Excerpt: ...ation. All of the Department's evidentiary objections to the declaration of Robert Bartlett are Sustained. Petitioner's Reply is untimely (two days late per CCP S 1005(b)), however, the court will exercise its discretion and consider the Reply. The court will not award Pettioner any costs in this matter. Cal. Rules of Court (CRC), Rule 3.17W(a) provides that a prevailing party who claims costs must serve and file a memorandum of costs within 15 d...

Excerpt: ...and 3. On the cause of action for Breach of the implied Covenant of Good Faith and Fair Dealing, Plaintiff relies solely on the vague statements of Mr. Aryana that Plaintiff complied with all terms and conditions of the Loans and made all required payments. Plaintiff does not provide evidence that all draw requests were made for items used on the Project as required under the terms of the Loan Agreement. Defendants have prov-ded clear supporting ...

Excerpt: ...tablish her negligent repair claim because Plaintiff cannot prove that Norm Reeves breached a duty owed to Plaintiff, nor can Plaintiff prove the element of damages as a result of Norm Reeves' conduct. Defendant provides evidence that Plaintiff presented her vehicle for repair to Defendant one single time before filing suit. (UF 2.) Plaintiff testified that in the weeks and months following repair, the problem seemed to go away. (UF 4.) Plaintiff...

Excerpt: ..., indicate that Plaintiff seeks summary adjudication. Nor does the separate statement refer to summary adjudication of the issues. Accordingly, the Court will not adjudicate the separate causes of action, but will treat this as a Motion for Summary Judgment. In California, a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated. (Rio Linda Poultry Farms v. Fredericksen (1932) 121 Cal...

Excerpt: ...s four evidentiary objections to the Declaration of Michael Makinen. Objection 1: 95: "SO- McKinely turned over the Premises to Organic Roots on May 17, 2018." Sustain on grounds of lack of personal knowledge and lack of foundation. Objection 2: 97: "A little more than two (2) years after the execution of the Lease, Organic Roots was almost $600,000 behind in payment of rent and other charges under the Lease to SOMcKinley." Sustain on grounds of ...

Excerpt: ...ursuant to Cal. Code Civ. Pro. S526(a)(3), a preliminary injunction may issue: When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. The plaintiff has the burden to prove all elements necessary to sup...

Excerpt: ...he Deed of Trust and tax liens would be judicially noticeable.) OVERRULE all of Defendant's Objections to the evidence, as the objections do not comply with the formatting requirements of CRC 3.1354(b). Page 3 of 4 DENY the motion for summary judgment/summary adjudication. The Plaintiffs lack stand-ng to bring this action. "Every action must be prosecuted in the name of the real party in interest." (CCP S 367.) In litigation involving trust prope...

Excerpt: ...-Beverly Act8reach of Express Warranty, violation of the Song-Beverly Act- Breach of Implied Warranty and violation of the Song-Beverly Act Secton 1793.2. Ford contends that on July 23, 2020, Ford sent Plaintiff an e-mail offering to repurchase or replace Plaintiff's vehicle and requested that Plaintiff provde information to Ford to repurchase the vehicle, but that Plaintiff failed to respond and ultimately rejected Ford's offer. (SUMF No.3) Ford...

Excerpt: ...orman & Clark corp. v. Fallon (1971) 3 cal.3d 875,884.) On the merits, Plaintiff's motion is denied for the failure of Plaintiffs to meet their initial burden. With respect to issues 1 and 2, no admissible evidence has been presented that Defendants acted "[w]ith actual intent to hinder, delay, or defraud" Plaintiffs at the time of the transfers. (See Civ. Code S 3439.04(a)(1).) Nor do Plaintiffs offer any evidence to support a finding of implied...

Excerpt: ... obtaining a "right-to-sue" letter from DFEH. (Govt. C. SS 12960, 12965(b)). The plaintiff then has one year from the date of the right to sue letter to file a civil action. (ld.) Here, there is no dispute that plaintiff filed his original DFEH complaint on December 20, 2017, which included allegations of harassment, discrimination and retaliation based on race and his request for a reasonable accommodation for his disability for the period of No...

Excerpt: ...se of action. Plaintiffs provide specific examples of defendant's conduct online of name-calling, blocking plaintiffs from posting on NextDcM false claims of criminal acts, identity theft and confronting plaintiffs while on a walk. On the 5th cause of action for violation of the Bane Act, plaintiffs fail to sufficiently allege that defendants threatened or committed a violent act in an attempt to interfere with their constitutional rights. (First...

Excerpt: ...Plaintiff seeks prejudgment interest pursuant to Civil Code S 3291, which provides that when a defendant rejects plaintiff's CCP S 998 offer and plaintiff obtains a "more favorable" judgment at trial, the personal injury plaintiff is entitled to 10% interest on the entire judgment from the date of the offer. Plaintiff, however, is not entitled to prejudgment interest on the costs that are awardable to plaintiff. As defendants correctly note, the ...

Excerpt: ...al.R.Ct. Here, the court signed the judgment in this matter on January 19, 2023 and the Judgment was filed with the court on January 24, 2023. Also on January 24, 2023, the court generated a Minute Order Page 3 of 3 instructing the clerk to give notice of entry of judgment. The clerk mailed a copy of the court's minute order the same day, January 24, 2023. The clerk then filed a Certificate of Mailing on January 24, 2023, certifying that a copy o...

Excerpt: ...e C. Yun, M.D., who is a board-certified physician in anesthesiology. (Yun Decl., Para.l) Dr. Yun opines that Dr.Le, at all times relevant in this case, met the requisite standard of care in the treatment of Plaintiff at Corona Regional Medical Center ("CRMC") and did not cause Plaintiff's injury. (Yun Decl., Para. 6.) Defendant Le has met his initial burden of proof on summary judgment by presenting expert evidence that his care and treatment me...

Excerpt: ...fendant is entitled to Plaintiffs mental health records for the last 5 years. However, Defendant is not entitled to Plaintiff's physical health records from SAC to see if she suffered an injury that might result in emotional distress. Defendant has not shown why any preexisting emotional distress would not appear in Plaintiff's mental health records. Nor has Defendant performed less intrusive forms of discovery to determine whether Plaintiff suff...

Excerpt: ...dditional early termination rights. The key event and condition precedent to Defendant Organic Page 3 of 3 Roots' right to cancel is Plaintiff's receipt of Organic Roots' gross sales statement for the fifth year of the lease. (Cook Decl., Ex.4, Section 6(f).) Organic Roots did not, and cannot, provide Plaintiff with a gross sales statement for the fifth year of the Lease prior to delivering its early termination notice, as it did not stay open fo...

Excerpt: ... and through her Guardian Ad Litem, Raul Soto and Raul Soto, individually. To prevail on summary judgment, the defendants must demonstrate that the entire achon has no merit. (CCPS 437c(a)(1); Cox v. State of California (1970) 3 Cal.App.3d 301.) Individual causes of action must be attacked by way of summary adjudication. (CCPS 437(f).) Here, the Sotos have not requested alternative relief by way of summary adjudication of all the issues, since th...

Excerpt: ...se to the request for admissions that it does not have a signed personal guarantee, (3) Plaintiff has no guarantee document that satisfies the Statute of Frauds, (4) the lack of a personal guarantee renders breach or repudiation of the lease contract impossible, and (5) there is no actual controversy regarding the interpretation of Paragraph 6(f) of the lease for the declaratory relief cause of action. Plaintiff fails to establish the existence o...

Excerpt: ...ow there are no triable issues of material fact regarding punitive or exemplary damages. The "facts" submitted by Defendants are limited to the contents of Plaintiff's First Amended Complaint (FAC). No other "facts" were submitted by Defendants in support of their motion. Plaintiff's MSA is essentially an attack on the sufficiency of the pleadings. "[lln preparing and ruling upon motions for summary adjudication, under Code of Civil Procedure sec...

Excerpt: ... hiring cause of action, however, the court finds that Plaintiffs' claims have been sufficiently alleged. Plaintiffs' allege that they were employed by DPSS, that DPSS hired Absolute Security to ensure the safety and security of Plaintiffs and the occupants of the Welcome Center, that a physical altercation ensued between the foster children, that Absolute Security failed to provide the presence of security guards at the time of the incident, and...

Excerpt: ...ngs this action against the manufacturer of the vehicle FCA US, LLC("FCA") and the servicer of the vehicle, Moss Bros. Chrysler Dodge Jeep Ram ("Moss Bros.") Both Defendants bring identical Motions to Compel Arbitration under the Retail Installment Sales Contract("RlSC") signed by Plaintiff and non-party Surf City. The only parties to the RISC are Plaintiff and the non-party dealer, Surf City. Neither FCA nor Moss Bros. is or claims to be an empl...

Excerpt: ...cause for the discipline, but not for termination. (AR 867—869.) B. Writ Petiton On June 24, 2022, the County filed the instant Petition, asking the Court to set aside the Hearing Officer's decision and uphold Respondent's termination from his employment with the Department. According to the County, the Hearing Officer's decision was based, in part, upon the incorrect conclusion that Respondent was not a sworn peace officer (i.e„ Deputy Sheri...

Excerpt: ... (1996) 45 Cal.App.4th 55, the court defined harassment and noted "[m]aking a personnel decision is conduct of a type fundamentally different from the type of conduct that consttutes harassment." (ld. at 64.) Making personnel decisions is an unavoidable part of being a supervisor, but conduct like derogatory slurs or engaging in unwanted sexual advances is not necessary as a supervisor and would constitute harassment. (Ibid.) Here, Plaintiff alle...

Excerpt: ...Defendants. The Statutory Scheme Education Code SS and 24502 set forth CalSTRS statutory rights to assert a subrogation claim against a tortfeasor when a member is injured by the tortfeasor, and as a result of those injuries, the member is approved for CalSTRS disability benefits. There is nothing in Education Code S 24502 that limits the application of Chapter 5 of Part 1 of Division 4 of the Labor Code to a direct claim of subrogation against t...

Excerpt: ...Defendants. The Statutory Scheme Education Code SS and 24502 set forth CalSTRS statutory rights to assert a subrogation claim against a tortfeasor when a member is injured by the tortfeasor, and as a result of those injuries, the member is approved for CalSTRS disability benefits. There is nothing in Education Code S 24502 that limits the application of Chapter 5 of Part 1 of Division 4 of the Labor Code to a direct claim of subrogation against t...

Excerpt: ...v. Pro. S 1094.5. Administrative mandate are used to review actions or decisions of an administrative body or officer acting in a judicial capacity. (Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, 101.) An administrative writ may be issued to inquire into the validity of any final administrative order or decision made as the result of a proceeding where a hearing is required to be given and evidence is required to be taken. (Cal...

Excerpt: ... is readily ascertainable. Here, the Sourcing Agreement provides that all purchase and sales of products shall be made pursuant to written purchase orders. (Choi Dec., Ex. A, Para. 1.2.) Providence, as the supplier, shall prepare and deliver written invoices to LLR, which shall set forth the amount of payment sought by Supplier and the terms and conditions of payments. (ld at 1.4.) Accordingly, the Sourcing Agreement contains a standard by which ...

Excerpt: ...witnesses identified in the District's letter to Plaintiffs dated April 3, 2018, statements provided to the District relating to the District's investigation as outlined in the April 3 letter, all complaints lodged by Plaintiffs against Martinez, Martinez's response to Plaintiff's complaints, and copies of complaints lodged by Grum against the District. The information sought is directly related to Plaintiffs' Negligence and Intentional Inflictio...

Excerpt: ...e interface between the asphalt road and the adjacent concrete gutter) (LJMF 12), sustaining serious personal injuries. Plaintiff now brings this action for premises liability and negligence against the home and street builder, Lennar Homes of California, LLC„ and against the City of Calimesa for dangerous condition. Defendants bring this motion for Summary Judgment alleging that the defect upon which Plaintiff tripped was trivial. "What consti...

Excerpt: ...2 and 3. Respondent does not have a mandatory duty to distribute the entirety of the Trust res upon Decedent's death (UFs 26-27) The trustee's duty to distribute under Probate Code § 16220 is subject to Respondent's paramount fiduciary duty under Probate Code § 16202. There is a triable issue of fact as to whether Respondent has properly withheld distribution of the Trust assets. On issue 3, Respondent asks the court to adjudicate the issue of ...

Excerpt: ... arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. (Sharp Decl., Exh. B, p. 2.) The parties to the RISC are Plaintiff and Corona Nissan. Nissan North America, Inc....

Excerpt: ...articulate a clear factual basis for a proper failure to warn claim. Plaintiff mixes in elements of a negligence claim along with her product liability claim by alleging issues of “duty”. The FAC fails to state facts sufficient to state a cause of action for strict products liability/failure to warn and the FAC is uncertain. 2 nd Cause of Action for Strict Products Liability‐Negligence‐Manufacturing Once again, the FAC pleads a lot on con...

Excerpt: ...Drilling is an independent subcontractor and not an employee or agent of HP. The test to be applied to determine whether an individual is an employee or independent contractor is the ABC test set forth in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903. To establish that a worker is an independent contractor under the ABC standard, the hiring entity must establish all three parts of the ABC test. However, a court need not examine the...

Excerpt: ...admissible evidence showing a triable issue of fact. Plaintiffs' warranty claims fail because the Song‐ Beverly Warranty Act is inapplicable to used vehicles under Rodriguez v. FCA US,LLC (2022) 77 Cal.App.5th 209 and Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385. The fact that Rodriguez had not been published at the time this action was filed is of no import. Judicial decisions are generally given retroactive effect. (Abramson v. Jupiter Netwo...

Excerpt: ...ct. Overrule the objections to Plaintiffs' Declarations. GRANT the Motion for Summary Judgment on the Kidwell Complaint. Kidwell fails to create a triable issue as to causation for negligence, and the intentional infliction of emotional distress claim is based on the same facts. The assault and battery claims are not asserted against the Café Sevilla Defendants. Plaintiffs fail to demonstrate that the Café Sevilla Defendants were required to pr...

Excerpt: ...ly the assignee or transferee is the party to seek substitution, CCP§368.5 “was not meant to be used as a shield.” (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App. 4th 117, 134.) The assignee, as real party in interest, cannot evade responsibility for fees and costs because of its own tactical choice to continue the action in the name of the original party. (Id. at 136.) Courts have recognized the right of an oppos...

Excerpt: ...bable validity” of the claim by a “preponderance of the evidence.” (CCP §§ 405.3‐405.32.) The court cannot take into account a cause of action for fraudulent inducement that Plaintiff has not yet pled. CCP § 405.31 specifically provides that the “court shall order the notice expunged if the court finds that the pleading on which the motion is based does not contain a real property claim.” (Emphasis added.) Moreover, even if the cou...

Excerpt: ...and age. Plaintiff claims he was discriminated on the bases of these protected classes, but does not provide factual assertions to support any of them. Plaintiff fails to allege facts that constitute circumstances suggesting discriminatory motive based on the protected class. With respect to the harassment claim, Plaintiff fails to allege the conduct by IA that he considered harassing in nature, how frequently the alleged harassment occurred, whe...

Excerpt: ...iction is precluded, jurisdictionally, from rendering declaratory relief or injunctive relief regarding the administration of another superior court. Here, petitioners are not seeking to reverse a decision of the San Bernardino Superior Court having coequal jurisdiction, but rather are challenging the administrative orders of the presiding judge of San Bernardino. Demurrer is overruled on the basis of lack of jurisdiction. First Cause of Action f...

Excerpt: ...dant has failed to place the medical records before the court under the business records exception to the hearsay rule, or to provide the authenticated documents in its Appendix of Attached Exhibits. OVERRULE Defendant's Objections to Plaintiff's Evidence in support of the Opposition in their entirety. DENY Motion for Summary Judgment/Summary Adjudication. The Defendant has not met her burden on this motion pursuant to CCP § 437c(p)(2). Therefor...

Excerpt: ...ptember 17, 2021 and the first amended complaint on March 7, 2022 against defendant State of California (the “State”) (erroneously sued as State of California Water Resources). On May 26, 2022, the court sustained the State's demurrer with leave to amend. On June 24, 2022, Plaintiffs filed the operative second amended complaint (“SAC”), and on September 7, 2022, the court sustained the State's demurrer with leave to amend. Plaintiffs file...

Excerpt: ...ed in Opposition to Motion for Summary Judgment are SUSTAINED in their entirety. The court finds that Griswold's Declaration has no evidentiary value. Defendant/Cross‐Complainant Town & Country Investments, LP (T&C) moves for summary judgment of its First Amended Cross‐Complaint against Plaintiffs/Cross‐Defendants King City Entertainment, Inc. and Minerva Munoz (KCE/Munoz), or in the alternative, summary adjudication of the 1st and 2nd caus...

Excerpt: ... 51 Cal.4th 764.) Here, whether or not MARIANO has breached that duty presents a question of material fact upon which MARIANO has offered no evidence. MARIANO therefor fails to meet his initial burden on Summary Judgment of showing that one or more elements of a cause of action cannot be established. Nor has MARIANO shown a lack of proximate causation in his moving papers. MARIANO argues that Griselda Arellano's (“ARELLANO”) negligent and cri...

Excerpt: ...). This is not a case where a dismissal was entered as a procedural equivalent to default. Plaintiff's counsel's supporting declaration is not dated nor signed. A declaration must be “subscribed by” the “person making” it. (Code Civ. Proc., § 2015.5.) Unless properly executed as required by section 2015.5, the declaration submitted in of support the motion has no evidentiary value. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198,...

Excerpt: ...t on the pleadings by a defendant may be made on the grounds either that the court “lacks jurisdiction of the subject of one or more of the causes of action alleged” or the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (Cal. Code Civ. Pro. § 438(c)(1)(B).) While a party may demur pursuant to Cal. Code Civ. Pro. §430.10(d) on the basis of the nonjoinde...

Excerpt: ...mmary Judgment on the Sixth Cause of Action (Retaliation in Violation of FEHA). Defendant CDCR argues that Plaintiff cannot establish a prima facie claim of retaliation under FEHA because she cannot demonstrate that she was subjected to an adverse employment action. Under FEHA, an adverse employment action is one that “materially affects the terms, conditions, or privileges of employment.”(McCoy v. Pc.Maritime Ass'n (2013) 216 Cal.App.4th 283...

Excerpt: ...the Federal Arbitration Act's (FAA's) exemption for transportation workers. The FAA ‘exempts certain contracts from its scope, specifically the employment contracts of ‘seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce.'” (Rittman v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, 909.) The exemption is a narrow one applying only to employment contracts of transportation workers. (Id. at 9...

Excerpt: ...er; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five‐year period.” (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032–33 [emphasis added].) “In no case shall adverse possession be considered established . . . , unless it shall be shown that the land has been occupied and claimed for ...

Excerpt: ...tenquist, now refuses to comply by turning over the raw data acquired during the exam to Plaintiff's counsel, citing ethical obligations and public policy and safety concerns, and stating that he will only turn over such data to Plaintiff's treating physician or other designated physician. While there is no basis to rescind the stipulation based on the unilateral mistake of Defense counsel, especially where the party seeking relief from the terms...

Excerpt: ...ther the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1178, internal quotation omitted.) “A worker is an independent contractor when he or she follows the employer's desires only in the result of the work, and not the means by which it is achieved.” (Id.) Here, Defendants have provided evidence that Hidalgo was an...