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...

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: ...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: ...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...

Excerpt: ...20. The notice is therefore untimely. Moreover, the notice of intention is deficient in that it fails to comply with the requirement that it state whether the motion “will be made upon affidavits or the minutes of the court, or both . . . .” (§ 659, subd. (a).) The memorandum in support of the motion is 22 pages long, and thus exceeds the maximum length of a memorandum in such a motion. (Cal. Rules of Court, rule. 3.1113(d).) On the merits, ...

Excerpt: ...overruled as to the remaining causes of action. The defendant shall file and serve her answer within 10 days. The trial setting conference currently set for 6‐15‐21 is vacated. A case management conference shall be conducted on March 22, 2021. Page 3 of 5 Analysis: Because the plaintiff did not sign the declaration she filed on 1‐12‐21, it does not comply with Code of Civil Procedure section 2015.5. Accordingly, the Court does not conside...

Excerpt: .... Generally, new evidence is not permitted with reply papers. It should only be allowed in the exceptional case, and only on the condition that the opposing party should be given the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) No exceptional circumstances are shown in the Biondi declaration. After weighing the likelihood that the defendant will prevail at trial and balancing the relative harm to be suffered...

Excerpt: ...ffs (i.e., still or video images recorded either on photographic film, on magnetic tape, digitally, or otherwise) and edited recordings. However, the plaintiffs did not thereafter argue that the distinction was significant in this instance. The defendant ignored that distinction entirely. Accordingly, the Court does not make that distinction either. To the extent that there were any unedited recordings that were not taken or created by or at the ...

Excerpt: ...ount of the past loss of earnings. In response, on 8‐8‐20, the Court ordered the plaintiff to file a CMS within 2 weeks that described both the nature and the amount of the damages being sought. The Court at the same time issued an order to show cause why sanctions should not be imposed for initialing filing an incomplete CMS, returnable on 9‐15‐20. On 9‐14‐20, having received neither a revised CMS or a declaration in response to the ...

Excerpt: ...ranted as to the following requests: #13 as to years 2018 and 2019; #29 to the extent that the plaintiff has failed to identify the documents that are responsive to that request, as required by Code of Civil Procedure section 2031.280, subdivision (a); #30 as of May 1, 2019; and #31 from May 1, 2019, to April 21, 2020. In all other respects, the motion is denied. The defendant's request for sanctions is denied. The plaintiff's request for sanctio...

Excerpt: ...l Code § 2923.6 (letter denying modification); and 3) Civil Code §§ 2923.6 and 2923.11 (dual tracking). (FAC, ¶¶ 38‐46.) i. Single Point of Contact (“SPOC”) Civil Code § 2923.7 provides that upon request from a borrower seeking a foreclosure prevention alternative, the mortgage servicer shall promptly provide an SPOC and one or more direct means of communicating with the SPOC. Plaintiffs allege that their assigned SPOC gave them “in...

Excerpt: ...ourt in resolving the issues raised regarding the sufficiency of the allegations of the FAC. With regard to the second cause of action, Defendants argue that Plaintiff was not damaged by any alleged disclaimer of warranty because Plaintiff did not make a claim during the implied warranty period. (Memo in Support, p. 7:16‐22.) As to the third cause of action, Defendants argue that there is no allegation that the Motorcycle did not conform to the...

Excerpt: ...“The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to performance of that duty.” Keyes v. Bowen (2010) 189 Cal.App.4th 647, 657. Page 4 of 5 As the Department points out, the ministerial duty runs in exactly the opposite direction from that urged by the petitioner: the DMV has a mandatory duty to suspend th...

Excerpt: ...just enrichment/restitution claim are the receipt of a benefit and the unjust retention of the benefit at the expense of another. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Shih alleges that ERC charged for repairs to the roof and attic that were never performed and that the request that Shih pay for such services unjustly enriches ERC. (Cross‐Complaint, ¶¶ 23‐26.) ERC's request for payment of its invoice is not a b...

Excerpt: ...h 28 of the first cause of action is not alleged against her and paragraph 3 of the prayer does not seek any relief against her. As to the motion of the medical group, it seeks to strike paragraph 28 from the first cause of action and paragraph 3 of the prayer. Both assert the right to collect punitive damages from the medical group. In moving to strike those portions of the complaint, the medical group relies upon Code of Civil Procedure section...

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally 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 ...

Excerpt: ...f action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally 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 ...

Excerpt: ...ct or omission of the public entity or a public employee or any other person.” (Gov. Code § 815.) Thus, the complaint must specifically identify the statutory basis for liability against a public entity, including citing the statute. (Gov. C. § 815; Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) Since all liability under the Act is statutory, each tort cause of action must be specifically alleged and every element of...

Excerpt: ...negligence. The agreement provides in relevant part: “Tenant acknowledges that the use of this space is at tenant's sole risk and responsibility, and owner, and owner's partners, employees and agents, shall have no liability to tenant for any damage or loss to the property stored by tenant…from any cause, including acts or omissions as well as active or passive negligence by owner or its agents.” (SAC Ex. 1, ¶5.) Under this express languag...

Excerpt: ...cause of action, for unjust enrichment, is sustained without leave to amend as to Miramontes but otherwise overruled. The demurrer to the third cause of action, for declaratory relief, is overruled. Analysis: The District's unopposed request for judicial notice filed 10‐28‐20 is granted. The District's second request for judicial notice, submitted with its reply, is denied. Generally, a Court will not consider evidence submitted with a reply ...

Excerpt: ...d 11‐4‐20. The motion is granted. Analysis: “Plaintiffs' Evidentiary Objections to Declaration of Betsy Lanza,” etc., filed 10‐1‐20 is not considered. Although the title indicates that the objections are directed to a declaration of Lanza, the heading of the chart of objections indicates that, to the contrary, the objections are directed to a declaration of Urrutia. As will be seen, the plaintiffs repeated – and sometime enlarged up...

Excerpt: ...er that cause of action is brought by Silvia Hernandez, Sissi Perez, or both. Any Third Amended Complaint shall fully comply with California Rules of Court, rule 2.112(3). Analysis: The plaintiff has failed to allege facts giving rise to a duty of care. “‘[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.' " (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal...

Excerpt: ...that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) The conduct of nurses, however, is measured by that of other nurses under similar circumstances. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.) Thus, “(t)he elements of a cause of action for professional negligence are failure to use the...

Excerpt: ...ears from the date of the wrongful act which could not be later than the actual breach of contract by the person who was wrongfully induced. However, Plaintiff contends he did not have the opportunity to discover the facts until 2/23/18 as stated in his Complaint. The “discovery rule” is an exception to the general rule that an action accrues when appreciable harm occurs. (Fox v. Ethicon Endo‐Surgery (2005) 35 Cal.4th 797, 807.) The discove...

Excerpt: ...omplaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the co...

Excerpt: ...pears to be based on a possessory right to the funds based on an equitable lien. Page 3 of 3 Flagstar asserts a right to the property based on equitable lien cannot exist due to Civil Code § 8500. It argues that Civil Code § 8500 abolished equitable liens regarding construction funds and due to this, Plaintiff lacks a possessory interest in the property at issue. Civil Code § 8500 states: “[t]he rights of all persons furnishing work for any ...

Excerpt: ...is not allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff Page 3 of 4 must hav...

Excerpt: ...nt's motion for summary judgment has been granted. “[W]hether a matter is ‘embraced' in or ‘affected' by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal.” [Citation.] “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 ...

Excerpt: ...the supplemental declaration of Wakeman are sustained as to Nos. 1 and 3, but otherwise overruled. The plaintiff's evidentiary objections filed 10‐22‐20 to the declaration of Sanchez are sustained. The plaintiff's evidentiary objections filed 9‐23‐20 to the declaration of Nagata are overruled as to No. 1 and sustained as to No. 2. The Court does not consider the second supplemental declaration of Anderson, filed with the reply. Therefore,...

Excerpt: ...s forfeited by a defendant if the defendant fails to request arbitration within 30 days of receipt of the notice. The undisputed evidence establishes that the plaintiff mailed the notice was sent to Tumbrello at 26142 Williams Way #A, Murrieta, CA 92563. Plaintiff has shown proof that it was mailed on January 13, 2018, pursuant to a Certificate of Mailing issued by the United States Postal Service. (Karas Dec., Ex. 1; Declaration of John Karas, �...

Excerpt: ...1, subdivision (g), allows a court to grant relief from such a forfeiture, the Court is not aware of any authority that requires the court to do so when the failure to deposit jury fees is deliberate rather than inadvertent. Accordingly, the moving party must present competent evidence of inadvertence, not merely a conclusion that it was inadvertent. Although the original declaration of Mr. Quinones states that the omission was inadvertent, no ev...

Excerpt: ...laintiff seeks to justify every redaction in the 61‐page log on identical grounds: that the redacted information pertains to the plaintiff's “private medical history unrelated to the parts of the body at issue in the instant lawsuit” and also pertains to the plaintiff's “private sexual history with person(s) other than the perpetrator of the abuse.” That privilege assertion is problematic for multiple reasons. First, it vague. This is n...

Excerpt: ...efendants' demurrers to Count Two of the Fifth Cause of Action. The demurrers of both defendants are sustained with 20 days' leave to amend as to the Fourth Cause of Action. With those exceptions, the demurrers are overruled. The case management conference is continued to November 18, 2020, at 8:30 A.M. in Department 10. Analysis: Request for Judicial Notice Exhibits C and D are capable of being judicially noticed, but they appear to be immateria...

Excerpt: ...y as to his own losses and hardships (objections 1‐ 3), he does not establish personal knowledge with respect to the hardships and losses of other persons, including tenants and alleged customers (objections 4, 6‐8). With respect to what the appraiser did or did not consider (objection 5), Van Loon has not demonstrated personal knowledge. Further, Van Loon's testimony regarding whether the Property is located above the flood plain (objection ...

Excerpt: ...ssion, or control has been unequivocally Page 3 of 5 established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) Starlight contends that the questions concerning the allegedly dangerous condition of the property are immaterial, because the plaintiff testified that he slipped on something, not that he tripped on a stair. That argument fails, because the defendants addressed the issue of potential...

Excerpt: ... days. The case management conference is continued to October 28, 2020, at 8:30 A.M. in this department. Page 3 of 6 Analysis: No. 1: The plaintiff seeks to strike the phrase “and meal and rest period premiums” in the general allegations section. (TAC p. 9:26 in ¶37.) This phrase is not alleged to be specific to any particular claim. Without a showing that the phrase is irrelevant to every claim alleged in the TAC, the motion is denied. No. ...

Excerpt: ...: In the event of a breach of any provision of this Agreement, including re‐filing or realleging the same claims and/or parties being released, the alleged 2011 amendment, the alleged 2015 amendment, or any other contest to the 2009 KFT, may give rise to damages for breach. In an action to enforce any term or terms of this Agreement or to seek damages for breach of this Agreement, the prevailing party in that action shall be entitled to recover...

Excerpt: ...le a pleading in response to the First Amended Complaint no later than October 20, 2020. Analysis: The documents of which the plaintiff asks the Court to take judicial notice are irrelevant to the issue presented by this motion. Cooke does not deny that he lives at the Serrento Drive address, only that he was served at that address. Therefore, the request is denied. The defendant's objection to the Bradford declaration is sustained because the fa...

Excerpt: ...idence of any past or future loss of income or earning capacity of Carla Alvarez for any purpose, at trial or at any hearing, without leave of court, and that any motion seeking leave to rely on such evidence must be heard no later than 90 days before the initial trial date. The plaintiff's motion to quash the subpoenas served by the defendants on Blue Cross of California, and Blue Shield of California is denied to the following extent, but other...

Excerpt: ...and ratification by any of the three demurring defendants. Vague allegations that the “District” knew of the alleged assaults is insufficient. Because such facts might exist, the Court grants leave to amend. As to the fifth cause of action for negligent supervision, that is a theory of liability against employers who hire or retain an incompetent or unfit employee whose characteristics might pose a danger to persons the employee is expected t...

Excerpt: ...he hearing, as required by RSC Local Rule 3116, the Court dismissed the action on August 2, 2019. Over 10 months later, on June 6, 2020, the plaintiff moved for attorney's fees pursuant to the settlement agreement with the defendant. The court to which the motion was assigned denied Page 4 of 4 the motion on the ground that the action had been dismissed. The plaintiff now moves for an order vacating the dismissal. The defendant contends that the ...

Excerpt: .... Analysis: “Except as provided in (b), an opinion of a California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).) Neither of the exceptions in subdivision (b) apply in this instance. Therefore, the plaintiff's reliance upon the Court of Appeal's unpublished opinion in Doe v. GlobalLogic, Inc., 201...

Excerpt: ...ant to Code of Civil Procedure section 394. The only disputed issue is the identity of the neutral county to which it is to be transferred. A neutral county is one “other than that in which the defendant resides, or is doing business, or is situated.” (Ibid.) The defendant offers no evidence that the counties to which it requests a transfer, Los Angeles and Orange, are neutral counties. The only evidence it offers is the declaration of Fletch...

Excerpt: ...dition, the Court does not consider the declaration of the plaintiff filed August 17, 2020. Page 3 of 3 The plaintiff's request for oral testimony at the hearing on the demurrer is denied. The general demurrer of the County of Riverside to the First Amended Complaint is sustained. The proposed order is signed. The plaintiff has leave to file a second amended complaint provided that she does so within 30 days of the date of this hearing. Any secon...

Excerpt: ...le a sur‐reply exists under any statute, rule, or case law. Nor was leave of court sought or granted in this particular instance. Accordingly, the sur‐reply will not be considered. A motion to quash a subpoena may be granted on the ground that the matters sought to be discovered are privileged, protected, or beyond the scope of discovery. (CCP §§ 1987.1(a); 2017.010; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 929.) “At a hearing on a...

Excerpt: ...al demurrer to the fifth cause of action is overruled. Analysis: The defendants claim that the second cause of action is uncertain. The Court disagrees. Although the title of the complaint refers to the second cause of action as being one for “hostile work environment/retaliation in violation of FEHA,” the cause of action itself is expressly entitled as one for a “hostile work environment.” That inconsistency does not render the cause of ...

Excerpt: ...ty” (id., subd. (a)) and states the general rule that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding” (id., subd. (b)). In proceedings under the Probate Code, cost recovery is within the discretion of the court: “Unless it is otherwise provided by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal may, in its discretion, order costs to ...

Excerpt: ...e the issue of enforceability of arbitrability to the arbitrator. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891‐892.) To be effective, the language “must be clear and unmistakable” and that there is no “contract defense such as fraud, duress, or unconscionability.” (Id. at 892, 894.) The arbitration agreement contains a delegation clause that provides: “The Arbitrator shall have exclusive authority to resolve any dispute ...

Excerpt: ...x. 3), the Design‐Build Contract (Ex. 4), Assembly Bill 2098 (Ex. 6), State regulations (Ex.7), and Index to Plans and Construction Sequence (Ex. 9). It is denied as the Falsework Manual (Ex. 5) and the Bridge Construction Manual dated April 30, 2008 (Ex. 8). Page 3 of 9 EVIDENTIARY OBJECTIONS Plaintiffs' objections are sustained as to Nos. 2, 42, 44‐62, 71, 72, and 80, and overruled as to Nos. 1, 3‐41, 43, 63‐70, 73‐79, and 81‐89. Ac...

Excerpt: ... four corners of the complaint. The case management conference is continued from 9‐ 22‐20 to 10‐20‐20 at 8:30 A.M. in Dept. 1. Analysis: The general demurrers are sustained because there is no allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty t...

Excerpt: ...t cannot take judicial notice of the truth of what Zellers said. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569.) Since the fact that Zellers said these things is not relevant to this suit, the declarant is irrelevant, and judicial notice is denied. Without the evidence that Zellers's factual representations are true, the factual foundation for the motion is lacking. 2. The description of the area in which burials are proposed to be en...

Excerpt: ... the complaint. The case management conference is continued to 9‐28‐20. The plaintiffs and plaintiffs' counsel, Knight Law Group, LLP, are sanctioned $150, jointly and severally, for the failure to appear at the 6‐9‐20 CMC, payable to the clerk of the court within 20 days. Analysis: The general demurrer is sustained because there is no allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fr...

Excerpt: ...use as to why sanctions should not be imposed on the plaintiff for the failure to dismiss the settled action. The OSC was returnable on 1‐15‐20, and expressly defined “sanctions” to include dismissal. The OSC also advised the plaintiff that RSC Local Rule 3116 required the plaintiff to file a declaration five calendar days in advance of the return date in order to avoid any sanctions. Five calendar says before the return date of the OSC w...

Excerpt: ...ning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 895‐896.) “One who willfully consumes alcoholic beverages to the point of intoxic...