Excerpt: ...n its own motion. Despite counsel's representations, however, no motion appears in the register of actions. Therefore, the motion will be taken off calendar unless counsel can produce a conformed copy of the moving papers, including a proof of service of the motion on the defendant. The Court notes that an unconformed copy of the motion is attached to the ex parte application. The declaration supporting that motion asserts the following: • That...

Excerpt: ...ed to 65% of BAP for Water Year 2021‐2022. Page 3 of 4 Este: The Watermaster proposed that the FPA be reduced from 70% to 65% of BAP. The Court approves that proposal. The FPA for all producers in ESte is reduced to 65% of BAP for Water Year 2021‐ 2022. Oeste: The Watermaster proposed that the FPA be reduced from 65% to 60% of BAP. The Court approves that proposal. The FPA for all producers in Oeste is reduced to 60% of BAP for Water Year 202...

Excerpt: ...ile proof of service is discharged. Analysis: Factual assertions on the basis of information and belief are not admissible evidence. It is undisputed that the plaintiff signed the agreement, and that the agreement is subject to the FAA. The agreement to arbitrate may delegate to the arbitrator the determination of “threshold issue of arbitrability,” including whether the agreement covers a particular controversy. (Henry Schein, Inc. v. Archer...

Excerpt: ...leave to amend. The proposed order and proposed judgment are signed. Analysis: The defendants Rice‐Hall and Baker moved for summary judgment. The Court deemed the motion one for judgment on the pleadings, and continued the hearing to permit the plaintiff to oppose the motion as a MJOP. The Court does not rule upon the defendants' evidentiary objections, filed 3‐23‐21, because the evidence to which they relate is not material to the Court's ...

Excerpt: ... occurred on 9‐12‐19, when the plaintiff filed his first amended complaint that named solely Desert Regional Medical Center, and omitted any doe defendants. The motion was not filed until 5‐7‐21, over 19 months later. Moreover, even if the six‐month deadline did not apply, the motion was not brought within a reasonable time. Although the plaintiff was self‐represented when both the original complaint and the FAC were filed, he retaine...

Excerpt: ...s on the same cause of action.” Diaz is not another action pending between the same parties. The Diaz action is a class action, in which the plaintiff is suing on behalf of himself and similarly situated employees. By contrast, the instant action is solely a PAGA action, in which the plaintiff is suing on behalf of the State of California. Therefore, to the extent that the defendants are relying upon Diaz, the statutory grounds are not present....

Excerpt: ...lement (p. 5), but did not attach a copy of the settlement agreement. Defendants Ewing and Burns responded by filing a motion to contest the good faith of the settlement. Nowhere in their motion do the moving parties express uncertainty regarding the terms of the settlement, express any disagreement regarding the terms of the settlement, complain of the settling defendants' failure to attach a copy of the settlement agreement to their application...

Excerpt: ...es: that she is a dependent adult (¶¶ 7 & 21; § 15610.23, subd. (a)); that she was under the care, and received home health care services from, the defendants (¶¶ 8 & 23); that the defendants were “care custodians” within the meaning of section 15610.17 (¶¶ 10 & 21); that as a result of the defendants' negligence, the plaintiff suffered a broken femur (¶¶ 15 & 26); and that the negligence constitutes “neglect” under the Act (¶ 2...

Excerpt: ...s and unintelligible. (CCP § 430.10(f).) Demurrers for uncertainty are sustained where the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) No such uncertainty exists here. The special demurrers are overruled. 3rd Cause of Action for breach of implied warranty of habitability The elements of a breach of imp...

Excerpt: ...l, is the estimate of 1004 class members still accurate? 2. The Treger Declaration notes there is a San Diego Superior Court case which alleges a claim on behalf of all non‐ exempt employees of Sheraton Operating Corporation arising from alleged meal and rest break violations from May 2019 through the present. There are nine members of the Security Guard class in the present action who potentially fall within the definition of the represented g...

Excerpt: ...onsistent. It refers to the claims justifying the payment as being both “individual claims” (¶¶ 7 & 8) and as “Plaintiff's PAGA claim” (¶ 12). If the payment is in consideration of a PAGA claim, then the bulk of the settlement must go to the LWDA. Even in the absence of that inconsistency, the Court has its doubts. Kassel justifies the individual settlement on two bases. Neither is convincing. First, he says that the plaintiff is entit...

Excerpt: ...y concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) There are four circumstances that give rise ...

Excerpt: ...ered in a timely fashion prior to the hearing on 3‐2‐21. Therefore, there is no basis for reconsideration. Even if reconsideration had been granted, the result would have been the same. There is no showing of good cause for the plaintiffs' persistent failure to request entry of default of the two defendants. Proofs of service were filed on 8‐6‐20, indicating that the defendants were both served with the summons and complaint on 8‐1‐20...

Excerpt: ...mitation ran, and that the plaintiff was not able to re‐submit it for filing under 12‐15‐ 21. The question is whether the clerk was justified in declining to file the complaint. The clerk's functions are ministerial and the clerk has no discretion to reject a complaint that substantially complies; the remedy is to issue a nunc pro tunc that deems the complaint filed when it was presented. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777�...

Excerpt: ...ge sufficient facts to state a cause of action for conversion because merely refusing to return the coin collection is insufficient. That argument fails. Retention of possession is a sufficient interference with the owner's right of possession. See Varela v. Wells Fargo Bank (1971) 15 Cal.App.3d 741, 749‐750 [bank which repossessed vehicle with plaintiff's diamond rings in the glove compartment was held to have taken possession without right, a...

Excerpt: ...he City's request for judicial notice is buried in its compendium of evidence. Nevertheless, because it is unopposed, the Court grants the request despite that defect. The Court is not persuaded that the plaintiff's failure to apply to the City for leave to file a late claim constitutes a failure to exhaust administrative remedies. Government Code section 911.4 is permissive, rather than mandatory. If the claimant believes that the claim is timel...

Excerpt: ...hin the next seven days. Analysis: The cross‐defendant's opposition is meritless. A party may apply to the court for leave to amend his pleading, or to file a cross‐complaint, at any time during the course of the action. (CCP § 426.50.) “A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross‐ complaint at any time during the course of the action m...

Excerpt: ...collateral estoppel, it is irrelevant and may not be considered. (See Cal. Rules of Court, rule 8.1115(b). Because none of the California decisions are offered in support of any of those theories, they are not relevant. Nor may judicial notice be taken of the decisions as “decisional law” under Evidence Code section 451, subdivision (a). Were that avenue available, all appellate decisions would be judicially noticeable despite rule 8.1115. As...

Excerpt: ...he motion is therefore timely. (Cal. Rules of Court, rule 3.1702(b)(1).) The defendant asserts that it is entitled to attorney's fees pursuant to both Civil Code section 55 and 42 U.S.C. § 2000a‐3(b). To the extent relevant to the defendant's argument, section 55 provides: “Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code . . . may bring an action to enjoin the violation. The prevailing p...

Excerpt: ...elayed‐discovery tolling and fraudulent‐concealment tolling. (SAC, p. 18.) Both theories fail. From the facts alleged concerning the nature of the Page 3 of 4 plaintiffs' complaints, the nature of the repairs attempting to address those complaints, and the dates on which those complaints and those repairs were made, the only reasonable inference possible is that the plaintiffs were on inquiry notice four or more years before the action was fi...

Excerpt: ...t 3.110(h) requires a request for default judgment within 45 days of the entry of default, the plaintiff has never applied for such a judgment. On 1‐15‐20, the Court ordered the plaintiff and plaintiff's counsel to appear on 7‐13‐20 and show cause why sanctions should not be imposed for the failure to apply for a default judgment. Nevertheless, no application was submitted prior to 7‐13‐20. Page 4 of 4 Local rule 3116 requires that an...

Excerpt: ...he City represents that it filed a new motion for a continuance on or about 4‐5‐21. On 4‐ 6‐21, the City applied ex parte for a trial continuance or for an order shortening time. At the hearing on the application on 4‐7‐21, the plaintiff did not oppose the proposed OST because the plaintiff had filed a complete written opposition to the ex parte application. Because the motion did not yet appear in the Court's register of actions, the...

Excerpt: ... Proc., § 1033, subd. (a)(4).) However, Code of Civil Procedure section 1021.5 refers to “successful” parties rather than “prevailing” parties. The plaintiffs argue that a party is “successful” if it obtains the relief sought in the lawsuit. There is no evidence that the plaintiffs obtained any relief as to Select Puppies, Inc, or Brian Mohrfeld. Although both defendants were served, neither appeared. No default was ever entered as t...

Excerpt: ... an official act of the executive, judicial or legislative departments of the state of New York, and thus of document that could be judicially noticed (Evid. Code, § 452, subd. (c)), it is not relevant to this motion. The request is denied on that basis. To the extent that the plaintiff relies upon it to establish the defendant's “own internal policies” (Oppo., p. 3), those policies are not subject to judicial notice. The declaration of Le m...

Excerpt: ...ve to amend. Analysis: The Court does not rule upon the defendants' evidentiary objections, filed 3‐23‐21, because the evidence to which they relate is not material to the Court's analysis. In their answer, the defendants alleged that the action was barred by the statute of limitations set forth in Code of Civil Procedure section 340.5. (Answers, ¶ 10.) The defendants' motion seeks summary judgment on the basis of the same statute. Section 3...