Excerpt: ... required under Cal. R. Ct. 3.1354. As to Defendant's objections the court sustains no. 3 (but not the first sentence), 5 (all), 7 (all), 9 (only the last sentence), and 10 (all). Analysis 5COA (Tameny): For a Tameny claim, the plaintiff must demonstrate: (1) an employeremployee relationship; (2) the termination of plaintiff's employment was a violation of public policy; and (3) the termination caused plaintiff's damage. (See Holmes v. General Dy...

Excerpt: ...agencies.” (Iskanian v. CLS Transportation Los Angeles (2014) 59 Cal. 4th 348, 380.) There are numerous procedural differences between PAGA actions and certified class actions. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 546.) A plaintiff seeking to recover civil penalties under PAGA is not required to satisfy the certification requirements necessary for class actions. (Arias v. Superior Court (2009) 46 Cal. 4th 969, 986.) There is no Ca...

Excerpt: ...his work logs documenting his injury and related events were missing from his locker when he went to clean it out after he was terminated. (Compl. ¶¶9‐14, 20.) The Opposition asserts that the cause of action is sufficiently alleged but, does not demonstrate how the alleged facts fit within the requisite elements of a Labor Code §1102.5 claim. 2COA (Harassment): Plaintiff concedes that this cause of action is insufficient as alleged. ...

Excerpt: ...edical Battery is properly alleged. In Paragraph 24 of the Complaint, Plaintiffs allege that Dr. Perea did not advise decedent that he would be performing a “surgical procedure to remove a mass from her bowel/colon involving the risk of bowel/colon perforation and resultant sepsis.” These allegations regarding surgery on decedent's bowel/colon versus a full hysterectomy to which she consented sufficiently allege performance of a substantially...

Excerpt: ...h of the matter asserted and otherwise it is Overruled. Plaintiffs' evidentiary objection 5 to the James deposition exhibit (July 3, 2018 email from Sam Tuyen) is Sustained. All other objections are otherwise overruled. Deny motion for summary judgment. Analysis While James's evidence demonstrates a triable issue of material fact as to whether an oral agreement exits. Plaintiffs do not refute the testimony that Nguyen requested the $50,000 loan t...

Excerpt: ... with Plaintiff's Memorandum of Costs filed on November 5, 2019. Analysis: A review of the court file shows that the Complaint was filed on April 19, 2017. The Complaint was amended after a hearing, granting leave was heard on January 10, 2019. The original Complaint was promptly answered within 30 days of service. There were two MSJs brought by the Defense that resulted in oppositions by the Plaintiff. The first MSJ was deemed moot by leave to a...

Excerpt: ...sition was filed by Plaintiff on June 4, 2018, it never went to hearing as it was withdrawn on July 12, 2018. The CMC occurred on July 23, 2018 and a TSC was set for January 22, 2019. The next Motion that was filed as an MSJ/MSA by defense that became moot through leave to amend being granted on March 6, 2019. Notice of case settlement was submitted on August 5, 2019. Other minor machinations occurred but nothing significant. The point of this is...

Excerpt: ...r 25, 2019, the court found “Until the last minute, this was an unopposed Motion. However, late opposition was filed on September 19, 2019. The summary of the issue before the court is as follows: On February 7, 2019 various forms of written discovery requests were served on the non‐opposing parties. They did not respond. Not only did they not respond but on March 18, 2019 they were reminded by plaintiff through email that discovery was due. ...

Excerpt: ...ices of results. Furthermore, the statement was not an order. “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (CCP §1003.) An order is defined as “the judgment, or conclusion of the Court, upon any motion or proceeding. It means cases where a Court or Judge grants affirmative relief, and cases where relief is denied.” (Gil...

Excerpt: ... to be a “substandard building”. There is nothing in the statute which evidences any legislative intent to create a private claim. 3COA (CC section 1942.4): The COA fails because it does not allege facts establishing compliance with §1942.4(a)(2) and (3). No supporting facts at all can be found. /// 6COA (Battery): Battery requires intent. There is nothing alleged that the defendant set the bed bugs on an assaultive task at the defendant's b...

Excerpt: ...ges that Dr. Rahmany (“Rahmany”) sexually harassed her beginning in 2017 when he joined the oncology unit. She alleges that Rahmany repeatedly flirted with her, touched her shoulder, hugged and asked her out on dates. On April 25, 2018, Rahmany allegedly pressed his face into her chest. Plaintiff claims that a supervisor from Loma Linda asked her to write an incident report for human resources, but following an investigation, no action was ta...

Excerpt: ... production must set forth specific facts showing good cause justifying the discovery sought by the demand. Plaintiff moves to compel defendant's further responses to RFP Nos. 28, 29, 45 and 70‐72. Nos. 28 and 29 demand documents regarding anything to do with sexual harassment allegations made by any person other than plaintiff during the last five years, and any and all documents reflecting any and all investigations of sexual harassment towar...

Excerpt: ...stions. He seeks $3,300.00 in sanctions. Defendants Ramona Rehabilitation and Post Acute Care, Inc. & Resource Healthsystems Management (“defendants”) contend that Plaintiff's counsel asked inappropriate questions and that the objections made on Ms. Kovar's behalf were proper. They assert that there is no good cause for the discovery sought. They argue that sanctions are not warranted. Defendants complain that many of the questions asked were...

Excerpt: ...ssion. Plaintiff contends that there is an overriding need for it to possess the property prior to the issuance of a final judgment in this action, and it will suffer great harm if the request is denied. In this lawsuit, it seeks easement rights to install overhead lines across a vacant parcel of property. The lines are part of a major infrastructure project that is necessary to keep up with the electrical needs of Riverside County. Plaintiff con...

Excerpt: ...t its burden for a protective order. In evaluating the scope of discovery and motions to compel discovery, the court considers several factors including: (1) the relationship of the information sought to the issues framed in the pleadings; (2) the likelihood that disclosure will be of practical benefit to the party seeking discovery; and (3) the burden or expense likely to be encountered by the responding party in furnishing the information sough...

Excerpt: ... Plaintiff had trouble serving the summons and complaint on defendants, and filed an Application for Order For Publication on November 10, 2016, which was granted by the court. Proof of service by publication was filed on April 3, 2017. Default was entered on May 25, 2017, the default judgment was entered on July 3, 2018 and Notice of Entry of Default was filed on August 13, 2018. The default judgment is for $24,561.50. As a preliminary matter, D...

Excerpt: ...liar with the dangers of drunk driving due to multiple prior DUI convictions. (Id.) Plaintiff alleges that John Marshall fled the scene of the accident to avoid liability (Id at ¶11), which suggests that he was aware that he was driving while intoxicated. These facts constitute despicable conduct despised by ordinary people. As such, Plaintiff has stated facts to show malice. However, while these allegations are sufficiently pled to show malice,...

Excerpt: ...7 are OVERRULED; and as to Harris's Deposition, Objection 8 is OVERRULED. /// Analysis: The motion for summary judgment is denied because there are triable issues of material fact regarding the first cause of action for medical negligence as to whether the standard of care was met and whether, to a reasonable degree of medical probability, plaintiff's injuries were caused by the treatment she received. The declarations of the expert for defendant...

Excerpt: ...uments relating to Ford's “rules, policies, or procedures since 2011” concerning the issuance of refunds to buyers or providing replacement vehicles to buyers and the “policies, procedures and/or instructions since 2011” that Ford employees are required to following in responding to customer complaints regarding failure to repair vehicles. Defendant does not dispute the relevancy of the documents sought, but argues that they are overbroad...

Excerpt: ...(CCP §387(a); Truck Ins. Exch. v. Sup. Ct. (1997) 60 Cal.App.4th 342, 346; Reliance Ins. Co. v. Sup. Ct. (2000) 84 Cal.App.4th 383, 386.) Here, Intervenor asserts that she has a “substantial interest” in this case to establish the “direct and immediate interest in the litigation” element of permissive intervention. The Trustee asserts that Plaintiff seeks unpaid wages from her employer, now deceased, that could only be paid to her from t...

Excerpt: ...clause unenforceable. (Graham v. Scissor‐Tail, Inc. (1981) 28 Cal.3d 807, 817.) Plaintiffs contend in their declarations they were given insufficient time to review the job applications and hiring documents containing the arbitration clauses having been “rushed” to sign them, and they were never given a copy of the documents. (Baraja Dec., ¶¶ ; Chapman Dec., ¶¶ 3‐4, 6, 9.) There is no evidence that Plaintiffs ever asked for more time ...

Excerpt: ...AINED as a motion to strike is to be made on the face of the pleadings. The Motion is DENIED. Analysis: Plaintiff moves to strike allegations in the Answer concerning an arbitration and a written agreement involving parties who are not parties to this partition action, namely ¶¶ 4‐7, ¶ 13. The judicially noticeable facts do show that 1) the arbitration was filed by JTHI and Jones against Blumenthal, none of whom are parties in this action; a...

Excerpt: ...The only items that are potentially relevant are records related to Plaintiff's wages/salary (i.e., payroll records) and records relating to the injuries at issue in this action. However, Defendants fail to demonstrate good cause for the production of Plaintiff's entire personnel file. (M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐33.) Defendants do not even address the breadth of the Subpoena in their opposition or offer any e...

Excerpt: ...wever, did not apply to documents which were publicly available, such as the fictitious business name statements obtained by cross‐defendant. Sanctions are denied because the present motion arises under Code of Civil Procedure section 1008, which has its own procedure regarding sanctions; had the court granted the present motion, and reconsidered the matter, then the attorney's fees provisions of Code of Civil Procedure section 425.16 would hav...

Excerpt: ...rity exists for the premise that an individual is precluded from pursuing tort claims against a wrongdoer's agents, even though the individual could potentially have contract claims against the wrongdoer. Next, an individual cannot use an exculpatory clause to waive its liability for fraud. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402. Under Civil Code § 1668, a contract that exempts anyone from responsibi...

Excerpt: ...enses. (See Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698.) They are preserved for attack by the general denial to the Complaint. As to the 1st to 8th affirmative defenses, the Demurrer is OVERRULED because defendants have alleged sufficient facts to support the defenses and there is no uncertainty. The defenses are sufficiently alleged to apprise plaintiff of the nature of the defense and discovery will allow plaintiff to obtain greater details...

Excerpt: ... yield psychological, psychiatric, gynecological, alcohol or drug treatment and HIV/sexually transmitted disease information. A discovery request for medical records must be limited to information directly relevant to the plaintiff's pain and suffering from physical injuries caused by the accident at issue. (Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, 1018.) Plaintiff's right of privacy is protected as to physical and mental conditions u...

Excerpt: ...ections were not addressed as they deemed unnecessary to this court's decision. Respondent's RJN as to County Ordinances and County Records is GRANTED. 1COA (Breach of Ministerial Duty and Abuse of Discretion): The review before the County Board was not ministerial. . Under County Ordinance No. 348, section 6.50, kennels and catteries are permitted in R‐A (residential agricultural) zones, if they are approved pursuant to section 18.45. County O...

Excerpt: ...e claim is redundant of the 1COA for fraud/intentional misrepresentation. 3COA (Contract): The 3COA also fails. To the extent that the claim is based upon an alleged breach of the purchase agreement, the claim fails because Plaintiff has not alleged that she performed under the agreement. To the extent that Plaintiff alleges a breach of a separate oral agreement, the TAC fails to set forth the terms of the oral contract, including what considerat...

Excerpt: ...edure or file a complaint with the Department of Fair Employment and Housing and sue for a FEHA violation, once obtaining a right to sue letter. Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 720‐721. There are no allegations in the FAC that indicate this election did not occur. 11COA (IIED): The FAC asserts that Mathur (along with other employees of Physicians) touched Plaintiff on the butt and back, leered at Plainti...

Excerpt: ... should have known had been the subject of multiple complaints and whom it knew was incapable of completing the work. See FAC, ¶ 27. So the FAC set forth alleged duties that were independent of any contractual obligation to remediate the water damage at Plaintiff's premises. The argument about the special relationship pleading was raised for the first time on Reply and was not considered. However, even if this argument is considered on its merit...

Excerpt: ...tle plaintiff to relief, other allegations cannot be challenged by general demurrer. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.) 7COA (Unpaid Sick Leave): SUSTAINED for failure to state a cause of action without leave to amend. There is no private right of action under Labor Code § 245 et. seq. The Demurrer is overruled on the grounds that the statute of limitations is dispositive for the same reasons as the ...

Excerpt: ...The allegations here are of a singular failure to respond to a patient's request for assistance and not the type of “gross mistreatment in the form of abuse and custodial neglect” necessary for an elder abuse claim. (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Plaintiff's reliance on Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1347‐1348 is misplaced; even though plaintiff alleges statutory violations similar...

Excerpt: ...ment is reasonable. The key argument raised in opposition is that High Church should, in essence, be solely responsible. However, the Estate was aware the High Church was operating an illegal business at the property since at least November 2017 when the County performed an inspection of the property and Code Enforcement notified the Estate of the violations, yet took no action to evict the High Church and allowed the nuisance to continue on the ...

Excerpt: ...reement for a 10 year lease is valid and enforceable. In other words, separate actions will not necessarily lead to inconsistent results. If Plaintiff is found not to have paid rent for November 2018, and the eviction notice is determined to be valid, then Defendants will be entitled to eviction. Whether Plaintiff has a month‐to‐month lease or a 10‐year lease is immaterial to the issue of payment of rent. Furthermore, this action does not i...

Excerpt: ...14 sale of the subject property, which was allegedly interfered with by Ocwen's action/inaction. (TAC, ¶¶13‐20.) The category descriptions seek “all” documents, which includes financial information. The parties by seeks information from 1/1/14 to present. To the extent that such documents exist, which are unrelated to the allegations concerning the 2014 sale, the subpoenas are overly broad. The discovery sought does not go the “subject ...

Excerpt: ...e present motion is § 425.16(e)(2), which provides that “an act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes … any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” However, Ocwen...

Excerpt: ... alleges that Essence and Silverton intended to permanently deprive Plaintiff or her property, this combined with allegations that Essence and Silverton improperly donated the horses to Villa Chardonnay appears sufficient for pleading purposes. 3COA (Trespass to Chattels): Overruled. Sufficient facts show interference with Plaintiff's property and an exercise of control over it. 4COA (Retaliatory Eviction): Sustained for failure to state sufficie...

Excerpt: ...e attorney general‐an agent of the state‐while the governmental entity on whose behalf he or she sues is the real party in interest.” (Franco v. Arakelina Enteprises, Inc. (2015) 234 Cal.App.4th 947, 962.) A plaintiff may maintain a PAGA suit without satisfying class action requirements. (Arias, supra, at pp. 981‐ 982.) ...

Excerpt: ...ion. (UMF No. 8, Soberon Dec, Ex. J.) On July 6 and September 6, 2016, Plaintiff was notified that she was approved for a Streamline Home Affordable Trial Modification. (Soberon Dec, Ex. K and M.) Select has also produced evidence that it conducted a review of later applications before determining that she was ineligible for modification. Select notified Plaintiff that she was denied on March 2, 2018. (Soberon Dec, Ex. N.) It also appears that Se...

Excerpt: ...o have an attorney represent it in a lawsuit, which he later learned from the court. He thereafter sought and retained counsel to represent and defend EJD. (Kancilia Dec., ¶¶ 3‐6.) These facts are sufficient, and appear sincere. Kancilia initially responded to the complaint on behalf of himself and EJD by filing a demurrer and petition to compel arbitration. He sought counsel on behalf of EJD after default was taken, and after attempts to mee...

Excerpt: ...Further, this matter is properly before the court as there are no allegations that this asset was ever part of a trust. 2COA (Elder Financial Abuse): There are sufficient facts to show undue influence. The only issue is standing. An elder abuse cause of action is based on injury/damages to the elder, not to the elder's heirs. See Welfare & Institutions Code §§ 15657.3 and 15657.6. If the elder dies, the right to commence an action “shall pass...

Excerpt: ... needed given the allegations against the dental assistant are already present the FAC and Plaintiff is simply seeking to amend the request for damages. ...

Excerpt: ...2:125, pp. 2‐53 to 2‐54, citing Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578‐579.) The Demurrer as to Osceolo is SUSTAINED only as to the 6COA for failure to state facts sufficient to the COA but WITH LEAVE to AMEND of 20 Days. As to all other COA pertaining to Osceolo, the Demurrer is OVERRULED. 6COA (Fiduciary Duty): “Fiduciary duties are imposed by law in certain technical, legal relation...

Excerpt: ...h Nudleman, M.D. Dr. Ritter opines that based on Ramsey's symptoms, a detailed neurological exam should have been done. (Ritter Dec. ¶ 9‐10.) He states that Defendant failed to perform visual field testing and the remainder of the exam was below the standard of care. (Id. ¶ 10‐ 12.) Based upon the competing expert opinions, both of which find support in Ramsey's medical records, there are disputed material facts as to whether Defendant's ac...

Excerpt: ...my client was unable to timely file any response (including an Answer and Demurrer) to the Cross‐ Complaint as a result of the lack of due process and proper notice as to the filing of the CrossComplaint in this matter prior to December 28, 2018, as a result of inadvertence, surprise, or excusable neglect” and that “my client has been suffering under a continuing physical disability which interfered with his ability to readily communicate [...

Excerpt: ...acts are plead to support the claim. Plaintiff's allegations that Dr. Phan recklessly disregarded her instructions and proceeded to grind away more than 50% of three of Plaintiff's front teeth (among other teeth) in order to bill Plaintiff's insurance sufficiently sets forth “extreme and outrageous” conduct. Further, Plaintiff sufficiently pleads “severe emotional distress” through her allegation that she suffered extreme anxiety that req...

Excerpt: ... to bind Virginia and her estate to the arbitration agreements. MHRC did not produce a durable power of attorney or any evidence that Decedent cloaked Stablein with the authority to sign the agreements. An agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency. (Flores v. Evergreen At San Diego, LLC (2007) 148 Cal.App.4th 581, 587.). ...

Excerpt: ... warrant an award of punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.). It is generally settled law that in order to state a claim for punitive damages for a non‐ intentional tort, the pleadings require some degree of specificity and not generalities. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041‐1042. That is lacking here. Also, the causes of action for failure to provide habitable dwelling and breach of the c...

Excerpt: ...try of default (see CCP §418.10(a)(3), (d); CCP §585(a)‐(c)). Said motion was filed on April 24, 2018. As to the untimely Opposition, the court exercises its discretion to consider it. As to the Motion to Dismiss, yes, this case has been slow in making progress. However, after service was effected, a series of Demurrers occurred resulting in the SAC of Jan 29, 2018, as the operative pleading. Additionally, there was underlying litigation in S...