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...