Excerpt: ...defendant. Nevertheless, the motion addresses only the first cause of action. Because the motion does not attempt to show that there is no triable issue of material fact as to the second cause of action, the motion for summary judgment fails. The motion for summary adjudication relies on the declaration of an expert, Dr. Ricci, who in turn relies upon medical records describing what Dr. Farag did and did not do. In light of Ricci's reliance on Fa...

Excerpt: ... the county, the owner appeared ex parte and obtained a temporary restraining order, preventing the enforcement of the warrant, and an OSC. The order to show cause asks why a preliminary injunction should not be issued. A preliminary injunction seeks to preserve the status quo until a trial is conducted on the Page 4 of 4 merits of the competing claims. But the County's present action is very limited in scope, and seeks nothing but the issuance o...

Excerpt: ...e Partnership has available to it adequate cash to make such payment . . . .” It is not limited to currency, but rather includes liquid assets, i.e., assets that could be readily converted to cash. • “Defendant” is defined to mean University Campus Hotel, LLC. • “The date of the response to this demand” is replaced with “May 1, 2020. With those modifications, the plaintiff's motion to compel defendant University Campus Hotel, LLC,...

Excerpt: ...eges that the defendant owed her a fiduciary duty as the trustee of the Lawrence and Doris Kleinfelter Family Trust and that he breached that fiduciary duty by withholding trust amendments from the Probate Court and by withholding bank statements for trust bank accounts from the plaintiff. (¶ 1.) The plaintiff alleges that she was unaware of those wrongful acts until the period of March 8 to March 28, 2017. (¶ 4.) Rather than file suit upon dis...

Excerpt: ...o the extent that it vaguely refers to the “pleadings filed in this action and the judicial admission set forth therein” without identifying the particular records or the particular admission to which it is referring, it fails to comply with Evidence Code section 453, subdivision (b). The general demurrer is sustained because there is not allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fra...

Excerpt: ...t “the claimant has not commenced an action to enforce the lien within the time provided in Section 8460,” i.e., within 90 days of the recordation of the claim of lien. The motion presents no evidence or argument that the action was commenced more than 90 days after recordation of the lien. To the contrary, the petition alleges that the claim of lien was recorded on October 3, 2019 (¶ 5) and that the plaintiff filed the instant action to enf...

Excerpt: ...nference on August 10, 2020, at 8:30 A.M. Analysis: The Court does not approve the service award or general release payment to the plaintiff. The settlement agreement provides that the Arispe Class Presentative Service Award is intended to compensate Arispe “for her time and effort in prosecuting the Arispe Lawsuit on behalf of the State of California and Arispe Aggrieved Employees since filing the Lawsuit on January 17, 2018.” (Abstract, ¶�...

Excerpt: ...o discuss whether they would be willing to stipulate to agree that the issue of whether the guaranty was signed by the defendant may be bifurcated and tried to the court without a jury. Analysis: The plaintiff's request for judicial notice of public records is relevant to issue of the signatures used by the defendant. The evidentiary objections on the ground of hearsay are sustained to the extent the declarant relies upon the contents of the plai...

Excerpt: ...allegations because the facts of that case bear no similarity whatsoever to the facts alleged here. While the facts in Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890 are closer, since they both involve a traffic accident in which the plaintiff was allegedly injured, the similarity ends there. The Taylor court held "that the act of operating a motor vehicle while intoxicated may constitute an act of 'malice' under [Civil Code]...

Excerpt: ...n. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Such a declaration must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (§ 2016.040.) Here, the moving parties relied entirely on letters and emails. (Decl. of Mazzo, ¶¶ 5‐11; decl. of Anguiano, ¶¶ 3‐9.) An exchange of written communications is not a meeting, and does not constitute a reasonable or good‐faith ...

Excerpt: ... for agricultural uses be reduced from 75% to 70%. The Court is inclined to approve that proposal. However, in the effort to eliminate the differential between M&I and agricultural producers, should the rampdown on agricultural producers be greater than 5% (so long as it is less than 5% for the sub‐area as a whole)? Phrased differently, to achieve a 5% rampdown in the Alto FPA as a whole while keeping the FPA for M&I constant at 55% of BAP, wha...

Excerpt: ...nference on July 21, 2020, at 8:30 A.M. Analysis: The Court does not approve the service award to the plaintiff. The Court's CMO#2 requires the party seeking a service award in a PAGA case to provide authority for such a distribution. (Id., § E.8.) Despite the Court pointing out this omission at the first hearing on the motion, it appears that there is still no citation to any such authority from an appellate opinion in a PAGA case. Although the...

Excerpt: ...ts is granted in part and denied in part. It is granted to the extent that it seeks a determination that Federal is the prevailing party on the action on the payment bond. It is denied to the extent that it seeks an award of costs of suit and attorney's fees. Analysis: Cell‐Crete sued Federal and Granite. Granite sued Cell‐Crete. The two actions were consolidated. Cell‐Crete's action was stayed while Granite's action was submitted to arbitr...

Excerpt: ... be either general taxes or special taxes.” (Cal. Const., art. XIII C, § 2, subd. (a).) Local governments may not impose, increase or extend (a) any general tax unless it has been approved by a majority vote at a general election, or (b) any special tax, unless it has been approved by a two‐thirds vote of the electorate. (Id., subd. (b) & (d).) Proposition 218 did not define “tax.” That omission was cured when article XIII C, section 1, ...

Excerpt: ...rez filed 1‐30‐ 20? • Why is the administrator's estimate based on a “class size” of 2166 (Exh B to declaration of administrator) when the number of aggrieved employees is no more than 1,500? • If the defendants' total assets are only $3.5 million, as represented by both Perez and Pike, what is the source of the $6.6 million gross settlement amount? Page 3 of 3 • What was the basis for the parties' allocation of the gross settlement...

Excerpt: ...es of Action are against the County of Riverside only, and the 7th Cause of Action is against Sanchez only. 1st cause of action: Granted as there is no evidence of severe or pervasive harassment. 2nd cause of action: Granted as there is no evidence of pretext that suggests that County placed Plaintiff on leave or terminated him as a result of a perceived disability. 3rd cause of action: Denied as there is evidence of pretext demonstrating a retal...

Excerpt: ...n a way that ‘affirmatively contribute[d]' to the employee's workplace injury.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 595.) In short, it is not sufficient that the employer retained control. The employer must have also exercised that control in a way that is causally related to the injury. Actuant acknowledges that this is the rule. (Opposition, p. 7, l. 26 – p. 8, l. 5; p. 9, ll. 22‐25.) By itself, the contractua...

Excerpt: ...t is not aware of any authority that requires the Court to grant relief from intentional decisions not to preserve that right. Thus, although the evidentiary burden is slight, it is not non‐existent. A party moving for relief must offer evidence that the failure to deposit jury fees in a timely fashion was negligent rather than intentional. The plaintiff having offered no evidence whatsoever, the plaintiff's motion is denied. The defendant's de...

Excerpt: ...failure to file proofs of service of the summons and complaint on the defendants. In light of the monetary sanctions previously imposed on plaintiff and plaintiff's counsel, the Court will refrain from imposing the fine authorized by Code of Civil Procedure section 473, subdivision (c)(1)(A) or the contribution to the State Bar Client Security Fund authorized by subdivision (c)(1)(B), so long as those monetary sanctions are paid in full forthwith...

Excerpt: ...of the plaintiff's expert. The plaintiff has failed to do so. Instead, Plaintiff provides the declaration of Dr. Dushyant Viswanathan. He disputes most of the factual recitals on which Dr. Hamburg's opinion relies, but does not provide another opinion. He fails to actually address anything that this Defendant did to breach the standard of care or causation. A plaintiff must establish causation within a “reasonable medical probability” based u...

Excerpt: ...ers no facts that she has any personal knowledge regarding this issue. What was her role? Did she decide that a jury trial would be requested? Did she instruct someone to deposit jury fees to preserve the right to such a trial? How does she know that the failure to deposit fees was inadvertent rather than intentional? The Court grants relief for inadvertent forfeitures, but not if the party has simply changed its mind after an intentional waiver....

Excerpt: ...veral reasons, including that “[t]he motion fail[ed] to comply with California Rules of Court, rule 3.1324(b).” That rule requires the motion to be supported by a declaration that explains “[w]hen the facts giving rise to the amended allegations were discovered.” Accordingly, the Court directed Bogh to provide “a declaration explaining how and when the facts supporting each of the proposed new ‘defenses' came to the attention of Bogh....

Excerpt: ...n, jury fees were timely deposited by Hallbert, and it does not appear that Hallbert has expressly waived the right to a jury trial. Unless and until such a right is waived by Hallbert, the trial shall remain set as a jury trial. The Court believes that the only issue to be bifurcated is whether the fungi/bacteria exclusion endorsement (Form UMB 01 03 01 03) is enforceable. The plaintiff contends that it is unenforceable because it is not conspic...

Excerpt: ...he Court's tentative is to deny the continuance. Analysis: The Court does not continue the trial on the ground of Ms. Gentile's mother's alleged illness and Ms. Gentile's alleged responsibility to care for her mother because there is no declaration from Ms. Gentile describing either that illness or that responsibility. Nor is there any other admissible evidence on either of those topics. Moreover, there is no evidence of what Ms. Gentile's involv...

Excerpt: ...ion, does not refer to the department in which the motion was heard, and does not bear the date on which the hearing was actually conducted. Analysis: The plaintiffs correctly state the law to the effect that a party must be relieved of a forfeiture, or even an express waiver, upon request unless either the opposing parties or the court would be prejudiced by that relief. Unlike a motion under Code of Civil Procedure section 473 directed to other...