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...

Excerpt: ...mply with California Rules of Court, rule 3.110, and RSC Local Rule 3116. Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), Jeremiah Raxter is ordered to pay $1,000 to the State Bar Client Security Fund no later than September 20, 2019. Proof of that payment shall be filed with the clerk of the Court no later than September 30, 2019. Because this case is no longer at issue, the trial setting conference previously set for Aug...

Excerpt: ...ely to find that the defendant is at least partially responsible for the accident because the defendant did not avoid hitting the plaintiff. As long as the degree of fault assigned to the defendant is greater than zero, the jury will need to determine the amount of damages suffered by the plaintiff. If the jury is likely to need to determine the damages issues regardless of the likely decision on the liability phase, the promised efficiencies res...

Excerpt: ...t 30, 2019, to early February of 2020 is denied. The Court extends the discovery cut‐off to August 16, 2019. Analysis: The request to continue the MSC is moot, because that MSC was scheduled for and was conducted on July 29, 2019, two days ago. The parties represent that the requested trial continuance will permit the plaintiff to undergo surgery and allow the defendants to complete their discovery concerning both the plaintiff's physical condi...

Excerpt: ...t to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. Application of this rule to construction subcontracts is well established. For example in Miller v. Brown (1955) 136 C...

Excerpt: ...e called in the two proposed phases of the trial, and (3) the extent to which the defendants have conceded causation. The plaintiff's supplemental memorandum shall clarify the division of issues between the two proposed phases of the trial: liability and apportionment of comparative fault in the first phase, and causation and quantification of damages in the second? Or something different? In either event, the proposed order shall be revised to i...

Excerpt: ...alysis: Lee's unfounded assumption that he was free to wait until the date of the case management conference to file the proof of service is refuted by California Rules of Court, rule 3.110(c), which required the proof of service to be filed concurrently with the cross‐complaint. It was Lee's failure to do so that prompted the Court to issue its OSC. Similarly, Lee's unfounded assumption that he was free to do nothing in response to the OSC unt...

Excerpt: ...e application for continuance based upon the plaintiff's alleged refusal to appear for a properly noticed IME. Analysis: The defendant does not explain how the plaintiff's decision to represent himself will prevent the case from being ready for trial on August 2. The defendant does not describe the discovery that it needs to complete prior to trial, does not explain how long it will take to complete that discovery, and thus does not explain why t...

Excerpt: ...t to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. Application of this rule to construction subcontracts is well established. For example in Miller v. Brown (1955) 136 C...

Excerpt: ...ans despite knowledge of when the trial was scheduled to occur, there is no good cause. If the defendant was never informed by his counsel of when the trial was scheduled to occur, there is no good cause. In addition, the extent of the defendant's unavailability is unclear. Both the declaration and the stipulation state that the defendant will be out of the country through September 31. No such date exists. As to the plaintiff's future surgeries,...

Excerpt: ...concedes, however, that the defendant nevertheless has a due‐process right to participate in the trial. In the Court's 4‐19‐19 order, it had noted that “[t[he defendant has previously been convicted of committing the conduct of which the plaintiff complains. That conviction was recently affirmed by the Court of Appeal. Accordingly, it appears that the defendant's liability is established, and the only issues left to be decided are those o...

Excerpt: ...otion for reconsideration. The motion fails to comply with Code of Civil Procedure section 1008. Second, the motion also fails on the merits. The plaintiff moves for preference under subdivisions (d) and (e) of section 36. Both theories are unsupported. Subdivision (d) requires “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of ...

Excerpt: ...court consolidated Salto's action with RIC1706150 and issued an OSC why any party who is not at‐issue should not be dismissed, returnable on January 3, 2019. Mr. Drouet, Salto's counsel, had appeared at the hearing and was given responsibility for serving notice of the OSC. (See minutes of October 3, 2018.) There is no proof of service of any such notice. Page 2 of 2 Defendant Cacares was dismissed by the Court when Salto failed either to reque...

Excerpt: ...itial CMC was November 7, 2018. The plaintiff failed to deposit any jury fees on or before that date. Nevertheless, the plaintiff's application for a further fee waiver has been granted. Although it was not granted as to jury fees, that partial denial was only because the right to a jury trial had been forfeited. The entitlement to a fee waiver excuses the plaintiff's failure to timely deposit those jury fees. ...

Excerpt: ...directed to both dismissals, it fails as to the dismissal of Li as a cross‐defendant. As to the dismissal of Li as a defendant, there is still no valid proof of service. The proof of service attached to the motion as part of exhibit C suffers from two problems. First, it is directly contradictory to Exhibit B. Exhibit B states that the summons served on Hertz said the person served was served on behalf of Hertz Vehicles LLC in the care of Jiong...

Excerpt: ...�issues” is not good cause for a trial continuance. The “declaration” of Mr. Vosburg is not signed under penalty of perjury, and thus is not considered. Even if it were to be considered, there is no showing of diligence, because the injury occurred in January 28, 2019. Nor is there any evidence of why a different attorney cannot conduct the trial, or why efforts to find a different trial attorney have not been made. ...

Excerpt: ...dence. In resisting the motion, the plaintiff contends that the deposition would be burdensome because he has no recollection of the accident that resulted in his injury and because he is incompetent to testify on any other subject. The Court is not persuaded. As to whether the plaintiff has any recollection, the defendants are entitled to test his memory themselves, without relying on the opinion of plaintiff's counsel or of Drs. Nudleman and Me...

Excerpt: ...or preliminary approval on June 6, 2019, at 8:30 A.M. in Department 6. 1. The motion fails to comply with CMO#2 in at least the following respects: a. Fails to provide the Compliance Chart required by § H.3.l. b. The declaration of Jusuf fails to state the total potential recovery, as required by § H.3.a.ii; fails to estimate the likely recovery at trial, as required by § H.3.a.iii; fails to state the average individual distribution and the ra...

Excerpt: ...cause it suggests that the class members must have worked for the defendant during the entire class period. It shall be modified by inserting “at any time” before “from December 8, 2013,” as was done in part 3 of the Notice. 2. Regarding the proposed order: a. ¶ 18 shall be modified to delete the sentence at lines 12‐14, which is redundant to ¶ 15. b. ¶ 19 of the order must be modified to limit its scope to actions between the partie...

Excerpt: ...ended allegations were discovered, and rule 3.1324(b)(4), concerning the reasons why the request for amendment was not made earlier. Here, the plaintiff notified the LWDA of her claims against the defendants by letter dated July 25, 2018. The plaintiff could have filed a PAGA action 65 calendar days later. (Lab Code § 2699.3, subd.(a)(2)(A).) Thus, it appears that the plaintiff discovered the facts supporting her PAGA claims sometime prior to Ju...

Excerpt: ...324(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.” The second motion fails because it does not comply either with rule 3.1324(b) or with the Court's dir...

Excerpt: ...at website. 2. The declaration of Hammond is not executed in accordance with Code of Civil Procedure section 2015.5. 3. The Court has no objection to delivering unclaimed funds to the New Media Rights program at California Western School of Law. However, the Court is concerned about section III.G.2 of the agreement as modified, to the extent that it requires a second distribution to the class members before any distribution to the cy pres so long...

Excerpt: ...tion on September 5, 2017. The instant motion is an improper attempt to reconsider the denial of the earlier motion. Code of Civil Procedure section 1008 provides that reconsideration may be granted only upon new or different facts, circumstances, or law. Not only must the motion be based upon different facts or law, but it must also satisfactorily explain why that law or those facts were not presented at the time of the earlier hearing. (Baldwin...

Excerpt: ... 1‐9‐19 hearing]: ‘The CMO requires that the release by participating class members (other than class representatives) be limited to the claims stated in the complaint and those based solely upon the facts alleged in the complaint. Plaintiffs do not explain why the release exceeds that limit by purporting to release “any and all claims, that were or could have been alleged in the Lawsuit. In addition, the release requires a waiver by the ...

Excerpt: ...t is not enough when the action being settled is a representative action the settlement of which requires court approval. Any information that the court relies upon when deciding whether to approve the settlement should be in the publicly accessible record. The defendant's reliance upon Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481 is misplaced, because the settlements there were not of class or other representative ac...

Excerpt: ...urt, rule 2.108. No declaration in support of that motion shall be attached as an exhibit to any other declaration. Analysis: 1. Plaintiff's motion is in violation of Cal. R. Ct. 2.108 which requires line spacing of 1.5 or 2.0. Plaintiff's nine page memorandum is single‐spaced, thereby effectively getting around the 15 page limit under Cal. R. Ct. 3.1113. 2. The numbers described in ¶ 2 of the settlement do not match the memorandum (p. 5) or p...