioner has the burden of proving that ...

Excerpt: ...d by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motion on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 4, 2020. DRMC has actually been litigating this matter outside of arbitration since 2016, when named respondent Fontana filed a wage claim with the Labor Comm...

Excerpt: ...t, 4) negligent misrepresentation, and 5) declaratory relief. Only the 2nd, 3rd and 5th causes of action are asserted against Defendant Infinity Insurance Company. Defendant Infinity asserts that it is entitled to summary judgment because it properly denied coverage for the July 24, 2017 accident based upon the driver endorsement of Gustavo Rivera. Infinity further asserts that Plaintiffs have no legal or factual basis to proceed against Infinity...

Excerpt: ...ssion, or control has been unequivocally Page 3 of 5 established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) Starlight contends that the questions concerning the allegedly dangerous condition of the property are immaterial, because the plaintiff testified that he slipped on something, not that he tripped on a stair. That argument fails, because the defendants addressed the issue of potential...

Excerpt: ...ught a cause of action for traditional writ of mandate. She alleges that City has violated the law by depriving her of the opportunity for a hearing to revoke the requirement of a Wild/Vicious Animal Permit (WVAP). Petitioner alleges violations of Norco Municipal Code (NMC) sections 8.05.070 [permit procedure] and 8.05.100 [permit revocation.] (First Amended Petition (FAP) ¶74.) NMC section 8.05.100(b) provides, in part: “The animal control of...

Excerpt: ... period is tolled during the time “[t]he plaintiff is under a legal or physical disability that restricts the plaintiff's ability to commence legal action.” The Complaint provides that at all times during which Defendant Penley provided Decedent Erika Montage with legal services she was under a physical disability that restricted her ability to commence a legal action. Further, the Complaint alleges that she was under both a physical and lega...

Excerpt: ...: In the event of a breach of any provision of this Agreement, including re‐filing or realleging the same claims and/or parties being released, the alleged 2011 amendment, the alleged 2015 amendment, or any other contest to the 2009 KFT, may give rise to damages for breach. In an action to enforce any term or terms of this Agreement or to seek damages for breach of this Agreement, the prevailing party in that action shall be entitled to recover...

Excerpt: ...ng Shawkat's deposition. As to financial condition discovery Plaintiffs demand, among other things: (1) salaries, fees, dividends and other compensations paid by 68‐444; (2) disbursements from account receivables, including cash receipt journals, cash disbursement journals, payroll journals, sale journal and all general ledgers since June 1, 2018; (3) contracts (including financing) related to the premises; (4) the net worth of 68‐444; and (5...

Excerpt: ...er because there is no reported case dealing with what facts would be sufficient to plead an affirmative defense. Thus, once the court entertains a demurrer to an answer, it is inviting endless demurrers to the successive amended answers because the amount of facts defendant must plead is unknown. One case that is helpful here is FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367. The case did not deal with a demurer to an answer, but w...

Excerpt: ... days. The case management conference is continued to October 28, 2020, at 8:30 A.M. in this department. Page 3 of 6 Analysis: No. 1: The plaintiff seeks to strike the phrase “and meal and rest period premiums” in the general allegations section. (TAC p. 9:26 in ¶37.) This phrase is not alleged to be specific to any particular claim. Without a showing that the phrase is irrelevant to every claim alleged in the TAC, the motion is denied. No. ...

Excerpt: ...ith leave to amend. To support a demand for punitive damages under Civ. Code §3294, a plaintiff must plead and prove facts demonstrating malice, oppression or fraud. (Civ. Code, § 3294(c).) Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct Page 5 of 5 which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,” while oppression is d...

Excerpt: ...Street, Suite 108, La Quinta, CA 92253, was in a dangerous condition because of placement of a black electrical cord positioned on the service of said sidewalk during the evening hours on 10/18/18, plaintiff was walking on said sidewalk and was caused to trip and fall . . . as a result of her foot contacting the black electrical cord . . .” (UF 2.) Plaintiff further alleges that Defendants Marvin Investments, Old Town La Quinta, LLC and Prieto ...

Excerpt: ...ionable conduct. The moving party to submit supplemental declaration providing authenticated revised time records (itemized per task completed) for attorney's fees and costs incurred for the following: (1) Meet and confer efforts on November 29th and 30th of 2019 and preparing related declaration re meet and confer for the Issues Conference pursuant to Local Rule, title 3, rule 3401(3). (2) Preparation of pre‐trial documents pursuant to Local R...

Excerpt: ...mote the determination of actions on their merits.” (Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) The purpose of CCP §1008 is for reconsideration of a prior ruling based on new or different facts, circumstances or law. This seems to be an improper motion for reconsideration as Plaintiff is asking the court to now consider legal authorities not previously provided. The legislative intent of...

Excerpt: ...s, however, appropriate to deny leave to amend where a proposed amendment fails to state a cause of action, where a plaintiff has inexcusably delayed seeking permission to amend, or where probable prejudice to an opposing party supports denial of the amendment. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652; Estate of Murphy (1978) 82 Cal.App.3d 304, 311.) Here, all defendants appear to oppose the motion on the groun...

Excerpt: ...fiduciary duty exists is generally a question of law; whether the defendant breached that duty towards the plaintiff is a question of fact. (Marzec v. Public Employees' Retirement System (2015) 236 Cal. App. 4th 889, 915.) The SAC now alleges that Qilin, Qiliang, and Golden Taste breached the fiduciary duty they owed to Plaintiff as partners of Golden Globe. (SAC ¶52.) It also incorporates the allegation that when Plaintiff acquired his 51% of G...

Excerpt: ...truction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) Alternatively, a written contract can be pleaded by attaching a copy to the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) Plaintiff alleges that on 1‐ 26‐18, it submitted a proposal for the project to Centro Medico. (FAC ¶8.) Thereafter, Centro Medico provided an “Intent to Award Con...

Excerpt: ... Co. (1988) 44 Cal.3d 1103, 1111.) The SAC specifically provides that “Ms. Cooper's death was sufficient to put Ms. Cooper's family, including Plaintiffs herein, on notice that some negligence or wrongdoing on Defendants' behalf may have caused or contributed to Ms. Cooper's death.” (SAC ¶9.) This means Plaintiffs agree the statute of limitations began running on the date of Ms. Cooper's death – June 21, 2016. Seven months later, Plaintiff...

Excerpt: ...ach of express warranty; (2) violation of Song Beverly – breach of implied warranty; (3) violation of Civil Code §1793.2; and (4) fraudulent inducement – concealment. Defendant demurs to the 4th cause of action on the grounds that it fails to state facts sufficient and is uncertain. It argues that the economic loss rule applies and contends that the limited exception for fraud only applies as an affirmative misrepresentation or an independen...

Excerpt: ...ed a Cross‐Complaint against PNMAC for Cancellation of Instrument. Defendant PNMAC Mortgage Co., LLC demurred to the single cause of action in Cross‐Complainant CitiMortgage, Inc.'s Cross‐Complaint on the grounds that the action failed to state facts sufficient to state a cause of action against PNMAC. On 6/16/20, the court sustained the demurrer and granted CitiMortgage 30 days leave to amend the CC. CitiMortgage filed a FACC against Cross...

Excerpt: ...f Michael Bova.) Accordingly, plaintiff's causes of action against Farmers for breach of contract and breach of the implied covenant of good faith and fair dealing fail in the absence of a covered peril. The court has discretion to consider a late filed opposition particularly where there is no prejudice to the moving party. Kapitanski v. Von's Grocery Store (1983) 146 Cal. App. 3d 29, 32. Moving party filed a substantive Reply, thus its procedur...

Excerpt: ... But that policy “‘“does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.”” (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763]…) .” Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1057. Where the employee contests the ...

Excerpt: ...0; Jewish Defense Org. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054‐55). Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Automobile Antitrust Cases, supra, 135 Cal.App.4th at 110‐11.; Jewish Defense Org., 72 Cal.App.4th at 1055). Defendants provide the declaration of Trevis Alberts, the vice presi...

Excerpt: ... at the facility to support soup preparation, packaging and shipping processes, including cleaning Defendants' waste bins and waste room. Plaintiffs allege they were unlawfully terminated for complaining to Defendants about unsafe and unlawful working conditions to which they were subjected as a result of Defendants' waste storage practices. On June 1, 2020, Plaintiffs filed the Complaint alleging: 1) whistleblowing retaliation (Labor Code § 110...

Excerpt: ...by finding that Amal Zaky was a party to the purchase and sale agreement; not that he exceeded his authority. This is not a proper grounds to modify or correct the arbitration award. With respect to Defendants refusal to mediate, the arbitrator found that there had been no mediation offer properly made to Wafick Zaky or Amal Y. Zaky in his decision to grant attorney's fees. Again, Plaintiff's argument is not that the arbitrator exceeded his power...

Excerpt: ...Christopher Urner's declaration based on relevance and hearsay. The statements relating to defense experts used in other cases are irrelevant. SUSTAIN as to nos. 1‐5. II. On the Merits CCP § 1032 allows the prevailing party in any action or proceeding to recover costs of suit. The prevailing party's right to recover is limited by statute. Allowable costs are set forth in CCP § 1033.5(a)(1), but recovery is limited to those costs which are rea...

Excerpt: ...l evidence sufficient to meet the burden to sustain the objections; (2) Any documents produced in response to the RFP must identify the specific request number to which each document is responsive, pursuant to Code of Civil Procedure section 2031.280 subdivision (a), and must include the information required under Code of Civil Procedure section 2031.230 when responding party represents that it is unable to comply. GRANT $1,485.00 sanctions again...

Excerpt: ... The settlement agreement provides that Plaintiffs would dismiss the action and Defendants would issue a promissory note in favor of Plaintiffs for $2.56 million at 10% interest, and a second deed of trust. Defendants warranted that the senior deed of trust (held by R2H, LLC) was current and no default. On 3/5/18, R2H sent Defendant GMS a notice of default regarding the senior deeds of trust. On 4/24/18, R2H recorded two notices of default for a ...

Excerpt: ...d architectural oversight and management for the development and construction of four separate mixed‐use commercial development projects, each of which was to consist of an ARCO AMPM gas station and convenience store, express tunnel car wash and multiple retail, restaurant and hospitality facilities in Southern California and that Defendants represented that they had the experience to provide these services when in fact they did not and that as...

Excerpt: ...dicial notice of plaintiff's bankruptcy proceedings. While those records show that the trustee abandoned any interest in the real property that is the subject of this proceeding, the bankruptcy records do not show the trustee abandoned any cause of action that arose prior to the plaintiff's filing of bankruptcy. Causes of action are among the legal or equitable interests that are part of the bankruptcy estate. (Turner v. Cook (2004) 362 F.3d 1219...

Excerpt: ...o. (2004) 119 Cal.App.4th 855, 862.) An insurer is required to show the policy language supporting its position is so clear that parole evidence would be inadmissible to refute it. (Ibid.) Here, the parties do not disagree on the language of the policy. Instead, they disagree about its interpretation and application. The interpretation of an insurance policy is usually a question of law. (Waller v. Truck Ins. Exchange Inc. (1995) 11 Cal.4th 1, 18...

Excerpt: ...laintiff's supervisor, Shirley Jackson, observed in July or August 2017, that Plaintiff did not take directions well, acted like she knew everything, and lied when questioned about case loan. (Ms. Jackson's Declaration, ¶ 4 and Exhibit 8.) By late September 2017, Ms. Jackson had observed Plaintiff's failure to focus on high priority cases, even though Plaintiff had been informed on numerous occasions to do so. (Ms. Jackson's Declaration, ¶¶ 7�...

Excerpt: ...(identified in the Complaint as Brenda V.), Plaintiff alleges the following: BRENDA V. conspired with DOES 1 and 2 to help them steal plaintiff's property and escape from StorAmerica's secured premises without being apprehended by authorities, in part by: (a) not alerting law enforcement or StorAmerica's security personnel and/or management to the fact that an alarm had sounded when DOES 1 and 2 broke into plaintiff's storage unit; (b) manually o...

Excerpt: ... denied. A motion under CCP § 2033.280 shall be granted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response . . . in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).) Defendant provided substantive responses on 8‐4‐20, such that CCP § 2033.280 does not apply. The responses are timely because they were served 35 days aft...

Excerpt: ...le a pleading in response to the First Amended Complaint no later than October 20, 2020. Analysis: The documents of which the plaintiff asks the Court to take judicial notice are irrelevant to the issue presented by this motion. Cooke does not deny that he lives at the Serrento Drive address, only that he was served at that address. Therefore, the request is denied. The defendant's objection to the Bradford declaration is sustained because the fa...

Excerpt: ...tion to dismiss set for 9‐25‐20. Procedural background includes but is not limited to that Plaintiff filed this action on 6‐29‐16. When the Third Amended Complaint was the operative pleading, on 7‐8‐20, the court sustained City's demurrer to the 9th, 13th, 14th, 18th and 19th causes of action, while the Plaintiff had already dismissed the 15th, 16th and 17th causes of action. These were the only causes of action asserted against the C...

Excerpt: ...enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The statute was enacted to provide a summary procedure for specific performance of a settlement contract without the need for a new lawsuit. (Weddington Productions v. Flick (1998) 60 Cal. App. 4th 793, 809.) The court may not ...

Excerpt: ...eed auto accident where liability was not contested. During the course of litigation, Defendant Bertone served two offers under Code of Civil Procedure section 998. Under section 998, if a defendant makes an offer of settlement that plaintiff fails to accept, then the defendant's allowable costs under Code of Civil Procedure sections 1031 and 1032 may be shifted to the plaintiff, and plaintiff precluded from recovering its post‐offer costs, if ...

Excerpt: ...idence of any past or future loss of income or earning capacity of Carla Alvarez for any purpose, at trial or at any hearing, without leave of court, and that any motion seeking leave to rely on such evidence must be heard no later than 90 days before the initial trial date. The plaintiff's motion to quash the subpoenas served by the defendants on Blue Cross of California, and Blue Shield of California is denied to the following extent, but other...

Excerpt: ...sented by the motion. Judge Randall S. Stamen discloses that in or about 1992 and 1993, he was an associate attorney with Reid & Hellyer. Judge Stamen's past employment by that law firm will not affect his ability to be impartial. Page 3 of 3 The existence of the settlement agreement (Settlement Terms) is supported by the parties. Plaintiff's counsel, Jenna Acuff, declares that she prepared the draft settlement documents, and emailed them to Defe...

Excerpt: ...f the FEHA; and( 6) Wrongful Termination in Violation of Public Policy 4 against his former employer, Defendant Professional Community Management of California, Inc. (PCM). In response, PCM filed this motion to dismiss or stay based upon the grounds that Plaintiff executed two Nondisclosure Agreements that contain a clear forum selection clause requiring Page 4 of 5 any lawsuit brought against PCM, arising from plaintiff's purported employment wi...

Excerpt: ... “CHRISTOPHER DAKOVICH ‐ AGENT FOR SERVICE” at “POSTAL CENTER‐ PLACE OF MAILING 12403 Central Ave #706 Chino, CA 91710‐ 2604.” (POSs filed 12/12/2019.) Dakovich's service address, however, is 14071 PEYTON DRIVE, UNIT 369, CHINO HILLS, CA 91709. (See Bradford Decl., Exh. D.) The Chino Postal Center address is the address listed for Methot in his corporate filings. Methot states that he received no notice from the Postal Center of eit...

Excerpt: ...t to the form of the protective order, and, in particular, whether there should be a sharing provision, allowing plaintiff's counsel to share the information with other counsel in similar cases. (Von der Lancken decl., ¶ 5, Exhibits A to D.) Based upon both the Van der Lancken declaration and Exhibits A to D attached to his declaration show compliance. There is no dispute that defendants are entitled to a protective order for their trade secrets...

Excerpt: ...ourse materials prior to the start of classes; and/or off‐duty rest breaks and/or meal breaks; and itemized wage statements containing entries for the hours worked and hourly rates in effect. The parties have reached a settlement in the amount of $700,000, which amount includes $20,000 in PAGA penalties, attorneys' fees in the amount of $233,333.33 and a maximum of $30,000 in settlement administration costs, although the settlement administrato...

Excerpt: ...demurring Defendant under any theory. It is unclear what if any Miracle Education is alleged to have taken against Plaintiff. The Second Amended Complaint merely alleges, as to each cause of action, that Miracle Education is liable for the actions of its agents, representatives, or directors, the Digiulios. The Second Amended Complaint does not, however, state sufficient fats to demonstrate that the Digiulios had authority to act on behalf of Mir...

Excerpt: ...and ratification by any of the three demurring defendants. Vague allegations that the “District” knew of the alleged assaults is insufficient. Because such facts might exist, the Court grants leave to amend. As to the fifth cause of action for negligent supervision, that is a theory of liability against employers who hire or retain an incompetent or unfit employee whose characteristics might pose a danger to persons the employee is expected t...

Excerpt: ...rom Plaintiffs' employment relationship and Plaintiffs do not adequately allege that Desert Falls Villas Master Association is their employer. {See FAC ¶¶ 7‐8.} Plaintiffs' allege in the First Amended Complaint that all Defendants “are a single employer for purposes of liability” and that they “jointly employed” Plaintiffs. {See FAC ¶ 17.} Here, the First Amended Complaint is not uncertain. (See Khoury v. Maly's of Calif. Inc. (1993)...

Excerpt: ...t Brown was not acting in the course and scope of his employment with Forest Lawn when the accident occurred. Forest Lawn moves for summary judgement on the grounds that there is no triable issue of fact that Brown was not acting within the course and scope of his employment with Forest Lawn when the accident occurred. There is a triable issue of fact whether Brown was acting in the course and scope of his employment with Forest lawn when the acc...

Excerpt: ...ll off a ladder and suffered severe injuries. When he returned to work four days later, with medical restrictions limiting Plaintiff to modified light duty. Defendants refused to place Plaintiff back to work and eventually replaced him. On 7/17/19, Plaintiff filed his complaint for: (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in interactive process; (4) retaliation; (5) wrongful termination in violation of pub...

Excerpt: ...se, or excusable neglect.” There are Page 4 of 4 two forms of relief: mandatory or discretionary. (CCP §473(b).) Relief is mandatory if the attorney is willing to take the blame and pay the costs; the court must set aside the entry of default, default judgment or dismissal. (Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Without an attorney affidavit of fault, relief is discretionary and must be based on a showing of mi...

Excerpt: ...anagement Conference for 9‐17‐20 is continued to 11‐19‐20 at 8:30 a.m., Department 5. To support a claim for punitive damages under Civil Code (CC) §3294, plaintiff must plead facts supporting a showing of malice, oppression or fraud. (CC §3294(c).) Ordinary negligence (mere carelessness or simple failure to exercise due care for plaintiff's safety) does not amount to malice, oppression or fraud and thus does not support a punitive dama...

Excerpt: ...nd grants the motion with respect to all requests at issue (numbers 26‐ 29 and 32‐35). “[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena'. Such a subpoena may be used to conduct an ‘oral deposition,' a ‘written deposition,' or a ‘deposition for production of business records and things.'” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130.) Here, Moreland has produced some documents in response...

Excerpt: ...Angeline Campos, submitted the proposed initiative measure (which would eventually be known as Measure L), which would create exemptions to allow some cannabis businesses. (AR 0013‐ 0077.) On 4/9/18, the Registrar of Voters verified the signatures and declared the petition sufficient. (AR 0183.) The City Council submitted a rebuttal argument against Measure L. (AR 0099, 0194‐0197, 0492, 0506, 0520.) On 11/6/18, the voters approved Measure L b...

Excerpt: ...he hearing, as required by RSC Local Rule 3116, the Court dismissed the action on August 2, 2019. Over 10 months later, on June 6, 2020, the plaintiff moved for attorney's fees pursuant to the settlement agreement with the defendant. The court to which the motion was assigned denied Page 4 of 4 the motion on the ground that the action had been dismissed. The plaintiff now moves for an order vacating the dismissal. The defendant contends that the ...

Excerpt: ...sis that Brown was not acting in the course and scope of his employment with Forest Lawn when the accident occurred. Forest Lawn moves for summary judgement on the grounds that there is no triable issue of fact that Brown was not acting within the course and scope of his employment with Forest Lawn when the accident occurred. There is a triable issue of fact whether Brown was acting in the course and scope of his employment with Forest lawn when ...

Excerpt: ...f Song‐Beverly Act – breach of implied warranty, 3) violation of Song‐Beverly Act section 1793.2, and 4) fraudulent inducement – concealment. The FAC alleges as follows: • On July 2, 2016, Plaintiffs purchased a new 2016 Nissan Sentra with a period lasting 36 months or 36,000 miles, whichever comes first, and powertrain coverage lasting 60 months or 60,000 miles, whichever comes first. • The vehicle was delivered to Plaintiffs with se...

Excerpt: ...srepresentation; and (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, ...

Excerpt: ...ry and Davis. Singletary and Davis seek fees totaling $228,033.50, which amount was the amount jointly and severally owed by each of the four defendants, two of whom did not participate in the appeal. Plaintiff Alexander asserts that fees should be one half of the lodestar amount sought, because Singletary and Davis are not entitled to all fees incurred on behalf of all four defendants. Alexander also asserts that the fees sought are excessive an...

Excerpt: ...that the pool equipment was not maintained and the backwash procedure was performed improperly. More specifically, as to the cause of action for strict liability Plaintiffs allege the following: Defendants, and each of them, also knew or should have known that backwashing procedures, as performed on July 17, 2017, with the use of chlorine gas, cannot be made reasonably safe while bathers are using the pool; i.e. Defendants knew that the pool shou...

Excerpt: ...rly declining coverage based on an exclusion that Defendant knew did not apply, (Compl., ¶8) and then continuing to delay investigations and payments. (Id at ¶¶ 10, 12, 15, 16 and 18.) Plaintiff asserts that Defendant intentionally ignored a plumbing report from Plaintiff's inspector showing that the water damage was caused by vandalism when the toilet was clogged with debris, and instead fraudulently claimed that the damage was caused by long...

Excerpt: ...to the Derosa Decl. • CMO § E(2)(b) – Counsel does not state whether the parties utilized the services of any neutral party to mediate this dispute. • CMO § E(2)(c) – Counsel does not provide proof that a copy of the Settlement was submitted to the LWDA. • CMO § E(3)(a) – Counsel discusses the nature of the alleged PAGA violations. (Derosa Decl., ¶ 2.) • CMO § E(3)(b) – Counsel discusses the number of alleged violations, incl...

Excerpt: ... the issues of liability and punitive damages. If punitive damages are sought in a case, the judge must order a separate trial on this issue after the defendants' liability for actual damages is established. (Civil Code Sections 3294, 3295(d).) The dispute that exists here, concerns bifurcating compensatory damages from the liability phase of trial. Defendants contend that the introduction of damages would be highly prejudicial to defendants, tha...

Excerpt: .... Analysis: “Except as provided in (b), an opinion of a California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).) Neither of the exceptions in subdivision (b) apply in this instance. Therefore, the plaintiff's reliance upon the Court of Appeal's unpublished opinion in Doe v. GlobalLogic, Inc., 201...

Excerpt: ...rant an award of punitive damages. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894.) “There must be circumstances of aggravation or outrage, such as spite or ‘malice' or a fraudulent or evil motive on the part of defendant, or such conscious and deliberate disregard for the interests of others that his conduct may be called willful or wonton.' ” (Taylor v. Sup. Ct., supra, 24 Cal.3d at 894‐ 895; Mock v. Michigan Millers Mutual Ins. C...

Excerpt: ... despite knowing that he suffered from severe bipolar disorder, had threatened to kill people and was likely to commit an act of violence. An order for financial discovery under Section 3295(c) requires the court to (1) weigh the evidence presented by both sides “and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.” (Jabro v. Sup.Ct. (Hill) (2002) 95 Cal.App.4th 754, 758.) Defendants offe...

Excerpt: ...ithholding any documents other than the incident report. As to the incident report, the court sustains defendant's attorney client privilege objection and orders that it is not required to produce said document. As to the specific requests, the Court rules as follows: Denied as to nos. 36, 40, and 41 as Plaintiff fails to demonstrate good cause. Denied as to no. 44 as it is overbroad. For all others, granted in part to require Defendant to provid...

Excerpt: ...vered; (2) an exercise of the party's option to produce writings; or (3) an objection to the particular interrogatory. (Cal Code Civ Proc § 2030.210(a)(1)‐(3).) The party propounding interrogatories may move for an order compelling a further response if the party deems that an objection to an interrogatory is without merit or too general. (Cal. Code Civ. Proc. §2030.300(a)(3).) Under Cal. Code Civ. Pro. §2030.300(c), unless notice of the mot...

Excerpt: ...aintiff submitted a request for judicial notice, asking that the court take judicial notice of thirteen different court records, including orders, motions, and oppositions. Under Evidence Code §452(d), the court may take judicial notice of the records of any court of this state. Accordingly, the requests for judicial notice are granted. II. Procedural Requirements Plaintiff argues that Defendant's motion fails to conform to the procedural rules ...

Excerpt: ...hat “one might reasonably conclude that a 24‐hour health facility…or a residential care facility for the elderly… could have the ‘care or custody' of an elder.” (Id. at 165.) Welfare & Institutions Code section 15610.17 defines “care custodian” as “an administrator or employee of…twenty‐four‐hour health facilities.” A caretaker or care custodian is someone who has “accepted responsibility for attending to the basic nee...

Excerpt: ...� 11207 and (9) conversion arises out the cyber theft of Plaintiff buyer's Kenneth Townsend's purchase money that he had placed into escrow with Defendant First American Title. The gravamen of the action is that a computer hacker accessed Plaintiff's unprotected personal information from First American and used that information to cause Plaintiff to transfer the purchase funds from his bank account at Defendant BofA to an account at Defendant Sun...

Excerpt: ...uth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Although a court may take judicial notice of the existence of each document in a court file, it can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conc...

Excerpt: ...e demurrer indicates that counsel exchanged email in March 2020; there is no indication that defense counsel made more than a single attempt to telephone Plaintiffs' counsel, as required by the statute. Moreover, defense counsel failed to file a new declaration in accordance with General Order 2020‐15, ¶7(d), which provides: For any demurrer or pretrial motion affected by this Order that requires a meet and confer declaration (e.g., demurrers,...

Excerpt: ...e of action is sustained without leave to amend. The cause of action is based solely upon the breach of a contractual promise. (The Court notes that Western Pacific makes no argument in opposition to the contention that the negligence cause of action is barred by the economic loss rule.) City Ventures is Ordered to file and serve an Answer to the First Amended Complaint within 20 days. BREACH OF CONTRACT Indemnity does not require a claim by a th...

Excerpt: ...as continued to allow Plaintiff to meet and confer regarding the second supplemental responses as required by CCP §§2016.040, 2030.300(b) and the court's General Order 2020.15. Plaintiff was ordered to file a meet and confer declaration ten days before this hearing. The declaration filed on 8‐18‐20 described that the issues remaining following the meet and confer were Special Interrogatories (SI) Nos. 4 and 7, and Request for Production of ...

Excerpt: ... Cal.App.4th 1056, 1061.) The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice. (Id.) Breach of Contract The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v. Fire Ins. Exchange (2010) 182 ...

Excerpt: ... to refuse permission to amend and where the refusal also result in a party being deprived of the right to assert a meritorious cause of action.” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The power of the courts to allow amendment of pleading is to be liberally exercised so that cases may be decided on their merits. (Desney v. Wilder (1956) 46 Cal.2d 715, 751.) Absent prejudice, delay alone is not ground for denial. (Higgins v. Del F...

Excerpt: ...vacated. Any party may use Riverside Superior Court Local Form RI‐CI024 to request that this case be restored to Active Status. “Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, 98 (Armendariz).) Similar to California law, any ...

Excerpt: ...ant to Code of Civil Procedure section 394. The only disputed issue is the identity of the neutral county to which it is to be transferred. A neutral county is one “other than that in which the defendant resides, or is doing business, or is situated.” (Ibid.) The defendant offers no evidence that the counties to which it requests a transfer, Los Angeles and Orange, are neutral counties. The only evidence it offers is the declaration of Fletch...

Excerpt: ...rring to protection as including “sensitive commercial information” and information containing “sensitive matter”; but see also Lipton v. Superior Court (Lawyers' Mut. Ins. Co.) (1996) 48 Cal.App.4th 1599, 1618 [declining to extend protection beyond “confidential business information”].) If “good cause” is shown, discovery of this information may be denied altogether or disclosure narrowly limited to certain persons for certain pu...

Excerpt: ...e Case Management Conference currently set for 10‐1‐20 is continued to 11‐30‐20 at 8:30 a.m., Department 5. The court has the court has discretion to consider an untimely‐ served opposition. (See CRC 3.1300(d); Slayton v. Superior Court 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More importantly, in filing a substantive reply, Defendants waived any defect or irregularity in service. (Carlton...

Excerpt: ...Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a ...

Excerpt: ...ntirely different claims, addition of new parties, or a request for a different or greater remedy. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The amendment must be based on the same general set of facts. (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207; City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.) This determination is entrusted to the Court's discretion, and an order allowing an amendment will not be r...

Excerpt: ...ants “breached their duties of care that were owed to Plaintiff.” (FAC ¶¶25‐26.) However, no facts to support these claims are alleged. Additionally, the FAC does not allege any facts that Defendant Yankee either owed Plaintiff Josiah Camp (“Plaintiff”) a duty as the former owner of the storage facility, or that Defendant Yankee breached any duty to Plaintiff. The FAC does not allege that Defendant Yankee was responsible for the condi...