Excerpt: ...unity to counter all the evidence offered in support of the motion, “[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) Moreover, to the extent that the new evidence concerns the efforts of the moving parties to resolve the dispute before filing their motion, it is irrelevant. Although counsel should always seek an informal resolutio...

Excerpt: ... of action for PAGA penalties. The plaintiff now intends to dismiss that action. The settlement agreement between the plaintiff and the defendant provides for the defendant to pay $11,000 to the plaintiff. The case management order requires that if any consideration other than a waiver of costs is given in exchange for a dismissal, it is a settlement that must be approved by the court. Section E.7.b of the CMO requires that, in that situation, pl...

Excerpt: ...rejudgment possession is denied. Analysis: Evidentiary Objection The portion of the Cosper declaration to which the defendant objects is inadmissible to prove the contents of the Cooperative Agreement. (Evid. Code, § 1523, subd. (a).) The City's Entitlement to Take the Property The Court may grant a motion for prejudgment possession over the objection of the property owner only if the Court finds, inter alia, that “[t]he plaintiff is entitled ...

Excerpt: ...s department. Analysis: The FAC, which asserts a PAGA claim for the first time, has not been filed. However, a copy of the proposed FAC is for some reason attached to the proposed order granting preliminary approval. The FAC could have been filed at any time without leave of court. (Lab Code § 2699.3, subd. (a)(2)(C) [“Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of...

Excerpt: ...Civil Procedure sections 430.41 and 435.5 by meeting and conferring with plaintiffs' counsel, either in person or by telephone, concerning the sufficiency of the First Amended Complaint. If the plaintiffs do not agree to amend further, the defendant shall file either an answer or a new demurrer, motion to strike, or both, no later than April 15, 2020. If the defendant fails to file and serve a responsive pleading on or before that date, the plain...

Excerpt: ..., concerning the strict products liability claims, the negligent products liability claims, and the breach of warranty claims, respectively. As to the first issue, concerning the negligent claims, the Court has no tentative ruling. The parties shall be prepared to discuss the following issues: 1. As Southstar notes, the issue is whether the Privette‐Toland doctrine shields Southstar from liability. That shield is provided to the landowner who h...

Excerpt: ... are separate causes of action. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1016 [Willful misconduct “is a tort separate and distinct from negligence and involves different principles of liability and different defenses”].) Willful misconduct implies “the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intention...

Excerpt: ...they are directed is not material to the Court's analysis. Actuant failed to meet its initial burden by failing to address all of products alleged to be defective in the operative complaints. A summary judgment motion must show that the “material facts” are undisputed. (CCP § 437c(b)(1).) The pleadings determine what issues are material in a summary judgment motion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto Blue ...

Excerpt: ...nded Complaint are sustained as to all causes of action. The sustention is without leave to amend unless Plaintiff articulates at the hearing what facts she can truthfully allege that would create a reasonable possibility that the defects identified by Court and counsel would be cured. (Code Civ. Proc., § 430.41, subd. (e)(1).) Analysis: The Court does not consider the plaintiff's declaration in support of her opposition. It consists solely of f...

Excerpt: ...tes shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The plaintiff does not allege how she falls within the class of individuals protected by this section. For instance, she does not allege that she was a participant in any program or activity conducted by the school distr...

Excerpt: ...ght in the form of a noticed motion to be heard no later than 21 days before the date first set for trial.” Rather than comply with that deadline, the plaintiff waited more than four months to file her motion for relief, and set it for hearing on March 8, a mere four days before her March 12 trial date. The motion also fails on the merits, for several reasons. First, the plaintiff concedes that relief under section 473 is conditioned upon the r...

Excerpt: ...ave to amend. As to the remaining causes of action, leave to amend is denied. Analysis: The plaintiff is estopped from complaining about the defendants' failure to meet and confer by telephone, since the plaintiff failed to list his telephone number on his complaint. And it is not reasonable to expect anyone to meet and confer in person during a pandemic. Therefore, the plaintiffs' effort to meet and confer and confer was sufficient. Even if it h...

Excerpt: ...t Ryder acted with a discriminatory animus. Specifically, Plaintiff presents evidence that Ryder's stated reason for terminating his employment – that Miles left a job site without permission – is false. Kyle Farden, Miles' coworker, testified that Miles never left the job in question because Miles was working with Farden the entire time he was at the jobsite. (Farden Depo. 87:12‐88:4.) Plaintiff also provides evidence that Robinson said th...

Excerpt: ...ontinuance” appears to be a record of 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 j...

Excerpt: ...ails to make any effort to describe how it could be amended to state a cause of action. Accordingly, the demurrer is sustained without leave to amend. Second Cause of Action: The plaintiff has failed to allege facts demonstrating the existence of a dispute regarding the application of Government Code sections 65582, 65583, and 65589.5 to the City's actions. Therefore, the demurrer is sustained. Section 65582 is merely a list of definitions. It ne...

Excerpt: ...ibe the process as it existed at the time that the plaintiff asked that her vehicle be repurchased or replaced. It is granted as to Interrogatory #42. The defendant shall serve supplemental responses without objection to #41 as limited and #42 within 15 days. Analysis: The defendant served supplemental responses to Interrogatories 14, 25, 43, 51, and 53 after the motion was filed. Therefore, the motion is moot as to those interrogatories, and is ...

Excerpt: ...members and employees of the plaintiff's counsel's firm and any consultants or expert witnesses the plaintiff may retain, and then only for purposes of this litigation. In all other respects the motion is denied. Analysis: Background Questions. Plaintiff fails to cite to any authority entitling him to these questions in advance of the examination. While Plaintiff seeks to shorten the exam and limit possible exposure to Covid‐19, there is no sho...

Excerpt: ...l be supported: by a notice of motion that identifies – by name of the declarant and, if not filed concurrently with the motion, by date of filing – all declarations on which the motion relies; by a memorandum of points and authorities; and by a Compliance Chart as ordered on 10‐30‐18. All declarations on which the motion relies shall be made on personal knowledge and shall be executed in compliance with Code of Civil Procedure section 20...

Excerpt: ...ode Civ. Proc., § 430.60), a special demurrer for uncertainty fails if it does not specify in what particulars the pleading is uncertain (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809), either in the demurrer itself (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690) or in the memorandum of points and authorities supporting the demurrer (Fenton, p. 809). Even if they identify the purported uncertainties, special demur...

Excerpt: ...aint. If the plaintiff does not agree to amend, the defendant shall file either an answer or a new demurrer no later than February 25, 2021. If the defendant fails to file either responsive pleading by that date, the plaintiff shall request entry of default promptly thereafter. The case management conference scheduled for 2‐4‐21 has been continued to 4‐5‐21. Analysis: “Before filing a demurrer . . . the demurring party shall meet and co...

Excerpt: ...ent of plaintiff's cause of action, specifically negligence and causation. The defendant fails to do so, because at least five of the facts he claims to be undisputed are not supported by the evidence on which he relies. SSUF#1: The defendant contends that the plaintiff filed a first amended complaint on 7‐9‐ 19. That assertion is disputed by the plaintiff and is not supported by Exhibit A to the Trobough declaration, the evidence cited by th...

Excerpt: ...in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” To consider those fact...

Excerpt: ...ion “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Civ. Code, § 1793.2, subd. (a)(3).) Page 3 of 3 The plaintiffs allege a violation of that section in their Third Cause of Action, but allege...

Excerpt: ... seeking to establish that there is no ostensible agency, it relies upon evidence that it informed the plaintiff upon admission to the hospital that the doctors there are independent contractors. The hospital claims that its notice conclusively establishes the lack of ostensible authority. That argument fails. To establish ostensible agency, only two elements need be proven. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 144...

Excerpt: ...urt does not lack jurisdiction. #2 Zazueta asserts that the FAC fails to allege facts sufficient to constitute a cause of action against a different defendant, the Zazueta Trust. Zazueta, is not the trustee of that trust or otherwise adversely affected by the existence of allegations against that trust. The Court is not aware of any authority for the proposition that one defendant may challenge the sufficiency of the allegations of a different de...