Excerpt: ...does confer immunity because immunity for discretionary acts is restricted to basic policy decisions and does not apply to subsequent ministerial actions that merely implement those basic policy decisions. The actions of the teacher and the administrative staff in the classroom setting here do not involve basic policy decisions, but rather operational decisions that implement the initial decision of placing the student in the class. Causes of Act...

Excerpt: ... was the result of the exercise of discretion vested in him, whether that discretion is abused”, also does not apply here. Immunity for discretionary acts is restricted to basic policy decisions and does not apply to subsequent ministerial actions that merely implement those basic policy decisions. The actions of a school teacher in the classroom setting do not involve basic policy decisions, but rather operational decisions that implement the ...

Excerpt: ...iff cites to no evidence showing that any request for an accommodation was ever denied. On the 6th COA, a demotion by itself is not sufficient to trigger a constructive discharge. Rather, “[t]he standard by which constructive discharge is determined is an objective one, and the proper focus is on the working conditions themselves.”(Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1270) Here, Plaintiff never returned...

Excerpt: ...ercentage of final compensation to be provided for each year of credited prior and current service as a local safety member shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at 50 Full). The required member contribution rate is 9% of reportable compensation.” (Exhibit 20 to Cacho Declaration and UF No. 22). The contract amendment was approved by the Board of Supervisors. This clause in the County's contract with ...

Excerpt: ... Resp.7). Plaintiff testified that she tripped on the curb and fell. (Decl. of Schaus, Ex.K, p.59). Pursuant to the General Services Agreement (“GSA”), JLL was to provide, or was to procure a third party to perform, Facilities Management Services on the property, to include “day to day operation of each of the Properties, including without limitation, all preventive maintenance, routine and emergency break—fixes, cleaning, upkeep of roads...

Excerpt: ... first and fourth causes of action, without leave to amend. The TAC contains no specific factual allegations concerning the individual City employees and fails to plead facts to state a cause of action for each of these claims. ANALYSIS 1. First Cause of Action: Negligence i. Liability of City Vicarious liability: TAC fails to state a cause of action for Negligence based on vicarious liability (respondeat superior). The TAC fails to allege a clai...

Excerpt: ...g the award. Respondent has failed to establish the illegality of the contract. The licensing statutes in the Health and Safety Code (Sections 1569.11 and 1569.19) set forth the obligations of the licensee in transferring the license for a residential care facility to the buyer. The only obligation by the prospective buyer is stated in Health and Safety Code Section 1569.191(b). Respondent has failed to establish that the proposed ownership struc...

Excerpt: ... was 70 years old is not dispositive to the prima facie case, but rather goes towards pretext. The stray remark has nothing to do with the prima facie case, but once again goes to pretext. As for being replaced by a younger employee, this is a classic sign of a prima facie case. Defendant focuses on whether Plaintiff was qualified, which goes to both prima facie and a legitimate business reason. Defendant asserts Plaintiff did not meet expectatio...

Excerpt: ... vandalism, or other crimes; and We are not liable to any resident, family member, guest, occupant or invitee for personal injury, death or damage/loss of personal property from incidents related to the perimeter fencing, automobile access gates and/or pedestrian access gates; bars any claim by Plaintiff based upon the criminal conduct of a third party. The court disagrees. A landlord's attempt to exculpate itself from the duty of care owed to a ...

Excerpt: ...iff's prima facie elements cannot be met, or that the adverse employment action was based on a legitimate nondiscriminatory/nonretaliatory reason. The Declaration of Genevieve Hismatullin submitted in support of the motion provides ample evidence that plaintiff did not perform her job duties satisfactorily and plaintiff was not meeting her employer's expectations. However, Defendant submits portions of Plaintiff's deposition transcript that shows...

Excerpt: ...ing medical treatment to Plaintiff following a Hepatitis C virus (“HVC”) diagnoses while Plaintiff was incarcerated at the California Department of Corrections at Norco, Ca. (“CDCR”). The Eighth Amendment's prohibition on cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate medical care and protection from undue harm. Plaintiff must show a deliberate indifference t...

Excerpt: ...ired to show that he was satisfactorily performing his job at the time he was discriminated against. The facts giving rise to the 2017 lawsuit supported claims that the Plaintiff expressly released in a settlement agreement. Plaintiff is barred from bringing any claims on the facts giving rise to the causes of action asserted in the 2017 lawsuit. The only facts that Plaintiff can use in this case are those occurring after May 21, 2018, when the s...

Excerpt: ...o the fourth and fifth causes of action. While it is true that an unjust enrichment claim does not lie where there is an enforceable contract, an unjust enrichment claim can be supported if the contract is found to be unenforceable or ineffective for some reason, and Plaintiff is allowed to plead alternative and inconsistent allegations. There is no reason Plaintiff cannot plead unjust enrichment in the alternative. On the Conversion claim, the P...

Excerpt: ...ow Co. (1989) 190 Cal.App.3d 1051, 1062.) Hourly Rates. A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The relevant community is “the community where the court is located.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700.) The party seeking the fee award has the burden to prov...

Excerpt: ...intiff the gross sum of $ 275,001 which sum includes all damages and any other amounts that may be recoverable by virtue of the cause of action in the above‐captioned action…” The Judgment does not indicate what portion of the “damages” is allocated to lost income and what portion is allocated to emotional distress, punitive damages and/or other compensatory damages. The party extending the statutory offer to compromise bears the burden...

Excerpt: ...sing facility and knew that she was unable to provide for her own basic needs due to Alzheimer's Disease and dementia. (FAC, ¶20‐24.) Plaintiff asserts that Defendant denied or withheld personal hygiene services by failing to properly clean Decedent's gastronomy tube leading to multiple infections of the tube site. (Id at ¶27.) Plaintiff further asserts that Defendant failed to bathe Decedent despite repeated requests (Id at ¶28) and failed ...

Excerpt: ...uffered harassment that deprived Plaintiff to equal access; actual knowledge; and deliberate indifference) Plaintiff has sufficiently alleged these elements in Paragraphs 37, 39, and 40 of her Complaint. District correctly asserts that negligence per se is not a separate cause of action, but rather a mere negligence claim. The court will treat the fourth cause of action as a Negligence claim. While the decision to undertake a school sponsored act...

Excerpt: ...g party will comply with the particular demand, that party “shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production,” (Code Civ. Proc., Section 2031.220, it...

Excerpt: ...ging over the table while dining at the Applebee's restaurant in Corona. Defendant now moves for summary judgment or summary adjudication in the alternative, contending Defendant had no duty to warn Plaintiff of an open and obvious condition. A defendant meets its initial burden under CCP Section 437c(p)(2) of showing a cause of action has no merit if that party has shown one or more elements of the cause of action cannot be established, or that ...

Excerpt: ...icle was purchased by Plaintiff in Oklahoma. (See RSSUMF Paras. 2,10, 32, 40, and 48; Defendant's Exhibit D; Lewis Decl. and Exhibit A. ) Plaintiff fails to meet her burden to demonstrate the existence of a triable issue of material fact. There is nothing within Civil Code Sections 1791(t) or 1795.8 that would include a spouse within the definition of “Member of the Armed Services”. Moreover, the statutes only apply where the member of the ar...

Excerpt: ...ranted. Plaintiff, Scott Corliss, the infant son of Hannah and Dorian Corliss, died while in the child care of Defendant Karina Giorgianni, who leased the subject premises from owners Jorge and Armando Sanchez, moving Defendants herein. Defendants have met their initial burden on summary judgment of showing that Plaintiffs cannot establish the essential elements of a negligence claim, by submitting as evidence Plaintiffs' responses to written dis...

Excerpt: ... must allege the prerequisites of section 815.4, including the factual allegation that the employee's injury must have been proximately caused by a tortious act or omission of the independent contractor. The FAC does not establish any factual support as to how Amtek, the independent contractor, caused Plaintiffs' injuries either by tortious act or omission. On Mandatory Duty, the Plaintiff must specifically identify the statute or regulation alle...

Excerpt: ...“continuing in nature..” This language in both the lease and guaranty indicates that both agreements are still in effect and there are continuing obligations between the parties. For this reason, there are still triable issues of material fact as to the First Cause of action. The FAC titles the Second Cause of Action as “Fraud”. The allegations under this title set forth a cause of action for fraudulent concealment, (FAC Para. 53‐76). A...

Excerpt: ...amount Plaintiff seeks to attach is supported by the Declaration of Plaintiff Mark Gomber and authenticated copies of wire transfer receipts and checks written to EMG. Defendant Haydee Perchemlian(“HP”) challenges the formation of a contractual relationship between Plaintiff and her late husband, Tony Perchemlian(“TP”) and EMG. HP argues that the breach of contract claim cannot be pursued against her because she was not a party to the tra...

Excerpt: ...poration, or other legal relationship that manufactures, assembles, or produces consumer goods.” (Civ. Code Section 1791(j).) The Declaration of Mandyjay Lewis does not define Defendant's legal relationship to the manufacturer of the Subject Vehicle. Nor does his declaration provide the warranty information, nor any explanation as to who provided the manufacturer's warranty. As such, there are triable issues of material fact as to whether Kia M...